Georgia State University and Ereserves Litigation

Cheryl Aine Morrison 6/8/2009 LIS 550

GSU and Ereserves 2 Georgia State University and Ereserves litigation Introduction On April 15 2008, Cambridge University Press, Oxford University Press, and Sage Publications, took a bold stance and sued four Georgia State University officials: Carl V. Patton, President, Ron Henry, Provost, Charlene Hurt, Dean of Libraries, and J.L. Albert, Associate Provost for Information Systems and Technology, for copyright infringement in the use of electronic reserves or ereserves. This is the first lawsuit filed by publishers against a state institution for the use of ereserves for students. Ereserves, or electronic reserves, are a relatively new phenomenon. While print reserves have been around for 75 years in a relatively unchanging state (Seaman, 1996), technological progress has made ereserves a very popular service in the last 10 years. Ereserves has many advantages; it allows Universities to make material available for distance programs, and can give students access to the readings at any time they are needed without the frustrations that physical reserves can cause, such as having to wait for material that has been checked out by other students, lost or stolen material, or inaccessibility due to the library being closed (Austin, 2000). It is good for the libraries too. After the initial set-up, it requires very little maintenance by library staff, so that limited staff can be used more effectively elsewhere. It also protects library and professors personal materials from the need to be replaced because of loss or theft. Ereserves can aid students with a way to save on their education costs. However, this can be a problem for the publishers when Professors use ereserves as a replacement for their course packs or textbooks. This is the main argument of the plaintiffs: that ereserves were used and encouraged by Georgia State University as a way to avoid paying for the use of educational materials. In their lawsuit, the plaintiffs are arguing for injunctive relief based on three claims of copyright infringement. These claims are: direct, contributory, and vicarious copyright infringement.

GSU and Ereserves 3 It is a very bold move for publishers to sue their best and most lucrative customers but, the *p+ublishers will bring a case to the courts when they think they can win. The publishers are watching the courts to see where they have the greatest chance of success, and they are looking for a defendant that will take the case as far through the system as possible. They want a Supreme Court decision that is in their favor (Melamut et al, 2000, p. 13). This paper will show that GSU did in fact, infringe on the plaintiffs copyrights by examing the plaintiffs initial arguments, offering possible counter arguments on behalf of the defendants, and then critiquing the defendants arguments on behalf of the plaintiffs. Before presenting and evaluating the arguments it will be helpful to review Fair Use and its four factors as this is the main point of contention in the case. Fair Use Ultimately this suit is about how Section 107, Fair Use in the Copyright Act, applies to electronic reserves. Fair Use is one of several sections placed in the Copyright Act that grant exceptions to the bundle of rights granted to a copyright holder. It is very vague though, and has a legal meaning that may not coincide with the meaning that most librarians attach to it (Melamut, Thibodeau, & Albright, 2000). Fair use can be used to make the argument that as long as the item being copied is for teaching, scholarship, or research, under certain circumstances, then no infringement of copyright occurs. The Courts must consider four factors, with no one factor determining the decision by itself, in deciding whether or not a use is fair (Melamut et al., 2000). Its a little like a balancing act with infringement on one side, fair use on the other, and the four factors lined up under whichever side they support the most. The tipping to one side or the other can then determine how the work has been used. The four factors are:

GSU and Ereserves 4 1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2. the nature of the copyright work;

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4. The effect of the use upon the market for or value of the copyrighted work. The first factor, purpose and character of the use, would seem to be the one most in favor of Fair Use. The works are being used for educational purposes and the universities are not realizing financial gain, since they are not charging their students for individual access. This claim may no longer be as strong as it used to however, because in several cases since Sony Corp. of America v. Universal Studios, Inc., where it was decided that there was a presumption of unfair exploitation associated with commercial use (as cited in Melamut et al., 2000, p. 7), the Courts have decided that financial gain can come from nonprofit research, commercial research may not result in financial gain, and indirect gains may exist which could skew the decision on fair use (Melamut et al., 2000). A very important aspect that needs to be considered is the question of whether using an article repeatedly is considered fair use. This is a very sticky question. Many schools maintain that there is no reason that fair use will not apply to repeated use of the same materials if they are unavailable between semesters and access is limited strictly to students in the class (Melamut et al., 2000). The problem with this is that

*t+he Courts have also found the creation of personal databases of journal articles to be an infringement of copyright. The argument is that such databases replace the need to purchase multiple copies of the journal. This interpretation plays havoc with one of the advantages of electronic reserves, the creation of a digital copy that does not undergo degradation due to age or use (Melamut et al., 2000, p.9).

