Thursday, April 7, 2011

Pending case may test parameters of fair use exception for classroom use of copyrighted materials

The BNA Electronic Commerce & Law Newsletter, 16 ECLR 555 (April 4, 2011) is reporting on a pending Georgia case that will determine whether university professors who scanned, uploaded and distributed to students via a password protected electronic library system have violated the publishers' copyrights (the plaintiffs seek to hold university officials liable on vicarious copyright infringement grounds).  The case may ultimately turn on a sovereign immunity issue (the defendants are Georgia State officials) but if not, a trial on the fair use issues is scheduled for June. More from BNA (subscription required):

The publishers in this case take issue with the university's operation of two electronic systems, ERes and uLearn. The systems operate in different ways, but each enable faculty members to provide reading materials to students in electronic formats.
Before posting documents, professors are required to complete a fair use checklist, and the university has the ability to remove content that is infringing. If the checklist weighs against a finding of fair use, professors are directed to obtain a copyright license. However, in practice, court documents revealed that professors often decide not to include content rather than obtain a license, due to budget deficits and other concerns.
The plaintiffs, Cambridge University Press, Oxford University Press Inc., and Sage Publications Inc., contended that university officials are liable for “pervasive, flagrant, and ongoing” distribution of copyrighted materials.

Click here to view the complaint, and here to view the district court's most recent order denying, without prejudice, the defendants' motion to dismiss due to sovereign immunity.


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