Latest from GSU Fair Use case

There have been some recent developments with copyright case involving GSU libraries.  What you need to know in a nutshell:

  • Fair Use is still case by case.  No brightlines (10%, 1 chapter), No safe harbours.
  • Educational use upheld as a strong fair use factor (but not a guarantee by itself, all four factors still must be evaluated)

In other words, nothing has actually changed except maybe that licensing availability is going to become a stronger factor (lawsuit paid for in part by a licensing agency – so small victory for them).

Here’s the best summary of the most recent decision:

“The case involved three big houses (Cambridge U Press, Oxford U Press, and Sage) that sued Georgia State University over a policy that allowed copied excerpt use in class. When the case was originally decided, the judge used a somewhat novel case-by-case examination of the incidents rather than ruling on the policy as a whole. In its review, the 11th largely upheld that approach, which had led the judge to find for the defendants in all but five instances.

The Circuit did rule that the initial decision applied the Fair Use four-factor test incorrectly. The trial judge gave each of the factors equal weight (wrong) and failed to do a holistic analysis of how the factors balanced. This caused the 11th to overturn the verdict and send the case back down. In summary, it's OK for a trial judge to consider incidents individually, but when doing so, the judge still has to apply the fair use tests in the standard way to each incident.”

And some expert analysis from smart people:

  • “GSU appeal ruling — the more I read, the better it seems” Kevin Smith (Higher ed copyright lawyer)
  • “11th Circuit Rules On Georgia State Fair Use Case” Nancy Sims (another copyright librarian – and a lawyer)

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