GSU and Ereserves 5

Repeated use and the decision of whether or not ereserves are considered to be the creation of personal databases will be very important in how ereserves are viewed by the Courts. The second factor, nature of the work, speaks to whether the work is more creative or more factual in nature. This one could weigh in the copyright owners favor as it really depends on what kind of work is being used. If it is a creative work, such as poetry or art, then using it would be a probable infringement. However, if the work is more factual, such as lists or datasets, then it has less copyright protection. This was decided on by the courts in Rural Telephone Service Co.v. Feist Publications Inc., 499 U.S. 340 (1991) when the Court explained that protection is limited to original work and facts. Data or preexisting materials are not copyrightable (as cited in Melamut et al., 2000, p. 10). Another court case ruled this way as well. In American Geophysical Union v. Texaco, Inc. the court found the second factor favored the defendant because the material copied was predominantly of a factual nature (as cited in Melamut et al., 2000, p. 10-11). The courses that are more scientific and fact based will have an easier time arguing fair use based on the second factor. There is one type of work that is not covered by fair use and that is consumables. Consumables are items that have a onetime use such as workbooks, exercises, and class problems. Making them freely available would harm the market and so placing them on ereserves is considered to be an infringement of copyright. This is specifically covered in the ALA Classroom guidelines on photocopying (American Library Association, 1982). The third factor, the amount and substantiality of the portion used in relation to the copyrighted work as a whole, is a critical factor for ereserves as there are no quantitative guidelines that state how much of a work is considered to be too much for fair use. The Courts, in weighing this factor, consider qualitative and quantitative examinations in each case to find out if what has been used

GSU and Ereserves 6 is too much. If the portion of the book used is the portion that is most important to the book, that is if it is the portion that people will buy the book to read, then it could be considered harmful. Often Universities create their own guidelines for this. The most common seems to be 10% of the book or as little as one chapter of one book per semester (Melamut et al., 2000). Journal articles are problematic as the Courts have decided in the Texaco ruling that a journal article was an individual work and could not be considered as a percentage of a journal issue in deciding fair use (as cited in Melamut et al., 2000, p. 11). The fourth factor, effect upon the potential market, requires that the plaintiffs be able to demonstrate a loss of revenue in order to decide this factor in their favor (Melamut et al., 2000). It used to be that this factor could be ignored by the Courts when weighing fair use. It was decided however, in Campbell v. Acuff-Rose Music, Inc. that the four statutory factors must not be treated in isolation (Heenan, 11). Each case would need to be weighed individually for fair use and there exist no rules or upper limits on which to determine future cases (as cited in Melamut et al., 2000, p. 11). The Plaintiffs arguments Of the three claims of copyright infringement in the Plaintiffs suit, the first one, direct copyright infringement, is the strongest and speaks directly to fair use and its relation to ereserves. In arguing against the first factor of fair use, the plaintiffs address the repeated use of articles. Specifically, they argue that *b+y scanning, copying, displaying, and distributing Plaintiffs copyrighted materialon a widespread and continuing basis via the Georgia State computers and servers, Defendants conduct constitutes infringement of Plaintiffs copyrights and exclusive rights under copyright(Cambridge University Press et al. v. Patton et al., 2008, paragraph 48). They argue that the practice is widespread and continuous, because readings for students are available on ereserves semester after semester, for

GSU and Ereserves 7 downloading, viewing, and printing and remain on the library server even after the course is over (Cambridge University Press et al. v. Patton et al., 2008). The plaintiffs were able to briefly look at the ereserves being made available for students, due to a public access problem, and saw that several professors were offering the same excerpts for their classes year after year (ibid.). Clearly, the readings are being used over and over again from one year to the next. The plaintiffs do argue that because of GSUs activities in regards to ereserves, readings are not being offered as hardcopy coursepacks which, when purchased would create revenue for the plaintiffs. They state specifically that Georgia States ongoing unauthorized digital distribution of Plaintiffs copyrighted materials is directly substituting both for student purchases of copyrighted books and for paper coursepacks or copy packs collections of course-related readings assigned by professors and purchased by students, the copying of which occurs pursuant to licenses obtained by bookstores and copy shops according to long-settled copyright law (including Basic Books, Inc. v. Kinkos Graphics Corp., 758 F. Supp. 1522 (S.D.N.Y. 1991), and Princeton Univ. Press v. Michigan Document Servs., Inc., 99F.3d 1381 (6th Cir. 1996)) (Cambridge University Press et al. v. Patton et al., 2008, paragraph 4). This use of ereserves by GSU could be considered commercial in nature, as the courts have found that indirect financial gain can be argued as a commercial use (Melamut et al., 2000). It is possible therefore, that ereserves could be used to avoid having students pay for textbooks or print course packs, which could translate to an indirect financial gain. Until recently, ereserves at GSU were available to the general public which could definitely be argued as commercial use; especially as university libraries do license electronic books and journals and part of the licensing agreements often involve restriction of access to members of the University only. Having the articles open like this allowed for the public to do a Google search and be able to access the full article for free. This open access has since been corrected which angers the plaintiffs further, as they

