A Proposed Order, Fair Use Guidelines, and the GSU Litigation

Copyright lawyers are looking forward to the soon-to-begin trial in Cambridge University Press v. Becker, the case challenging reproduction and distribution practices regarding course reserve and classroom materials at Georgia State University.  The legal issue remaining in the case is the university’s contributory liability for alleged primary infringement, but ground down to its essence, the case will test the legitimate scope of fair use in an academic setting, especially with respect to electronic reserves (e-reserves).

The litigation has been moving along for a while, but with the trial set to begin on Monday, new filings are bringing out some interesting detail.  This post highlights the plaintiff copyright owners’ request for relief, that is, the proposed injunction.

Here’s a link to the text of the proposal.

Here’s one unhappy blog post, at the blog of the Association of Research Libraries.  Here is a second unhappy blog post, from Duke’s “Scholarly Communications Officer.”  (I put the title in quotation marks because it is so unusual.)

The title of the second post captures the spirit of the thing:  “A nightmare scenario for higher education.”

The plaintiffs are asking the court to impose a remedy that would require that virtually all copying, distribution, and use of copyrighted material be authorized by copyright owners and that would limit claims of fair use by the university, its faculty, staff, and students to the parameters of the 1976 Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with respect to books and periodicals. See p. 6 of the linked document, which recites the text of the guidelines — which themselves note:

The purpose of the following guidelines is to state the minimum and not the maximum standards of educational fair use under Section 107 of H.R. 2223. The parties agree that the conditions determining the extent of permissible copying for educational purposes may change in the future; that certain types of copying permitted under these guidelines may not be permissible in the future; and conversely that in the future other types of copying not permitted under these guidelines may be permissible under revised guidelines.

Moreover, the following statement of guidelines is not intended to limit the types of copying permitted under the standards of fair use under judicial decision and which are stated in Section 107 of the Copyright Revision Bill. There may be instances in which copying which does not fall within the guidelines stated below may nonetheless be permitted under the criteria of fair use.

An order based on the Guidelines would be bad enough, in part because the proposed order so obviously misreads their text.   The Guidelines were meant to be a minimum, and an evolving minimum, not a maximum, and certainly not a permanent minimum or maximum.  In 1976, Sony’s Beta standard had just been released; the Betamax lawsuit was a long ways off.  What makes the proposed order worse is the proposal that the university, faculty, staff, and students adhere to a 90/10 rule:  No more than 10% “of the total reading (whether assigned, required, suggested, supplemental, or otherwise) for a particular course” could be un-authorized.  How, exactly, would this be monitored and administered, and by whom?  Copyright lawyers suspect that the answer may lies in deals with the Copyright Clearance Center, which is supporting the plaintiffs’ case.

We’ll see what the trial brings. Whatever its outcome, will faculty members be motivated to learn a bit (more) about fair use, the public domain, open access, and Creative Commons licenses?