Respecting the Rights of Others Is Not a Burden

Stephen Carlisle May 26, 2016

A colleague sent me a link to an article posted on the website of “The Chronicle of Higher Education.” The post, titled “Colleges Shouldn’t Have to Deal With Copyright Monitoring” was written by Pamela Samuelson, a law professor at the Berkeley School of Law. ¹

The article bemoans the injunction being requested by the publisher Plaintiffs in the long running lawsuit against Georgia State, which I have written about before on this blog. ² The case, now in its eighth year, pitted three textbook publishers against the Georgia State University. At issue was the practice of scanning portions of textbooks and placing them on an “e-reserve” system so they could be accessed by students.

The copying by Georgia State was rather small, on average around 9.6% of the total book pages, and the majority were a single chapter from a book that averaged 18 chapters. Yet, the publishers sued for 126 counts of copyright infringement.

A first trial was resolved largely in favor of Georgia State. Out of the 126 counts initially brought, only 74 went to trial. Of those 74, the Court ruled that 26 counts failed to prove a prima facie case of infringement, 43 were fair use and the remaining 5 were infringing. ³ The Judge declared Georgia State the prevailing party and assessed $2.5 million in attorneys’ fees and costs against the publishers.

The publishers appealed and the Eleventh Circuit Court of Appeals reversed. ⁴ In a split decision, the Court largely approved the finding of the Court as to fair use, but disagreed with the methodology. It is worth noting that the dissenting opinion took the position that what Georgia State was doing was not fair use.

So, back the case went to the District Court in Georgia. The result was largely the same. In a March 31, 2016 opinion, the Court found that out of 48 cases of claimed infringement, only 7 cases were found to be infringing and the remaining were found to be fair use. Georgia State was again found to be the prevailing party for the purposes of awarding attorney’s fees.

The article jumps all over the requests of the publisher Plaintiffs for injunctive relief.

“The requirements would be too onerous and costly for colleges, given that such a small percentage of uses were found to infringe on copyright.” ⁵

Except that these requested requirements do not apply to “colleges.” It applies to exactly one. Georgia State University. Even if the Court were to grant the injunctive relief, and even if it were to be affirmed on appeal, it would still apply to only one “college.” Even if armed with that affirmance, the publishers were to go after other universities using the decision as a precedent, it would not be binding on the Courts in the 9^th Circuit, which is where Berkeley Law is located.

So, the post spills a lot of digital ink fussing over an injunction that has not even been issued, and that likely won’t have any effect on Berkeley Law.

What is there to complain about? Well:

“[Faculty members] would have to decide whether to license that material or determine that uploading parts of in-copyright books would be fair use. Faculty members would have to assess whether their uses of the relevant materials were narrowly tailored to serve their pedagogical purposes, were not excessive in quantity, and were not the “heart” of the book. And faculty members would have to consider how much harm their use would cause to the publisher if other faculty members teaching similar courses made the same uses of the book chapter.” ⁶

Funny. This is exactly what we do at Nova Southeastern University. This is part of our policy already, and we didn’t have to get slapped with a Court order to do it.

The post goes on:

“The proposed injunction would also require university personnel to confirm that every excerpt uploaded to course websites met the fair-use criteria and to keep track of information about the book, which parts were used, the number of total pages…and the name of the professor.”

Again, this is what we do already at NSU. This is part of our copyright policy. Our fair use checklist is available on our website so the professors can find it easily. ⁷ The faculty member fills out the form and sends it to me. I review it as to whether I think this falls within fair use, and if I agree that it does, I give the OK to the faculty member and scan the form into my computer.

Onerous? Costly? Hard to see how.

Especially when you consider that the tuition to attend Berkeley Law is around $50,000 a year. ⁸ At that level of tuition there’s no room in the budget to require faculty do a simple fair use analysis?