GSU and Ereserves 8 feel that GSU did this in order to create difficulties for the publishers in their discovery and monitoring efforts (Cambridge University Press et al. v. Patton et al., 2008). The second factor of fair use, nature of the work, is not addressed by the plaintiffs in their arguments. At this juncture it is not pertinent to the overall question of whether ereserves as a whole can be considered fair use or not. It can be argued at a later time however, if more examples of copyright infringement are needed. Several books and chapters in their initial arguments are of a more creative nature and so could possibly be considered against the defendants (ibid.). Consumables are not mentioned. The third factor, amount and substantiality, is another strong factor in the plaintiffs favor. They allege that hundreds of professors over a span of time have offered thousands of readings for students on ereserves, often semester after semester, for downloading, viewing, and printing (ibid.). They go on to support their claim with the statement *a+s of February 19, 2008, the Georgia State Librarys electronic course reserves system listed over 6700 total works available for some 600-plus courses( Cambridge University Press et al. v. Patton et al., 2008, para. 3). This volume for one semester far exceeds fair use and several specific courses are listed where as many as seven chapters were available on ereserves (Cambridge University Press et al. v. Patton et al., 2008, para. 23). A specific example is given where 2 chapters totaling 152 pages from a single book was available for one course on ereserves (Cambridge University Press et al. v. Patton et al., 2008). They go on to demonstrate an example of a course that had in the fall 2006 semester over 80 readings total, and the same course offered the next year had 72 readings. This is far greater than would be found in even the thickest coursepack or anthology (ibid.). This is a very compelling argument as the size and scope of these readings is quite large. It would be difficult for students to read 80 articles for just one course in a semester. Another

GSU and Ereserves 9 consideration is that by making the readings available on ereserves, professors have demonstrated that these particular chapters are in fact the most important part of a work and it can therefore be argued that by placing them on ereserves, GSUs activities are no longer fair use. Journal articles are not discussed, which is strange because it has already been determined, as mentioned earlier, that journal articles are considered to be complete individual works; by using the article you are already using the entire work. The fourth and final factor, the effect on the market, is also strongly in favor of the plaintiffs. University professors, in advancing their careers, are required to research and publish in their field. By funding and publishing their work, the plaintiffs argue that they help support and advance the careers of professors. Since this is such a vital and expensive service, the plaintiffs claim that they rely on the revenue generated by the sale of textbooks, journals, and the licensing of articles to support them and encourage new works to be created. The plaintiffs claim they are leading publishers of multiple types of materials whose main audience is universities, and that well over 100 Georgia State professors have been published by them. Many of these same professors are using ereserves and portions of copyrighted works from other authors without just compensation (ibid.). Since their main target audience is students, and they invest significant resources into creating materials for them, the revenue they gain in selling their material through licenses, textbooks, and course packs is vitally important for them to continue their very important services for the academic community. Their livelihood is being threatened by the professors and Universities, in their use of electronic reserves for class readings, which are benefitting from the service provided by the publishers. This is true especially as it relates to the licensing market and the repeated use. One of the ways publishers make money is on the licensing of materials for coursepacks and the sales of textbooks.

GSU and Ereserves 10 Earnings on an article used year after year are cumulative. By placing that article on ereserves year after year, GSU is taking away their earnings. It may seem small if is looked at individually, but if looked at cumulatively, then the loss of revenue can be quite large indeed. Overall the arguments against fair use, addressing the four factors, are quite strongly in the plaintiffs favor. The plaintiff also has 2 additional claims against GSU, contributory and vicarious copyright infringement. Along with the direct copyright infringement claim, the plaintiffs are also claiming contributory and vicarious copyright infringement. Contributory copyright infringement is argued that *b+y facilitating, encouraging, and inducing librarians and professors to scan, copy, display, and distribute Plaintiffs copyrighted material on a widespread and continuing basis via the Georgia State University website and other Georgia State computers and servers; and by facilitating, encouraging, and inducing students to view, download, copy and further distribute that copyrighted material, Defendants conduct constitutes contributory infringement of Plaintiffs copyrights and exclusive rights under copyright in violation of Sections 106, 501-503, and 505 of the Copyright Act, 17 U.S.C. ( Cambridge University Press et al. v. Patton et al., 2008, para. 53).

The plaintiffs feel that because the University supported and facilitated ereserves that it was enabling students and professors to bypass paying for permissions and thus was contributory in the copyright infringement that was occurring. The use of ereserves allows for professors to easily scan or have scanned for them copyrighted materials such as journal articles and excerpts from books, and have them placed on a web site that is available for the student to easily download, copy, print and even distribute the work without having to pay for it. At times a direct hyperlink was present, allowing further ease of use for students; this made the publishers concerned as it would enable students to distribute the work further. The technology used for this service is another concern. GSU, on their website, stated that to aid in the ease of uploading electronic files for students to download and use, they were offering various

GSU and Ereserves 11 course website systems for professors, such as blackboard (Cambridge University Press et al. v. Patton et al., 2008). The format of document files is a further concern to publishers. Often readings are scanned in and made available as a pdf, portable document file, which can have a relatively small file size and can create a very good copy of the document with no visible loss of quality. This allows multiple access by students, and facilitates easy and unlimited printing (Cambridge University Press et al. v. Patton et al., 2008). Finally, a valid concern that is not voiced in the suit is the possibility for works to be converted to word files. In this format it would be easy for anyone accessing the file to modify it however they chose. This could cause quite a bit of trouble for the authors themselves who, understandably, are concerned about either others getting credit for their work, or being credited with poor work which others have done (Melamut et al, 2000). Clearly the use of the technology, the ease of reproduction, and the facilitation of this system by the GSU in having dedicated staff and servers just for this service, speaks of contributory infringement. This very support system allows for these services to be offered. Without the support of the University and its staff, and the software used by the professors which is purchased from a private company, the infringement would not able to occur. Therefore the defendants are contributing in violating the copyrights of the plaintiffs. The plaintiffs also argue GSU is guilty of vicarious copyright infringement when they state that by failing to supervise or prevent such infringement when they have the right and ability to do so; and by profiting by such infringement, Defendants conduct constitutes vicarious infringement of Plaintiffs copyrights and exclusive rights under copyright in violation of Sections 106, 501-503, and 505 of the Copyright Act, 17 U.S.C (Cambridge University Press et al. v. Patton et al., 2008, paragraph 59). The staff at the University has the ability to monitor the systems that are being used for electronic readings. As they upload the files, they have the ability to make sure that copyright permissions have been

