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If you attended college at least after the late 1990s, you probably remember that one or more of your professors made excerpts from books available in "electronic reserve" by scanning the relevant pages and turning them into PDFs that only students enrolled in the course could access.
At the time, you might not have wondered whether the practice was lawful. Well, even if you didn't wonder that, the Eleventh Circuit has your answer in a 129-page opinion: "Maybe."
District Court: Just 5 Infringements Out of 79
Georgia State University has a policy allowing professors to make such electronic copies available to students. Three publishers -- Cambridge University Press, Oxford University Press, and Sage Publications -- sued the university alleging copyright infringement. The district court determined that, of the 79 discrete instances of alleged infringement by GSU professors, fair use applied to 43, there was no prima facie case of infringement in 26, and thus only five cases of infringement survived.
Factor by Factor
Fair use is an affirmative defense to copyright infringement, allowing someone to use a copyrighted work so long as the use meets the four statutory factors for fair use. Where the Eleventh Circuit reversed the district court's determinations, it faulted the district court's fair use analysis.
The four factors are:
The Eleventh Circuit spent a very long time saying, more or less, that the district court was too mechanical in its application of some of the factors.
For example, the district court found that the second factor weighed in favor of GSU in every instance because the works weren't sufficiently original or creative. The Eleventh Circuit disagreed: Just because the work is nonfiction or fact-heavy doesn't mean it's not creative or original (or, at, least its creativity can't be summarily dismissed).
The Eleventh Circuit also faulted the district court's rigid interpretation of the third factor, which is the amount of the work used. The district court said that 10 percent or less was fair use, but the Eleventh Circuit said it shouldn't have been so mechanical in applying the rule and instead should look qualitatively at the amount of each work used, as well.
Ultimately, the Eleventh Circuit remanded the case back to the district court for a reconsideration of the fair use factors in light of the criticisms it raised.
Concurrence: It's Worse Than You Thought
Judge C. Roger Vinson specially concurred to note that "the District Court's error was broader and more serious than the majority's analysis concludes." Basically, Vinson said, the district court tried to apply mechanical statutory interpretation guidelines to a common law rule that takes a look at the "bigger picture" of copyright infringement. It's not a check box: "[T]he court should step back a little, just as you would at an art museum, and view the work and its use in its entirety."
Then again, Congress did take a common law principal and force into a statutory framework, so isn't that worth something?
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