I've been following the Georgia State case in which publishers sued the university over e-reserves and am trying to read the tea leaves in the federal district judge's recent ruling on the motions to dismiss filed by each side. It looks like good news for now.
If you're unfamiliar with the case, here's the gist of it. Three large scholarly publishers - Oxford University Press, Cambridge University Press, and SAGE - sued officials at Georgia State University, claiming that the ways that course readings were being made available to students through electronic systems massively and systematically violated the publishers' copyright. This is an important case, because what Georgia State does is not unlike what most academic institutions are doing: making selected readings available to students either through library e-reserves systems, through course management systems, or both. Publishers feel somebody should pay if so many students have access to this literature. Librarians feel they are applying the four factor test carefully and paying permissions only when the factors do not support fair use - because we can't afford to pay over and over again just in case. Faculty want to expose their students to texts that are important to their courses but which are not included in textbooks, and asking students to pay for the privilege, article by article, would make that difficult if not impossible.
The motion filed by the publishers was denied entirely, and the motion filed by the university was denied in part, so the case will go forward, either to a settlement or to court. But the way the judge limited the scope of the case and the sympathetic hearing she gave to faculty using these systems gives me hope that we won't have a ruling that results in faculty having to limit their assigned reading to material that has been paid for by each student, each semester. The worst-case scenario that loomed would be a ruling that found our systems for making readings available were themselves contributory to copyright violation and therefore illegal or so inherently risky that we'd have to buy our way out of the problem, abandoning fair use as a part of everyday scholarly life. Any ruling that suggested the use of these systems was largely illegal would tamp down any impulse to say "here's a really interesting article on the topic we're discussing" or "you really should become familiar with this classic essay, even though it's not reprinted in your textbook." The cost to the student (or to the institution) combined with the hassle of purchasing permission would toss most of those texts off the reading list.
Kevin Smith of Duke University has a great recap of the ruling at his Scholarly Communications blog, pointing out that now the question of whether the systems are themselves a tool of infringement is off the table, and the judge has found that the policy that guides decisions at GSU is not encouraging infringement, the issue will be whether the university is properly implementing that policy. So in a sense we'll all be back where we started: examining every uploaded item to see if it meets the four factors test of fair use or not.
The risk that we have been facing is hard to overestimate. Using these systems to introduce students to primary research in the disciplines has made it possible to engage them in discussions that go far beyond what would be possible using textbooks or available anthologies. The authors of these texts are not harmed when students read their work; if anything, their reputations are enhanced. The only thing that is threatened is a revenue stream that doesn't actually exist: payment for readings that didn't used to be assigned. Yes, the use of course packs, and the revenue generated by paying permissions for texts included in them, has no doubt declined, but faculty testified that they simply wouldn't assign most of the readings if they had to be paid for, piece by piece; students are understandably resistant to paying more than the hundreds of dollars per semester they already pay for textbooks.
I decided to look for any statement from the three publishers who initiated this lawsuit to see what they say about their purposes. This is what I found:
- Oxford University Press "furthers the University's objective of excellence in research, scholarship, and education." (They also like to say "we're the biggest!")
- Cambridge University Press "to further the University's objective of advancing knowledge, education, learning, and research." ("We're the oldest!")
- SAGE "believes passionately that engaged scholarship lies at the heart of any healthy society and that education is intrinsically valuable." ("Digging the social sciences for 45 years!")
It's hard to see how suing universities whose faculty members want to share knowledge with their students is advancing knowledge, or to believe that the imposition of more cost on students or on the libraries that try to support their learning will make society any healthier. We clearly need a new way of funding publication costs if these publishers have a genuine interest in furthering knowledge and education.
Incidentally, if you're wondering where all that money for permissions goes, the ruling offers a hint. The Copyright Clearance Center, an organization designed to collect permission fees on behalf of publishers, is paying half the plaintiff's costs. Your permission dollars are at work.