GSU and Ereserves 12 granted. If they havent, then they can decline to load the materials on the server or they can remove any files present which do not have permissions. The defendants further have the ability to block access to the system for any user for any reason. They do not police their systems or their users although they have the ability, thus they are liable for any misuse of the system by the users through vicarious infringement. These three claims, direct, contributory, and vicarious infringement, have clearly been demonstrated by the plaintiffs. GSU has encouraged and facilitated a widespread use of copyrighted works on their servers for their students. In doing this they have in effect created free digital course packs for their students, bypassing the more traditional print textbooks and course packs. This activity has a severe impact on publishers whose main audience is students in the course of their education. The publishers, who support professors in their academic careers by funding research and publishing their required works, need to be justly compensated for their services. The use of electronic reserves, without seeking or obtaining permission and paying fees, could debilitate the publishers and make it impossible for them to continue to publish professors or create new works. GSU needs to pay for all works used on ereserves. Criticisms of the plaintiffs arguments A strong case of fair use can be made for the defendants. In fact in their response to the Plaintiffs suit, GSU has cited fair use as their primary defense, although they have not detailed individual arguments on each point. Some possible responses to the Plaintiffs suit are offered below. The plaintiffs first argument is that GSU is using ereserves on a widespread and continuous basis. There is no indication that this is the case. Many of the same readings may be used by professors each year for a course, but the plaintiffs have not shown in their evidence that these readings are available for viewing or downloading when the course is not being taught. The plaintiffs try to give

GSU and Ereserves 13 evidence that the ereserves are unchanging and permanent, and yet the example given of a course with 80 readings, had only 72 readings the next year (Cambridge University Press et al. v. Patton et al., 2008). Without a specific list, it is hard to know how much material from the 80 readings was reintained, but the reduction in readings indicates that readings were discarded. Possibly several, if not all, of the 72 readings were replaced with different ones. This is not permanent or continuous use. The claim that GSU has an indirect financial gain due to the use of ereserves has not been proven. There is no concrete proof the readings on ereserves are being used to replace textbooks or print course packs. In fact the plaintiffs state that there exists on some ereserves pages a link, which directs users to hard copy materials that can only be accessed in the library (ibid.). This inclusion of print material references proves that GSU is not trying to circumvent copyright or material fees. It is likely students still need to purchase textbooks which are not listed on ereserves and so the plaintiffs did not see that students are still buying some of the materials. There is no indirect financial gain proven by the plaintiffs. As to the charge of public access, GSU admits a software error by the vendor occurred, which was discovered and corrected in May/June 2007. When the mistake was discovered, GSU contacted the software vendor to correct the problem. It was never the intention of the University to allow the general public access to the reserves (Cambridge University Press et al. v. Patton et al. response, 2008). The password protections, which were supposed to have been there to begin with and have been corrected, uphold the claim of educational, not commercial use. GSU further denies that it tried to create difficulties for the plaintiffs in accessing the ereserves (ibid.). Since the plaintiffs themselves are not a part of the university community, it stands to reason that if the ereserves were protected so that the general public could not view them, then neither would the plaintiffs. It is not an act of retaliation or sabotage; it is simply that the protections that were supposed to be in place are. The protections are not

GSU and Ereserves 14 to keep plaintiffs from discovering what is on ereserves; they are in place as required by the licensing contract signed by GSU when it obtain their materials. The second factor, nature of the work, was not addressed by the plaintiffs. It must be said however that if it is brought up in the future, the readings that are given as examples would have to be considered carefully on an individual basis. While some of the readings are more creative in nature, it should be noted how much of the works on ereserves could be of a more factual nature. This is important in deciding whether or not the use of ereserves was fair. For the third factor, amount and substantiality of a work, the amount of readings on ereserve that was cited by the Plaintiffs, 6700 readings is a lot; however, it should be noted that this amount was for 600 courses. Some courses may be using more materials than would perhaps be wise, such as the 80 readings for one course, but there is no indication the examples given as evidence are representative of the majority of course ereserves. It is quite possible that many or most of the courses only have a few readings, perhaps 20 or 30 at the most, which for a fourteen week semester is quite reasonable. The average number of pages contained in these readings is not mentioned. The plaintiffs are quick to point out the 2 chapters from a book that totaled 152 pages, but probably quite a few of the readings are only a few pages long. Having the numbers for all the readings would give a much more accurate view of what was actually on reserve. An accurate and complete picture of all ereserves for a semester or even an entire year would likely show that the portion being used is typically no more than 1 or 2 chapters of a book, well within fair use. While several chapters from some books are on ereserves, plaintiffs have not shown that entire books are available. GSU has a policy in place that requires the library or professor to own at least one copy of a book that has chapters being placed on ereserves (Georgia State University, n.d.). At least one copy of books with chapters on ereserves are already owned. It is true that the right of first sale as seen

