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Are Electronic Course Packs Fair Use?

The Georgia State Electronic Course Packs Case Non-Decision

For the past ten years, in the Cambridge University Press v. Albert case, publishers have been battling with Georgia State University over whether the University’s providing its students with digital course packets that include excerpts (often full chapters) of books constituted “fair use.” Under court rulings in prior cases, the law was clear that providing photocopied course packs without a license was not fair use. In this case, however, the district court has already twice sided with Georgia State University, finding fair use on all but a few excerpts, and now the appeals court has again sent the case back down to it. On October 19, 2018, the Eleventh Circuit Court of Appeals vacated the district court’s second decision that the vast majority of Georgia State University’s digital excerpts were fair use, with instructions for how to get it right this time.

A Lost Digital Market

This case has been closely watched by authors, publishers, and universities as a measure for when excerpts for classroom use need to be licensed or not. In the intervening decade, many universities appear to have stopped paying for these types of electronic classroom uses. Authors who used to regularly receive licensing income from classroom use report that that revenue source has dried up in recent years. A favorable outcome in this case would put universities on notice that they should start paying for those uses again.

The decision is a win for publishers on its face, and importantly, reverses the trial court’s order forcing the publishers to pay Georgia States’ legal fees. Yet, the Eleventh Circuit still did not get the fourth fair use factor right, and failed to correct several of the District Court’s errors in applying the fair use defense.

What the Court Still Got Wrong

In the decision, the Eleventh Circuit found that the district court had committed error in conducting the four-factor fair use test by a) continuing to apply a mathematical formula weighing the four fair use factors and b) “revisiting” its initial analysis of the fourth fair use factor (the impact of the use on the market – or potential market) to find that that factor weighed in favor of a finding of fair use where it had previously found in favor of infringement. While we hope that the district court will follow the appellate court’s instructions better this time, the history of this case gives us reason to doubt that it will provide either publishers or universities with clear instruction going forward. Meanwhile, legal fees will continue to mount.

The Court Failed to Consider the Potential Markets

One of the major errors that the Eleventh Circuit failed to correct is the district court’s analysis under the fourth factor. The law describes the fourth factor as: “the effect of the use upon the potential market for or value of the copyrighted work.” As such, a fair use is one that should not replace a current or potential market for the work. The Supreme Court instructs courts conducting this analysis to look at the impact on current and potential markets if the use were to become widespread and unrestricted.

Instead, the lower court looked at whether the publishers already had electronic licenses available to universities in 2009 for excerpts for the specific works—an extremely narrow view of an existing market. The court also considered how much was paid for those licenses and then made its own judgements about whether the losses were so great that they would make the publisher choose not to publish. Looking at actual losses is more like a damages’ analysis for a particular infringement case; whereas under a fair use analysis, the court is supposed to consider what happens when everyone similarly situated makes the same use without paying. Moreover, the court’s rule that the taking must be so great that the copyright owner no longer has the incentive to write or publish was created out of thin air and would make pretty much any particular use fair use. Few individual uses will be so great that they will be the deciding factor in whether to publisher or not (or write for that matter); it is the cumulative effect of these free uses that makes it increasingly hard to publish material that is not highly commercial.

Of greatest concern to authors and other creators is the fact that the Eleventh Circuit failed to remind the lower court to consider the impact on potential markets from widespread use, and to remember that the relevant market to be considered is broader than a particular format. Whether the publishers had already made the particular works available for e-licensing for e-course packs should be irrelevant – yet the district court chose to focus on that point. Under the court’s analysis here, uses of copyrighted material that eliminate potential markets entirely—and thereby eliminate potential income for the authors as well as the publishers—may qualify as fair uses.

What the Authors Guild Has Done

The Authors Guild has submitted two amicus curiae briefs to the Eleventh Circuit arguing against the District Court’s misapplication of the copyright law. We focused on the second fair use factor in our first brief, arguing that academic works are creative works and that that factor thus should weigh in the plaintiff’s favor; a point that we more or less won. The Guild’s second amicus brief (when the case went to the Eleventh Circuit for the second time) focused mainly on the issues around the fourth factor, which are described above.

What Happens Next?

The district court must re-re-review the case and issue another decision, which might be appealed yet again. This case would be a good case for the Supreme Court to take up, since it could correct the (mis)analysis of the fourth fair use factor. But given the costs of the litigation and the fact the case is still boomeranging between courts after almost a decade, we are not holding our breath.  We will continue to monitor developments in this case and to urge court toward an accurate interpretation of the copyright law.