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Court Case: Fair Use Analysis of E-Reserves

Fair use analysis requires consideration of the four factors set out in 17 U.S. Code § 107. Using limited portions of copyrighted materials for nonprofit educational purposes is a positive under the first fair use factor. In order to make the fair use determination, however, all four factors must be considered. The weighing and balancing of the fair use factors requires an analysis of the facts of each case, as shown in the examples below. These examples are excerpts from Cambridge Univ. Press v. Becker (N.D. Ga. 2020). This decision is part of extended litigation between academic publishers and Georgia State University over use of copyrighted materials as e-reserves. Members of the Georgetown community may read the full 241 page opinion in the Nexis Uni database by logging in with your Net ID and password. Enter 2020 U.S. Dist. LEXIS 35134 in the search box for the full opinion.

Analysis Finding Fair Use

In this excerpt, the court found fair use after weighing and balancing the four fair use factors. The court found that 37 of the 48 e-reserves reviewed were fair use.

The Craft of Inquiry: Theories, Methods, Evidence (Robert R. Alford, Oxford 1998)

The Craft of Inquiry was first published by Oxford in 1998. It is a 176 page, eight chapter book authored by Robert R. Alford. It provides an overview of sociological methodology and the relationships between the various approaches [Pls. Ex. 372]. The Craft of Inquiry retails for $32.95 [Jt. Ex. 5 at D-10]. The net sales revenue from the date of first publication through November 7, 2010 was $86,325.00 [Pls. Ex. 357]. Permissions to make licensed digital excerpts of the book were available in 2009 through Copyright Clearance Center ("CCC"). From July 1, 2004 until December 1, 2010, The Craft of Inquiry earned $12.36 in ECCS permissions revenue [Pls. Ex. 375; see also Attachment to this Order].3

One of the posted readings was an excerpt from The Craft of Inquiry: Theories, Methods, Evidence ("The Craft of Inquiry"), by Robert R. Alford [Pls. Ex. 372]. Pages 21-31 (11 pages) of The Craft of Inquiry, the entirety of chapter two and 6.25% of the book, were uploaded to ERES for distribution to the students in Professor Kaufmann's EPRS 8500 Maymester 2009 course. This was required reading [Doc. 403 at 120-21]. Had permissions been paid for the digital distribution of this excerpt, Oxford would have earned less than $14.89 in net revenue from permissions income.4 The cost to students in the course would have been $20.16.

Fair Use Analysis

As to the first element of fair use ("the purpose and character of the use"), Defendants' use of the excerpt was nontransformative (in this case, mirror image copying). It serves the same overall function as the copyrighted work. The excerpt was used for a nonprofit educational purpose by nonprofit educational institution. Thus, factor one favors fair use.

The second fair use factor is "the nature of the copyrighted work." The Court makes the following findings in that regard: The Craft of Inquiry is an academic5 non-fiction6 work concerning the process of constructing a research project. The author's thesis is that three major paradigms of inquiry -- multivariate, interpretive and historical -- should be considered in this process. Various chapters of the book discuss the three major paradigms. Professor Kaufmann assigned the reading (via ERES) of chapter two, pages 21-31, "Designing a Research Project." This chapter7 advises that the writer should focus on the cognitive, not the emotional, choices that are presented. The writer should start the project by identifying a problem of interest and identifying theoretical and empirical entry points to the discussion. Then, the writer should move back and forth between those "tracks of analysis" to formulate one or more research questions. Once one or more research questions have been identified, the writer should turn to "a set of choices you will make in your project," namely the three paradigms of inquiry.

The writer's style in this chapter is modestly conversational but still rather formal. He addresses the reader as "you" and occasionally refers to himself as "I." The chapter is objectively descriptive of the various steps in developing a research question and the theoretical and empirical "tracks of analysis." Chapter two has no humorous or fanciful aspects. It is didactic and prescriptive in a conventionally academic manner. It does contain some elements of author opinion, though they are not identified as such. Author opinion does not dominate. Under the standard set by the Court of Appeals, factor two neither favors nor disfavors fair use. It is neutral.

As to factor three ("the amount and substantiality of the portion used in relation to the copyrighted work as a whole"), Professor Kaufmann uploaded one full chapter, 6.25% of the book (11 pages) [Pls. Ex. 372]. This selection was narrowly tailored to fit the pedagogical aim of the course and was not excessive for this purpose. The percentage of the book used is small. This chapter is not the heart of the work. While chapter two has no greater value than any other chapter of the book, the Court does consider that a whole chapter of the book has greater value (quality) than part of a chapter, because it covers a complete, cohesive topic. The favored educational use of factor one--rather than a commercial use--tends to support more copying rather than less; on the other hand, the threat of market substitution pulls toward favoring less copying, rather than more. Taking into account the small percentage of the book and the small number of pages in the excerpt, the Court finds the potential impact of market substitution to be within acceptable limits. Taking all of the foregoing into account, factor three favors fair use.

