The Precedent

Story by Kathleen Poe Ross, Photography by Meg Buscema

For four years, GSU has championed the cause of higher education in a landmark copyright lawsuit. The university prevailed in a U.S. district court, blazing a trail for fair use in an ever-evolving digital landscape.

Georgia State University achieved a victory for educational institutions around the nation, dragging copyright law — and the complicated notion of fair use — further into the digital age when U.S. District Court Judge Orinda D. Evans ruled in favor of GSU officials on a years-long battle brought on by a triumvirate of prominent scholarly publishers. The conflict stemmed from the common practice of sharing excerpts of published works for class reading, but in digital format rather than in hard copy. On Sept. 10, the publishers stated that they plan to take their case to the 11th Circuit Court of Appeals, continuing the high-profile fight over questions of copyright in higher education.

GSU President Mark Becker

This case is informally known as Cambridge University Press v. Becker. Because the eleventh amendment of the U.S. Constitution prohibits lawsuits against a state by citizens of another, and states also have the protection of sovereign immunity, the suit was brought against administrators of Georgia State University and the University System of Georgia — President Mark Becker, Provost Risa Palm, Associate Provost J.L. Albert, Dean of Libraries Nan Seamans, and members of the Board of Regents — in their official capacities, relying on the Ex parte Young doctrine. Ex parte Young allows for lawsuits against officials acting on behalf of a state when they are alleged to be in violation of federal laws and constitutional guarantees.

In her decision, Evans not only affirmed many policies Georgia State officials had put in place, but also helped to clarify a murky area of long-established law. According to the Copyright Act of 1976, fair use permits the reproduction of a copyrighted work for purposes such as criticism, comment, reporting, scholarship or research. Fair use is not defined in the law. Rather, the following four factors must be weighed and balanced in every case to determine if a use is protected as fair: (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.

“The truth is,” Judge Evans wrote in her May 2012 ruling, “that fair use principles are notoriously hard to apply.” Since this was a case of first impression — one that presents a new question of law that has no controlling precedent — she had to establish a standard from the ground up.

In August, Judge Evans issued an order declaring the university the prevailing party.Her decision now stands alone as a roadmap for navigating future questions of copyright and fair use in a nonprofit academic setting.

“Georgia State University was resolute in its belief that our policies and practices for the use of digital archive material fell within the bounds of fair use, and the judge’s order is a validation that the university has acted in good faith,” says GSU President Mark P. Becker. “We are proud that the courage of our convictions has made GSU the leader in blazing a path for the future of fair use in higher education.”

The plaintiffs — Cambridge University Press, Oxford University Press and SAGE Publications — have built their case around GSU’s electronic reserves system known as ERes, an online version of a library reserve bookshelf. Instead of setting aside physical books in the library for students to photocopy, professors submit an ERes request and the library uploads the content for password-protected digital distribution to their students, who can access the files for the duration of the course. Recruited and financed by licensing entity Copyright Clearance Center (CCC) and the Association of American Publishers (AAP), the plaintiffs filed their first complaint against GSU officials in April 2008. In it, they claimed that the university was engaging in “systematic, widespread and unauthorized copying and distribution of a vast amount of copyrighted works” by allowing unlicensed excerpts to be made available to students electronically.

GSU in-house legal team

University Attorney Kerry Heyward (above left) has been working on this case since the initial complaint was filed. Assistant General Counsel Gwen Spratt (J.D. ’90) (above right) and Dean of Libraries Nan Seamans (above center) both came to GSU after the lawsuit was already underway, but they played key roles through the discovery and trial periods.

While GSU officials asserted their right to share the works under fair use and other doctrines, the University System of Georgia formed a committee to review and update its copyright policy in early 2009. The new policy required professors to complete a fair-use checklist — a questionnaire that walks professors through the process of balancing the four factors to determine if a use qualifies as fair — before excerpting any works for course reading. This revision did not satisfy the publishers, who still contended that GSU’s policies allowed and even encouraged copyright infringement. Efforts to mediate and find a resolution outside of court met an impasse.

“We were just so far apart in our positions that there was nothing else to do except go to trial,” says University Attorney Kerry Heyward. “Everyone here agreed that it was too important for the students and faculty not to fight it.”

More than three years after the publishers entered the initial complaint, a bench trial began in downtown Atlanta, just a few blocks away from the GSU campus. The case played out over three weeks in May and June of 2011. Georgia’s attorney general, in cooperation with the university’s legal team, appointed intellectual property experts Stephen Schaetzel and Tony Askew (formerly of King & Spalding, now with McKeon, Meunier, Carlin & Curfman) as special assistant attorneys general to represent GSU in this case.

Almost a year passed before the judge handed down a ruling. What she filed in May 2012 strongly favored the university’s position. Over the course of 350 thoroughly researched pages, Judge Evans laid out a framework for her analysis and then evaluated each claim according to the fair use doctrine. GSU prevailed on all but five of 99 instances of alleged infringement listed at the start of the case.

“Judge Evans really went through the fair use checklist for every work at issue,” Heyward says, “which was nice to have her affirm what we were doing and what universities around the country are doing. It showed an understanding and an appreciation for higher education, that she would go through that sort of in-depth analysis.”

Even with the ruling heavily in GSU’s favor, the University System of Georgia immediately tailored its copyright policy to fit the guidelines the judge had applied in hopes of avoiding any future injunction. Most notably, the USG policy was amended to define what constitutes a “decidedly small” portion of a work, as determined by Judge Evans in this case: 10 percent, or one chapter of a book with 10 or more chapters.

Her final order, issued in August 2012, cemented GSU’s victory. Judge Evans wrote that the court was convinced the university had been attempting to comply with copyright laws and ordered GSU to maintain policies that were consistent with her orders, which it was already doing. In what observers called a “stunning” turn, the judge not only named GSU the prevailing party, but directed that the publishers — by way of CCC and AAP — pay all attorney’s fees resulting from this case.

