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Issue Brief: Fair Use Decision Making Post-Georgia State

On October 17, 2014, the Court of Appeals for the Eleventh Circuit released its opinion in the Georgia State University (GSU) electronic course reserves (e-reserves) case, Cambridge v. Patton. The Eleventh Circuit rejected the publishers’ efforts to undermine e-reserve services and rejected bright line rules, finding that fair use is a flexible doctrine. Fair use decisions must be made on a case-by-case basis. The publishers advanced several arguments in an effort to undermine the use of e-reserves, all of which were rejected by the Eleventh Circuit. The Eleventh Circuit found that the Classroom Copying Guidelines did not carry the force of law or serve as a basis for fair use; fair use must be determined on a case-by-case basis and multiple uses of copyrighted works could not be aggregated; the first statutory fair use factor examining the purpose and character of a use favors a non-profit educational institution even in the context of verbatim copying; the “coursepack” cases were not binding on e-reserves; and consideration of the availability of licenses for a specific use was relevant in considering the fourth fair use factor on market harm.



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