eReserves and Fair Use Again

You may remember that the Georgia State e-reserves case resulted in a District Court ruling largely favorable to libraries, but with a bright line 10% standard applied for fair use. The publishers appealed and the higher court sent the case back to the District Court for a new fair use analysis.

The new ruling, yesterday, is still quite favorable to libraries and does away with the 10% rule. It does apply a financial analysis to each posted excerpt based on data available to the court after the fact, but not to the library or professor beforehand.

Both Keven Smith and Brandon Butler have written helpful analyses.

Some bottom-line advice from Smith:

 All we can do, then, is to continue to think carefully about each instance of fair use, and make responsible decisions.  We still have some rules of thumb, and also some places where we will need to think in a more granular way.  But nothing in these rulings need fundamentally upset good, responsible library practice.

The second takeaway from this decision is that we should resort to paying for licenses only very rarely, and when there is no other alternative.  The simple fact is that the nature of the analysis that the Court of Appeals pushed Judge Evans into is such that licensing income for the publishers narrows the scope for fair use by libraries.  To my mind, this means that whenever we are faced with an e-reserves request that may not fall easily into fair use, we should look at ways to improve the fair use situation before we decide to license the excerpt.  Can we link to an already licensed version?  Can we shorten the excerpt?  Buying a separate license should be a last resort.  Doing extensive business with the Copyright Clearance Center, including purchase of their blanket campus license, is not, in my opinion, a way to buy reassurance and security; instead, it increases the risk that our space for fair use will shrink over time.

And, from Butler:

Her new analysis, stripped of its bright lines and clear arithmetic, seems to amount to nothing more than her opinion about whether the use will substantially harm the market value (actual and potential) for the works used. How much harm is “substantial”? Well, in several places Judge Evans says the harm must be so extensive as to risk undermining the publishers’ entire motivation to publish the work. So, it would need to eat their entire profit margin (or enough that they decide it’s not worth the bother to publish). And in at least one place she seems to suggest that, because there is no marginal cost for a publisher to offer to license use of excerpts from a work, there is no real harm when GSU decides not to pay the license. This is heady stuff, and could offer a very wide berth for educational fair use of electronic excerpts.