 Good day, ladies and gentlemen, and welcome to today's ARL webcast. To submit a question or comment at any time during the webcast, please click on the Ask a Question button at the bottom of your screen. Simply type your message into the box and click on the Submit button. At this time, it is my pleasure to turn the floor over to Prue Adler. Ma'am, the floor is yours. Thank you, Patrick. Good afternoon, everyone, and welcome to the ARL webcast on the Substance and Implications of the Recent Decision in the lawsuit over Georgia State's University's e-reserve program. I am Prue Adler, Associate Executive Director of ARL, and I will be moderating today's session. Joining me today are Jonathan Band of Policy Bandwidth and Brandon Butler, Director of ARL Public Policy Initiative. Jonathan helped shape the laws governing intellectual property and the Internet through a combination of legislative and appellate advocacy. He has represented clients with respect to the drafting of the Digital Millennium Copyright Act, the PRO-IP Act, the Stop Online Piracy Act, or SOPA, and other federal and state statutes relating to intellectual property and the Internet. He is also legal counsel to the Library Copyright Alliance. Members of the Library Copyright Alliance include ARL, the American Library Association and the Association of College and Research Libraries. Jonathan is an adjunct professor at the Georgetown University Law Center and has written extensively on intellectual property and the Internet, including the books Interfaces on Trial and Interfaces on Trial 2.0 and over 100 articles that give new meaning to scholarly communication. Jonathan received a BA, Magda Cum Laude, Phi Beta Kappa in 1982 from Harvard College and a JD from Yale Law School in 1985. Brandon's responsibilities include analysis and advocacy regarding copyright, privacy, surveillance, free expression and telecommunications. He also writes the ARL policy blog and the ARL policy Twitter account. He is a proud alumnus of the University of Georgia, has an MA in philosophy from the University of Texas at Austin and a JD from the University of Virginia School of Law. Before working at ARL, he was an associate in the media and information technologies practice at the law firm Dowlowness in Washington, D.C. Our presenters will recap the basic facts of the case and the key holdings in the decision, discuss the possible next steps in the litigation and suggest some of the possible consequences for libraries when making decisions, I'll see in the context. Midway through the webcast, we will take a break for questions and leave time at the end as well for Jonathan and Brandon to respond to questions from you. This webcast will be archived coming long weekend. It will be available through ARL's YouTube channel. Please check ARL's website for getting this set up, Brandon, over to you. I've been waiting for it for a pretty long time now. So it's finally out and I want to first give you kind of a big picture. What just happened here? What are the big takeaways? So kind of non-profit educational use in the internet age, right? We have not had a case on point yet until now. Profiled defeat for Payno in this issue and who favored a draconian standard based on the 1976 classroom guidelines that would limit the use of these resources dramatically, but instead they lost big time on 94 out of the 99 infringements that they alleged on libraries, on other libraries or on other courts. Only Georgia State University is bound by the outcome of this. So it's going to be a useful input for folks who are deciding what to do next. The framework that is outlined in this decision generally favors libraries, but there are some important caveats to that. And finally, and this may be the most important thing to remember, there is more to come in this case in particular and in fair use in general, right? This is only a district. There could be an appellate court decision and this is a decision about one subset of issues and there are many other issues still hot and interesting and frankly undecided in the courts. So this is a fascinating decision, but it's one decision and it's the beginning of a decision really. So with that, I will turn it over to John. You know, there's always the sense, you know, of course, typically after the threatening people sit down, cooler heads prevail, universities and adopt to the policy that was much more similar to some of the policies that other the litigation can be ordered to stop violating federal law going forward. So it's all about the future and it's not about money. It's about behavior on fair use. Georgia State's policy was found to be a good faith attempt to follow fair use. They weren't faking it when they wrote the checklist. And there were only five infringements shown versus again the 9911. One chapter rule was appropriate under the third factor and the policy did not include such a rule. And so the court now we'll talk a little bit in more detail. The state sovereign immunity issue, again, this is a very technical injunctive relief against state official acting in their official capacity. So as Brandon said, you know, the case was really about damages, the way it evolved sovereign immunity issue. And again, only with respect to the new policy, the court wasn't concerned about what happened under the old policy because you had a new policy. If this was a normal case where there were damages available, you would be looking at the old policy. But since this new policy came into play, the only issue was whether the lawfulness of the new policy. Again, the technical