Liberating the Library: Fair Use Mostly Upheld for University E-reserves in Cambridge University Press v. Becker

• Citation: Vol. 64 No. 2
• Publication year: 2013

Liberating the Library: Fair Use Mostly Upheld for University E-Reserves in Cambridge University Press v. Becker

Jennifer Findley

[Page 611]

Casenote

Liberating the Library: Fair Use Mostly Upheld for University E-Reserves in Cambridge University Press v. Becker

I. Introduction

Libraries and universities across the country had Georgia on their minds as they waited in anticipation for over a year for the outcome of a case, before the United States District Court for the Northern District of Georgia. On May 11, 2012, in Cambridge University Press v. Becker,¹ Judge Orinda Evans answered a question of vital importance to librarians and university officials ever since the passage of the Copyright Act of 1976:² does copyright infringement occur if a nonprofit institution

[Page 612]

makes copies for the classroom for a nonprofit educational purpose? In a 350-page opinion, the court answered with a powerful, yet qualified, no.

II. Factual Background

The President of Georgia State University (GSU), as well as other GSU officials, including the Board of Regents, were sued by a triumvirate of academic publishers—Cambridge University Press, Oxford University Press, and Sage Publications—for over seventy-five copyright infringements under 17 U.S.C. § 101.³ The plaintiffs sued the defendants in their official capacities under Ex parte Young⁴ and sought injunctive relief, as well as attorney fees.⁵ The defendants answered by denying infringement and claiming fair use and sovereign immunity.⁶

In response, GSU issued a new "Copyright Policy" that required professors to fill out a fair use checklist⁷ when posting to GSU's ereserves (ERES).⁸ In November 2010, the court agreed that only infringements post-dating the new policy were appropriate for relief.⁹ The plaintiffs filed ninety-nine claims of copyright infringement, later reduced to seventy-five, all of which the defendants claimed were fair use.¹⁰

[Page 613]

Trial began on May 17, 2011, where it became clear that the plaintiffs were funded by the Copyright Clearance Center (CCC).¹¹ CCC is a permissions company that licenses out copyrighted works and pays a percentage of its revenues to the publisher, a small amount of which is paid in royalties to authors, but not to contributing authors.¹² Interestingly, the court found that many of the allegedly infringed works were not covered by CCC's licensing agreement; however, CCC did license most of the plaintiffs' copyrighted works.¹³ The court's fair use analysis gave import to these facts, as will be seen below.

Fearing the worst and hoping for the best, libraries were given a mixed blessing when Judge Evans ruled mostly against the academic publishers and for GSU and its e-reserves. The court held that although the defendants could be liable under Ex parte Young, the defendants had a valid fair-use defense in all but five of the claims before the court.¹⁴ Of course, this frustrated the publishers (and their supporters) who were looking to have the 1976 Classroom Guidelines upheld at the very least.¹⁵ Thus, on September 12, 2012, the plaintiffs filed an appeal

[Page 614]

with the United States Court of Appeals for the Eleventh Circuit. The matter is currently awaiting adjudication before that court.

III. Legal Background

A. Copyright Infringement and Fair Use

Copyright law is the exclusive domain of the federal government, falling under the purview of the Constitution's Article I power to "promote the Progress of Science and useful Arts."¹⁶ However, it was not until the Copyright Act of 1976 that Congress established what constituted copyright infringement and codified factors to determine a valid "fair use" of copyrighted material.¹⁷ According to the Act, a work is copyrighted if it is an "original workQ of authorship fixed in any tangible medium of expression."¹⁸ Although "[o]riginality remains the sine qua non of copyright,"¹⁹ the threshold for originality is low, and all that is needed is a work that displays some "minimal degree of creativity."²⁰ The United States Supreme Court has noted that where a copyright registration is required under 17 U.S.C. § 411, this element must likewise be established to show infringement.²¹ Therefore, all that is needed to show copyright infringement is that the work is original, the claimant owns the copyright, and the work was copied.²² However, that does not mean all copying of an original work is prohibited, especially if fair use is properly asserted.

