If you've been to college in the last decade, you've probably dealt with "e-reserves"—book chapters and articles made available electronically to students in particular classes, usually through the university library. But how much material can a professor upload before having to pay a licensing fee?
The issue is notoriously murky; many schools require that printed "course packs" be licensed, though uploading those pieces separately to an e-reserves site doesn't always trigger licensing. Professors we know have resorted to various tricks—if limited to five e-reserves before having to take a license, they will upload five documents, wait until students have read them, then delete the first five and upload five more. It's not just about the money, which students would have to cover; it's about the hassle. E-reserve and course pack licensing can require several months of lead time, and not all professors are (*cough*) ready for an entire semester that far in advance.
This makes publishers unhappy, and some have sued. Right now, several major academic publishers (Cambridge, Oxford, and Sage) are squaring off against Georgia State University over the extent to which the school can upload and distribute materials via its electronic reserve system. The publishers approached GSU before commencing the suit, but were dismissed by the university, which claimed it was in compliance with the law. The suit, initiated in 2008, is progressing beyond discovery and depositions with a trial date set for May 16. The publishers seek to immediately stop the University from continuing in its unlicensed ways.
The case
The publishers allege that GSU’s hosting of over 6,700 works for 600 classes commits direct copyright infringement, due to the school officials directly uploading the material; contributory copyright infringement, due to inducing others to download, copy, and read the unlicensed material; and vicarious copyright infringement, due to profiting from the alleged illegal actions.
The uploaded items range from 14 pages to a few hundred pages per course. In one instance, the publishers found an entire semester’s worth of readings—nearly 80 different uploads—for an Introduction to Anthropology class. Shortly after the complaint was filed, some of the online e-reserves required a GSU username and password; however, links to the e-reserves are still located on online syllabi and course websites.
GSU rebutted the claims, saying it was protected by fair use and "sovereign state immunity," a doctrine that generally protects states and their entities from being sued by citizens. Judge Orinda Evens agreed in part with the defense dismissing the direct and vicarious infringement claims. In the first instance, she concluded that none of the named defendants directly engaged in the infringement, while in the latter instance she found no evidence that GSU profited from the alleged uploading. Evens pointed to professors who claimed they only upload material if they believe students would not buy the text if it were assigned, and who say that professors would stop using the system if they had to pay licensing fees.
On May 16, the publishers will present amended evidence of the alleged copyright infringement to try to continue the lawsuit on grounds of contributory infringement. If Judge Evens is unpersuaded, the publishers’ suit will be dropped.
At issue
The publishers believe the materials abuse fair use, which in US law explicitly mentions making multiple copies for classroom use. Instead, they say, GSU's e-reserves constitute digital “coursepacks,” which trigger the necessity to buy licenses. Looking to a past case, Basic Books v. Kinko's, which involved physically copied anthologies, a judge ruled that 300- to 400-page anthologies created to last a full semester were considered infringement; however, the case did not include anthologies with less than a few hundred pages, and Kinko’s was charging money for the anthologies.
By refining their arguments, the publishers will further elucidate the core issue of the case: where is the border between the grey area of fair use and the illegal realm of copyright infringement when it comes to e-reserves? To date, the publishers' view has been expansive; even including an uploaded chapter is considered infringement.
Whatever the outcome, the case will have far-reaching consequences for universities across the nation. Even though e-reserves are ubiquitous throughout academia, policies differ by institution. Many universities are sensitive to copyright infringement claims as fair use is a grey area that is left up to the university to police and the courts to decide. Colleges have worked with publishers, and schools are guided by forms like the “Fair Use Checklist” to aid the determination of fair use, but there are few judicial specifics as what constitutes fair use on e-reserves.
Generally, when approached by publishers, schools have changed their copyright policies in order to avoid a lawsuit. In one such example, Cornell developed a policy in conjunction with publishers. Since e-reserves are vital to how professors and students engage in academic assignments, the outcome of the GSU case could have a profound effect on the ways US universities assign readings.
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