issue with sovereign immunity is you have to make sure you name the right plaintiff. And so you can't sue the university itself and actually an early round of litigation of people who who are more involved in those two higher level officials that really don't get that these high level officials were the right or the appropriate and seed with respect to those defendants with the for fair use factors and we'll be walking through them and talking about them in much more detail about what the these four issues it's important to sort of look at all the e-reserves, all the excerpts on e-reserves and came up with the list of 99 that they actually brought forward at trial. So there was, Georgia State had the two years that the policy did only with the 99 excerpts and from that the litigation proceeded and now we can turn to how the court applied the the four factor and query into whether the use is transformative. But it also asked criticism, commentary, teaching, educational use. So there are some guidance as to what kinds of purposes fair use is really interested in. And the court was persuaded by the language of the statute, both the preamble of section 107, which is a preamble to the whole statute, not just the first factor and the text of the first factor that what Georgia State was up to here, the sort of spreading of knowledge, the educational enterprise, criticizing and commenting on past culture and the context of teaching is really at the heart of fair use. And for that reason, the first factor always strongly favors fair use in these kinds of e-reserves cases. This is a really important finding because the instead to find that Georgia State was doing just what commercial copy shops had that were to be sold for profit and that they were doing just what the Texaco Corporation had done when they were making copies of articles in support of their for-profit research. And the court refuses to accept that analogy and instead says there is a real and very significant difference between these for-profit uses and a free non-profit educational context. So that's a really big finding for the educational users out there. Now she does not find that the use is transformative, which has been a dominant consideration in modern fair use law for the last couple of decades. And I'll say a little bit more about that later on, but that turns out to be not a not a major issue because she finds the first factor favors us quite strongly every time anyway regardless of it not being a transformative use. Use works were fact works or express facts but they don't have less than something a non-fiction work. Pretty clear. It's pretty clear from the legislative history that the classroom guidelines are not the law and the kind of authority that they have is is not a mystery to most people but the those the classroom guidelines which set really extraordinarily limiting boundaries on the amount that can be considered fair use. Repeated use across semesters is not going to she has a nice long discussion of what the classroom guidelines really were, which was a private negotiation between a few parties in the 1970s which came to a very limited safe harbor and she reasonably moves on from there to not give them much weight at all. She also to determine how much is fair amount to take she has to ask well what is the whole work if we're going to talk about what portion of the work is a usable amount we need to know what is the whole work and she decides that the work is the book not individual chapters even though that in some cases each chapter in the book will have a separate author and that's a I think that's a really interesting and important finding and she also says that the whole the work includes the index and the front matter so it's it's every page from the cover from the front cover to the back cover so that also favors fair use and papers library use because you have a larger whole from what you're taking but she does say that because the use is nontransformative the amount has to be decidedly small and narrowly tailored to a legitimate purpose so she can be decidedly small in this context and she looks at some cases and sort of distills this number these 10 1 chapter kind of number but I think it's important to note that this is only with respect to the third factor so unlike the classroom guidelines and some of the other guidance that's out there that says essentially if you take more than 2000 words it's not fair use what the judge is saying here and it plays out when she actually makes a decision is that if it's more than 10 percent that weighs against you on one factor out of four but she's still going to weigh the other factors and so it is not the end of the discussion which is a acting card role that numbers often play in the fair use context absolutely no effect on the author's incentives for being used in the reserve system you know she noted that they they had all sorts of other fees advancement of so forth and so she really didn't think that the use of excerpts would have any negative impact on incentives to create she also looked at the interest represented by these licensing fees and she just found that they were minuscule and so so these you know the use of excerpts in the manner that Georgia State was was doing would would through we're doing the same kind of thing she just didn't think that that was a very credible argument and why are we here why is why is this litigation ongoing given that that's so little money is at stake finally how fair use in this instance will promote the dissemination of knowledge and the further the purposes of