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I’m right! Librarians have to think

2144933705_20517bedab_zI 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.

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Carrie Russell

Carrie Russell is the director of the Program on Public Access to Information in the Washington Office. Her portfolio includes copyright, international copyright, accessibility, e-books, and other public policy issues. She has an MLIS from the University of Wisconsin-Milwaukee and an MA in media arts from the University of Arizona.


  1. I’d add that it isn’t only that librarians have to think, but that they have to be ready to take a risk, i.e. think, make a decision, and risk getting it wrong.

    I believe that the desire for all encompassing guidelines is more about librarians (or rather the libraries they work in) being risk-averse, and not as much about them not wanting to have to think about it. But that’s just my $0.02. 🙂

  2. Carrie Russell Carrie Russell

    Edward – you are right! Some libraries are risk averse and the librarians are frustrated that they cannot change the culture. But it has also been my experience that some librarians are wedded to the guidelines. They love them, and are super strict. Or believe them to actually be part of the copyright law.

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