As to factor four ("the effect of the use upon the potential market for or value of the copyrighted work"), the Court of Appeals held that the small excerpts involved in this case did not substitute for the books. Cambridge II, 769 F.3d 1266. Hence, the potential market for the copyrighted work was not affected. However, permissions to make digital copies of excerpts from The Craft of Inquiry were readily available from CCC in 2009 [Pls. Ex. 375] and Defendants did not pay for permissions (licenses) to copy the excerpt. Defendants' unpaid use cost Oxford $14.89, thereby causing small but actual damage to the value of Oxford's copyrighted work and depriving Oxford of $14.89 in permissions revenue. If "everybody" (colleges and universities) had programs like Georgia State's allowing unpaid copying of excerpts, Oxford could lose substantial revenues from permissions sales excerpts of this work, causing substantial damage to the value of the copyrighted work. Factor four strongly disfavors fair use.

In summary, factor one favors fair use; factor two is neutral; factor three favors fair use; and factor four strongly disfavors fair use. The Court will look further and will conduct a holistic evaluation for the purpose of deciding the fair use defense.

The record evidence shows that Oxford has gotten little to no permissions income from sales of excerpts of the book since its publication in 1998. Specifically, Oxford only received $12.36 in electronic course content service ("ECCS") permissions from CCC in 20068 and $188.62 in Academic Permissions Service ("APS") revenue in 2008 [Pls. Ex. 375]. There were no permissions sales in 2009 [Pls. Ex. 375]. Oxford sold no in-house permissions for copying excerpts of The Craft of Inquiry between publication in 1998 and November 7, 2010.9 There was little likelihood of repetitive use of excerpts in 2009. This evidence mitigates the finding on factor four and calls for a mitigating adjustment of factor four, in Defendants' favor.10

Weighing the four factors together, placing the burden of proof on Defendants, giving factor four (as adjusted) extra weight and factor two insubstantial weight (in this instance, no weight because factor two is neutral) as directed by the Court of Appeals, Defendants prevail on the fair use defense. Accordingly, this infringement claim fails.
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3 Permissions revenues earned by Plaintiff-publishers serve as a useful proxy for estimating demand for licensed excerpts of the works at issue in this case. However, the Court does acknowledge that permissions revenues may not account for the full extent of copying of excerpts occurring at universities by professors and students. Based on Dr. Crews's report, the Court infers that unpaid use of excerpts occurred at many universities other than Georgia State in 2009. However, even if earned permissions revenues do not reflect all uses of an excerpt, they are still instructive as to the relative demand for excerpts of various works. For example, it is evident that a work such as The Sage Handbook of Qualitative Research (Second Edition), which earned $6,324.61 in ECCS revenue (ECCS revenue means revenue from permissions which allow the user to make digital copies. ECCS permissions are obtained from CCC) from July 1, 2004 through December 1, 2010 and $45,498.72 in in-house permissions sales (probably digital) from Sage from 2004 through 2010, has stronger demand for licensed digital excerpts among academic users than Oxford's The Craft of Inquiry, which was used in the same course but has earned only $12.36 through ECCS over the same time period.

Furthermore, in Fiscal Year 2009, CCC paid royalties of $935,450.35 to Cambridge, $1,650,323.00 to Oxford, and $2,136,912.89 to Sage [Stipulations, Doc. 276 ¶ 33]. These figures make clear that Sage and Oxford had a larger presence in the excerpt market in 2009 than did Cambridge.

Permissions revenues earned by Plaintiff-publishers serve as a useful proxy for estimating demand for licensed excerpts of the works at issue in this case. However, the Court does acknowledge that permissions revenues may not account for the full extent of copying of excerpts occurring at universities by professors and students. Based on Dr. Crews's report, the Court infers that unpaid use of excerpts occurred at many universities other than Georgia State in 2009. However, even if earned permissions revenues do not reflect all uses of an excerpt, they are still instructive as to the relative demand for excerpts of various works. For example, it is evident that a work such as The Sage Handbook of Qualitative Research (Second Edition), which earned $6,324.61 in ECCS revenue (ECCS revenue means revenue from permissions which allow the user to make digital copies. ECCS permissions are obtained from CCC) from July 1, 2004 through December 1, 2010 and $45,498.72 in in-house permissions sales (probably digital) from Sage from 2004 through 2010, has stronger demand for licensed digital excerpts among academic users than Oxford's The Craft of Inquiry, which was used in the same course but has earned only $12.36 through ECCS over the same time period.

