Intellectual Property

What We’ve Learned From A Decade-Long Copyright Case -- And It’s Still Not Over

After watching a decade of litigation in this case, what lessons have been learned?

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Way back in 2008, copyright litigation began between academic publishers and Georgia State University. The case has had a long and winding path, with two bench trials at the district court, and two appeals to the Eleventh Circuit. Just last month, 10 years after the case began, the Eleventh Circuit again reversed the lower court and remanded the case back to the district court, which will now consider the dispute for a third time. After watching a decade of litigation in this case, what lessons have been learned?

Some background in the case: At issue is Georgia State University’s use of excerpts of copyrighted works in its electronic reserves or “e-reserves” system. Through e-reserves, professors could put excerpted material online for students to access. In April 2008, three academic publishers sued Georgia State University for the use of these works in the e-reserves system and Georgia State defended itself on fair use grounds. District Court Judge Evans ruled that only 5 of the 48 excerpts examined were infringing, finding that most instances constituted fair use. In October 2014, the Court of Appeals for the Eleventh Circuit reversed and remanded the lower court, directing Judge Evans to reconsider its fair use analysis. In particular, it directed Judge Evans to avoid using an “arithmetic” approach; Judge Evans had determined that if three fair use factors favored fair use, but one did not, 3>1 and fair use would prevail. Instead, the Eleventh Circuit directed Judge Evans to use a holistic approach. In March 2016, Judge Evans released her second opinion, assigning a particular weight to each fair use factor and finding that only 4 of the excerpts were infringing — that’s not a typo; Judge Evans found one less case of infringement than in her original opinion. Publishers appealed once again and the Eleventh Circuit heard oral arguments in July 2017. More than a year later, the Eleventh Circuit again reversed and remanded in what was a rather disappointing opinion given the length of time between argument and opinion. Once again, the Eleventh Circuit chides Judge Evans for using a “mathematical” approach, which occurred this time around by stating that each of the four fair use factors should be given “initial, approximate” weights of: 25 percent for factor one, 5 percent for factor two, 30 percent for factor three, and 40 percent for factor four.

So, what have we learned from this copyright case, which has lasted more than a decade, has had two bench trials and two appellate decisions?

The first thing that comes to mind is that this case has been a giant waste of time and resources. As we all know, litigation isn’t cheap, and I’d hate to be the ones paying the legal bills for either party. It is rather astounding that this case never settled, given a fairly sympathetic defendant that revised its e-reserves policy as a result of the lawsuit. It’s unclear what the publishers hoped to gain, particularly since the case will have relatively little effect as many institutions have since moved away from e-reserve systems. The precedential value at this point appears to be small.

In the first appeal, the motivations were clear: they wanted sweeping pronouncements and bright-line rules cabining in fair use. They didn’t get them.

For example, publishers initially argued in favor of bright-line rules, such as permitting fair use when the use constituted 10 percent or one chapter of a work with more than 10 chapters. The Eleventh Circuit rejected this arbitrary rule, noting that fair use determinations must be made case-by-case.

As I’ve noted before, much of the focus on fair use these days is whether a use is “transformative,” or used for a purpose different from the initial purpose. While I’ve seen numerous cases where copyright plaintiffs argue against the transformativeness test, here the publishers appeared to take a position that because the excerpts were used for the same purpose as the original—to inform about a particular subject—the use is non-transformative and not a fair use. The Eleventh Circuit confirmed that a non-profit educational purpose can still favor fair use even if a court finds the use is non-transformative.

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In the first round of the case, publishers also tried to argue that the general use of copyrighted material in e-reserves was infringing, but both Judge Evans and the Eleventh Circuit rejected this notion, instead affirming that fair use must be applied on a case-by-case basis. Rather than looking at the system wholesale, an item-by-item analysis for each copyrighted work must be undertaken to determine whether fair use applies.

Another issue that publishers lost on in the 2014 appeal was the idea any use without permission harmed their market. However, the Eleventh Circuit affirmed the district court’s decision to evaluate the availability of or failure to offer a license in the context of the fourth fair use factor: the effect of the use on the potential market.

The Eleventh Circuit’s second opinion changed very little, with the bulk of the opinion dedicated to the history of the case and only a few pages dedicated to analysis. Once again, the Eleventh Circuit notes that fair use analysis must be viewed holistically, and not use a “quantitative rubric.” The Eleventh Circuit makes some additional directions to the lower court — including a pronouncement that favors the publishers that price should not be considered in determining whether the third factor, the amount and substantiality of the portion used, favors fair use — and the case will go back once again to the lower court. Again, bear in mind that this case involves e-reserve usage from more than ten years ago, Georgia State has changed its e-reserves policy and many (or perhaps even most) institutions have moved away from the use of these types of e-reserves.

Should the publishers continue litigation against Georgia State University in this case, it’s unclear what they stand to gain from a copyright jurisprudence perspective (though perhaps they are seeking enough of a victory to avoid paying attorneys fees, as Judge Evans has ordered). They sweeping rules they wanted have long been rejected and even if Judge Evans finds a few more cases to be infringing — as the Eleventh Circuit clearly does want her to do — these would be relatively minimal victories. Instead, it appears that the idea of “sunk costs” of 10 years of litigation may be driving their motivations.

NB: The organization I work for has submitted amicus briefs in this long-running case. Any views expressed in this post, however, are my own.

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Krista L. Cox is a policy attorney who has spent her career working for non-profit organizations and associations. She has expertise in copyright, patent, and intellectual property enforcement law, as well as international trade. She currently works for a non-profit member association advocating for balanced copyright. You can reach her at kristay@gmail.com.

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