GSU and Ereserves 15 in Section 109 of the Copyright Act is the only right granted to purchasers of copyrighted works and does not permit copying; the University is not trying to copy the entire work, nor are they selling the ereserves. They are simply making the print reserve collection they own available online. This is required especially for distance courses where students are not able to come into the library itself. Digitizing these works is important for a students education because it allows for students to access their reserves when they need it. No longer do students have to deal with the difficulties of reserves that are unavailable due to being used by others, having been stolen or damaged, or because the library is currently closed. The argument is made concerning the placement of particular chapters on ereserves, thereby showing what the professors consider to be the most important part of the book. If these chapters were not available on ereserves, the plaintiff feels, the students would then have to buy the book. But as the plaintiffs demonstrated, some of the items listed on ereserves are print copies and only available in the library. The chapters being placed on ereserves may be of note, but are not necessarily the ones considered essential; therefore, it cannot be argued that ereserves are being used to make free the portion of the book that would generate sales. Finally for the fourth factor, impact on the market, it has been shown that the plaintiffs must show the adverse effect upon the potential income if the challenged use becomes widespread (Melamut et al., p. 12). The plaintiffs try to imply that all of the readings are required. It is possible that the readings the plaintiffs found on ereserves were supplemental or suggested readings and the required readings are a hard copy course pack that the students must buy and so are not on ereserves. The plaintiffs do mention that some of the items listed on the ereserves page were hard copy titles (Cambridge University Press et al. v. Patton et al., 2008). If this is the case then it changes the picture that the plaintiffs are trying to paint. In the case of the course that has 80 readings in one semester it is

GSU and Ereserves 16 possible they are just a list of suggested material. 80 is a lot of readings, even for a semester, so this scenario is much more likely. Having suggested or supplemental readings on reserves does not impact the market as it was never a likely source of income for the plaintiffs unlike required readings which would be. No proof has been offered in regards to the plaintiffs claims that they fund the research of professors and have therefore contributed to their careers. Funding of research is usually done through grants or by the University in some way. While it is true that professors need to publish in order to advance their careers, it is possible for the professors to publish in various ways such as d-space and open access. They do not have to have their works published by just the plaintiffs. While the plaintiffs help the careers of professors by publishing, they are not as vital as they have claimed. They have offered no proof of the actual damages done to their revenue or to the market either, which is required if they are arguing this point. GSU denies encouraging or inducing its professors or students to use ereserves as a digital course pack in order to avoid paying for textbooks or traditional course packs (Cambridge University Press et al. v. Patton et al. response, 2008). It is true that GSU supports ereserves with staff and software, but ereserves have a far wider use than as a digital coursepack. There are many instances where it in no way infringes on publishers. Professors can use ereserves to post their own powerpoint lectures, notes, or even works they are currently writing. It is possible as well that even though professors have been published, they have retained some of their rights and so are able to post their own or anothers work, with their direct permission and thus in no way are they infringing on the publishers rights. Universities are exploring other ways to publish that allow for professors to post digitized works created specifically for educational use. Although there

GSU and Ereserves 17 is no indication by the publishers that any of the works they found on the ereserves pages were in this category, it is quite possible that the majority of the works are quite legal. Increasingly, universities are offering distance or online programs. Because it is difficult or impossible for distance students to access the reserves materials in the library, it is necessary for the reserve materials to be made available to them. In this case, using the internet is the most viable option. The plaintiffs in their arguments do not address this issue. It is possible a portion of the 600 courses mentioned are distance courses. This being the case, having works on ereserves is essential for a students education and does not constitute an infringement. It is true the technology used could be problematic: pdfs, being small and easy to transmit, could make it easier for infringement to happen. However, pdfs typically do not allow for material to be altered in any way. No one can take the article, change it slightly, and try and claim it as their work. This protects the owners of the copyright. It has not been shown that students further distribute the readings they get on ereserves. Since the whole class has access to the readings, there is no reason to suppose the student would download for the sole purpose of distributing it further. Due to the increase in online journal subscriptions, journal articles which all students, staff and faculty have access to, no reason exists to suppose that students are distributing what is available for the whole campus. In some ways this new, disturbing technology has been addressed in other areas. When libraries subscribe to online journals, they must often sign licenses and contracts that dictate how the online journal can be used and accessed. It is possible for libraries to negotiate into the contract any potential use in ereserves or even print course packs. The plaintiffs do not comment one way or the other on this issue but it is possible that many of the readings they found in the ereserves are from journals where use in ereserves was already negotiated. Often the terms are private to the University so the publishers may not have known what, if any, restrictions were placed on this use. Without that knowledge, it is not

