The Devil's In The Details: Dissecting The 350-Page Georgia State University Electronic Reserve Copyright Ruling

On May 11, 2012, we learned what it sounds like when all the college professors and university librarians in the country breathe a collective sigh of relief. Judge Orinda Evans of the Federal District Court for Northern Georgia issued a whopping 350-page opinion which, for the most part, vindicated Georgia State University's fair use defense in the closely-watched copyright infringement case brought by a coalition of publishers (Oxford University Press, Cambridge University Press and Sage Publications) with the financial backing of the Copyright Clearance Center and the Association of American Publishers.

But was that collective sigh premature? The Court's opinion is in fact a mixed bag, and in that mix are so many controversial holdings on juicy legal issues that, even in the event that the plaintiffs here do not appeal, there is no chance that we've heard the last word on the subject.

Background

Georgia State University ("GSU") allows professors to select excerpts from academic texts and have the school library upload those selections to an "electronic reserves" system, known as ERES, where they are available for free to students in that professor's class. A significant portion of these uploaded excerpts are full chapters from academic textbooks. For example, one of the excerpts in question was Chapter 17 from Sage Publication's Handbook of Social Theory, entitled "Symbolic Interactionism at the End of the Century." The copyright notice page for that book indicates that each chapter was written as a standalone work by a separate author:

In 2008, the publishers brought suit against GSU, alleging that the ERES system was an illegal substitute for legitimate copies (i.e., the purchase of textbooks or the inclusion of authorized excerpts in course packets) and thus a vehicle for massive copyright infringement. The plaintiffs sought injunctive and declaratory relief, specifically, a change in GSU's electronic reserves policies and practices.

In 2009, while still in the midst of the lawsuit, GSU changed its policy, instituting the use of a "Fair Use Checklist" based on a similar policy at Columbia University. The new policy required that each professor use the checklist to determine for herself or himself whether uploading any particular chapter was fair use, with only limited oversight by the library. The plaintiffs claimed that this new policy was as problematic as the old one, alleging that it distorted the fair use analysis, and that the professors did not receive sufficient training or oversight in their use of the checklist.

In 2010, the Court granted partial summary judgment for the defendants, leaving alive only...