Outside Council

Steve Schaetzel (top left) and Tony Askew (top right) headed up the legal team from King & Spalding that served as special assistant attorneys general for Georgia State. Among the attorneys working with them on the case were (below left) Natasha Moffitt (J.D. ’01), a partner in the firm’s Intellectual Property Practice Group, and (below right) Kristen Swift Lynn (J.D. ’06), an associate in the Business Litigation Practice Group.

In response to the court’s order, the AAP issued a statement, saying that the decision, “which [they] believe to be legally vulnerable on multiple grounds, endangers the creation and dissemination of high-quality academic work.” Further, when declaring their decision to appeal, the AAP wrote that the ruling “ignored [a] pattern and practice of widespread infringement and instead conducted a microscopic examination of a narrow selection of individual works.”

That this case made it to trial at all came as a surprise to many. CCC and AAP send countless letters to academic institutions warning of infringement, and these notices, historically, generally result in a change in practice or the purchase of an annual license from the CCC for use of copyrighted material. GSU received such a letter and responded that it would carry on, believing its practices to be permissible under fair use. Neither party wanted to give in; even when the USG revamped its copyright policy in early 2009, the publishers pressed on rather than drop the lawsuit.

“Something that really became apparent was the conviction that we were right, and that we needed to stand up for the fact that we were right,” says Nan Seamans, Dean of Libraries for GSU. “That’s pretty compelling, to say, ‘We have done some things, and we think that we are completely legal in what we are doing,’ and then to defend them.”

Since the final order was filed in August, this case has been roundly praised among academics as a victory not just for Georgia State and libraries, but for all of higher education, Seamans says. “I think it’s a huge win.”

Seamans, who was named as a defendant in the suit, said at first there was an assumption in the library community that GSU must have been doing something so egregious that the school was clearly afoul of the law. That perception turned around fairly quickly, she says, when the other institutions realized that they used similar guidelines.

“It felt to me as though the plaintiffs were trying desperately to eliminate fair use, period,” Seamans says of the trial. “If nothing else, fair use has been sustained as part of the lawsuit, and I think that’s critical because it does allow so much in an educational environment. … If it had been struck down, it would have been just devastating in terms of using materials, cost — so many things that would have had an impact on students and teaching and learning.”

Instead, the impact of Judge Evans’ decisive order will be felt across the country, even though her ruling is binding only in select jurisdictions and serves as persuasive precedent in all others. University libraries, university presses, scholarly publishers, academics and attorneys across the country and into Canada have watched the case, discussed it and written about it with great interest.

Print and online outlets like The New York Times, The Atlanta Journal-Constitution, The Chronicle of Higher Education, Inside Higher Ed, Library Journal, American Historical Association and the Association of American University Presses, among others, have covered the lawsuit for years now. In the months between the ruling and the final order this summer, followers of the case convened seminars, webinars and conference calls to pick apart what the case could mean for copyright in a nonprofit educational context in the digital age.

GSU in-house legal team

University Attorney Kerry Heyward (above left), Assistant General Counsel Gwen Spratt (J.D. ’90) (above center) and Dean of Libraries Nan Seamans (above right).

In the pre-digital era, a fair use usually consisted of a student or faculty member making a hard copy — one that couldn’t be tracked — for personal research. Today’s copies are instantaneous, exact and easily shared, says Kevin Smith, director of the Office of Copyright and Scholarly Communication at Duke University Libraries, who has written extensively about the lawsuit.

“It’s one of the very, very first cases to test the boundaries of fair use in academia,” Smith says. “The case against Georgia State is the first time that this method of distributing course materials online has been challenged in court.”

Smith’s very job is an indication of the unease universities feel in this rapidly changing landscape. Faculty posts similar to Smith’s, requiring both a library and a legal background, are propagating across academia to support students and faculty when questions around copyright arise.

“Increasingly I tell people that copyright is the air we breathe,” Smith says. “We don’t necessarily realize it, but we’re constantly in situations that at least implicate considerations of copyright.”

At GSU, Seamans’ and Heyward’s teams share the responsibility of educating faculty on fair use and copyright issues. Gwen Spratt, assistant general counsel for GSU, leads workshops across campus to demystify the fair use checklist and encourage faculty authors to retain copyrights for their own works — particularly in light of this litigation. In one instance of alleged infringement, a GSU professor had assigned an excerpt from a work she had written, but for which she no longer held the copyright.

While academic institutions will likely fine-tune their policies and practices, we can expect to see changes on the publishers’ side as well. Professor Michael Landau, GSU College of Law’s resident copyright expert, says publishers must clean up their contracts. Although presses have been hesitant to license individual excerpts for fear of cutting into the market for complete books, they will likely overhaul their licensing structures and disaggregate anthologies and large works in order to maintain control over smaller excerpts and collect associated fees. Landau foresees an arrangement similar to ASCAP or BMI — non-exclusive licensees for music — as the future of CCC.

Even though the outcome is still unsettled, many positive effects are playing out across GSU’s campus and nationwide. Heyward says she’s seen an increased awareness of and clarity around copyright law among the faculty, which is particularly important in this age of new media. The lawsuit has made Georgia State a central part of the national conversation in higher education; President Becker and Provost Risa Palm, who have been articulate and knowledgeable backers of GSU’s policies throughout the litigation, have helped to advance the discussion in their peer professional circles. GSU’s name is out there where it wasn’t before, with a newfound prestige.

“We’re growing as a university and we’re striving to provide the best education we can,” Heyward says. “Part of that is allowing our students to have access to the most current and most relevant information they can get.”