Lesson 2: Teachers need to be aware that they may be personally liable for their use of copyrighted materials through digital interfaces.[1]

There are a host of factors to consider when reading about this case. First, the plaintiff publishers named the following figures as defendants: the university President, Provost, Dean of Libraries, and the Board of Regents. Individual teachers, though cited by name in the decision and asked to testify at trial about their pedagogical use of publisher-owned materials, were not in this instance directly sued by the publishers. This seems an important item for further discussion. When I asked an attorney whether I may myself be personally liable in the future, I was told by said attorney that I was not named in this case. That is the sole comfort I received as I was seemingly legally bound to participate in this process.  Certainly one presumes a member of the Board of Regents may have deeper pockets than an early-career academic, but the fact that the elite of our university were named in this case does not mean that they are exclusively vulnerable to this type of claim.  The lessons of the individuals sued over Napster remain significant when considering copyright protection.[2]

Every time any attorney addressed me in an email or at the start of a meeting, they called me professor, and every single time I reminded them of my status as a graduate student. I don’t think the lawyers necessarily understood the full implications of my insistence on this distinction, but I felt uniquely vulnerable as a graduate student. While other non-tenured faculty called to testify bore the burden of different professional stakes than tenured faculty members, my status as a graduate student identifies unique risks for a young teacher. In addition to my relative inexperience compared to other GSU teachers asked to testify about our classroom use of E-Reserves, I also question my relationship with the university. Am I an employee with the same protections as faculty? Would the university defend my role in the classroom on an equal level?  Are there deeper dangers in my testimony as someone building a CV and entering the job market? More broadly, to what extent are graduate student teachers being prepared for education in the digital age? Should universities and departments be even more active in mentoring and overseeing graduate student teaching, including advice about the use of digital course sites (from E-Reserves to uLearn to a personal website) and instruction about the requirements for a claim of Fair Use? I voluntarily attended sessions offered through our Center for Teaching and Learning that allowed me to chat with a University attorney and to learn more about copyright issues.  But this is not necessarily typical behavior for extremely busy graduate student teachers. Given the current institutional context in which we live, departments and universities should require more education about copyright law and fair use exemptions for both undergraduates and graduates.

Lesson 3: This case highlights the limits of the symbiotic relationship between academic scholar and the academic publisher.

My use of ‘symbiotic’ implies that we each offer the other something, sharing a mutual dependency. Publishers need content, and scholars need an outlet for their work. Yet is symbiotic too generous a term for a system in which our work is commodified with little or no remuneration for our individual effort? Also consider this next example which is not hyperbole or hysteria—one of the professors called to testify in this case was asked about her classroom use of an essay she herself wrote.  This professor did not hold the rights to her work, though, so the publisher alleged that her provision of that essay for her students through the library’s E-Reserve was a violation of the publisher’s ownership of the content she produced.[3]

At a minimum, I’d like this post to remind any readers entering into a contract with an academic publisher to consider the details of the contract. Do you maintain any ownership rights to your work? Has the contract accounted for digital reproduction and classroom use? Does the publisher have an official policy on what qualifies as Fair Use? Sage, Cambridge and Oxford were the plaintiffs in the GSU case, but academics should demand more equitable terms with any publisher with which we partner.[4]

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.[1] 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.[2]

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.[3] 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.