Court rulings

Publishers will appeal district court's decision in e-reserve copyright case

Smart Title: 

Publishers say they will appeal district court ruling on landmark Georgia State copyright case, raising the stakes on a case that could set bar for fair use and digital library reserves.

Another spin on Georgia State copyright ruling (essay)

Keeping the costs of textbooks and other learning tools as low as possible for today’s college students is a goal almost everyone can agree upon. How to accomplish that goal, however, is another matter entirely.

And pursuing that goal in the courts, where sweeping decisions can render in a minute what might otherwise take years to implement, is risky at best and counterproductive at worst.

Sometimes, however, savings for students can be found in the most unlikely of places. To prove my point, take a close look at Cambridge University Press v. Becker, widely known as the Georgia State University (GSU) E-Reserves case, initially ruled upon three months ago by U.S. Federal District Court Judge Orinda Evans, who issued a further ruling last Friday.

Most of the press coverage of Judge Evans’s ruling concentrated on its delineation of the many ways that colleges can continue to cite the doctrine of “fair use” to permit their making copies of books and other materials for use in teaching and the pursuit of scholarship. And, to be fair (pardon the pun), in 94 of the 99 instances claimed by academic publishers such as Cambridge, Oxford and Sage to be violations of copyright, the judge did rule that GSU and its professors were covered by fair use.

But in its fair use assessment, the court made two important rulings: (1) it created a bright line rule for the amount of text that can be copied; and (2) it established that when publishers make excerpts available for licensing (particularly in digital form), the publisher has a better chance of receiving those licensing fees (i.e., it is less likely to be held fair use). With regard to the first ruling, the key point is that the guesswork has been taken out. Specific amounts (10 percent of a book if less than 10 chapters, or 1 chapter of a book if more than 10 chapters) allowable for copy have been set.

The second ruling is even more significant. At first glance, it might seem that licensing “fees” have negative ramifications for students, as they would now be forced to “pay” for materials that would otherwise be “free.” But the nuanced reality of the ruling, at least in my view, is that this will actually do more to keep student book prices down than the commonly accepted benefits of fair use.

Here’s why: without this finding, many small and mid-size academic publishers might otherwise be priced out of participating in the higher education market and a handful of larger textbook players could multilaterally decide to raise prices within their tight but powerful group, serving to hurt students’ pocketbooks in the process.

However, the ability for all publishers -- small, medium and large -- to sell excerpts that are “reasonably available, at a reasonable price” levels the playing field for suppliers of content. This then leads to a pricing scheme that rewards the creation of effective units of content, meaning that students are paying only for what is most relevant to their studies, and not the extra materials that inevitably become part of comprehensive textbook products.

Disaggregation of content therefore, is not a license to charge students for materials that would otherwise be free. Instead, disaggregation is an enabler of the provision of targeted, highly relevant content that, in the end, may actually cost students less than their purchase of more generalized materials that often include content not taught in a particular class.

The pricing of disaggregated content is, to be sure, set entirely by the publisher. But a publisher faced with an opportunity to amortize a portion of its intellectual investment through what is, in effect, a “permission fee” per student or to hold fast to a view of “buy the entire book or nothing at all” will, I am fairly certain, come to a quick realization that unit pricing is the way to go.

If “a small excerpt of a copyrighted book is available in a convenient format and at a reasonable price, then that factor [in the fair use assessment] weighs in favor of the publisher to be compensated for such academic use,” according to Judge Evans’s initial ruling in the GSU E-Reserves case. This not only stands in her recent ruling, it is reasonable because it incentivizes publishers to make their content more readily available to be licensed and it provides a mechanism by which academic institutions can take advantage of those licenses.

From the outset, the purpose of the GSU E-Reserves case, as brought by the plaintiff publishers, was to try to bring some judicial clarity to GSU’s practice of posting large amounts of copyrighted material to e-reserves system under a claim of fair use.

Now, with this latest ruling by Judge Evans, the copyright picture is beginning to clarify, but a healthy debate of the meaning of the ruling remains in order. As CEO of a company that strives to make available copyright-cleared units of content for professors to assemble into “best-of” books, I’ve just provided my take. What’s yours?

Caroline Vanderlip is CEO of SharedBook Inc., parent company of AcademicPub.

Editorial Tags: 

Appeals court sides with employee in U. of Tennessee religious bias case

Section: 
Smart Title: 

U.S. appeals panel overturns lower court ruling that Tennessee-Knoxville acted legally in firing Seventh-day Adventist employee who declined to monitor emergency help line during her Sabbath.

Minnesota Supreme Court upholds punishment of student over Facebook posts

Smart Title: 

State Supreme Court upholds right of University of Minnesota to punish mortuary science student for online posts, but ruling is narrow, easing concerns of civil liberties groups.

Appeals court rejects Tennessee Tech's rules on outside speakers

Smart Title: 

Federal appeals court says Tennessee Tech’s rules go too far in limiting the ability of those unaffiliated with the campus to promote their ideas there.

Appeals court rejects faculty union at U. of Illinois at Chicago

Smart Title: 

Appeals panel backs U. of Illinois contention that its tenure-track and non-tenure track professors can't have a single bargaining unit.

Federal appeals court decision might change faculty-student relationship

Smart Title: 

U.S. appeals court says U. of Oregon may have retaliated against former doctoral student who alleged sex bias in her graduate program; ruling could reshape balance of power between professors and grad students.

Supreme Court declines appeal on religious groups at public university

Section: 
Smart Title: 

U.S. Supreme Court declines to hear appeal of Christian fraternity and sorority denied recognition by San Diego State University.

Supreme Court upholds "ministerial exception"

Smart Title: 

U.S. Supreme Court ruling may make it more difficult for some employees to sue religious colleges.

Pages

Subscribe to RSS - Court rulings
Back to Top