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Eleventh Circuit Decision in Cambridge University Press v. Patton

By Barry Werbin

An important and generally well-reasoned 129-page fair use decision came down October 17th by the Eleventh Circuit, in a case involving teaching course books that was brought against officials of Georgia State University and the University System of Georgia. The alleged that the defendants infringed the plaintiff publishers' copyrights by permitting professors to make digital copies of excerpts of graduate-level scholarly and academic books available to graduate students for free (i.e., modern digital versions of paper "coursepacks" that normally contain licensed content). The Court reversed in part the District Court's 300+ page decision, which had found after a bench trial that only 5 of 74 works in issue infringed and that a fair use defense applied to 48 of the works overall (as for the balance, either copyright ownership was not established or the copying was deemed "de minimus"). Cambridge University Press v. Patton, Nos. 12-14676 & 12-15147 (11th Cir. Oct. 17, 2014) (gsu-decision.pdf).

The universities maintain systems for digital distribution of course materials to students. Materials selected by professors that are either owned by the school libraries or the professors are scanned and posted to the distribution system. Based on a 2009 university protocol, each professor was required to complete a checklist of fair use factors for every excerpt as part of an assessment as to whether the excerpt qualified as fair use. Access to the network was password protected and was permitted only for students of each class during the applicable semester. The plaintiffs alleged that numerous professors made thousands of excerpts of plaintiffs' articles available in their distribution systems without permission, and that the universities' administrations encouraged this activity.

On appeal, the Court faulted the District Court for giving all four Section 107 factors equal weight and for using a mathematical formulaic method for assessing each factor, referring to that court's approach as "overarching fair use methodology." Instead, fair use must be assessed as to each work. One of the more interesting discussions in the appellate opinion is that while the uses of the plaintiffs' works were not "transformative" (with the Court otherwise adopting "transformative use" as a key component of the first Section 107 factor) -- because they were verbatim copies of the originals converted to digital format and served the same intrinsic purposes as the originals -- the use was clearly for nonprofit educational purposes and not commercial exploitation, even if the universities avoided paying license fees and charged tuition, and the use furthered a public purpose since these were public universities. Thus, "the first factor favors a finding of fair use despite the nontransformative nature of the use."

The Court also distinguished several prior cases involving infringing copying of coursepack content by for-profit copy-shops, as those did not involve direct copying by teachers and universities themselves, noting that in those cases, the courts "expressly declined to conclude that the copying would fall outside the boundaries of fair use if conducted by professors, students, or academic institutions."

Nevertheless, the university policy used the plaintiffs' works for their intended market purpose and the publishers licensed much of their content for fees, such that the forth factor addressing potential market harm was more serious in this case. The district court also should not have ignored the creative and other aspects of the works individually, particularly where that court also erred by adopting a 10% mathematical benchmark for the amount of content used, regardless of the qualitative nature of the content, which also was reversible error. In terms of the policy underlying fair use, the Circuit Court emphasized that, "when determining whether Defendants' unpaid copying should be excused under the doctrine of fair use in this case, we are primarily concerned with the effect of Defendants' copying on Plaintiffs' incentive to publish, not on academic authors' incentive to write."

The District Court had also erred in its assessment of the second fair use factor -- the nature of the copyrighted work -- by finding fair use in every case. While the appeals court noted this factor was "of comparatively little weight in this case particularly because the works at issue are neither fictional nor unpublished, where the excerpts in question contained evaluative, analytical, or subjectively descriptive material that surpasses the bare facts, or derives from the author's own experiences or opinions, the District Court should have held that the second factor was neutral or even weighed against fair use where such material dominated."

In the end, the Court found that the trial court had abused its discretion in granting injunctive and declaratory relief and remanded. An award of legal fees to the defendants also was reversed. The Court also cited favorably to the Second Circuit's approach to fair use assessment in Cariou v. Prince. Note that unlike Cariou, however, the Eleventh Circuit did not make its own ultimate findings of fair use, but remanded the case to permit the District Court to make that decision on a work-by-work basis.

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This page contains a single entry from the blog posted on October 22, 2014 4:43 PM.

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