Copyright infringement or academic fair use?

Cambridge Univ. Press v. Albert, Nos. 12-14676 & 12-15147 (11th Cir. Oct. 17, 2014).

Three academic publishing houses sue Georgia State University for copyright infringement. GSU allows professors to distribute digital excerpts of the publishers’ books to students without paying the publishers. The publishers say this policy violates the copyright laws, while GSU invokes the fair-use defense. 

The Eleventh Circuit’s fair-use analysis is lengthy—very lengthy—and I can’t do full justice to it here. To me, a nonspecialist in this area, the most interesting part of the analysis is where the court looks at the nature of the use: was GSU’s use of copyrighted works commercial or for some other purpose? If the use was noncommercial, it’s likelier to qualify as fair use. Answering this question requires the Eleventh Circuit to survey past “coursepack cases”—potentially analogous cases in which educators distributed paper coursepacks containing unlicensed excerpts of copyright works. And in those cases, courts rejected the fair-use defense. 

But the Eleventh Circuit concludes that those cases are distinguishable. The defendants in those cases weren’t the educators or students: they were for-profit copyshops who were making money off the coursepacks. Here, by contrast, the alleged infringer is a nonprofit university, and the works are being used for educational purposes, not commercial ones. The professors distribute the excerpts electronically without having to go through a copyshop middleman, and only the students in their classes have access to the excerpts. So, according to the Eleventh Circuit, the nature of the use here favors a finding of fair use.  

There’s much more to the opinion than that, but the upshot is that the Eleventh Circuit finds that the district court’s fair-use analysis had holes in it, and reverses and remands for further proceedings.

More coverage of the opinion can be found here.