Friday, June 24, 2011

A Question Of Infringement: Digital Course Packets Used In University Instruction

A current copyright infringement lawsuit, pending in the federal court in Georgia, concerns the practice by instructors at Georgia State University of posting electronic versions of copyrighted material on the GSU computer system for use by course students. Importantly, from the point of view of the plaintiffs (Cambridge University Press, Oxford University Press and Sage Publications), GSU fails to obtain permission and pay for the electronic posting of the copyrighted course materials. Although GSU does apparently obtain permission and pay rights fees for traditional paper course packets, it takes the position that the electronic course packets are fair use. As such, the three publishers are seeking an injunction to prevent further postings of electronic course packets at Georgia State without permission.

Both parties are fighting hard. A bench trial was held several weeks ago and the parties are presently participating in post-trial briefing. A decision should be forthcoming from Judge Orinda D. Evans sometime this summer, hopefully prior to the start of fall classes.

The mechanism employed at GSU to electronically post course materials is interesting. The university has two systems in place for this purpose. In one system, the instructor fills out a fair use check list form, makes an initial determination whether fair use does or does not exist by, apparently, adding up the pro and con check marks, and then submits the form to the library for review. If the checks add up to fair use, then the library will digitally copy the copyrighted material and electronically post the digital file on the university's computer system for access by course students. In the second system, a similar fair use check-off system is employed by the instructor but the instructor uploads the copyrighted material directly to the university's computer system. In either case, the instructor will assign the digital course packets to class students as part of the class requirements.

The publishers argue that there is no practical difference in terms of copyright harm between distributing the course packet in paper form or in digital form. [The case of Princeton University Press v. Michigan Document Services, Inc. is one of the leading cases finding that the production of paper course packets by a commercial printing service does not constitute fair use.]

The fair use check-off form is of interest. A copy of the form is reproduced below. It takes the various fair use elements from the Copyright Act and case law and creates two columns, for and against fair use. Here is the form:

The problem with this form, as I see it, is not that the form omits any of the key elements of a fair use analysis, but rather that the form compels the application of equal weight to all of the factors across the board. In counting up the check marks, it certainly appears that the result will constitute fair use in all circumstances. If the fair use exemption were this broad, then no educational institution would be liable for copyright misuse since in virtually all instances of educational use the check marks will tally toward fair use. Logically, this cannot be. Indeed, if greater weight were applied to certain of the factors, and less or no weight to others, then the exemption calculus might produce different results than merely adding up the equally-weighted check marks.

Georgia State is not the only educational institution to employ an equally-weighted fair use check-off form. Columbia University, as an additional example, provides a similar form to its instructors.

It will be interesting to learn Judge Evans' view on all of this once the trial opinion is entered. Stay tuned.

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