The following is a Fair Use Week guest post by Authors Alliance President Pamela Samuelson.

Faculty members who assign a few scholarly book chapters to their students for nonprofit educational purposes should be able to rely on fair use when posting them on course websites, according to the brief Authors Alliance filed in support of Georgia State University’s (GSU’s) fair use defense in the copyright lawsuit brought by Cambridge University Press (CUP).

GSU’s fair use defense was bolstered by various limits it put on the posting of copyrighted book chapters. Faculty members had to fill out fair use checklists, taking into consideration, among other things, whether the amount assigned was reasonable in light of the pedagogical purpose they had in assigning the materials. Only enrolled students could access the in-copyright materials, they could access them only through password-protected course reserves, and this access was only authorized during the term the students were enrolled in that class or seminar. For the most part, only one chapter per work was assigned. GSU faculty mostly used the online course websites for supplemental materials, having assigned readings from textbooks and other materials that students had to buy. The overwhelming majority of the chapters at issue were scholarly works written by academic authors on specialized topics used for small courses or seminars from works published a decade or more before. All of these factors supported the trial court’s fair use ruling.

The Authors Alliance brief explained that academic author incentives to write scholarly book chapters would, contrary to CUP’s claim, not be harmed and might well be enhanced by such uses of the chapters for GSU classes. Academic authors generally write scholarly book chapters to share the knowledge and insights they have attained with others and hope that publishing the chapters will enhance their reputations for contributions the authors made to their fields. In addition, publishers’ incentives to continue to publish scholarly books should not be harmed by the limited uses GSU faculty and students were making of the book chapters because publishers get the chapters for free and expect to derive revenues largely from sales of books.

The fair use calculus changes if course websites hosting such materials are open to the general public, if multiple chapters from the same book are utilized in online courses, if the chapters are from textbooks relevant to especially large enrollment classes, and if the online course is part of a for-profit enterprise.

This is not to say that such uses could not be fair, but faculty members would be well-advised to be more cautious in posting in-copyright materials, such as book chapters, on course websites under these circumstances.

Fortunately, the proliferation of scholarly articles and book chapters on pre-print servers in various fields, the adoption of open access policies by universities, leading foundations, and government granting agencies, and the greater willingness of publishers to agree to nonprofit educational uses or open access licenses means that there are many scholarly works available to be used for online courses these days. It is unfortunate for authors who assigned copyrights in book chapters or journal articles back in the days when pre-print servers and open access policies were not available that their works will be less widely read than they would wish, but it may be worth asking publishers to be willing to agree to at least limited nonprofit educational uses such as those being made by GSU faculty and students.

That being said, CUP has filed an appeal of the trial court’s findings of fact and conclusions of law that all but a few of the challenged GSU online course reserves uses were fair. Until the appellate court ruling comes down, one cannot be sure that GSU’s uses are fair. Still, the appellate court upheld much of what the trial court held about fair use the last time CUP ruled, and sent the case back for further proceedings under a somewhat revised framework that the appellate court spelled out. Because the trial court carefully followed that revised framework and made findings in line with the appellate court’s guidance, I am cautiously optimistic that the court of appeals will affirm.

For further reading on fair use, refer to the Fair Use FAQ on the Authors Alliance Resources page.

In honor of Fair Use Week, we are delighted to feature this guest blog post from NYU Technology Law & Policy Clinic students Cassie Deskus and Kristen Iglesias discussing the role of fair use in the ReDigi case.

The Second Circuit will soon hear arguments in Capitol Records v. ReDigi, a case that will determine if and when consumers will be able to resell lawfully owned digital media. ReDigi provided an online marketplace for reselling music purchased from iTunes. ReDigi’s software allowed users to transfer music from their computer to ReDigi’s cloud servers, where it was offered for sale. Upon a subsequent sale, the software transferred the file to the buyer’s computer. The transfer process attempted to avoid copyright issues by employing strong verification safeguards and ensuring that there was only ever one full copy of the song in existence at any given time.

If ReDigi had been in the business of reselling physical CDs or books, resale would have been an uncontroversial application of first sale—a doctrine which permits the owner of any lawfully owned copy to dispose of that copy without restriction. The District Court, however, held that each song transfer was an unlawful reproduction, effectively preventing the owner of a digital work from reselling it. Unless the opinion is reversed, the only way consumers will ever be able to resell their digital music or books is to sell their entire digital device. In other words, to resell a $0.99 eBook you finished reading years ago, you’d have to sell your entire tablet and all of its contents!

This should be concerning to all creators of digital works. Without lawful resale, the “secondary markets” we enjoy in the physical sphere–libraries, used bookstores, garage sales, and even donations–cease to exist in the digital sphere. Not only will authors be unable to reach the same listeners and readers via digital publication that they might through analog publication, but those same listeners and readers won’t be able to easily share the digital works that they love.

That’s why the NYU Technology Law & Policy Clinic filed an amicus brief on behalf of over 20 copyright scholars, including several Authors Alliance members, arguing that any alleged unlawful reproductions are covered by either first sale or fair use.

As many Authors Alliance members know, the first factor of fair use is “the purpose and character of the use.” We argued that exercising a copy owner’s first sale rights, which have been recognized by courts and Congress for over one hundred years, is about as fair a purpose as can be. The public benefits resulting from digital secondary markets also favor this interpretation. The fact that ReDigi was a commercial enterprise does not change this outcome—indeed, many commercial uses of digital copyrighted works have been held to be fair use. ReDigi’s platform parallels secondary markets that have always existed in the physical realm; such markets are a testament to copyright law’s tolerance for, and accommodation of, robust resale rights. We hope that the Second Circuit reverses the lower court and preserves digital first sale, especially given the strong fair use arguments favoring ReDigi. If you’d like to read the rest of our argument, the entire brief is available here.

Since our founding, Authors Alliance has supported a robust interpretation of fair use that helps authors keep their works discoverable and in the hands of readers. We’ve published a number of opinion and policy articles on the subject, and our members and allies may recall that we filed an amicus brief in support of Google in the Authors Guild v. Google Books litigation, in which we argued that Google’s snippet views of scanned books from libraries made books more discoverable and served a public good by enhancing access to millions of works. We welcomed the Supreme Court’s decision not to hear the case, thereby ending the decade-long litigation and allowing the district court’s ruling in favor of fair use to stand.

Now, Authors Alliance has weighed in again on the fair use question, this time in the matter of Cambridge University Press v. Albert. The case turns on whether faculty at Georgia State University (GSU) infringed Cambridge University Press’ and other publishers’ copyrights by assigning chapters from scholarly books to their students via secure course websites. GSU argues that this limited use for nonprofit educational purposes falls within fair use, and we have filed an amicus brief with the 11th Circuit in support of that argument. In the brief, we highlight that academic authors’ primary motivation to write and publish scholarly works is grounded in their desire to share and advance knowledge. Many of our members are academic authors, and one of our members is the author of a chapter at issue in the case. They—and we—believe that this limited use of copyrighted content in a nonprofit educational setting meets the test for fair use. In the brief, we present three main arguments in support of this interpretation:

• Incentives to write and publish scholarly book chapters will not be impaired by a ruling that nonprofit educational uses of these chapters is fair use.
• The use of fact-, method-, and theory-intensive scholarly book chapters assigned primarily because of the originality of ideas, theses, research, data, and methods they contain, rather than on originality of expression, should tip in favor of fair use.
• New options in digital publishing and trends toward open access in scholarly communications favor the fair use ruling.

The full text of the brief may be read here. We will continue to follow the case and provide updates on new developments in the litigation.