copyright and and here what she did but recently there was the Golan versus Holder decision and one of the argument you know that had to do with sort of pulling works that were in the public domain one of the arguments of those how how is it possible that sort of to create in in the other directory 150 of what Judge Evans was thinking and so how did she then in the remaining you know 260 pages apply this framework to the Georgia State system of course reserves well the first thing she asked for every work so she she analyzed 75 excerpts and I'll show you a little slide later on to talk about how things kind of got winnowed down but she she looked at 75 excerpts and the first thing she asked was before I even talk about whether you know before we even get into fair use the publishers need to tell me that they have a reason to be in court right now challenging this with respect to this work they need to explain that they own the copyright in this work and there were actually a lot of excerpts where the publishers couldn't prove that they owned the work that they were suing over quite common that it would be a a book with you know edited by a couple of authors but then with contributions by you know the author of each chapter and they would have the agreement with the editors but not the agreement with the chapter authors and the court just tossed those claims without even getting into fair use because to make a to just to get into the courthouse door as it were metaphorically you need to prove that you have a right and the publishers couldn't make that make that showing which says something about what we can what we can expect in the future in terms of orphan works that is there's probably an even bigger universe of works out there than anyone is willing to think about and be disputable where people will not be able to prove what they own the next category where the court just didn't even get to the fair use question she applied a doctrine called de minimis non cure at lex right which is the law doesn't concern itself with little things so there were these uses where probably are all too familiar with this phenomenon but nobody read it using the logs from their course reserve system that only you know only the professor um then the judge would say look there's no harm here right nobody ever saw the copyrighted work so i'm not going to i don't care whether there was fair use or not because nothing happened that's significant that look who cares what happened here because there's none that really came into play and knocking a lot of these works out of consideration and flipping the analysis in favor of georgia in many cases licenses for digital excerpts just were not available so if the plaintiffs come and come to the court complaining that we're entitled to make money here but the court found that they weren't on the market she wasn't going to hear their complaint right that's that flipped the fourth factor in favor of the library and they already had factor one and two so factor one two and four favor the library and that was the end of the discussion um and then the final thing that colored the analysis throughout was that frankly professors were generally being pretty modest and reasonable and the amounts that they were asking for so the amounts were almost always under one chapter or ten percent um so you know the professors were more or less intuitively getting it right even though this kind of bright line that judge evans drew um you know they had no they had no way to know that that would be the bright line that she drew but they were coming to that conclusion anyway so in the end right as we said and the problem in each of those five cases um was that it turns out there was a license and it turned out that the library used more than she thought was reasonable and that was it um but otherwise in the vast majority of cases um the uses were modest or the publisher was not in the market or both and so it was overall a big victory for georgia state by the end of this month and then georgia state final order i imagine what uh the the the publishers will do you know one chapter idea and the availability at that point you know who knows what the uh what the the court of hopefully they would decision entirely or or even uh kind of the the judges to know what would happen on appeal and the other point uh cases only binding on actions and other libraries uh you know so the one district court decision and uh and and and it's a valuable data certainly uh not the final word some questions asking about whether just video audio um and if not what does it mean in terms of use of journal articles what is your speculation about the implication the reason this opinion looks the way it does and of whether these uses are transformative because the people read when they're in college you know there's really this is this doesn't look like the kind of case where you might think about transformativeness and this whole question of 10 or one chapter really doesn't export well right to the images of the to the audio visual context i mean what's a chapter from a movie and and why would you limit a chat a movie or a or a song to 10 percent so these i think this decision the application of this decision beyond scholarly books would be very strange and really kind of so i think it's it's still kind of wide open territory for those categories of works i think you're when you're trying to deal with using works other than scholarly books you're going to have to look to all the same resources you've been looking to so far i hope you'll look to the code of best practices