From the Chronicle of Higher Education, May 13 edition:
A federal judge in Atlanta has handed down a long-awaited ruling in a lawsuit brought by three scholarly publishers against Georgia State University over its use of copyrighted material in electronic reserves. The ruling, delivered on Friday, looks mostly like a victory for the university, finding that only five of 99 alleged copyright infringements did in fact violate the plaintiffs' copyrights.
"My initial reaction is, honestly, what a crushing defeat for the publishers," said Brandon C. Butler, the director of public-policy initiatives for the Association of Research Libraries. Given how few claims the publishers won, "there's a 95 percent success rate for the GSU fair-use policy." The ruling suggests that Georgia State is "getting it almost entirely right" with its current copyright policy, he said.
Judge Evans rejected many of the individual claims brought by the three plaintiffs--Cambridge University Press, Oxford University Press, and SAGE Publications--concluding that the publishers had not adequately proved their copyright stake in the material. She dismissed the plaintiffs' argument that Georgia State had exceeded the guidelines for classroom copying set out by Congress in 1976, long before e-reserves. And she examined publishers' balance sheets and concluded that they had not lost significant amounts of revenue because of the alleged infringements.
[Nancy Sims, copyright program librarian at the University of Minnesota] said that the judge took the educational purpose of each use seriously and did not focus just on market considerations. "That was one of the contentions here--that if you can pay for it, you should be," she said. "And that's clearly not what the court is saying."
One part of the ruling could be problematic for librarians and others trying to work out fair-use policies in academe. Judge Evans proposed a 10-percent rule to guide decisions about what constitutes fair use in an educational setting. For books without chapters or with fewer than 10 chapters, "unpaid copying of no more than 10 percent of the pages in the book is permissible under factor three," she wrote in her ruling. For books with 10 or more chapters, "permissible fair use" would be copying up to one chapter or its equivalent.
The publishers may well appeal the decision.
Further commentary is available from the Association of College & Research Libraries at: