Saturday, May 12, 2012

Georgia State On My Mind - Here's the 350 Page Judgment and a Few First Thoughts

The long awaited trial judgment in the Cambridge et al v. Georgia State et al copyright litigation has been delivered. HT to Ariel Katz.

The University prevailed in 94 of the 99 initially alleged infringements:

Of the 99 alleged infringements that Plaintiffs maintained at
the start of trial, only 75 were submitted for post-trial findings of
fact and conclusions of law.  This Order concludes that the
unlicensed use of five excerpts (of four different books) infringed
Plaintiffs’ copyrights. 

Result – as per the Court:


VI. Relief To Be Granted
In light of the findings of fact and conclusions of law
contained in this Order, Plaintiffs are DIRECTED to file, within
twenty (20) days of entry of this Order, the proposed text of any
injunctive and declaratory relief they seek, together with the
rationale supporting their request.  Alternative proposals are
acceptable.  Defendants may state their opposition, if any, and may
propose one or more alternative orders, within fifteen (15) days
after Plaintiffs’ filing.  If Defendants object to Plaintiffs’
proposal(s) or if Defendants suggest one or more alternative
order(s), the rationale shall be stated.  These filings shall not
exceed thirty (30) pages each.   


VII. Costs and Attorneys' Fees

Section 505 of the Copyright Act, 17 U.S.C. § 505 provides:

In any civil action under this title, the court in its
discretion may allow the recovery of full costs by or
against any party other than the United States or an
officer thereof. . . . [T]he court may also award a
reasonable attorney's fee to the prevailing party as part
of the costs.

Both sides have requested an award of costs and attorneys' fees
[Doc. 1 at 29; Doc. 415 at 47 n.18; Doc. 411 at 61-62]. Consideration
of these requests will be deferred until further order of the Court.

Fair Use?

Here’s the Court’s own summary of its findings on fair use at p. 86:

Summary of Fair Use Assessment
This case involves unlicensed copying of 75 excerpts from
Plaintiffs' copyrighted books for nonprofit educational use by
professors and students at Georgia State University in 2009. The
question whether this constitutes a permissible fair use is resolved
primarily by reference to 17 U.S.C. § 107 and the Supreme Court's
decision in Campbell. The Court must consider all of the statutory
elements of § 107; none may be overlooked. However, other factors
may be considered. There is no precise manner in which the elements
must be weighed in relation to each other; however, it is paramount
that all factors be weighed and considered “in light of the purposes
of copyright." Campbell, 510 U.S. at 578.

Because (1) the excerpts were used for the purpose of teaching
(including multiple copies for classroom use) and scholarship, as
described in the preamble to § 107, (2) the use was for a
noncommercial, nonprofit educational use, as described in § 107(1)
and (3) Georgia State is a nonprofit educational institution, fair
use factor one weighs heavily in Defendants' favor.
Because all of the excerpts are informational and educational in
nature and none are fictional, fair use factor two weighs in favor of

With respect to fair use factor three, the amount of the copying
as a percentage of the book varies from book to book. In determining
what percentage of a book may be copied, the Court looks first to the
relationship between the length of the excerpt and the length of the
book as a whole. Then, the relationship between the value of the
excerpt in relation to the value of the book is examined. The Court
also considers the value of a chapter in itself (rather than just a
few paragraphs). In the case of extra long books with a large number
of chapters, a limit on the number of chapters which may be copied is
appropriate. Professors may well have a legitimate educational
reason for wanting to use a chapter of a book; it is more apt to
contain a complete treatment of a particular topic or subtopic than
would a few isolated paragraphs. However, the convenience of using
whole chapters from an over-length book may lead to an undue amount
of unpaid copying in absolute terms.

