Publishers To Appeal Georgia State e-Reserve Case

As readers know, the recent Georgia State e-reserve case was decided mostly in favor of Georgia State.  It was announced earlier this month that the publishers are appealing.  I refer you to the cogent analysis by Kevin Smith at the Scholarly Communications @ Duke blog on that.  He has links to the press releases by the Association of American Publishers and the joint statement by Oxford, Cambridge, and Sage on the decision and the forthcoming appeal.  Here are some quotes from them with my short comments. 

From the AAP statement:

If left uncorrected, these and other errors will encourage educational institutions across the country to engage in massive infringement of copyright at a great cost to the entire academic community. Publishers, authors, faculty and students are members of an educational ecosystem in which the creators and users of learning materials play complementary roles. Publishers identify outstanding authors and editors, transform manuscripts into leading scholarly works and produce, distribute and market the essential tools of teaching and learning. Publishers and authors must have the incentives to continue contributing to this ecosystem.

We are optimistic that the 11th Circuit Court of Appeals will provide a more balanced view of the fair use exception to copyright as applied to the use of digital content in education.

If uncorrected unchanged, libraries will have a better idea of the parameters of fair use in using electronic course materials compiled on site for integration in campus courseware.  I thought the Judge in the case went into excruciating detail on determining which works were covered by fair use and how she came to that conclusion.  None of it seemed outrageous or out of line in an area of law where congress and the courts seem to dance around the parameters of fair use.

From the joint statement:

This case had the potential to mark a significant first step toward addressing the need for clarity around issues of copyright in the context of higher education, where current practices around fair use in a digital environment vary widely and could benefit from sound judicial guidance. Our hope was that the District Court would provide that guidance.

Instead, the Court’s rulings, culminating in the August injunction decision, shift radically from long-accepted fair use principles and introduce, among other errors, unsustainable policies regarding the proportion of a work not readily available for digital licensing that can be digitally copied without restriction. We have no alternative but to appeal, to protect our authors’ copyrights and advocate for a balanced and workable solution

The case did mark a significant first step toward addressing clarity.  You just wound up on the losing side.  You asked the Court for guidance and you received it.  Maybe it wasn’t guidance you really wanted, but something else.  I don’t believe the Judge gave the library carte blanche to copy anything it wanted willy-nilly.  The Court bent over backwards to balance the equities.  The statement sounds more of a complaint that the troublesome doctrine of fair use exists at all.  I look forward to the briefs and the oral arguments.  [MG]