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Going to school at Georgia State!

By Georgia Harper

As I've suggested before, we don't really have much direct information from the courts, which have the last word on this matters, about what constitutes fair use in an educational setting. The perambulatory language of Sec. 107 mentions "teaching" as an area of special sensitivity, and the statutory first factor appears to single out uses for "nonprofit educational purposes" as favored ones. But that's about all we know - at least for now. Litigation pending in federal court for the Northern District of Georgia (Atlanta) may soon change that. What, then, can we learn from Judge Orinda Evans' September 30 Order disposing of cross-motions for Summary Judgment in the "E-reserves case," Cambridge University Press et al. v. Mark P. Becker, the Georgia State University's President, in which a variety of other school officials (including librarians) and Regents also were named as defendants "in their official capacities"? For one thing, it puts on display some of the potential pitfalls that face copyright plaintiffs who square off against state schools that enjoy the benefit of sovereign immunity under the Eleventh Amendment; I'll have more to say about that shortly. For another, the decision provides a road map of how this potentially important controversy is likely to go forward, and I have a thought on that as well. The most important take-away, however, is that institutional copyright policies that lay out ways for faculty (and others) to understand which of their activities are - and aren't - within "fair use" matter a lot! So let's begin there. Judge Evans leaves no doubt that GSU's new 2009 Copyright Policy, based on a self-evaluation checklist originally developed by Kenneth Crews (currently at Columbia University and also an expert for the defense in this case) is at the very heart of the dispute. That's because - thanks to the Eleventh Amendment and sovereign immunity -- this action must be limited to prospective injunctive relief against the school's policies, rather than damages for anyone's past conduct. So (according to Judge Evans) only the current policy is at issue - if it's adequate, then the plaintiff publishers simply have no case. This much, at least, seems pretty straightforward. From here on, however, things get a bit less clear. It's important to emphasize that this decision does not dispose of the litigation, or even pass final judgment on the 2009 policy. But it does contain some fascinating hints, in connection with the discussion of various forms of infringement liability school official might potentially face. In effect, the judge concludes that the most likely basis on which there could be liability in case like this one is so-called "contributory infringement" - which exists when one person knowingly encourages another to infringe. Thus, the decision suggests, the proper role of university officials in this area isn't to police e-reserves sites to eliminate all infringing content. That role is, according to Judge Evans, to provide sound, actionable fair use guidance (including but not limited to institutional policies) to members of the university community -- especially faculty. Thus, the judge notes that "The 2009 Copyright Policy on its face does not demonstrate an intent by Defendants to encourage copyright infringement; in fact, it appears to be a positive step to stop copyright infringement" (noting that the policy "seems comparable to, and in many cases far more comprehensive than, the copyright policies instituted by other colleges and universities" ). While making clear that the proof of the pudding is in the eating -- stating that those who "formulated the ... Policy are also responsible for overseeing its implementation" -- the Judge shows a clear predisposition for a thoughtful process-based approach to fair use decision-making. Is this the only kind of institutional fair use policy that would or could pass judicial muster? Pretty clearly, the answer to that question must be "No"! What's interesting here isn't that Judge Evans has singled out a particular policy for praise, but that she's clearly indicated to a policy that outlines a thought process by which university employees can arrive at responsible decisions about whether there activities are fair uses, rather than one that provides bright-line "dos and don'ts" can qualify as sufficient. And this suggests that there is work to be done on further developing and evaluating approaches to designing and implementing process-based institutional policies in this area. Would the plaintiffs have had a better shot if they had sued a private university, which didn't enjoy the benefits of sovereign immunity? Or if they had named individual GSU faculty members as defendants, along with officials and administrators? Perhaps, or perhaps not. On the one hand, this strategy might have permitted the plaintiffs to reach back and bring some get pre-2009 policies and conduct under them before the court. On the other, it seems clear that whatever defendants were named, this judge would have limited the liability of school officials to whatever they had done to enable or encourage infringement - so-called secondary liability -- rather than tagging them with direct responsibility for the activities of faculty. Once again, the issue would come down to the adequacy of institutional policies to forestall infringement, and their implementation. So where will things go from here? In the next phase of the litigation, as envisioned by Judge Owens, plaintiffs will have to single out uses that they believe demonstrate that infringement took place under Georgia State's 2009 policy, and the defendants will need to argue for their fairness. On this basis, it seems, the court will assess (if it ever comes to this) whether the policy works! The standard, presumably, won't be whether reliance on the policy has eliminated all infringement, but whether or not it has kept infringement within some, as yet undefined, reasonable limits. The court puts it this way: "Plaintiffs must put forth evidence of a sufficient number of instances of infringement ... to show ... ongoing and continuing misuse [of the fair use defense]." "Misuse" sounds like a standard that pegs the required level of proof pretty high, though exactly how high remains to be seen. Presumably, the larger the "sample size" the more convincing this demonstration will be. On the other hand, there will need to be some check on possible "cherry picking" by the plaintiffs - i.e. focusing on perhaps atypical cases in which faculty armed overstepped the bounds of fair use, while ignoring those in which they did not. From a procedural standpoint, however, it isn't clear how this will be accomplished. What that ruling sets up, in any event, is a proceeding in which a relatively high number of individual faculty decisions to post materials on e-reserves will be scrutinized with some care. Having to litigate the specific fair use bona fides of a relatively large number of particular educational uses presumably is not the course that the plaintiffs in this litigation were looking forward to having to pursue. But it now will be hard to avoid, since it seems doubtful that they will have any basis to appeal Judge Owens' ruling on summary judgment at this point. And we will all be the beneficiaries, in the sense that we will know more about questions like these: Can educational use of an excerpt from a general non-fiction book, or of a scholarly article, be "transformative,", in that the teacher repurposes the borrowed content and adds value to it by placing it in the specific context of a course syllabus? Does it matter whether the material is offered to students as a reading for class discussion, or as background? And how is the appropriate length of such an excerpt to be gauged? Whatever the outcome, we could learn a lot from Georgia State!

Full post as published by ©ollectanea on November 03, 2010 (boomark / email).