GSU and Ereserves 18 possible to state that all the readings they found were there illegally. In their vigor to defend their rights, they are painting with a very broad brush. The plaintiffs claim vicarious infringement; that staff have the ability to police the systems and therefore should do so. Policing a system this large is not easy or simple. It would require that staff look at every reading and determine whether copyright permission has been obtained. In the one semester the plaintiffs give as their exhibit, there are over 6700 readings. These are only what are viewable and it is quite probable that many more reside on the librarys server. It is unreasonable to expect staff would be able to view and evaluate every one of them. Even if this is done just for the current semester, 6700 is still a lot of readings. The start of a semester is very chaotic with professors turning in materials that are needed immediately; there may not be time to get the permissions needed. With the intense influx of materials in just the few first weeks of the semester, it is impossible for staff to check every item. Professors also add materials throughout the year. If they are able to add on their own, there is no way for staff to know about and check the new material. To require staff to police the system is an unreasonable expectation. Fair use is a very strong argument for the use of ereserves. GSU is a state institution and is not using the material in a commercial aspect; it is quite possible that many of the readings used are more factual than creative which weighs in their favor. The instructors are not placing entire textbooks on ereserves. They are simply placing portions of the text. Finally, the plaintiffs do not give evidence of the kinds of impacts on the market that they are claiming. This is needed for the fourth factor to weigh in their favor. The plaintiffs have given some alarming evidence but have not portrayed the whole picture. It is possible that some of the items they found were on ereserves legally which would change the nature of the allegations. It is also possible the readings they found are supplemental or suggested readings only, which in no way replace the required

GSU and Ereserves 19 print textbook or course pack. Without more evidence about the nature of the readings found, and with the four factors of fair use considered, it seems clear that while the plaintiffs case is compelling, it is quite possible that GSU is well within their rights of fair use and will be able to continue use ereserves as they have done so far. Plaintiffs arguments against defendants The defendants claim that the readings are only available while the course is being taught and that having a digital copy on a server does not equal continuous and permanent use. Even if the readings are only available while the course is being taught, a digital copy, which does not degrade with use or time, stored on a server for ease of use and access can be considered to be creating a personal database, which the Courts have found to be an infringement. A personal digital database would preclude having to purchase multiple copies (Melamut et al., 2000). This would circumvent rightfully paying for the use of an item which is being offered free of charge to multiple students on ereserves. Although the defendants claim that the use of ereserves was purely educational and therefore not commercial, it was found by the Courts in A&M Records, Inc. v. Napster, Inc., that *d+irect economic benefit is not required to demonstrate a commercial use. Rather, repeated and exploitive copying of copyrighted works, even if the copies are not offered for sale, may constitute commercial use (A&M Records, Inc. v. Napster, Inc., 2001). Ereserves were available to the general public for an inderterminate amount of time. While this may have been a mistake as GSU claims; they are still responsible for any infringement, intentional or not that occurred because of their practices. Because a crime was not intended or was the result of a mistake does not relieve culpability on the part of the person or entity committing the crime.. For the second factor, nature of the work, while it could be true that some of the readings were more factual in nature, the ones listed in the evidence were not completely fact based. If this point were

GSU and Ereserves 20 to be argued the plaintiffs would then ask for a ruling to be made on what exactly could be constituted as factual enough to qualify for fair use. The plaintiffs could use this ruling to argue that everything not considered factual enough for the second factor could be a clear indication of copyright infringement. For the third factor of fair use, amount and substantiality, the defendants claim that the 6700 readings were for 600 courses for a semester, the plaintiffs still claim this is too much to be considered fair use. It may be that not all of these readings were required, but if the readings are only of a supplemental nature, it is not necessary to have them on ereserves. The argument that having them on ereserves allows for students to access the readings they need for class does not apply. Supplemental readings do not require the same level of access that assigned readings do, and are less likely to create problems because of inaccessibility thus, negating the need to have them securely on ereserves. As to the defendants claim that entire books are never copied and placed on ereserves, the plaintiffs argue that, pursuant to the rights granted in Section 106 of the Copyright Act, only the holder of the copyright has the right to reproduce any of the copyrighted work (U.S. Copyright Office, 1976). No matter how much or how little of the work was used, nor for what purpose, GSU is violating copyright by reproducing the work. While it could be argued that GSU was within its rights to reproduce a copy pursuant to Section 108 of the Copyright Act, this only allows for one copy to be made. Making a copy and placing it on ereserves does not constitute making one copy because it allows, and even encourages, users to view, download, and print the item. Having it available in a digitized format allows for unlimited reproduction with no loss of quality. This does not fit with the spirit of section 108. As to the argument that havig required readings on ereserves is necessary to the support and education of distance students it should be pointed out that many possibilities exist that do not involve the use of free ereserves. For instance, a subscription to a database that offered the materials could be used, or the university could work with their coursepack providers and find a way to be able to provide a

