This copyright infringement case was brought in 2008 by several publishers against Georgia State University (“GSU”) for making certain copyrighted materials electronically available to its students without paying licensing fees. GSU claims that their use of the copyrighted material falls under the fair use doctrine and thus does not constitute copyright infringement. In response to the lawsuit, in 2009, GSU implemented a new policy which required professors to fill out a “fair use checklist” before posting excerpts of copyrighted material on GSU’s electronic reserves system. The District Court set out to analyze whether the fair use doctrine applied to the seventy-five claimed infringements made after the 2009 “fair use checklist” system was implemented.
By way of background, the doctrine of fair use, as defined in U.S. copyright law, dictates that courts analyze the following four factors when considering whether use of a copyrighted work is considered fair use:
- The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
- The nature of the copyrighted work;
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- The effect of the use upon the potential market for, or value of, the copyrighted work. The District Court analyzed these four factors and made the following findings.
First, the Court found that factor one weighed in GSU’s favor. The court reasoned that GSU professors made excerpts of copyrighted works available solely for educational purpose and as a result, GSU’s use meets the criteria of the first fair use factor. The Court also added that the fact that GSU is a nonprofit educational institution strengthens the Court’s finding.
Second, the District Court found that the second fair use factor, the nature of the copyrighted work, weighed in favor of GSU because none of the books at issue are works of fiction, rather they are scholarly books intended to educate.
With regard to the third fair use factor, the District Court determined that the portion of the work taken by a defendant should be calculated as a percentage of the book as a whole. To determine the threshold percentage of copying that constitutes copyright infringement, the Court looked to (1) the relationship between the length of the portion taken and the length of the work as a whole, and (2) the relationship between the qualitative value of the portion taken and the value of the book as a whole. Accordingly, the Court found that unpaid copying of less than 10% of a book which is not divided into chapters or has less than 10 chapters is permissible under factor three and unpaid copying of up to one chapter is permissible for books with more than ten chapters.
With regard to the fourth and final factor, the Court noted that only significant financial harm to the value of a copyrighted work will result in this factor weighing in favor of the plaintiffs. The Court went on to find that, as a matter of law, unpaid use of the amounts defined in factor three will not cause harm to the potential market for the copyrighted work. However, where licensing permissions are easily available at a reasonable price, not paying for licensing permissions will weigh “heavily” in a plaintiff’s favor.
Finally, the Court concluded that unlicensed copying of small excerpts of copyrighted works (1) do not discourage academic authors from creating new works, (2) have no effect on the publisher’s ability to publish scholarly works, and (3) do not discourage the dissemination of knowledge.
The Court applied the foregoing analysis of each factor of the four-factor fair use test to the “unpaid copying of excerpts of copyrighted material by a nonprofit college or university for nonprofit educational use in graduate or upper level college courses,” ultimately finding that only five excerpts, of the seventy-five excerpts at issue in this case, amounted to copyright infringement.