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March 7: Copying for research and education as fair use

Guest -- Susan Kornfield

The three cases for this week involve reproductions of (mostly) scholarship for the purpose of research and/or teaching.  Note the explicit references to "copies for classroom use" and "research" in §107.  How should courts consider these and the other included examples of fair uses?  Should these listed uses be given additional weight in the fair use analysis or are they listed only to give courts and the public a sense of the kinds of uses that might be fair uses?  Would it be unreasonable to treat the listed uses as abundantly fair uses?  If such uses are not quintessentially fair uses, how should courts interpret language such as "multiple copies for classroom use"?

The courts in these cases do not see the uses in question to be transformative uses.  With this in mind, which factors do you see as most compelling for the courts?

In each of these cases, it is not the end user--the researcher, instructor, or student--who is making the reproductions.  Would these cases have come out differently if it were?

 

  1. American Geophysical v. Texaco
  • In Texaco, how big a role does Texaco's being a for-profit company play in the court's analysis?  Are the kinds of uses that Texaco makes of the reproduced articles all that different than the kinds of uses faculty and graduate students studying the same subjects might make on the University of Texas campus?  If this case were brought against the University of Texas, would it have come out differently? 

 

  1. Princeton University Press v. Michigan Document Services
  • Michigan Document Services was a copy shop right here in Ann Arbor, though we would have included this case if it had been in another community.  MDS lost at trial, prevailed in the Sixth Circuit, but, ultimately was defeated in this en banc decision. We have given you the whole case to review; be sure to read the dissents, as well, as this case would have come out differently if just two judges had switched sides.  Susan Kornfield, the lead lawyer for MDS, will be with us in class.  

 

  1. Cambridge University Press v. Patton
  • The Patton case involves three prominent publishers' bringing an infringement claim, in 2008, against Georgia State University based on GSU's uses of 99 works in its e-reserves and course management systems.  In an extensive 350-page district court opinion, Judge Orinda Evans found most of the uses GSU made of works included in the suit were fair uses, ultimately finding five infringing uses.  As you see in Patton, the 11th Circuit reverses and remands for reconsideration.  
  • In 2016, Judge Evans, in Cambridge University Press v. Becker (371 F.Supp. 3.d 1218 (N.D. Ga. 2016)) sought to  to apply the 11th Circuit's rubric.  Judge Evans again finds largely in favor of GSU, this time with four infringing uses and, as before, awards attorneys fees to GSU.  In a second appeal, Cambridge University Press v. Albert Links to an external site., the 11th Circuit again remands on fair use because, among other things, it finds that the lower court: inappropriately included pricing as part of its third-factor analysis, underestimated the fourth-factor effect on the market in many of the uses, and, overall, was too quantitive in its application of the factors and that is should provide a more individualized, holistic, and qualitative analysis.
  • Ultimately, in a third visit to the Northern District of Georgia, the parties settled the case in 2020. 
  • After twelve years of watching this case, educational institutions remain unclear about which uses are and are not fair uses in the context of e-reserves and course management systems.  The services at issue at GSU were for course-related uses for students.  Would this case have come out differently if the GSU library had digitized library materials in its collection and given access to articles/chapters, upon request, for individual faculty research and scholarship, instead of for students to access?