By Kevin Smith


Thus we have another appeal to the Eleventh Circuit Court of Appeals, following the second trial court judgment, rendered after the 11th Circuit sent the case back on a remand order. Since the 11th Circuit had undermined all of the major principles the publishers were trying to establish, it is not very surprising that that second trial court ruling also went against them. What is a little surprising is that they are going back to the 11th circuit to complain, yet again.

This second appeal is at the stage where amici curiae (friends of the court) are filing briefs in support of one side or the other. In a recent blog post, David Hansen of Duke covered some of the points raised in the brief by the Authors Alliance on behalf of GSU. I would like to review some of the arguments made by the Library Copyright Alliance (LCA) in its brief, which also supports GSU.

The LCA brief begins by noting the foolish persistence of the publisher plaintiffs.  The brief suggests that the publishers actually got the best probable outcome way back in 2009, when the Georgia Regents adopted a new copyright policy.  That changed the case, and it made it much harder for the publishers to “knock out” fair use for e-reserves in through litigation.  But they kept going, making ever more unlikely arguments over excerpts that were used over three semesters eight years ago.  One possible explanation, if a reasonable explanation for these unreasonable actions can be found, is that the plaintiffs are essentially trying to re-litigate issues that the Court of Appeals already decided three years ago, something that U.S. law tries hard to prevent.

But the brief discerns a deeper, more sinister motive for the publishers’ behavior: “Having failed to strike a knockout blow, Publishers now seek death by a thousand cuts.” The LCA suggests to the Court that publishers are using their deep pockets to keep alive futile litigation in order to create a chilling effect on other universities.  This is probably correct, although it indicates just how out-of-touch these plaintiffs really are.  My impression is that this case has become something of a joke to many in the academic community, and that policies and practices for providing digital resources to students have moved well past most of the issues that publishers are fighting over with such comical determination.

One issue raised by the brief, however, is important and timely.  The LCA suggests that the trial court failed to analyze the second fair use factor as fully as it should have.  This is a problem not just with this trial court but with many, indeed most, applications of fair use.  Courts tend to look at the second factor, the nature of the work used, only in terms of information versus fiction, highly creative works versus those that are more factual.  As the brief points out, however, the second factor is the place to consider “whether the work is the kind of expression that requires copyright incentives for its creation.”  In other words, why is this particular type of work written, and what are the expectations of the authors of this kind of work?  Distinguishing between highly creative works and those that attempt to convey information is really just a surrogate for this deeper inquiry.  Courts should be asking, as the brief points out quoting an article by Robert Kasunic, “whether copyright might have reasonably encouraged or provided an incentive for an author to create the work.”

In the case of academic works, the LCA argues, it is recognition and prestige, not profit, that academic authors are seeking.  Since the rewards that copyright offers are not a significant incentive for creation, the purpose and nature of copyright itself argues that these works should be more accessible for fair use than a commercial movie or a best-selling novel.  Thus, according to the brief, a proper second-factor analysis would find that the second factor favors fair use for all of the excerpts at issue in the litigation.

The publishers, of course, do not like an analysis based on incentive, since they want to be able to substitute their own profit motive for the authors’ reasons for creating the work in the first place.  But profits for intermediaries, if they are to be relevant to a fair use analysis, must serve some role in incentivizing creation.  Since, for most academic works, any share in those profits is withheld from authors, the market that copyright is intended to create fundamentally fails in this area, so these works should be subject to a much wider field for fair use.

In its final section, the amicus brief from the LCA tries to return the Court of Appeals to the fundamental situation that is at issue.  What impact would it have on higher education and academic publishing if institutions were compelled to license each provision of even a small portion of a work to students in digital form?  Those licenses are very costly, so it is quite clear that some other priority would suffer if this extra money were paid to publishers, and the most likely source of those funds would be library collection budgets.  Thus, paying to license materials that have already been published and purchased would reduce universities’ ability to purchase or license new materials.  Publishers might create a new income stream, but it would be offset by lost revenue from sales.  Education and the production of new knowledge would be harmed, and academic publishing would begin to look a lot more like copyright trolling, rather than the dissemination of learning.

The LCA is asking the Eleventh Circuit Court of Appeal not to let this happen.  We can only hope that they listen.

Kevin Smith


Comments (2)

  1. Kevin fails to note one likely motivation for publishers ti pursue this suit further, viz., that the district judge ruled that the plaintiffs should pay all the legal costs of the defendants. This seems punitive and highly unreasonable since the original suit was brought on solid precedent established in coursepack copying cases that the publishers won and it was hardly a “frivolous” suit.

    In the amicus brief, the ARL Code is mentioned, but “best practices” have a more solid foundation when all the relevant stakeholders are engaged, as was done for the best practices regarding documentary filmmaking. Publishers could just as easily come up with a code of “best practices” reflecting only their interests, so it’s not clear why any deference should be paid to a code developed by only one interested party. Moreover, this code goes much farther than even the GSU judge did by recommending that all sorts of copying, including of full books, be justified as “transformative use” and hence not requiring any payment. At least the judge had the good sense not to go down that rabbit hole.

    As for academic author incentives, sure, they are not motivated to write by expectations of sales income, but how are they to gain the needed “prestige” if there are no presses with prestigious imprints around to publish their writings? They could just post everything they write to an institutional repository and in that way dedicate it to the public good. But they do not because having good publishers is an essential step toward what they truly want. (It is not true, by the way, that publishers never pay for peer review, as alleged by footnote 37; they certainly do pay scholars who review monographs.) And if scholars were so enthusiastic about open access, as the amicus brief claims, then why do they cling to the old model of publishing? Surveys have consistently shown that scholars do NOT give a high priority to open access. Rather, they want to publish with the most prestigious publishers, whether those publishers are using an open-access business model or not. If those publishers do not stay in business, those scholars lose out too.

    Income from secondary uses like coursepack copying, whether done through commercial copyshops or through e-reserve systems, is not negligible, as claimed here. At Penn State Press, where I was director for 20 years, it constituted about 5% of total revenues. Since smaller presses like ours already operate at a deficit, adding to the deficit only further jeopardizes their ability to sustain themselves. Duquesne University is now planning to close its press because of the $400,000 annual subsidy it requires. Small amounts of income matter even more to small presses than they do to libraries; no libraries I know of are threatened with closure because they pay for a CCC blanket license (which usually comes out to be $3.00 per student annually).

    I can think of one way presses might restore the balance here, since GSU does not support a press of its own and its faculty are free riders on the system supported by other universities: charge any GSU faculty member submitting a manuscript to a university press a submission fee.

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