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Publishers' Fallback Position

June 4, 2012

In an attempt to make the best of a court ruling that largely disappointed publishers, the plaintiffs in a high-profile copyright case have proposed a new framework for determining when professors should be allowed to make electronic excerpts of copyrighted works available to students for free.

The plaintiffs in Cambridge v. Patton, a four-year legal battle between the Association of American Publishers and Georgia State University, last week filed a proposed injunction with a U.S. District Court that would prohibit Georgia State professors from making unauthorized copies that are not “narrowly tailored to accomplish the instructor’s educational objectives” and do not “constitute the ‘heart of the work’ ” from which they are excerpted, among other criteria.

In addition, the publishers have asked District Court Judge Orinda Evans to require that Georgia State’s revised policy on electronic reserves compel professors to “investigate the availability of digital permissions before it may determine that a proposed use of an excerpt of a work is protected by the fair use doctrine.”

In her ruling last month, Judge Evans rejected the vast majority of the publishers' complaints against Georgia State's e-reserve practices. But because she found a handful of cases that did, in her opinion, overstep the boundaries of fair use, the judge asked the publishers to propose an injunction that would address those violations.

Strictly speaking, Cambridge v. Patton only pertains to e-reserve practices at Georgia State. However, given the ambiguity over the boundaries of educational fair use with respect to academic libraries, many observers expect that the resolution of the case will cause ripple effects in e-reserve policies across the country.

As with the last proposed settlement by the publishers, this new proposal is likely to ruffle feathers among academic librarians. 

"The proposed order is clearly intended to humiliate [Georgia State] and to make fair use as difficult as possible for them," wrote Kevin Smith, scholarly communications officer at Duke University, on his blog. "It reads to me like a party who actually won very little at the trial still trying to spike the ball in the other parties’ face."

In her decision last month, Evans identified the impact of unauthorized copying on the market for a particular work as a crucial factor in determining whether an authorized copy is permissible under the “fair use” exemptions to copyright law. The fact that there was no easy way for professors to license portions of the works in question strengthened Georgia State’s position. But the publishers say that they and their distribution partners made great strides on the availability of digital licenses while the case was being adjudicated.

By proposing that Georgia State formally prohibit their professors from copying excerpts that qualify as the “heart” of a larger work, the publishers are addressing another sticking point of the judge’s ruling.

In her decision, Evans wrote that unauthorized copies of 10 percent of a work were most likely permissible — a standard that many librarians have read as a blanket exemption for all copying that does not exceed that threshold. But, seizing another passage in Evans’s decision, the publishers are emphasizing that there are exceptions to the 10-percent rule.

“As the court correctly noted, under the third fair use factor the copying of even very small excerpts may be outside the permissible bounds of fair use if the excerpt is the 'heart' of the copyrighted work,” the publishers’ attorneys wrote in their proposed injunction. "Accordingly, this provision is included as an additional, non-quantitative check against infringing uses of plaintiffs’ works.”

The publishers are asking the court to require Georgia State to “take all appropriate steps to modify its existing copyright policies governing the activities … so as to comport with all aspects of this order” within 45 days. Georgia State will then respond, and then Judge Evans will take both recommendations into account when prescribing a framework for redressing the Georgia State policy. If she does not, the publishers wrote in a brief accompanying the proposed injunction, the plaintiffs reserve the right to appeal last month’s ruling.

In Smith's blog post, he argued that the publishers may not be correctly interpreting the judge's ruling with regard to excerpts that are central to a work. "These requirements are taken very closely from the analysis Judge Evans used, but they are shaped into a less flexible test than the judge actually employed," he wrote. "For example, in the one case where the use of the 'heart' of a work led to a finding of infringement by Judge Evans, that excerpt also exceeded her standard in terms of length (it was two chapters and 12.5 percent). Because the third factor did not favor fair use, the factors were tied, and the Judge looked at the issue of the centrality of the excerpt to break the tie. Thus she never actually asserted, as the proposed injunction would have her do (it connects length and centrality with a conjunction, not a disjunction), that an excerpt could be infringing if it was the heart of the work even if it was sufficiently short to meet her basic third-prong test."

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