Confession: I use fewer academic articles in my undergrad classes, mostly because my students’ reading comprehension is so poor. More and more I use links to quality journalism and media artifacts and trade sites as course materials students must analyze and write about. But that begs your question. Graduate courses need vast amounts of academic articles.

I wonder if instead of posting things through the university library, posting things on independent sites might actually be safer? Publishers can target universities, but how many of them pursue individual infringement cases for PDFs posted on a password-protected Google Site page, for instance? Does anybody know of cases?

No, there is no guaranteed work around. Whether I hand out hard copies, individually copied to avoid fees at the copy shop, or post PDFs I’ve scanned on password protected sites, or just link to other material, I am going to continue to try to avoid playing by these rules.

What are the reasonable digital alternatives to E-reserves for course materials? The fact that the library played a prominent role in this case provided professors with some protection, in my view. Use of a personal website would provide none of that. Are you referring to sites like Critical Commons–have you used them to build a reading list for a course?

What is particularly galling is that these academic publishers are trying to force educators to *pay* for using academic work that was produced by educators, edited by educators, and disseminated by educators (assigning a reading is a form of free marketing!), all without direct payment from the publishers.

Academic publishers have a market problem, no doubt (small markets for majority of academic work), but their business model is not only exploitative but reliant on taxpayer-subsidized educational institutions to pay outrageous access fees for material those institutions’ employees have produced.

Relying on copyright law to forcibly create a market may prove, in the long run, to undermine the very market for academic work that these publishers think they are protecting. I, for one, no longer use services like E-reserve, and I’m sure I won’t be the only one looking for work arounds.

I agree with you that any hardening of the terms of Fair Use may prove problematic. Checklists like the one shown here intend to simplify, but the binaries offered are rarely clear cut. It works to the advantage of publishers to establish hard lines, regardless of context or intent.

Now, thanks to the judge’s attention to and emphasis on that 10% figure, universities around the country are going to dogmatically adopt that as THE LIMIT beyond which they can’t go without risking a lawsuit, meaning that a lot of work is going to be licensed just because it is a couple of pages over some arbitrary (and frankly stupid) mathematical limit.

The judge also all but begged the copyright holders to establish a thriving market in licenses so that the fourth fair use test (effect on the market) will work in their favor.

That makes the winner here CCC, the organization that purports to represent copyright holders and that runs something of a licensing racket against universities. Between this ruling and the Access Copyright deals in Canada, the pressure is on universities to play it safe within rules that favor the increasing corporatization and monetization of the education system.

In other words, only the copyright holders most egregious overreaching was refuted here. That makes this case a fair-use “victory” that, in practical consequence, will mostly prove worse for educators and further concretize the mindset of “permission must always be requested and everything must always be paid for” both in academe and in the culture at large.

Thanks for your post–I’m looking forward to part 2.