and you know find out what your community is doing and what they think is a rational way to attack these problems but i think honestly and i i just can't imagine the judge disagreeing very strongly that she decided the case before her and that case was about academic books and for those of you who send in questions the number of them are going to be answered in the next half of this webcast so just hold tight we'll get to them we have another question asking from someone in a private university the concern is that a great deal of what was in favor of gsu is due to gsu being a public university how might this have been different for a private university scope of the case as a new policy and not the old policy and apparently under the old policy there was a lot you know much larger excerpts were used that may have had more of an impact on the market and so if you can imagine that if this was in the private university context maybe the the the the the the older policy would know what the court would have done with that older policy or or exactly what was going on there because the court only looked at the new policy um and and and the fair use analysis with respect to the new policy uh apologies as as well as uh as it as it does to uh we have an inflation on both of your parts so i'll let you both figure out how you want to weigh in it asks how do you feel that what were the publishers trying to accomplish by bringing this litigation against george estate do you suspect that publishers will continue this practice or will the ruling make a difference through than the policies from the other universities have at that point you know i i was bewildered that they continued to litigate i just don't get it um uh and and um it could it could very well be that they just decided that they wanted to shut this as we're applying it the rigorous speculation is that uh what they wanted to do is to say in fair use determinations they you know it could very well be that what they ultimately were looking for was fair use determinations would have to be made by uh the general counsel's office figured that between having lawyers doing it and and and and the the resources that would be required for lawyers to do it you'd have a lot less uh you know much less uh included and much uh in in e-reserves and then and then much more much more uh material being licensed so i think that that was their ultimate goal was not necessarily to shut the whole thing down all together but to make it there would be a more licensing and especially things like the ccc blanket license i think that that's why they were willing to fund the litigation in terms of whether they'll do this again i i think not and have very very little to show for it and so i think uh uh you know i think there's slides and then additional questions at the end again might not be exactly their use um uh it's really really easy to get i want to say should overwhelm everything you know because of the educational use so you don't really need to look at everything else um as a brand and so you know the library is automatically easy to get to that third either by having just one chapter license and so even if um uh you use more than one chapter available uh you still those other factors that i talked about financing revenue for the publisher with respect to this work and so even in in these two two ties it could still tilt towards the library um and finally the final piece of good news is that uh as brand and indicated you know kind of the hundred words and and the whole issue of spontaneity the notion that you needed to you know you can only semester if you need if you're going to you or one class if you're going to use it again then you need it to get a license you need it to get permission you know that whole notion and i know that that this whole spontaneity thing has sort of permeated the educational world their factory is is arbitrary right i mean there are just there are going to be times when two chapters um you know you can imagine inflated in terms of the number of chapters um a numbers game even though it's ultimately not a trump um excerpts is used closed parentheses it's still obviously um and that's a hugely important concept in fair use law and she just rolls right past it hilarity in the fourth factor right if you read the decision when she discusses the market harm and the effect on the market and so on you know she's again as we'll see in just a minute extremely impatient with the cons with the idea that there's real market harm here i mean there just is not real market harm but she has this a copyright is supposed to be control over copying and she thinks that that should somehow get an extra bit of weight and so she says well if you're out there trying to exert control via a license that should count for something um but that would that's that's circular right because every fair use is a use that is being done despite the fact that a an owner could in theory demand a license so you know it's it's it's very circular and i think anybody that's thought much about fair use will be driven somewhat insane by this idea of the fourth factor just automatically flipping if there's a market there as an initial matter although as jonathan said she goes back and revisits and looks a little deeper in these tight cases good news but let's not end on bad news let's talk about numbers because the numbers are very interesting so the court told us a lot about the harm that publishers suffer from course reserves it's on the georgia state system who knows how many but many many and the publishers got to cherry