While Cambridge University Press v. Patton is still a long way from reaching the extreme length of the legal case at the center of Dickens’s Bleak House, information professionals might still have been startled to see it resurface in 2020. After all, the e-reserves suit was originally filed against Georgia State University (GSU) back in 2008. Just as with Jarndyce v. Jarndyce, the interminable case in Bleak House, those affected may be questioning the length of time spent on the case. "Wait, you mean that thing was still going on? How many rulings have there been?"
The Cambridge University Press v. Patton lawsuit was originally filed in April 2008, with Cambridge University Press, Oxford University Press, and Sage Publications charging GSU with infringing practices in digitizing their publications for use as course reserves.
The volume of infringing content cited in the original filing (as reported by Andrew Albanese in 2008 in Library Journal) was 6,700 scanned documents for use in more than 600 courses offered at GSU. The contested distribution occurred via common academic channels, including the university’s course management system, hyperlinked online syllabi, and departmental web pages.
For those filing the suit, the intent was less about compensation for lost revenue and more about the desire to send a signal to those handling digital content in unanticipated ways. Publishers sought to underscore the rights of ownership; there was already a practice of payment for reproduction of course readings in print format, and rights holders felt that practice should apply as well to the digital format. Many small and mid-sized publishers serving the academic community still lacked the systems or licensing options needed to support use of their materials in the relatively new digital environment.
As noted, the case would continue on for years. A useful and succinct timeline of the case may be found in the LibGuide prepared by the Georgia State University Law Library for students and faculty. To read the full set of filings in the case, you can visit Justia here.
In 2010, Leah Hinds, of the Charleston Information Group, and Sandy Thatcher, then with Penn State University Press, produced for Against the Grain perhaps the best explanatory overview of the case. Hinds and Thatcher provided a historical overview of the wrangling that had gone on in Georgia over establishing appropriate guidelines for the use of digital content in the state’s public institutions of higher education. While not entirely objective in its tone, the article contains sufficient links to opposing points of view to bring readers up to speed on the tensions felt in 2010. The authors recognize that GSU had a very broad interpretation of what might be used without specific permission from the publishers, but also note that, even before the case had arrived in court, the state’s Attorney General had already instructed Georgia State University to tighten up their practices.
When an initial decision was handed down in 2012, many stakeholders were surprised by the length and detail found in the ruling provided by Judge Orinda Evans. Her analysis favored Georgia State’s understanding of fair use. For a relatively objective overview and analysis of the ruling, see the work of Donald A. Kruft, a litigator with Foley & Hoag.
Speaking in the most general of terms, Evans’s original ruling broadly favored a fair use determination for copying for e-reserve use, for purposes of education in nonprofit academic environments (fair use factor 1: character of the use), relying on a particular exception claimed by thenSupreme Court Justice David Souter in the context of classroom distribution.
With regard to the second fair use factor — the nature of the copyrighted work — the judge held that content that might be deemed criticism and comment deserved greater exposure for purposes of education, a point that Kruft notes may be a misreading of the original statute.
With regard to the amount and substantiality of the portion used (fair use factor 3), Judge Evans laid down a relatively specific “bright line” for purposes of determining boundaries of appropriate copying, departing substantially from the US Copyright Office’s previously published guidelines for classroom use. In particular, Evans’s bright line of permitting reproduction of no more than 10 percent of the entire work was a source of controversy for many. Calculating what might be replicated could quickly become complicated, in part because the calculation might be made across more than a book’s body of text, counting as well lengthy tables of contents and back-of-the-book indexes. Evans’s ruling further allowed reproducibility of a work digitally if publishers had not done so themselves or if the pricing associated with the digital version put the work effectively beyond reach, again at the time a very real challenge for small and mid-sized publishers.
Finally, the court looked at the effect of the copying on the potential market (fair use factor 4) and determined that this would depend on the availability of a licensing mechanism for specific digital excerpts. In this she ignored previous court rulings regarding photocopying of content, and Krufts writes, “This ruling arguably leaves open the danger that defendants, by choosing an alternative medium in which to make unauthorized copies, can manipulate the fair use analysis in their favor.” The remaining pages of the opinion were devoted to examining each of the 75 instances of unauthorized copying by Georgia State faculty, in light of the court’s analysis of the four factors.
Twice, publishers appealed Evans’s ruling. Both times, the Eleventh Circuit Court of Appeals instructed Evans to revisit her analysis, rejecting her “bright line” and suggesting that she had not properly weighted the four factors.
In commenting on the 2018 opinion by the appeals court, Nancy Sims, copyright librarian with the University of Minnesota, described the 1976 guidelines for classroom copying as “outdated” but felt the opinion confirmed “...that the 1976 Classroom Copying Guidelines are not law, and not an appropriate lens through which to consider fair use in course contexts,” adding parenthetically, “The court also affirms that even though the Guidelines are maybe informative, they were originally intended as a floor, not a ceiling, on fair use.”
Also in the wake of that second ruling, Kevin Smith, Dean of Libraries at the University of Kansas, wrote:
The saddest thing about this case is that, after ten years, it continues to chew over issues that seem less and less relevant. Library practices have evolved during that time, and publishing models have changed. Open access and the movement toward OERs have had a profound impact on the way course materials are provided to students. So the impact of this case, and of any final decision, if one ever comes, will be negligible.
Reading that, one may be surprised that the GSU e-reserves case again surfaced in 2020. As reported in a March issue of Publishers Weekly, Judge Evans finally issued a third version of her ruling in the case, with the biggest question that remained being who would bear the brunt of previous court costs.
In the concluding paragraph of that March PW article, Brandon Butler, Director of Information Policy at the University of Virginia, is quoted as saying that libraries and university presses were currently partnering to develop better licensing models which would support “unlimited simultaneous users as an attractive way to support affordable education for...students—a model that would facilitate assigning a chapter here and there.” Technology and emerging practice had negated the work done by so many.
Finally, in November, as reported by Porter Anderson in Publishing Perspectives, there was a final announcement that the e-reserves litigation was finally at an end. No further appeals would be filed.
So was anything learned through this litigious exercise? Or was the $3.18 million claimed in court costs by GSU simply money down the drain?
We operate in a world where the rules about owning, licensing, and sharing of digital content are neither entirely formed nor well-expressed. Users are understandably baffled when having “purchased” an e-book or movie, they subsequently discover that they have no rights of ownership after all. Individual consumers may have been slow to grasp the nature of such licensed access, but copyright mavens in the library environment are keen to satisfy user needs by making practical use of the technology and perhaps by expanding the conventional wisdom surrounding the sharing of digital assets. As the output from university presses is brought more closely into alignment with library values, it will be interesting to see how attitudes and sharing practices could shift. One of NISO’s initial educational programs in 2021 will bring together thought leaders to discuss questions of owning, licensing, and sharing of digital content. To ensure that your voice is a part of that conversation and possibly ensure that the community need not engage in yet another litigious decade, join us for this event on January 21, 2021!