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Copyright Blog

Third Time's (Hopefully) the Charm

The Georgia State copyright case gets another ruling from the District Court

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The District Court in the Georgia State University copyright case has issued a 241-page opinion with its most recent findings. Georgia State University (“GSU”) has been embroiled in copyright litigation with three academic publishers since April 2008. The case has been decided, appealed, remanded, appealed again, and remanded a second time. In November 2018, we reported on the 11th Circuit Court of Appeals’ latest remand back to the District Court.

The issue surrounding the litigation is the court’s fair use analysis, which the appeals court clarified for the district court in its previous opinions. The four factors for fair use are: 1) the purpose and character of the use; 2) the nature of the copyrighted work; 3) the amount and substantiality of the portion taken; and 4) the effect of the use upon the potential market.

The lawsuit was initially filed when the plaintiffs learned of GSU’s allegedly infringing activity through a program which allowed professors to post excerpts of copyrighted works on GSU’s electronic reserve system. No licenses were paid by GSU for the excerpts used. GSU instead relied on the fair use exception provided in 17 U.S.C. § 107.

The District Court’s opinion begins by summarizing the directions given by the Court of Appeals, both from the first and second appeal of the case. In its second opinion, the Court of Appeals gave very direct instructions to the district court for evaluating the fair use factors. The Court of Appeals ruled that the district court erred in using a quantitative rubric for finding fair use, rather than using a qualitative assessment. The Court of Appeals also reaffirmed the importance of the fourth factor of the fair use analysis in its latest instructions to the District Court.

The bulk of the District Court’s opinion comprises fair use analyses for 48 of the alleged infringements. Many—if not all—of these analyses are helpful for university copyright licensing staff who are tasked with making fair use determinations. Through its analysis, the District Court found all but 11 of the alleged infringements to be fair use. Injunctive or declaratory relief is yet to be determined by the court.