By Kevin Smith

There have been developments, of the sort that don’t make headlines, in two major copyright cases that folks in higher education need to know about.

First, today the Supreme Court announced that it would not review the opinion issued by the Second Circuit in the Authors Guild v. Google, the case about the Google Books project that offered a strong reaffirmation of fair use.  So the Authors Guild finally and definitively loses another in its string of anti-fair use cases.  This was what I and many others expected, but it is nice to be able to say that this case is done.  And the broad, flexible approach to fair use that is outlined in the Second Circuit’s decision stands, which is great news.

Second, in the Georgia State University lawsuit, brought by three publishers over electronic reserves in academic libraries, the judge has clarified her decision due to an inconsistency that several of us noticed.  Specifically, in the summary of the decision, the judge listed seven instances of infringement from amongst the 48 excerpts that she was evaluating.  Lots of reporting on the case therefore noted that the “score” in the decision was 41 examples of fair use to 7 infringements.  Certainly a victory for GSU, and the university was declared the prevailing party for the purpose of collecting costs and attorney’s fees from the publisher plaintiffs. But three of those seven excerpts were the subject of considerable confusion, since in the item-by-item analysis, those three had been found to be fair. So after the error was pointed out, Judge Evans has issued a clarification that confirms what we expected — there were only four infringements found out of the 48 excerpts, so that score is now 44 fair uses versus 4 that were not.  Not a big deal, but still a slightly stronger affirmation of fair use for such e-reserves.

By the way, that the number of infringements has gone down since the first trial ruling, where there were five infringements found, should not be surprising.  When they vacated and remanded the case, the Eleventh Circuit Court of Appeals specifically told the trial court to employ more flexible standards to factors two and three in the fair use analysis.  Flexibility, which is the primary virtue of fair use, is a two-edged sword.  The publishers “won” the point in the Appeals Court, but when it was actually applied to the circumstances, it turned out to work against them.

This case has just passed its eighth anniversary in our courts.  Over that time the three publisher plaintiffs have amassed a spectacular string of losses.  Even when they seemed to win at the appellate level, they lost on all of the radical changes in copyright and fair use that they have been trying to push.  If there is any common sense left in the academic publishing industry, which I am beginning to doubt, this case should be dropped.

Kevin Smith

Kevin Smith is a librarian, a lawyer focusing on copyright issues, a scholarly communications advocate, and the Dean of Libraries at the University of Kansas.

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