Fair use was first articulated in 1841 by Justice Story in his factor analysis of a claim against a biography of George Washington.²³ The

[Page 615]

four-factor framework of fair use has changed little since Story's time, and Congress merely codified the defense in § 107 of the Copyright Act.²⁴ Generally, fair use is seen as a flexible doctrine meant to balance the promotion of innovation and progress with the "rigid application of the copyright statute," which has the potential to "stifle the very creativity which the law is designed to foster."²⁵ The types of use that fall under § 107 include "such use by reproduction in copies. . . for purposes such as . . . teaching (including multiple copies for classroom use), scholarship, or research."²⁶ Once it is established that the use falls into one of the preamble's so-called productive categories, the court additionally evaluates whether the alleged infringement falls under fair use by looking at the four factors codified in § 107:

(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.²⁷

In attempting to clarify the balancing requirement for fair use analysis, the Supreme Court has noted that all four factors "are to be explored, and the results weighed together"²⁸ and that any presumptive bright line categories should be avoided.²⁹

In two seminal cases, the Supreme Court laid out a framework for evaluating fair use. In Harper & Row Publishers, Inc. v. Nation Enterprises,³⁰ the Court held that direct quotes from President Ford's unpublished memoir printed without his permission did not fall under fair use.³¹ However, the Court held that a rap parody of the Roy

[Page 616]

Orbison song "Oh, Pretty Woman" may be subject to fair use in Campbell v. Acuff-Rose Music, Inc.³² In these cases, the Court made clear that all the factors should be weighed, and no factor should be "simplified with bright-line rules."³³ Furthermore, a powerful category known as transformative use emerged—that is, creating something new with a further purpose or different character.³⁴ A transformative use of a work is likely to be deemed fair use even if it is a copy, because it is not likely to supplant the original in the marketplace.³⁵ However, where a copy is verbatim or takes "the heart of the original," and is thus unlikely to be deemed transformative, these facts will weigh heavily against fair use.³⁶

Since Campbell, circuit courts have tried to determine the proper weight to give the factors. Where some circuits have found educational copying in the commercial arena not to be fair use due to market effect,³⁷ other cases have moved away from a commercial/market approach and have emphasized a transformative analysis.³⁸ However,

[Page 617]

there is no definitive precedent on how all four of the factors should be applied across the board, let alone when copyrighted works are copied by a nonprofit university for a nonprofit educational use. Therefore, Cambridge is a pivotal litmus test for fair use in this unexplored area.

B. Suing State Officials and the Ex parte Young Exception

Ex parte Young presents a narrow exception to the Eleventh Amendment that arises where a suit seeks injunctive relief against a state actor who is infringing on a constitutionally guaranteed right or federal law.³⁹ According to the Court, a proper Ex Parte Young analysis is straightforward and it "does not include an analysis of the merits of the claim."⁴⁰ Rather, it only requires "[a]n allegation of an ongoing violation of federal law" and the seeking of prospective injunctive relief.⁴¹ Although the analysis is held to be straightforward, the circuit courts have debated the necessary connection between the official's duties and the violation of federal law that would allow such a suit⁴² In particular, the circuit courts have asked whether it is enough that the officials are "responsible for administering the system"⁴³ or whether they must actually take steps to violate federal law.⁴⁴ The court in Cambridge likewise examined the exception through the question of whether there was a "sufficient nexus" to bring suit⁴⁵

[Page 618]

IV. Court's Rationale

A. Copyright Infringement and Fair Use Factors: Judge Evans's Line is Looking Pretty Bright

In analyzing the seventy-five copyright infringement claims, the court established an analytical framework in which it viewed each claim. First, the court established what each claim must prove for a prima facie case of copyright infringement.⁴⁶ Second, it looked at how it was going to weigh all four factors of § 107.⁴⁷

1. Was There Even a Prima Facie Case? Plaintiffs bear the burden of proving a claim of infringement under the Copyright Act.⁴⁸ In order to maintain a prima facie claim, the court asserted that plaintiffs must demonstrate that they 1) own the copyright of the allegedly infringed-upon books and 2) that the defendant actually "copied protected elements" of those books.⁴⁹ Judge Evans also cited the criteria of originality and the necessity of a copyright registration.⁵⁰ Although the court found that all seventy-five works had been copied, it noted that in sixty-four of the works, the plaintiffs' ownership of the copyright had not been established.⁵¹ Although Sage Publications...