GSU and Ereserves 21 digital coursepack in much the same way as they provide physical ones for residential students. For journal articles available by subscription to the university community it is possible for the professors to provide the reading list complete with citations and have the students themselves access the articles directly from the databases providing the access. There are multiple ways to offer access to the materials needed for education that do not allow for the avoidance of paying legitimate remuneration. For the fourth factor of fair use, effect upon the market, the defendants claim that the plaintiffs have not adequately presented the harm upon the market. It has been demonstrated that the plaintiffs are vital to the professors in the university, because they fund and publish research performed by the professors. The defendants claim that other sources of publishing are available such as d-space and open access are available, however the plaintiffs offer the prestige of their reputation as well as peer review in publishing. This is vital for a Professors in advancing their career and is a very costly investment. The plaintiffs have demonstrated that the primary market of their works are students in the university. By offering for free what the publishers are charging for, very few if any students would be willing to then pay for the work. GSU is impacting the plaintiffs ability to receive just compensation for their work. This point was discussed and decided upon in the Napster case. A&M Records is in the business of producing, marketing, and selling music for people to buy. In their case against Napster, they successfully argue that the activities of Napster users significantly impacted them, as the users avoided paying for the materials they were acquiring, thus causing a loss in revenue which would make it difficult to continue to produce new material The use of ereserves by GSU and other universities has the potential to create a barrier for the plaintiffs to enter the market of directly supplying students with their readings online. The Courts found in the Napster case that the use of Napster by users raises barriers to plaintiffs entry into the market

GSU and Ereserves 22 for the digital downloading of music (A&M Records, Inc. v. Napster, Inc, 2001, para. 31). Even if it is shown that the plaintiffs print market is not harmed by ereserves, the Courts have found that lack of harm to an established market cannot deprive the copyright holder of the right to develop alternative markets for the works (A&M Records, Inc. v. Napster, Inc, 2001, para. 36). It is still asserted that GSU has committed contributory copyright infringement. GSU has encouraged its professors to use electronic systems, of which a key feature is described in the tutorials available to faculty and students on the Georgia State website, [as] the easy ability of instructors to upload electronic files to a centralized course content file, including a media library of course content for students to view, download, and save to their own computers (Cambridge University Press et al., v. Patton et al., 2008, para. 38). It is true that professors may be posting their own content, but as has been demonstrated, many of the works are owned by others and are thus infringing on the rights of the owners whose works are being used. As for distance courses, there are alternate possibilities that the universities should explore before automatically using ereserves. It is possible that they could work with their copy center, or a local course pack producer, in creating coursepacks for distance students. They could even try and work with schools local to the distance students in a reciprocal manner to have the students local university course pack producer create coursepacks for them. There are other methods available to be used before turning to ereserves. Finally the technology itself is not in the defendants favor. Like Napster, which used software that was specifically for the purpose of sharing protected items in a peer to peer sharing method, GSU is using technology that is strictly for the ease of sharing electronic files; most of which, if not all, are copyrighted works that are owned by others who are not being paid for and have not had permission for this use granted. The fact that GSU supported this activity indicates contributory infringement. In

GSU and Ereserves 23 Napster the Courts found that Napster materially contributes to the infringing activity. Relying on Fonovisa, the district court concluded that *w+ithout the support services defendant provides, Napster users could not find and download the music they want with the ease of which the defendant boasts (A&M Records, Inc. v. Napster, Inc, 2001, para. 58). Thus without the support and software provided by GSU, the professors and the students would not have been able to infringe on the copyrights of owners as they are doing with ereserves. In the defense against vicarious infringement, it is argued that the size and scope of the posted materials would have made it impossible for the staff to police the systems. This was similarly argued in Napster to no avail. The Courts found that *t+o escape imposition of vicarious liability, the reserved right to police must be exercised to its fullest extent. Turning a blind eye to detectable acts of infringement for the sake of profit gives rise to liability (A&M Records, Inc. v. Napster, Inc, 2001, para. 64). GSU has the right and ability to police the systems being used by professors and students, if they do not, they are then liable. The file names of the readings, while perhaps not being quite so exact as the music file names were, are still quite sufficient for staff to be able to tell if a work is infringing or not (Cambridge University Press et al., v. Patton et al., 2008). By using their own search engines they can police their system (A&M Records, Inc. v. Napster, Inc, 2001). Despite compelling arguments for fair use, it has not been demonstrated that GSU was within their fair use rights in using ereserves to post journal articles and excerpts from copyrighted books on their servers. It has been shown that indirect financial gain was realized by GSU and its students, the amount used from books was excessive, and though it has been claimed that items on ereserves are possibly supplemental readings, GSU has not demonstrated the need for these to be on ereserves. The argument for supporting distance students is not strong, as it is possible to support these students in other ways which allow for fair and just compensation to be realized. By using ereserves, GSU is creating

GSU and Ereserves 24 barriers for publishers to enter into this new and possibly vital market. The support that GSU has provided, and the encouragement to use the systems, demonstrates their culpability in regards to contributory infringement, and their lack of policing shows that they are liable for vicarious infringement. My views It should be mentioned that this is an ongoing case, and the only answer provided by GSU so far has been that ereserves are fair use. Because of the lack of clarification by GSU and the fact that Ereserves is only accessible by members of the GSU community, the arguments offered on behalf of the defendants are possible ones that could be made, and the counter arguments by the plaintiffs are also just a possibility. Other than the initial suit and defence of fair use no other information is available to make arguments with. It is possible that mitigating factors exist that are not mentioned because they may harm the case being made. Fair use should be exercised, but it needs to be done respectfully and with care. Universities work very hard to make sure that their students perform their studies in an ethical manner; there are very strict policies in place concerning plagiarism. This same care and attention should be applied to the school as a whole, staff and faculty as well as students. Flagrant misuse of fair use is as damaging as plagiarism. Simply put, it is stealing. A case can be made for fair use in regards to ereserves but there are limits to the way ereserves can and should be used. Obviously, if the readings are being used for courses then the use is educational and covered by fair use. But ereserves should not be used to replace course packs. A policy implemented by some universities, has been that if items are in a print course pack, then they absolutely cannot be placed on ereserves. If no print course pack is being offered then the judicious use of ereserves is acceptable. It

