The GSU Copyright Case: Lessons Learned [Part One]
Some of you may have heard that this week a Georgia judge issued a long-awaited legal decision in a case entitled Cambridge University Press v Mark P. Becker. If you haven’t paid attention to it before, it is important to read up on it now, as the ruling impacts each and every academic and student.
In case you haven’t been following the suit, here’s a quick summary: In 2008, three academic publishers (Oxford, Cambridge, and Sage) filed suit against Georgia State University [GSU] for copyright infringement. At issue was how instructors were using the library’s E-Reserve system—a password-protected site that offered for students scanned copies of chapters from books and journal articles from reading lists for individual courses. After a three-week trial in May 2011 and one year of deliberation, Judge Orinda Evans found GSU guilty of five cases of copyright infringement. That may sound like a loss but in fact GSU was not considered liable or viewed as acting within the bounds of Fair Use for 94 other alleged infringements. You can read the decision here and there are already a few legal interpretations of the decision offered online here and here. There is certain to be more legal analyses of this decision because its implications for broader academic and pedagogical practices may be significant.
In general, there seems to be reason for GSU and other universities to pop the cork on some champagne—the limited “wins” for the plaintiff have likely made future cases of this type more trouble than they are worth. The wider implications of the case, however, are more concerning.
I should note up front that I am not a law student. I’m a media studies doctoral candidate with an interest in policy. Nothing I write here carries with it the authority of a legal degree. Instead, I offer an experiential discourse because I provided a deposition for this trial. I’d really love this post to be a detailed discussion of the deposition process, because I found it fascinating, but as this case will likely continue on appeal, I don’t want to implicate myself further. This concern—my worry of implicating myself—is what I’d like to focus on for the rest of this piece, offered in two parts, sharing a few lessons learned.
Lesson 1: Universities and departments have a responsibility to educate faculty and student teachers about Fair Use and official policy regarding copyright.
Even as we worry that libraries are losing their role as community centers of learning and gathering, Fair Use has infused many of these sites with a new mission. The GSU legal team advanced an argument that our use of digital materials on E-Reserve equaled the placing of hard copies of a book chapter owned by the library on a tangible reserve list. This argument seems persuasive to me, but it demonstrates the thorny issues involved in digitally reproducing materials for instructional purposes. The fact that faculty use of library resources formed the heart of this case should not be read as a validation of similar use of uLearn (formerly Blackboard) and personal faculty websites. Any time teachers upload copyrighted material to a website without adequate attention to Fair Use, they are potentially liable for copyright infringement.
My favorite tidbit about this case is that one dispute between the plaintiff and the defendant centered on the question of what qualifies as a book or work in a Fair Use claim. The plaintiff argued that any numerical interpretation of Fair Use should not include in the page count the table of contents, figures, index, or footnotes. For example, a common perception of Fair Use posits that use of 10% of a book, when that 10% does not constitute the “heart of the work,” may be Fair Use. The 10% here must be calculated against the page total of the chapters only. This struggle over semantics indicates the intricacies involved in understanding the constantly evolving case law of copyright and Fair Use, underscoring the urgent need for a common set of practices across academia, or at least within disciplines. As the GSU case documents, many professors do not share a common understanding of how our university defines Fair Use. Education of our educators is essential.
In the comments, please feel free to offer ideas for how universities can better address the challenges of copyright and Fair Use. Did your pedagogy course address these topics? Does your university host mandatory continuing learning sessions about Fair Use and university policy? Do you partner with an organization that advocates for Fair Use?
In part two of this post, I will address lessons for individual scholars and teachers.
 Only 79 of the original 99 alleged instances of copyright infringement went to trial. For example, my own case seems to have been eliminated due to confusion about rights ownership.
 The judge’s decision took some time because she reviewed each individual instance of alleged infringement, assessing each one in turn in the decision. Consider reviewing these instances in the decision to compare their use of E-Reserves to your own use of web-based course materials.