November 25, 2014

Does It Pay To Sue Libraries? | Peer to Peer Review

Ever since the Georgia State e-reserves copyright lawsuit was filed in April 2008, the academic library (and faculty who were aware of it) community has been waiting to find out how Judge Orinda Evans would view the provision of digital course readings under fair use.  Now we know, based on her May 11 ruling, that she believes this practice is a legitimate and important part of the pedagogical process, as long as it is done within reasonable limits. The judge writes “Allowing use of unpaid small excerpts of copyrighted works by students does help spread knowledge, because it reduces the cost of education, thereby broadening the availability of education.” (p. 83 of the decision)

As I write this, we are waiting for the debate to begin over the injunction that the Judge will fashion to address those five infringements that she found among the 75 excerpts from books that she examined. The publisher plaintiffs will suggest wording for such an injunction, and Georgia State will have a chance to respond to that suggestion before Judge Evans issues a final order.

Only after there is a final order are we likely to know if there will be an appeal. It is hard to imagine GSU asking the 11th Circuit Court of Appeals to review this case, but it seems likely that the publishers will. But even before we know for sure about an appeal, the central question regarding this case has shifted to “does it pay to sue libraries?”

Libraries traditionally have received favored treatment from both Congress and the courts. In the famous 1982 book challenge case Pico v. Island Trees School District, the Supreme Court recognized that the library is “a place dedicated to… knowledge” and a “principal locus” of the freedom “to inquire, to study and to evaluate.” And Judge Evans observed that nearly all of the exemplary uses of copyrighted works listed in the fair use provision are activities involved in teaching and learning, which is the province of academic libraries, of course (see p.50 of the opinion). So, deciding to sue a library should always be a last resort that is undertaken only with great deliberation and care.

The GSU decision gives us some interesting information about what that deliberation must look like as the plaintiffs, especially, consider whether or not to appeal.

First, the judge’s findings of fact makes it quite clear that it is the Copyright Clearance Center and the Association of American Publishers that will actually make the decision about an appeal, since they are the ones that “organized the litigation and recruited the three plaintiffs to participate” in the first place (p.25). Those groups are also underwriting all of the publishers’ costs in the lawsuit. The CCC, of course, has a direct monetary interest in pushing universities to pay more for licensing, and the AAP seems to simply have the strong, if misguided, conviction that, since copyright is a Good Thing, an unlimited expansion of copyright (and a diminution of the fair use provision that is part of U.S. law) is always desirable.

We also can glean some interesting numbers about the plaintiffs, the CCC, and the kind of financial calculations that must be going on. From a comment made while the trial was going on, we believe that the plaintiffs’ cost to bring this case has been in the millions. But the judge estimates that the lost revenue from the five excerpts that were actually found to be infringing was only $750. From that perspective, it seems that the costs of the case represent a terrible waste. And the judge reinforces this sense of waste when she points out that “permissions income is not a significant percentage of Plaintiffs’ overall revenues.” Her calculation is that in 2009 permission income represented “less than one quarter of one percent” of the three publishers average revenues for that year. She is, therefore, entirely dismissive of the suggestion that a finding in favor of fair use by the university could jeopardize the ability of these publishers to remain in business (pp. 84-86).

So why was this case brought, and why does an appeal seem likely?  The answer, of course, is the CCC, which presumably makes most of its $215 million gross revenues (in FY 2010) from permission fees (p.24 of the opinion). It certainly seems that it is their business model, rather than a genuine business need on the part of the publishers, that underlies the decision-making process that led to this case.

In his analysis of the decision, law professor James Grimmelman suggests that the CCC has really been the big winner in this case. From one side he is clearly correct. Publishers now have a much greater incentive to allow the CCC to license all the works they publish, and to include digital options in that licensing. This is because Judge Evans held that when a publisher did not offer a “readily available” license for digital excerpts, that fact meant that the fourth fair use factor did not weigh as heavily in that publisher’s favor (p.79).

The big question, in my opinion, is whether or not more licensing payments from libraries will actually be driven to the CCC because of this ruling. I can think of three reasons why that might not be the case.

First, this is only a District Court ruling, even though its length looks more like a contested decision from the Supreme Court. And it is not even final yet, since the remedy phase is still to come. In the short term, at least, colleges and universities—certainly those with policies that are not wildly out-of-line with the judge’s analysis— may decide to wait and see, and especially to wait for an appeal, before they change any policies or budget priorities. We need to remember that an appeal is an unpredictable thing; an appellate court might even hold that the criteria articulated by Judge Evans are too narrow to comport with the fair use provision as it was enacted by Congress.

Second, academic libraries always have the option of simply turning away more requests for e-reserves than they do now. If an institution decided to strictly implement Judge Evans’ standards as they are articulated in the ruling, they could still maintain whatever licensing budget they currently have by simply not using any excerpt that does not conform to the judge’s definition of fair use for the e-reserves context. So, even if her criteria are narrower than a particular library has been employing, that does not necessarily translate into more money to the CCC, although it could mean fewer opportunities for students.

Finally, let’s imagine a hypothetical library that considers an e-reserve excerpt to be fair use even if it is significantly larger than Judge Evans thought was permissible, but which also pays for permission anytime an excerpt is used subsequent to the first use. If that library decided not to wait, but to put the definition of fair use in this ruling into immediate practice, two things would happen. First, a smaller percentage of a work would be acceptable for unpaid use as a fair use. Second, the library would no longer pay permission fees for a subsequent use of that smaller excerpt, because the judge firmly rejected the “subsequent semester” rule as “an impractical, unnecessary limitation.” Could these two considerations balance each other out, result in no net increase in permission fees? It is certainly possible, especially if our hypothetical library works with its faculty to reduce some of the requested excerpts to within the judge’s standard.

My point is that libraries still have a lot of control over their practices and their budgets; this decision does not, in fact, automatically demand that libraries pay more licensing fees. That is something that the plaintiffs and the CCC should take into account as they decide whether the expense and ill-will they have generated with this lawsuit are worth what they can gain from continuing it. The most interesting possibility is that the three actual plaintiffs could potentially disagree with the CCC, which bankrolled the case, about whether it is worthwhile to appeal.

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Kevin L. Smith About Kevin L. Smith

As Duke University’s first Director of Scholarly Communications, Kevin Smith’s (kevin.l.smith@duke.edu) principal role is to teach and advise faculty, administrators and students about copyright,intellectual property licensing and scholarly publishing. He is a librarian and an attorney (admitted to the bar in Ohio and North Carolina) and also holds a graduate degree in religion from Yale University. Smith serves on Duke’s Intellectual Property Board, Digital Futures Task Force and Open Access Advisory Panel. He is also currently the vice chair of the ACRL’s Scholarly Communications Committee. His highly-regarded blog on scholarly communications discusses copyright and publication in academia, and he is a frequent speaker on those topics.

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