What the GSU E-Reserves Case Means for Libraries Now and in the Future

There has been a lot of insightful and thorough discussion of the copyright infringement lawsuit filed by publishers against Georgia State University, notably by Kevin Smith at Duke, at Library Journal, and at The Chronicle of Higher Education. In the post below I recap the events for those who have not be following, discuss the purpose and value of reserves, and examine the implications of the GSU ruling for librarians and others who support fair use in higher education.

GSU Recap

In 2008 three academic publishers (Cambridge, Oxford, and Sage) filed a lawsuit against GSU claiming that their e-reserves policy amounted to widespread copyright infringement. The lawsuit was bankrolled by the Association of Academic Publishers and Copyright Clearance Center; CCC is a for-profit company that contracts with publishers to license the use of electronic excerpts of copyrighted works. (See Educase summary). The publishers submitted a list of 99 instances where they felt that GSU was violating their copyright.

In May of this year (so, four years after the lawsuit was first filed), the U.S. District Court for northern Georgia released its 350 page opinion on the case, written by Judge Orinda Evans. The upshot? The Court found that in 94 of the 99 cases fair use applied and GSU had not violated the publishers’ copyrights. Generally people see this as good news for GSU and for universities in general, though the case is not definitely settled and may well be appealed.

The bulk of the opinion is an instance-by-instance examination for 74 of the 99 cases, but Judge Evans also gives general thoughts on when and how a non-profit educational institution can claim fair use of copyrights materials. Before I get into the implications of the ruling, though, I think it is important to step back and think about the purpose and value of the e-reserves in higher education.

What is the purpose of (e)reserves?

Whenever I get to know a new library, I always ask about reserves. As a student in grad school, my professors saved me hundreds of dollars and provided lively, interdisciplinary courses through the use of e-reserves. No other institution where I’ve worked or studied has used e-reserves as heavily as the iSchool (indeed, my non-LIS graduate program made much less frequent use of reserves). I can see how a publisher reading this might blanch at the lost licensing income, but in reality the culture at the iSchool was to use e-reserves as a convenient place to store all of the course readings. Many of the readings were articles accessible (and properly licensed) through the library’s databases. Nonetheless my pocketbook and I greatly appreciate the terms when I was able to spend a mere $20 or $30 on “textbooks.”

In general it seems the use of reserves (electronic or otherwise) varies by institution, department, and even instructor, based on culture, expectations, and preferences. Likewise, the purpose and value of reserves is not the same everywhere. Some instructors don’t use reserves because there are good textbooks available for a course (also, sometimes, because it is just easier), while others need to use reserves because the course draws on a wide and interdisciplinary set of works (and also perhaps to save students money). To be clear, I think it is perfectly valid for an instructor to make use of reserves in order to save students money. I do not think that doing so is necessarily or even likely to be a violation of copyright, and I think that the recent GSU ruling upholds this view.

Practical Implications of GSU Ruling

The ruling is ultimately about fair use of copyrighted works. Fair use is a notoriously (and purposefully) vague portion of copyright law that allows some unlicensed use of copyrighted materials in some instances. At many institutions, libraries craft guidelines or policies for what materials can be considered fair use, but leave it up to professors to determine what they select for fair use. For those who haven’t been pouring over copyright laws recently, the four factors that are weighed in determining fair use are:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

In her opinion, Judge Evans determined that in the majority of cases, GSU’s e-reserves were covered by fair use. Specifically, Evans found that the first factor weighed heavily in favor of GSU because it is a non-profit education institution. The second factor also weighed in favor of GSU, because the works in question were all factual in nature.

The question gets more complicated in the third factor. Publishers would like there to be a hard and fast rule about how much of a work can be used under fair use, and they would like that amount to be very little. Evans considered rulings from other key copyright trials and ultimately suggested these guidelines for acceptable fair use: for works with 9 chapters or fewer, 10% of the total pages; for works with 10 or more chapters, 1 chapter may be used. Notably, the Judge deemed that it was “impractical, unnecessary” to prohibit the use of the same excerpt from one term to the next (p. 71), which is a guideline that many institutions follow. Thus, though many librarians and professors are disappointed that the Judge set out a “bright line” rule, she rejected the narrow, limited guidelines that the publishers called for.

The fourth factor for fair use also resulted in a complicated ruling. The Judge rightly pointed out that income from licensing is a very small percentage of the publishers’ overall income. However, she again drew on existing case precedents to determine that when “permissions are readily available from CCC [Copyright Clearance Center] or the publisher for a copy of a small excerpt of a copyrighted book, at a reasonable price, and in a convenient format” (88-89) then unpaid use of that material is not considered fair use.

This ruling is not binding for other libraries or higher education institutions, though as Educase points out it is likely that the opinion could be used in future copyright disputes. 

Though this may seem to help clarify fair use, this opinion will not be legally binding for other institutions. Indeed, the ALA is urging libraries not to change their fair use policies quite yet. Additionally, this case is part of a long-term trend that has important implications for libraries everywhere. 

Long-term implications

As a said earlier I think the laudable purposes of e-reserves include making course readings free and easily accessible to students and enabling professors to design courses that draw on diverse and interdisciplinary resources. Though libraries do not have to be involved in providing e-reserves, many of them are for obvious reasons, and I think the purpose of e-reserves dovetails with the spirit and values of academic libraries. I think it is important to note that many items put on e-reserves are items that the library has already paid for, it simply makes access easier for students in that course when it is on e-reserve. (I’m not sure if this was the case for the instances addressed in the GSU lawsuit.)

Given that e-reserves are pretty innocuous, and that fair use does not substantially cut into the profits of publishers, I find the fact that the lawsuit was filed worrisome. I see this as part of a larger trend in academic publishing in which publishers claim that the digital environment is enabling copyright abuses, while in fact they use these same digital advances to control and limit access to scholarship and research. Consider how publishers have imposed restrictions on the number of times libraries can lend an ebook or how some publishers prohibit ILL distribution of journal articles. While the digital environment theoretically makes access easier for users (those who have the financial and technological means), publishers limit the way that we can use these works to even narrower parameters than we were able to with their print counterparts. By and large, libraries use e-reserves in much the same way they used paper reserves, but now students can access these works from their home. In response, publishers filed an extensive and sweeping lawsuit, claiming that these practices threated their profits and their livelihoods. Judge Evans called these claims “glib”, but I suspect this is just one of many ways publishers are seeking to use technological advances to lock down their content and extract payment for every conceivable use.

Though in many ways this opinion was good news for GSU, I think it is unfortunate that in 2009, after the lawsuit, was filed GSU changed its-reserves policy. The threat of such legislation makes many universities scared and unwilling to assert their full rights as non-profit educational institutions to use copyrighted materially under fair use. By being overly cautious and acquiescing to the unreasonable demands of publishers we risk giving these rights away entirely.