By Paul Hellyer
Fair Use Guidelines After the Georgia State Case
In this last installment of VALL’s Copyright Column, we’ll take a look at the recent ruling from the 11th Circuit in the Georgia State University copyright infringement case.As other commentators have already pointed out, this ruling is mostly favorable to users and libraries. But it’s not a welcome development for anyone hoping to formulate fair use guidelines, because it rejects any notion of general purpose guidelines aside from the ambiguous statutory factors in Section 107. Librarians and users need guidelines, but what can we do when a court tells us that everything must be decided on a case-by-case basis?
First, some background info for those of you who need a refresher. In 2008, several publishers sued GSU for copyright infringement arising from GSU’s use of e-reserves. GSU had posted online many excerpts from the plaintiffs’ books as assigned reading for courses, sometimes relying on fair use instead of paying for a license. In 2012, the district court issued an opinion that almost entirely vindicated GSU, finding that all but a handful of the excerpts fell under the fair use exception.In reaching its decision, the district court articulated some rules of thumb about when a use is a fair use, and this is what stirred up some trouble on appeal. The 11th Circuit reversed and remanded, with instructions to reconsider the alleged infringements individually without the aid of nonstatutory rules of thumb.
Although the 11th Circuit’s approach seems to be correct as far as the law is concerned, it’s certainly a lot less helpful than the district court opinion in providing actual guidance to the public. It’s tough to draft any e-reserves guidelines after reading this case. Let’s explore some of the difficulties the 11th Circuit throws in our way.
The “10% or One Chapter” Guideline
The most prescriptive part of the district court opinion was the “10% or one chapter” guideline. The court developed this guideline to make it easier to apply the third factor of Section 107, which requires the court to consider “the amount and substantiality of the portion used.”The court held that copying not more than 10% of a book, or not more than one chapter in books with ten or more chapters, weighed in favor of fair use under the third factor.This part of the district court’s opinion lacked a solid legal basis, but it did have the virtue of being easy to apply. The language in Section 107 doesn’t give much guidance to a professor who’s trying to decide how much text she can copy for her students to read. Imagine how much easier it would be if the courts would just tell us how much we can copy.
The 11th Circuit threw some cold water on that idea. Not only did the 11th Circuit reject the district court’s suggested limits, but it rejected anyattempt to set general limits on the amount copied. Instead, the court ruled that the third factor must be analyzed separately for each instance of infringement and refused to accept the “10% or one chapter” guideline even as a starting point in the analysis.The court pointed out that Section 107 refers not only to “amount”, but also to “substantiality.” In other words, users have to think about not just the quantity they’re copying, but also the significance of the content. This is the correct legal analysis, but it invites subjective judgments and unpredictable results.
Adding Up the Factors
Next, let’s consider what the 11th Circuit said about weighing the four factors from Section 107. The 11th Circuit complained that the district court took an “arithmetic” approach to the four factors by adding them up and finding fair use whenever at least three factors favored fair use. The 11th Circuit held that the correct approach was to give different weight to each factor depending on the circumstances, then reach a decision considering all of the factors.Even in situations where three out of four factors favor fair use, the 11thCircuit holds out the possibility that the use is not fair. Again, the court’s legal reasoning is on solid ground, but the practical result is more uncertainty for users.
Fair use guidelines often give users a list of factors to consider—whether based on the four statutory factors or more specific factors suggested by the guidelines. It’s not too difficult to ask the user to add up the factors, or to point out that some factors are more important than others. It’s much more difficult when we say that any factor could be given particular weight depending on the circumstances, and that any single factor could outweigh all the others. This renders a list of factors almost meaningless for the average user. It takes a copyright expert to go beyond the “arithmetic” approach and decide which factors are most important in any given case.
Guidelines Don’t Sway the Court
Both the district court and the 11th Circuit declined to follow the well-known “Classroom Guidelines” on fair use. These guidelines were printed in a House Report accompanying the 1976 Copyright Act, so they’re about as close to official as nonstatutory guidelines can get. The rejection of these very conservative guidelines is a win for libraries and users, but the 11th Circuit’s reason for rejecting them is troublesome.
It wasn’t really the Classroom Guidelines’ content that was the problem. Rather, the court rejected the Classroom Guidelines because fair use analysis must be performed on a case-by-case basis.The court also held that industry best practices are “not relevant to an individualized fair use analysis.”The somewhat startling message here is that nonstatutory guidelines carry little if any weight in copyright jurisprudence. If you think that following well-respected guidelines will protect you, think again.
What to Do?
In the face of this decision, can we continue to offer meaningful guidelines for e-reserves or for fair use generally? I believe the answer is yes, and I think that our guidelines can go beyond the ambiguous guidance offered by the 11th Circuit or the four statutory factors from Section 107. In my view, guidelines don’t serve the same purpose as a court opinion or a copyright treatise. They’re not intended as an analysis of the law. They’re a pragmatic tool designed to reduce the risk of copyright lawsuits. If we do nothing more than offer ambiguous advice that tracks the language of Section 107 and the 11th Circuit case, there’s no way of predicting how users who are untrained in copyright law will react. The result may be egregious infringements. So I think it’s a good idea for us to develop guidelines that are more specific than what the primary sources say.
We can accomplish this by offering specific examples of uses that have been found to be fair uses, or that we believe to be fair uses. We can compare and contrast instances of fair use and instances of infringement, even if those comparisons suggest bright lines that don’t really exist. I also believe we can continue to offer rules of thumb—such as the “10% or one chapter” guideline—even if they’re not supported by case law, provided that we offer a disclaimer that these are suggestions and not legal rules. A guideline will accomplish its purpose if it helps to cut down on infringing uses while supporting fair use. If litigation ensues, guidelines won’t carry any weight, but all they need to do is keep us from getting into litigation in the first place.
 Cambridge University Press v. Patton, 769 F.3d 1232 (11th Cir. 2014).
Cambridge University Press v. Becker, 863 F. Supp. 2d 1190 (N.D. Ga. 2012).
 17 U.S.C. § 107.
 863 F. Supp. 2d at 1243.
769 F.3d at 1271-72.
 Id. at 1260.
Agreement on Guidelines for Classroom Copying in Not–For–Profit Educational Institutions with Respect to Books and Periodicals, H. Rep. 94-1476 (1976).
769 F.3d at 1273-74.
 Id. at 1272.