The GSU E-Reserves Decision: First Thoughts

It’s funny. Tuesday night I wrote a blog post addressed to students in a course I teach about why I find Twitter such an indispensable  tool for keeping up with new developments of professional interest. They had fanned out across campus to interview faculty and pretty much determined that I’m a freak. Nobody they talked to used Twitter for keeping up.

Last night, I updated that blog post with a good example: before calling it a night, I checked my Twitter feed and learned that a decision had finally been handed down in the GSU case, a case in which three scholarly publishers sued several people at Georgia State over different interpretations of what constitutes fair use in e-reserves. @CopyrightLibn, @LibSkrat, @ARLPolicy, @JMarkOckerbloom, and @klsmith4906 were already hard at work discussing the opinion, which CopyrightLibn (Nancy Sims of the University of Minnesota) had kindly posted online, thus demonstrating how information is shared in an ideal world. By around 4 am Kevin Smith of Duke University posted his well-informed analysis.

I have no legal training and am simply interested because the case affects what we do on my campus every semester, and it could have gone very badly, indeed. This is what I posted at 9:32 last night as I settled in to read:

• Good. LORD. GSU opinion hot off the press - and 350pp long! Typical length of a thriller these days.

Actually, the novel I had planned to read before bed is a bit shorter, but that's okay; the decision is not only thorough, but extremely well-written, a model of clarity--and pretty gripping in a nerdy way. It took the judge a few days shy of a year to examine the evidence and make a ruling. That’s a big issue, right there. The decision includes a painstaking application of principles that librarians and faculty must routinely decide with far less information. Does a particular course reading satisfy the four factors test for fair use, or does permission have to be sought and, if available, paid for? If not, or too expensive, what other reading might work instead? These aren’t questions that academics can afford to research for a year, nor can they be conveniently dismissed with wads of cash. A lot of what we ask students to read because it’s an important part of how we understand the things we teach is simply not readily available for licensing. In fact, many of the texts in dispute could not be easily paid for, even though the plaintiffs claimed not paying for them might put them out of business, a claim that the judge characterized as "glib."

• Reading (well, skimming) discussion of licensing and rights, THIS is what people who deal with knowledge have to wrestle with EVERY DAY.
• I appreciate the way this #GSU decision gets why there is no easy way to make this work. Many moving parts, most of them rusty. Thanks, (c).
• Thinking about every professor for every course for every reading having to go through this process makes my head ache. #letthemeattextbooks

The court had an amazing trove of information available through the discovery process that librarians and academics considering these issued never have: detailed financial information about sales and rights income that are needed to inform an interpretation of how much a use might harm the market for the text in question. In fact, the judge conceded that there is no way anyone can make a routine determination of the fourth factor, concluding that the only practical solution is to assume the worst.

• "From July 1, 2004 until December 1, 2010, [work] earned $12.36" in permissions income. Publishers will fail w/o this income? Srsly?
• "Making small free excerpts available to students would further the spread of knowledge." Yes. Please, sir, could I have some more?
• Oh, goodie. Court recognizes that copyright greed isn't promoting science & useful arts. Plaintiffs called no authors, defendants did. Heh.
• "plaintiffs have no incentive to assert the rights of the authors of the chapters in the edited books in this context - (1/2)
• (2/2) "except to seek to choke out nonprofit educational use of the chapter as a fair use. The Court will not allow this to happen."

The judge stated bluntly that some of the limitations publishers pressed for, such as not allowing instructors to claim fair use if a reading is used for more than one semester, are without merit. In the end, after weighing the evidence, of the 99 readings assigned to classes at GSU which the publisher plaintiffs claimed were infringing, the judge found 94 were fair uses. Only five were infringing, largely because of a double-whammy of using too much (the decision defines "amount" narrowly, though not nearly as narrow as the plaintiffs, as no more than 10% of a book or no more than one chapter) and possible impact on the market.

• Repeat after me 94 times: "this claim of copyright infringement fails."

That doesn't mean the decision is a total win for libraries and instructors. It's a huge relief that most of the uses were found to be fair and that simply asserting possible financial losses would not automatically cancel out the other three factors. The judge found nothing compelling about the argument that publishers were threatened by fair use, but did imply that the fourth factor weighed more heavily if paying fees were made easy for the user. It's worth noting that of the five infringing uses, four were from SAGE publications, and SAGE is the only one of the three plaintiffs that licensed permissions routinely for all of their books. There is now every incentive for publishers to assume all rights, leaving authors with little but the privilege of being published, and make payments slick and easy. It also provides incentives for institutions to avoid risk by simply paying up if that's easier than thinking about fair use, simply passing the cost along to students or maybe the library. Can your students afford more expenses? How about your library? And to make things worse, the more money these licenses make, the more weighty the claim that not paying up harms the market.

• Sigh. If publishers make it easy to pay up, they get an auto win on the fourth factor. This seems unfair, no pun intended.
• This #GSU decision's mention of $$ amounts (TINY compared to legal fees) suggests gain is in presumed new revenue streams fr/permissions.
• I kind of want everyone who signs away their rights to read these findings one by one before they are allowed to share anything w/students.
• Maybe then they'll say "OH, that's the problem." Or they may just hate me.
• (It still boggles my mind that scholarly presses are suing scholars teaching works that were written to further knowledge. Just sayin.)

In the end, it's really up to the academy. There's no question these publishers add value. They do good work. But is the value they add worth hassling over every assigned reading and choosing different readings if permission can't be obtained? Is it worth making knowledge a pay-per-view proposition? Is it why we write this stuff in the first place? Could we put up with a package that's a little less shiny, burnished with a little less automatically-generated prestige, if it meant we could freely teach and students could freely learn?

I'm not suggesting scholarship is ever going to be without cost. But considering how much in-kind support goes into writing things that have earned publishers $12.36 in six years, and how much each academic library pays to sustains the current system, the costs are much, much higher when we lock this stuff up and demand a fee every time a student tries to read it. These publishers aren't suing over $12.36. They're suing over what our future will be. That's really up to us.