When Is eReserves Like Illegal File Sharing?

There is a case out of the Northern District of Georgia where three academic publishers (Cambridge, Oxford, and Sage) are suing Georgia State University for copyright infringement because the University places excerpts of their publications on electronic reserve without paying a fee.  The publishers are not seeking monetary damages but rather injunctive and declaratory relief.  The case is not about a single incident or publication, but about the fair use policy for academic use at Georgia State.  By implication it becomes a case about every academic institution's policy for copyrighted materials used as course readings.  Where is that line between fair use and infringement?  So far, the Court has ruled more favorably than not for the University.

Cambridge et al. sued on three different theories: direct copyright infringement, contributory copyright infringement, and vicarious copyright infringement.  The order issued by the Court on October 1 addressed these and other issues in cross motions for summary judgment.  Some of these other issues included whether sovereign immunity shielded the Board of Regents from suit (in this case, not), and which University copyright/fair use policy was at issue.  GSU revised its policy in February 2009.  The plaintiffs brought their suit against incidents before and after the revision.  The Court limited the suit to incidents after the revision.

The plaintiffs claimed that direct infringement was provable through the doctrine of respondeat superior.  The Court said that despite arguments about alleged infringement occurring within our without the scope of employment, respondeat superior only enables indirect liability.  The doctrine, therefore, was not applicable.

The Court concludes that Defendants cannot be held directly liable for any copyright infringements which may have occurred after the 2009 Copyright Policy was enacted. Georgia State as an entity is not capable of copying or reproducing copyrighted materials or making the individual fair use determinations. This must be done through its agents. Further, Georgia State cannot be held directly liable for actions of the individual instructors through a respondeat superior theory because respondeat superior applies in the copyright context as a basis for finding vicarious liability, not direct liability. Accordingly, Defendants' Motion for Summary Judgment as to Claim 1, direct liability for copyright infringement,is GRANTED and Plaintiffs' Motion for Summary Judgment as to Claim 1 is DENIED.

The Court next tackled the vicarious liability claim.  One of the requirements for imposing vicarious liability is that the infringer profit directly from the infringement.  Plaintiffs argued that using current technology to attract and retain students is enough of a connection to meet that requirement.  Plaintiffs also cited edited statements from a technology manager and a faculty member about the financial impact on students as a way to create that nexus.  Not so, said the Court:

Overall, the evidence presented does not indicate that Defendants "profited directly from" or "had a direct financial interest in" the infringement alleged by Plaintiffs. There is absolutely no evidence in the record showing that Georgia State benefitted financially from the alleged infringements. At most, if the Court takes the inferential steps suggested by Plaintiffs, any benefit the infringement provides to students constitutes "just an added benefit" rather than a clear "draw" to Georgia State. Therefore, the Court GRANTS Defendants' Motion for Summary Judgment as to the third claim, vicarious copyright infringement and DENIES Plaintiffs' Motion for Summary Judgment as to the third claim.

The last claim at issue, contributory infringement, is a bit trickier.  As stated by the Court:

As to Claim 2, contributory infringement, the First Amended Complaint alleges that Defendants infringed Plaintiffs' copyrights "[b]y facilitating, encouraging, and inducing librarians and professors to scan, copy, display, and distribute Plaintiffs' copyrighted material included but not limited to each copyrighted work identified on Exhibit 1 -on a widespread and continuing basis via the Georgia State University website and other Georgia State computers and servers. . . ."

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Plaintiffs contend that contributory liability is established solely by Defendants' undisputed knowledge of the electronic distribution of their works and the fact that Defendants have the authority and ability to remove infringing material from ERes and uLearn. They argue that they need not show that Defendants induced or caused the infringing activity in order to be held contributorily liable, and that the following is sufficient to constitute "material contribution": Defendants' provision of the "site and facilities" for the electronic distribution of copyrighted materials; Defendants' failure to remove "infringing works"; Defendants' encouragement of the use of ERes and uLearn; and Georgia State's failure to pay permission fees to distribute Plaintiffs' works (or to establish a budget dedicated to doing so). The Court disagrees.

The Court noted in its disagreement that the electronic reserve system has more "significant non-infringing uses," citing the Sony Betamax case.  The Court also notes the Grokster case where the Supreme Court held that though a system may have dual uses, when combined with active promotion to use the system to infringe copyright, liability would attach. Nonetheless, the Court did not view the electronic reserve system as one promoting infringement:

Here, the evidence indicates that ERes and uLearn have significant noninfringing uses. They can be used to facilitate distribution of materials protected by fair use. They can be used to digitally distribute works for which Georgia State owns licenses. They can also be used to distribute copyrighted works with permission from the copyright holders. They can be used to distribute original materials created by the instructors or materials for which the instructors or the university owns copyrights. uLearn allows instructors to utilize a wide range of tools to manage their courses, such as discussion forums, quizzes, and announcement pages. None of these activities implicate copyright infringement.

Moreover, there is no indication in the record of a "clear expression or other affirmative steps taken to foster infringement" by Defendants with respect to ERes and uLearn. The fact that no budget exists to pay permissions fees for electronic postings cannot be said to encourage unlawful conduct. Indeed, the instructors testified that if they determined that a use of a work was not fair such that permissions fees must be paid, they would simply elect not to use the work [citations to the record omitted].  The fact that Georgia State administrators encourage the use of electronic systems such as ERes and uLearn also does not constitute a material contribution to copyright infringement, since these systems allow for significant non-infringing uses as described above.

The contributory infringement claim will go to trial, however, as the question remains as to whether the current copyright policy encourages improper application of the fair use defense.  The policy in question is attached to the order as an appendix.  The opinion is available from Justia with attachments.  There is an excellent discussion of this case by Kevin Smith on the blog Scholarly Communications @ Duke.  Hat tip to him for noting the issues.  The current Georgia State University Copyright Policy is here.  This case will have national impact at its conclusion.  [MG]