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Copyright Blog

GSU Prevails in Long-Running Fair Use Fight

The trial court has issued a final order in this seminal educational copyright case, with litigation spanning more than a decade.

There have been few instances where case law has provided guidance on the application of copyright's fair use doctrine in educational settings. For this reason, Cambridge University Press v. Becker has been a crucial development in education law, intellectual property law, and the places where these fields intersect. We published updates on this case previously in 2016, 2018, and March 2020.

The case began in April of 2008 when Cambridge University Press, Oxford University Press, and Sage Publications (the "Publishers") sued Georgia State University ("GSU") for copyright infringement. The Publishers took issue with the GSU's online course reserve system, fearing that it allowed too much copyrighted material to be copied and redistributed without the payment of licensing fees. GSU asserted fair use.

Although the Publishers' initial list of claims was substantial, the trial court ended up applying a fair use analysis to 74 claims, each claim embodying the way material from a particular book was used in a particular class during a particular semester. A fair use analysis examines (1) the purpose of the use; (2) the nature of the copyrighted work; (3) the amount of the work used; and (4) the market impact of the use. The trial court initially found that fair use applied in the vast majority of the claims. However, the Publishers appealed the decision, and the court of appeals condemned the trial court's mathematical application of the fair use doctrine (treating each of the four factors equally and finding infringement only when 3 or 4 of the factors weighed against fair use).

When the case was remanded, the trial court revised its analysis and assigned each of the fair use factors a different percentage of weight depending on its relative importance. Infringement was found on a few new claims, but when the case was again appealed, the court of appeals again condemned the use of a mathematical formula in the fair use analysis, directing that each instance of alleged infringement should receive its own weighing of the factors, without a cookie-cutter percentage assigned to any of them.

The case was remanded once again, and the trial court approached each claim more holistically and individually, in line with the direction from the higher court. The holistic method allowed the court to identify infringement in more claims; of the 48 remaining claims at issue in the case, 10 were found to be infringement. The trial court issued a lengthy opinion in March 2020, describing its analysis and its findings. The court declined to declare which party had prevailed in the case and what relief should be granted until the parties had time to brief the issue thoroughly.

On September 30, 2020, the court issued its final order. After weighing the number of claims on which each side had prevailed and the significant findings of law that the court of appeals had made in favor of each side, the trial court found, as it had before, that GSU was the prevailing party in the case. The court decided, contrary to its previous orders in the earlier iterations of the suit, to use its discretion to not award attorney's fees to GSU. However, costs, not including fees, were levied against the Publishers in favor of GSU.

The court also granted declaratory relief by identifying the specific claims that were copyright infringement and on which the Publishers prevailed (10 specific uses of works in classes) and by stating that GSU (through fair use) prevailed on the other 89 original claims.

The court finished its order by considering injunctive relief. While the Publishers proposed a "regimented program of oversight" to be administered against GSU going forward, the court instead entered an injunction ordering GSU to maintain copyright policies not inconsistent with the rulings of the court of appeals in the case and to inform all professors and instructors of the rulings in writing.

Hopefully this order provides a definitive end to the case, although it is possible that the ruling could provoke another appeal. Regardless of the specific outcome for GSU and the Publishers, though, the case does provide valuable guidance to those seeking to apply fair use in an educational setting, and specifically, outlining the parameters of fair use related to digital course materials.