To be certain, part of what we do at NSU is being pro-active as a hedge against possible liability. As a private not-for-profit, NSU does not enjoy the same sovereign immunity that Georgia State (or Berkeley) does. But an ounce of prevention is worth a pound of cure, especially when the cure comes in the form of a Federal copyright infringement lawsuit. The first go-round alone cost Georgia State $2.5 million in attorneys fees. ⁹

Most of this is solved through education. Faculty and relevant staff members are required to take copyright training. I created a 30 minute video which is followed by an assessment test that must be passed. Any further questions about copyright or fair use, from anyone: faculty, staff, students or the NSU Museum of Art, land on my desk. And the buck stops here.

Sometimes it’s easy. One professor wanted to post the full text of a book that was commercially available. That’s a clear no. But a lot of times it’s not so easy. But being located in the Eleventh Circuit, I have to be guided by what they have said in the Georgia State case, and not where I think the line should be. And remember, one judge was firm in his opinion that what Georgia State was doing was not fair use.

The other thing the post fails to mention is that I don’t have to be right in my fair use analysis, and neither do the majority of colleges and universities. Under section 504 (c) (2,) as a not-for-profit educational institution, all I have to do is have a good faith belief that what I am doing is fair use in order to avoid the assessment of statutory damages. The fair use forms are a record of that process, should anyone question it later.

But there’s something more at stake here. As “institutions of higher learning,” shouldn’t we be mindful of being good citizens as well?

At the recent copyright roundtables in New York, ¹⁰ one panelist went off on a rant against the requirements of the Higher Education Opportunity Act (HEOA). This makes as a requirement for an institution to receive federal aid for its students, it must

“publish an annual disclosure that “explicitly informs” students that unlawful distribution of copyrighted material, including peer-to-peer file sharing may subject them to civil or criminal penalties. Further, institutions must provide students a summary of the penalties for violating federal copyright laws and a description of the institution’s policies related to unauthorized peer-to-peer file sharing, including a description of the disciplinary actions taken against students who engage in unauthorized distribution of copyrighted material using the institution’s computer system and network.” ¹¹

As I sat in the audience, I thought “Why not?” What’s wrong with this? We’re supposed to be educators. Why shouldn’t we be informing our students about copyright infringement? Isn’t part of our job to send good citizens into the world?”

Especially when I get anecdotal reports back from faculty members who overhear students in the back of the class with their laptop saying “No! Don’t buy the book. Just go to the Pirate Bay and get it for free.”

I get that textbooks are expensive. I taught classes at both the undergraduate and graduate levels, and I was always receptive to complaints from students when they felt that they did not get good value from a textbook that I required. In fact, in one graduate level course, I wound up eliminating the textbook entirely.

I can also agree that some of what the publishers want in the Georgia State case is over the top, such as compelling Georgia State to provide back-door access to the University’s online database so the publishers can snoop on them. I can also reasonably predict that having lost twice before the same judge, they are not going to be awarded this kind of relief.

Yet, it’s also clear that the publishers have watched the internet decimate the music industry, and are scared to death that they’re next. I can’t tell them that they are wrong. In testifying before Congress in 2014, Paul F. Doda, as counsel for textbook publisher Reed Elsevier, noted that the publisher issued over 20,000 takedown notices per month in 2013. In one case, the same textbook was uploaded to the same website 571 times. ¹²

So, in advising our faculty members, I tell them: “We don’t want to replace the need to buy a book. Would you, in the absence of the ability to scan, be requiring the students to purchase the book?” If the answer to this question is “no,” then we look at whether the use is small and not substantive enough to qualify as fair use, of which as I have indicated several times, there is room for disagreement even at the rarified levels of the Eleventh Circuit Court of Appeals. This process requires a review by both the faculty member and ultimately me and, in the end, is really is not all that burdensome.

As a university dedicated to increasing the knowledge of our students and sending good citizens into the world, we should be doing the right thing and respecting the rights of others.

And doing the right thing means exactly that. And this does not include complaining about how “onerous” it is.