By Paul Hellyer
Fair Use Guidelines After
the Georgia State Case
In this last installment of VALL’s Copyright Column, we’ll
take a look at the recent
ruling from the 11th Circuit in the Georgia State University
copyright infringement case.[1]
As other commentators have already pointed out, this ruling is mostly favorable
to users and libraries. But it’s not a welcome development for anyone hoping to
formulate fair use guidelines, because it rejects any notion of general purpose
guidelines aside from the ambiguous statutory factors in Section 107. Librarians
and users need guidelines, but what can we do when a court tells us that
everything must be decided on a case-by-case basis?
First, some background info for those of you who need a
refresher. In 2008, several publishers sued GSU for copyright infringement
arising from GSU’s use of e-reserves. GSU had posted online many excerpts from
the plaintiffs’ books as assigned reading for courses, sometimes relying on
fair use instead of paying for a license. In 2012, the district court issued an
opinion that almost entirely vindicated GSU, finding that all but a handful of
the excerpts fell under the fair use exception.[2]
In reaching its decision, the district court articulated some rules of thumb
about when a use is a fair use, and this is what stirred up some trouble on
appeal. The 11th Circuit reversed and remanded, with instructions to
reconsider the alleged infringements individually without the aid of
nonstatutory rules of thumb.
Although the 11th Circuit’s approach seems to be
correct as far as the law is concerned, it’s certainly a lot less helpful than
the district court opinion in providing actual guidance to the public. It’s
tough to draft any e-reserves guidelines after reading this case. Let’s explore
some of the difficulties the 11th Circuit throws in our way.
The “10% or One
Chapter” Guideline
The most prescriptive part of the district court opinion was
the “10% or one chapter” guideline. The court developed this guideline to make
it easier to apply the third factor of Section 107, which requires the court to
consider “the amount and substantiality of the portion used.”[3]
The court held that copying not more than 10% of a book, or not more than one
chapter in books with ten or more chapters, weighed in favor of fair use under
the third factor.[4]
This part of the district court’s opinion lacked a solid legal basis, but it
did have the virtue of being easy to apply. The language in Section 107 doesn’t
give much guidance to a professor who’s trying to decide how much text she can
copy for her students to read. Imagine how much easier it would be if the
courts would just tell us how much we can copy.
The 11th Circuit threw some cold water on that
idea. Not only did the 11th Circuit reject the district court’s
suggested limits, but it rejected any
attempt to set general limits on the amount copied. Instead, the court ruled that
the third factor must be analyzed separately for each instance of infringement
and refused to accept the “10% or one chapter” guideline even as a starting
point in the analysis.[5]
The court pointed out that Section 107 refers not only to “amount”, but also to
“substantiality.” In other words, users have to think about not just the
quantity they’re copying, but also the significance of the content. This is the
correct legal analysis, but it invites subjective judgments and unpredictable
results.
Adding Up the Factors
Next, let’s consider what the 11th Circuit said
about weighing the four factors from Section 107. The 11th Circuit
complained that the district court took an “arithmetic” approach to the four
factors by adding them up and finding fair use whenever at least three factors
favored fair use. The 11th Circuit held that the correct approach
was to give different weight to each factor depending on the circumstances,
then reach a decision considering all of the factors.[6]
Even in situations where three out of four factors favor fair use, the 11th
Circuit holds out the possibility that the use is not fair. Again, the court’s
legal reasoning is on solid ground, but the practical result is more
uncertainty for users.
Fair use guidelines often give users a list of factors to
consider—whether based on the four statutory factors or more specific factors
suggested by the guidelines. It’s not too difficult to ask the user to add up
the factors, or to point out that some factors are more important than others.
It’s much more difficult when we say that any factor could be given particular
weight depending on the circumstances, and that any single factor could
outweigh all the others. This renders a list of factors almost meaningless for
the average user. It takes a copyright expert to go beyond the “arithmetic”
approach and decide which factors are most important in any given case.
Guidelines Don’t Sway
the Court
Both the district court and the 11th Circuit
declined to follow the well-known “Classroom Guidelines” on fair use. [7]
These guidelines were printed in a House Report accompanying the 1976 Copyright
Act, so they’re about as close to official as nonstatutory guidelines can get. The
rejection of these very conservative guidelines is a win for libraries and
users, but the 11th Circuit’s reason for rejecting them is
troublesome.
It wasn’t really the Classroom Guidelines’ content that was
the problem. Rather, the court rejected the Classroom Guidelines because fair
use analysis must be performed on a case-by-case basis.[8]
The court also held that industry best practices are “not relevant to an
individualized fair use analysis.”[9]
The somewhat startling message here is that nonstatutory guidelines carry
little if any weight in copyright jurisprudence. If you think that following
well-respected guidelines will protect you, think again.
What to Do?
In the face of this decision, can we continue to offer
meaningful guidelines for e-reserves or for fair use generally? I believe the
answer is yes, and I think that our guidelines can go beyond the ambiguous
guidance offered by the 11th Circuit or the four statutory factors
from Section 107. In my view, guidelines don’t serve the same purpose as a court
opinion or a copyright treatise. They’re not intended as an analysis of the
law. They’re a pragmatic tool designed to reduce the risk of copyright
lawsuits. If we do nothing more than offer ambiguous advice that tracks the
language of Section 107 and the 11th Circuit case, there’s no way of
predicting how users who are untrained in copyright law will react. The result
may be egregious infringements. So I think it’s a good idea for us to develop
guidelines that are more specific than what the primary sources say.
We can accomplish this by offering specific examples of uses
that have been found to be fair uses, or that we believe to be fair uses. We
can compare and contrast instances of fair use and instances of infringement,
even if those comparisons suggest bright lines that don’t really exist. I also
believe we can continue to offer rules of thumb—such as the “10% or one
chapter” guideline—even if they’re not supported by case law, provided that we
offer a disclaimer that these are suggestions and not legal rules. A guideline
will accomplish its purpose if it helps to cut down on infringing uses while
supporting fair use. If litigation ensues, guidelines won’t carry any weight,
but all they need to do is keep us from getting into litigation in the first
place.
[1] Cambridge
University Press v. Patton, 769 F.3d 1232 (11th Cir. 2014).
[2]
Cambridge University Press v. Becker, 863 F. Supp. 2d 1190 (N.D. Ga. 2012).
[3] 17
U.S.C. § 107.
[4] 863
F. Supp. 2d at 1243.
[5]
769 F.3d at 1271-72.
[6] Id. at 1260.
[7]
Agreement on Guidelines for Classroom Copying in Not–For–Profit Educational
Institutions with Respect to Books and Periodicals, H. Rep. 94-1476 (1976).
[8]
769 F.3d at 1273-74.
[9] Id. at 1272.
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