Last month, the Federal District Court for the Northern District of Georgia issued a 350-page opinion in Cambridge University Press v. Becker, largely upholding Georgia State University’s “fair use” defense in a 2008 copyright infringement case brought by a coalition of textbook publishers. If upheld, the decision may allow academic institutions and others to avoid liability under U.S. copyright law for sharing portions of digital documents online.

Georgia State allowed its faculty to post excerpts (often an entire chapter) from copyrighted textbooks to an online “electronic reserves” system, making them available for free to students in their respective classes as long as the faculty member applied a checklist to determine whether the posting would qualify as fair use under copyright law.

The majority of the Court’s opinion focused on that doctrine of fair use, stemming from 17 U.S.C. §107, which provides that the fair use of a copyrighted work, including for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use, the factors to be considered include the:

1. purpose and character of the use, including whether such use is (a) “transformative” (i.e., adds something new or different), and (b) of a commercial nature or is for non-profit educational purposes;

2. nature of the copyrighted work (informational vs. creative, with the latter entitled to more protection);

3. amount and substantiality of the portion used in relation to the copyrighted work as a whole, which inquiry includes a qualitative element of whether the “heart” of the work was copied; and

4. effect of the use upon the potential market for or value of the copyrighted work, including whether a license to the copyrighted materials could have been purchased by the defendant through some readily available market.

The court sided with Georgia State with respect to counts on 69 out of 74 documents, generally finding that the university published only small excerpts online with no intent to profit. The court, however, found the “fair use checklist” policy deficient because it did not (y) limit copying to quantities of a single chapter or less, nor (z) require faculty members to evaluate the effect on the market for the copyrighted work.

Despite the defendants’ substantial wins, the plaintiffs now have a declaration that the Georgia State policy contributed to at least some copyright infringement. If upheld, the decision suggests that academic institutions may be permitted to post excerpts of copyrighted works so long as the publication is in compliance with written policies that: (i) prohibit publication of more than a chapter (or other relevant section identifier); and (ii) consider the publication’s effect on the market for the original work. Additional guidance on these matters is likely to come from the appellate courts.

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