I will pat myself on the back (somebody has to). I wrote in the 2004 edition of Copyright Copyright, “Fair use cannot be reduced to a checklist. Fair use requires that people think.” This point has been affirmed (pdf) by the Eleventh Circuit Court of Appeals in the long standing Georgia State University (GSU) e-reserves copyright case. The appeals court rejected the lower court’s use of quantitative fair use guidelines in making its fair use ruling, stating that fair use should be determined on a case-by-case basis and that the four factors of fair use should be evaluated and weighed.
Lesson: Guidelines are arbitrary and silly. Determine fair use by considering the evidence before you. (see an earlier District Dispatch article).
The lower court decision was called a win for higher education and libraries because only five assertions of infringement (out of 99) were actually infringing. Hooray for us! But most stakeholders on both sides of the issue, felt that the use of guidelines in weighing the third factor—amount of the work—was puzzling to say the least (but no matter, we won!)
Now that the case has been sent back to the lower court, some assert that GSU has lost the case. But not so fast. This decision validates what the U.S. Supreme Court has long held that fair use is not to be simplified with “bright line rules, for the statute, like the doctrine it recognizes, calls for case-by-case analysis. . . . Nor may the four statutory factors be treated in isolation, one from another. All are to be explored, and the results weighed together, in light of the purposes of copyright.” (510 U.S. 569, 577–78).
Thus, GSU could prevail. Or it might not. But at least fair use will be applied in the appropriate fashion.
Thinking—it’s a good thing.