Taking into account the foregoing considerations in relation to
the books involved in this case, the factor three conclusions are:

Where a book is not divided into chapters or contains fewer than ten
chapters, unpaid copying of no more than 10% of the pages in the book
is permissible under factor three. The pages are counted as
previously set forth in this Order. In practical effect, this will
allow copying of about one chapter or its equivalent.50 Where a book
contains ten or more chapters, the unpaid copying of up to but no
more than one chapter (or its equivalent) will be permissible under
fair use factor three. Excerpts which fall within these limits are
decidedly small, and allowable as such under factor three. Access
shall be limited only to the students who are enrolled in the course
in question, and then only for the term of the course. Students must
be reminded of the limitations of the copyright laws and must be
prohibited by policy from distributing copies to others. The chapter
or other excerpt must fill a demonstrated, legitimate purpose in the
course curriculum and must be narrowly tailored to accomplish that
purpose. Where the foregoing limitations are met factor three will
favor fair use, i.e., will favor Defendants. Otherwise factor three
will favor Plaintiffs.

The Court must also consider, under fair use factor four, the
effect of the use in question on the potential market for or value of
the copyrighted book. Unpaid use of a decidedly small excerpt (as
defined under factor three) in itself will not cause harm to the
potential market for the copyrighted book. That is because a
decidedly small excerpt does not substitute for the book. However,
where permissions are readily available from CCC or the publisher for
a copy of a small excerpt of a copyrighted book, at a reasonable
price, and in a convenient format (in this case, permissions for
digital excerpts), and permissions are not paid, factor four weighs
heavily in Plaintiffs' favor. Factor four weighs in Defendants'
favor when such permissions are not readily available.

The Court has considered whether unlicensed copying of small
excerpts as contemplated by this Order would disserve the purposes of
the copyright laws, namely, “To promote the Progress of Science and
useful Arts, by securing for limited Times to Authors and Inventors
the exclusive Right to their respective Writings and Discoveries.”
U.S. Const. art. I, § 8, cl. 8. Because the unpaid use of small
excerpts will not discourage academic authors from creating new
works, will have no appreciable effect on Plaintiffs' ability to
publish scholarly works, and will promote the spread of knowledge,
the Court concludes that it would not.

(Footnotes omitted)

Note that the Court looks to the US Supreme Court’s 1994 decision in Campbell as the ultimate authority regarding fair use and the interplay of the four factors. This issue arose in the recent Canadian Supreme Court  K-12 case argued on December 7, 2011 and now under reserve. The issue of the status of the fourth factor and the role of Campbell became the subject of some heated discussion by Dan Glover, Ariel Katz, Bill Patry and myself recently on this and other blogs. Once again, we have confirmation - not that it was needed - that the US "fourth factor" is simply one of four factors  and in no sense the most important factor - and that, indeed, even other factors can be considered.

The decision is 350 pages long. Though tempted, I’m not rushing to be the first to analyze it in detail on this fine spring weekend.

Of interest in Canada? You betcha!

And when reading this, bear in mind that our Supreme Court of Canada ruled in 2004 in CCH v. LSUC that:

70   The availability of a licence is not relevant to deciding whether a dealing has been fair.  As discussed, fair dealing is an integral part of the scheme of copyright law in Canada.  Any act falling within the fair dealing exception will not infringe copyright.  If a copyright owner were allowed to license people to use its work and then point to a person’s decision not to obtain a licence as proof that his or her dealings were not fair, this would extend the scope of the owner’s monopoly over the use of his or her work in a manner that would not be consistent with the Copyright Act’s balance between owner’s rights and user’s interests.

And bear in mind that Access Copyright is refusing to provide transactional licenses in Canada, in contrast to the CCC in the USA and arguably in contravention of Canadian competition law. However, this point is not likely to be vigorously pursued if it is raised at all at the Copyright Board, the way things are now going.

Let’s all think about what, if any, impact this might have had – or still might have – in the Access Copyright case at the Copyright Board that appears destined to proceed against the universities without their participation, following their abandonment by AUCC – unless things change.

(highlights added)


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