Forecast: Mostly Fair for the Foreseeable Future

No matter how you parse the four factors, we're winning on fair use when it comes to sharing excepts with students.

April 13, 2016

Back in 2008 three scholarly publishers – Oxford, Cambridge, and Sage – filed suit against employees of Georgia State University for posting excerpts of books in an e-reserves system without paying for permissions. This was obviously a case closely watched by librarians. When the original decision was handed down, I geeked out over it along with other librarians and lawyers. (It came out on a Friday afternoon. It was 350 pages long. Reader, we Tweeted it.) Essentially, it was fairly good news in that nearly all of the uses were fair – of 99 claims, only 5 were found to be infringing.  The judge had painstakingly analyzed every claim of infringement, applying the four factors used to determine whether a use is fair and reported exactly how she made those decisions.

These things are never quick and easy. The publishers appealed. A higher court thought the way the judge applied the four-factor fair use test wasn’t quite right, so they sent it back and she had another go at it, this time putting much more emphasis on the fourth factor, the potential for market harm. Once more, she looked at each claim of infringement very carefully, articulating her analysis for each of the claims of copyright infringement. This time around, 48 cases were analyzed (because for several, it turned out, the publishers lacked clear copyright claims) and the vast majority again were found to be fair uses, even with the changes in how the four factors were weighed. (Hat tip to Kevin Smith for writing up a cogent analysis quickly once again. Andrew Albanese has also covered the story for Publishers Weekly and Brandon Butler has written it up for ARL Policy Notes.)

It probably won’t end here. Look how tenacious the Author’s Guild is in appealing decisions about Google’s scanning of library books. That lawsuit has dragged on for a decade, now. No doubt more of our copyright clearance dollars will go toward these three publishers trying again with an appeal. That said, it’s an affirmation for libraries and for faculty who want to expose their students to short excerpts of works without requiring students to purchase an entire book or to add the cost of unnecessary permissions to their debt load (or to the library's incredibly shrinking budget). If these reserve items are at all typical, they’re most fair uses.

There are some ironies, here. Libraries are no longer the gatekeepers they once were for electronic reserves. Most faculty provide students with readings themselves, posting scanned materials in their course management systems, and it will be harder for publishers to chase down malefactors when they’re so widely distributed (and also potential authors who might get annoyed if poked with legal sticks). I also suspect that faculty are for the most part less well-informed about applying the four-factor test to determine whether a specific use is legal or not. They may also give less of a damn. When you think the purpose of publishing scholarship is to share knowledge, and when in your experience money from sales doesn’t play much of a motivating role in their contribution to the progress of science and the useful arts, copyright can seem like arcane red tape that doesn’t, somehow, apply when you want to share an article or a few pages of a book with students.

It’s also clear that those of us who have to apply the four factors test will never have the kind of detailed information available through discovery to the judge. For many readers of this GSU Part Deux decision, the most fascinating material is the financials associated with the excerpts in question – sales figures and permissions figures. In the final analysis, the judge clearly states that sharing excerpts of scholarly books that meet the four-factor test for fair use with students does not automatically discourage publishers from publishing those books and that simply having a mechanism in place for paying permissions doesn’t mean we have to forfeit those fair use rights.

Carry on with weighing those four factors. It’s not easy to do, but frankly it makes more sense to spend our limited budgets buying books for the library rather than paying for permission to use those books in courses when those uses are fair and legal - in the dwindling circumstances in which libraries actually handle e-reserves, police them for copyright infringement, and foot the bill for permissions. Nor does it make sense to pass those costs on to students, already struggling to pay for textbooks.

Too bad the money wasted on these cases wasn’t going instead toward developing robust financial models for creating sustainable systems for open access publishing. That's where the future lies.

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