A decision came down on Friday in the case brought by publishers against Georgia State University as a result of their e-reserves policies. Kevin Smith of Duke University posted a helpful analysis:
Overall there is good news for libraries in the decision issued late yesterday in the Georgia State University e-reserves copyright case. Most of the extreme positions advocated by the plaintiff publishers were rejected, and Judge Evans found copyright infringement in only five excerpts from among the 99 specific reading that had been challenged in the case. That means she found fair use, or, occasionally, some other justification, in 94 instances, or 95% of the time. But that does not make this an easy decision for libraries to deal with.
Here are some specifics that will make life difficult for libraries:
First, the Judge applies a strict standard for the amount of a work that is permissible under fair use in this situation. The percentage she selects is 10%, or a single chapter. In putting this percentage into practice, she bases the calculation on the total page count of a book (this was an issue at trial, with publishers arguing that only the actual text of the work should be counted), and rejects any distinction for books that are edited, in which each chapter has a different author (p. 88). This is a less flexible standard than many libraries would like, I think, and it seems too rigid to be a good fit with the overall structure of fair use.
Second, the Judge bases many of her analyses of the fourth fair use factor on the percentage of the overall revenue that publishers realize for a particular title that comes from permission fees. She criticizes the GSU policy for not providing sufficient guidance for making a determination about this kind of market impact, but immediately acknowledges that the standard she is applying “would likely be futile for prospective determinations (in advance of litigation)” (p. 337). This is simply an unhelpful approach, since libraries and faculty members must make such prospective determinations without knowing all the information that publishers provided, under court order, to the judge. Recognizing this, Judge Evans says that “the only practical way to deal with factor four in advance likely is to assume that it strongly favors the plaintiff-publisher (if licensed digital excerpts are available) (p. 338).
In addition to having to consider market impact prospectively, based on factors libraries cannot know, the judge also considered numbers of hits in determining market harm. Since the fair use analysis must be made before any hit counts are possible, this makes the decision more difficult for libraries. It can only be after the fact evidence that they made the right or wrong decision regarding likely market harm.