pick 99 that they challenged right so they presumably picked their best case and of the original 99 that they alleged were all infringing the average amount taken was 9.6 percent of the work right we know that from the judge's decision there's a footnote and then uh they the publishers just the 75 for final determination they gave no reason the court said well i'm only going to look at 75 because the publishers decided they didn't want me to look at the other uh you know 24 or whatever an average amount taken so we can infer that what they did was drop all the one page excerpts right they dropped all the teeny tiny excerpts where they really knew that they were going to lose and they also wanted to bump that average over 10 because that's the kind of a magic threshold apparently um so that's how we got down to 75 and then our tiny purple dot represents the five infringements that they were able to prove so you know some heartening numbers there that of this whole universe they picked their they picked their best 99 and then of that 99 they went out it down even further to their best 75 and of that 75 they could only prove five so it's a pretty dramatic loss narrative there so then judge uh excuse me judge Evans also told us excerpts is 0.25 percent of total revenue so that's that little bitty pencil line slice coming out of the pie right so the idea as judge Evan said that you know if academic licensing were just to cease to exist if they never made another penny on academic licensing um that piece of the pie you probably wouldn't even notice it missing judge ultimately decided they should have 50 bucks which um is .00015 percent of their overall aggregate revenue right um i do an idea of there are at least it's not about what they could prove they lost um because they they lost a fraction of a fraction of a fraction of their total it's worked very hard with the library community to talk about fair use in new ways in recent years um and to provide a tool that we think is extraordinarily useful um for you guys um and knowing how to apply your fair use rights there is a decision that affects um the same phenomena that the code addresses in principle one what turns out first spinning right so she dismisses transformativeness um which is you know a problem um we care what people are doing which is also a problem most judges typically do care what the community is thinking um but in reality the decision didn't come out terribly differently in practice um there are many commonalities in the way that the judge is thinking um and the way that the code is again is at the core of fair use um you should tailor your use to your audience and purpose more modest use should be made of works whose core audience is the classroom use all of these things are represented in the code and all of these things are represented in the decision um one thing though is that the code applies to all media and as i mentioned earlier there's really nothing in the decision to give you guidance if you're talking about audio video um or popular materials as opposed to scholarly material so the code is going to give you some help in those areas where the georgia state decision really didn't um so that that concludes the sort of run through there and i think we can take maybe a couple of final questions well this one's for Jonathan and um he asks do you believe that the de minimis portion of the decision gives libraries broader leeway when digitizing material for storage in a dark archive when that digitization falls outside of 108 if no one ever downloaded it uh you know no one ever um and certainly if you think uh then in terms of archive where you would have something scanned uh but then never not not it's uh it was cases uh from behind the curtain um and and and it could conceivably even have implications for let's say the hotty trust litigation where you know that's not not actually when they when they're sort of saying okay well now how do i think about this uh how do i use it i think as was said it's it's sort of uh totally uh people will have to sort of do their own uh fair use analysis um you know uh and and uh and keep uh keep what they think applies to their circumstance think uh don't necessarily uh then then you know they you know the two factors as opposed you know then doing this you know if you have three to one then you win or if it's one to three then you lose and all that kind of stuff um you know i'm not i'm not uh completely the publishers might wait it might be a you know a bit on it could be that that that the time would if they kind of wait till absolutely the last minute and then the following a piece of paper uh you don't you know to notice the appeal um but you probably we could ask leave to file across the peel out of time if the publishers were to wait until you know uh absolutely the last uh the last second before they they filed their notice um uh you know you can you can always appeal out of time and I would think that if you're a state institution uh a court would likely uh look favorably on on such a such a and to Jonathan we've run out of time in fact we're a little over time um again this will be up on the air website sometime after the long weekend um and it's on the infinite conferencing system it'll be archived there as well um I thank you very much for joining us today this has been raised and obviously the interest is very very strong and this conversation will continue for quite and um good afternoon thank you that this was today's love test you thank you for your participation you may now disconnect your lines and have a great day