GSU and Ereserves 25 was not mentioned by the plaintiffs but GSU does have a similar policy on their guidelines webpage (Georgia State University Library, n.d.). Continuous use is a very tricky minefield to navigate. For items being used more than once, and not covered by licenses, professors should be encouraged to place them in a print course pack after the first use. A blending of both print course packs and ereseves containing items allowed by licensing agreements can create the best balance for both students and publishers. Licensed articles are paid for through licensing contracts, and items being used more than once for a course are being paid for by the students. In this way the creation of permanent, continuous ereserves is avoided. Also, instructors should be educated about fair use and copyright, so they can evaluate their use of materials. If a work is very obviously creative, alternate ways to make it available for students should be investigated. The amount and substantiality factor is much more of a balancing act. For journal articles, it can be fairly simple. Many online journal subscriptions have negotiated licenses which include use in ereserves. Sometimes this comes with restrictions such as using links that limit concurrent users, or using publisher provided pdfs, with the agreement that readings will not be changed in any way. Book chapters however, can be tougher to deal with. First, there should be an insistence that every book chapter on ereserves have a copy of the front and back of the title page included. This provides the citation and publisher information located on the verso of the title page, and is something that is required (Melamut et al., 2000). It is also highly recommend that no more than one chapter of a book per quarter be used. This has some practical reasons. Copies in the library can typically cost $.15 a page and so a reading of more than 20 or 30 pages can be a bit pricey. If there are 30 or more readings on ereserves that are all that long, then the cost of printing may be higher than using a course pack or just buying the book. Professors should also be encouraged to place no more than 30 readings on ereserves. A full-time

GSU and Ereserves 26 student needs this kind of limit. Finally, items on ereserves should be purged after a certain amount of time as well, to avoid ereserves being used as a permanent storage facility by professors. Occasionally it might be appropriate to place a chapter or two of a required text on ereserves for a very limited time. Problems can occur with bookstore receiving the text in time for the start of class. When the text arrives, the readings should be permanently removed. In this way ereserves can be a very valuable tool in supporting students in difficult circumstances. Ereserves is a very tricky area of service in university libraries. It allows for wonderful opportunities for both professors and students, particularly when there is a problem at the beginning of a quarter with a textbook not being available, if a professor finds an item in the course of the quarter that would be most useful, or for distance programs. Ereserves does, however, have the potential for significant copyright infringement. When a choice is being made to use ereserves, the four factors of fair use should be very carefully weighed before the item is placed in the system. A clear policy and education of professors, staff, and students is essential for the avoidance of abuse. Fair use rights should be exercised however, because if they are not, the potential of losing them is great. Their loss would be detrimental to education, which is partly what the copyright law was originally supposed to promote. The plaintiffs do have legitimate concerns. GSU appears to be abusing fair use. With the select evidence given and a system which is closed to the public, it is difficult know what percentage of journal articles, book chapters, etc. are present though. Nor can one see what is stored but not currently available for viewing. It is possible that the abuse is much higher than has been shown so far. The plaintiffs are right in making these issues with ereserves known. They want to take it as far as GSU is willing to go so that they can get a ruling in their favor. A complete victory by the plaintiffs could be detrimental to universities though; so hopefully, more clear-cut and balanced guidelines will be created. A balance is needed which will probably be disliked by both sides but will be fair.

GSU and Ereserves 27

Bibliography
A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir.2001) American Libraries Association. (1982). Model Policy Concerning College and University Photocopying For Classroom, Research and Library Reserve Use. In Information Policies: ALA. Retrieved May 09, 2009 from http://www.cni.org/docs/info.policies/ALA.html Austin, Brice. (2001). A Brief History of Electronic Reserves. Journal of Interlibrary Loan, Document Delivery & Information Supply, 12(2), 1-15. Cambridge University Press et al v. Patton et al U.S. (2008) (lawsuit, decision pending) Cambridge University Press et al v. Patton et al U.S. (2008) (GSU response, decision pending) Georgia State UniversityLibrary. (n.d.). Guidelines for Putting Materials on Reserve. Retrieved May 18, 2009, form http://www.library.gsu.edu/reserves/instructorinfo.asp Melamut, Steven J., Thibodeau, Patricia L., & Albright, Eric D. (2000). Fair Use or Not Fair Use: That Is the Electronic Reserves Question. Journal of Interlibrary Loan, Document Delivery & Information Supply, 11(1), 3-28. Seaman, Scott. (1996). Copyright and Fair Use in an Electronic Reserves System. Journal of Interlibrary Loan, Document Delivery & Information Supply, 7(2), 19-29. U.S. Copyright Office. (1976). Copyright Law of the United States of America and Related Laws Contained in Title 17 of the United States Code Circular 92. Retreived May 18, 2009, from http://www.copyright.gov/title17/92chap1.html#106