A decision has come down in the Georgia State University e-reserves case, which we’ve covered here, here, and here. The case concerned electronic compilations of course material that professors bundle together from books in situations where they would not be using enough material from a particular book to make it worthwhile for students to buy it. A number of publishers objected to the practice, and filed suit against Georgia State University. (Presumably if the suit was successful, they could then have gone after other universities over the same practices.)
The judge has spent a great deal of time working through all the materials in the case and finally crafted a whopping 350-page decision (PDF). She found that 95% of the cases the publishers cited were indeed fair use, applying a standard of 10% of a book’s overall content, or a single chapter as a yardstick for the amount. Though the judge did have a couple of criticisms of it, she found that GSU by and large did make a good faith attempt to comply with copyright law in its interpretation of fair use.
Kevin Smith, Duke University’s Scholarly Communications Officer, writes:
In general I expect librarians to be happy about the outcome of this case. It suggests that suing libraries is an unprofitable adventure, when 95% of the challenged uses were upheld. But there will also be a good deal of hand-wringing about the uncertainties that the Judge has left us with, the places where we need information we cannot reasonably obtain, and the mechanical application of a strict percentage. We will spend considerable time, I think, debating whether and how to implement Judge Evans’ rules into our own copyright policies. In the meanwhile, of course, the ruling is nearly certain to be appealed.
By and large, this is a “win” for fair use. As Smith says, it will probably be appealed, but given how thoroughly the judge seems to have applied the traditional four-factor test, it’s not clear whether appeals courts will have any way to gainsay her (though since I’m not a lawyer, I could certainly be wrong).
It’s worth bearing in mind that fair use is a defense, not a “right” in a legal sense. Publishers can still sue you for anything, and it’s then left up to a judge to decide whether what they sued over is a fair use. So the decision, even if upheld, will not directly prevent the publishers from suing again over similar issues—but it will set a precedent that will make it that much harder for them to win, which means they may decide it’s simply not worth the hassle.
(Found via The Digital Reader.)