Although Georgia State University has been embroiled in a bitter copyright controversy with academic publishers over its electronic course reserve program for more than a decade now, the case shows no signs of coming to a resolution anytime soon. In October 2018, the 11th Circuit Court of Appeals issued its long-awaited decision as the latest development in the ongoing legal saga. The lawsuit has been pending since April 2008, when Cambridge University Press, SAGE Publications, and Oxford University Press sued GSU for copyright infringement. The fight has centered on GSU’s E-Reserve practices, and its alleged failure to pay for the use of many of the publishers’ works. Instead, GSU claimed fair use and refused to adopt the policies that would placate the publishers. The case has since been decided, appealed, remanded, appealed again, and is now once more headed to the district court on remand from the 11th Circuit.
The issue that has prompted such back-and-forth is the application of the fair use test. The prongs of the test itself are arguably uncontroversial, but opinions on how they should be applied vary from court to court – and it is the District Court of Northern Georgia’s specific application that is at the center of each stage of this litigation.
There are four elements of the fair use test that must be examined: First, the purpose of the use; second, the nature of the copyrighted work; third, the amount of the work being used; and fourth, the effect of the use on the market. In the first decision, Judge Orinda Evans used “a mathematical approach” to weigh each of the four prongs. According to her original test, as long as at least three of the prongs tipped in the users’ favor then the use was considered fair. This interpretation led to a holding in favor of GSU, with most of the excerpts she reviewed qualifying as fair use.
The 11th Circuit did not agree with this application, arguing that the balancing test needed to be more holistic and stating that certain factors needed more emphasis. They accordingly remanded the case, and Judge Evans created another version of the test, one that assigned specific percentage values to the various prongs: 25% for factor one, 5% for factor two, 30% for factor three, and 40% for factor four.
When the result was appealed once more, however, the 11th Circuit again took issue. Judge Evans’ continued use of “a mathematical formula,” was declared incorrect, as well as her revision of her earlier decisions – which the court simply asked her to weigh differently, not change. The case has accordingly been remanded with instructions precluding re-visitation of already affirmed issues and encouraging the district court to “break free of its erroneous ‘arithmetic approach’ and to give each excerpt the holistic review the Act demands.”