Furthermore, in Fiscal Year 2009, CCC paid royalties of $935,450.35 to Cambridge, $1,650,323.00 to Oxford, and $2,136,912.89 to Sage [Stipulations, Doc. 276 ¶ 33]. These figures make clear that Sage and Oxford had a larger presence in the excerpt market in 2009 than did Cambridge.

4 The amount earned would have been $20.16, the amount charged by CCC, [Jt. Ex. 5 at D-10], less the $3.00 service fee charged by CCC to users, less $2.57 in fees charged by CCC to publishers, less royalties Oxford is obligated to pay the author.

5 Almost all of the books involved in this case are academic in nature. By "academic," the Court means "Of, relating to, or characteristic of an educational institution or environment; concerned with the pursuit of research, education, and scholarship; scholarly, educational, intellectual." Academic, Oxford English Dictionary (3d ed. 2011).

6 All of the books involved in this case are non-fiction.

7 The Court notes that factor two addresses "the nature of the copyrighted work," not "the nature of the excerpt taken." As noted in Cambridge I, this Court has conducted a detailed, close examination of the excerpts used by Defendants and has sufficiently examined the balance of the copyrighted work to determine that the nature of the excerpt fairly reflects the nature of the copyrighted work. That approach has been continued in this Opinion as well.

8 The Court infers that if ECCS permissions were available in 2006 they would have been available in 2009.

9 The record evidence ends at November 7, 2010.

10 As used in this Opinion, a "mitigating adjustment on factor four in Defendants' favor" results in factor four favoring Plaintiffs less than it otherwise would, but still favoring Plaintiffs.

Analysis Finding Infringement

In this excerpt, the court found infringement after weighing and balancing the four fair use factors. The court found that 11 of the 48 e-reserves reviewed were infringements.

The Sage Handbook of Qualitative Research (Third Edition) (Norman K. Denzin & Yvonna S. Lincoln, eds., Sage 2005)

The Sage Handbook of Qualitative Research (Third Edition) was first published by Sage in 2005. It is a 1,229 page, 44 chapter volume edited by Norman K. Denzin and Yvonna S. Lincoln. The chapters analyze the theory and practice of qualitative research [Pls. Ex. 267]. The Sage Handbook of Qualitative Research (Third Edition) retails for $156.00 [Jt. Ex. 5 at D-13]. The book earned $1,327,804.06 in net sales revenue through December 2010 [Pls. Ex. 283]. Permissions for licensed digital excerpts of the book were available through CCC in 2009 [Pls. Ex. 358]. From publication until December 1, 2010, The Sage Handbook of Qualitative Research (Third Edition) earned $1,131.86 in ECCS permissions revenue [Pls. Ex. 287]. In addition, permissions to make licensed excerpts of this work are available directly from Sage; the book earned $18,711.95 through Sage's in-house permissions program from publication to December 1, 2010 [Pls. Ex. 283].

Professor Kaufmann caused pages 1-32, 357-375, 443-465, and 651-679 of The Sage Handbook of Qualitative Research (Third Edition), the entirety of four chapters and 8.38% of the book, to be uploaded to Georgia State's ERES system for distribution to the students in her EPRS 8500 Maymester 2009 course as required reading [Tr. Vol. 5 at 80-81 and 106-111]. Had permissions been paid via CCC for the distribution of these chapters, Sage would have earned under $159.34 in net revenue from permissions income.15 The cost to students in the course would have been $190.46.

Fair Use Analysis

As to the first element of fair use ("the purpose and character of the use"), Defendants' use of the excerpt is nontransformative (in this case, mirror image copying). The excerpt fulfills the same purpose as the copyrighted work. The excerpt was used for a nonprofit educational purpose by a nonprofit educational institution. Thus, factor one favors fair use.

The second fair use factor is "the nature of the copyrighted work." The Court makes the following findings in that regard: the first excerpt was pages 1-32, the Introduction to the book. The Introduction, which was written by the external editors of the book, forecasts what will be in the book. It states: "[i]n this introductory chapter, we define the field of qualitative research, then navigate, chart, and review the history of qualitative research in the human disciplines" [Id. at 2]. In addition, "[w]e also present a conceptual framework for reading the qualitative research act as a multicultural, gendered process and then provide a brief introduction to the chapters that follow" [Id.]. The introduction states, "This volume is intended to serve as a bridge connecting historical moments, politics, the decolonization project, research methods, paradigms, and communities of interpretive scholars" [Id.]. Qualitative research is stated to be a field of inquiry which "crosscuts disciplines, fields, and subject matters" [Id.]. Also, "[i]n North America, qualitative research operates in a complex historical field that crosscuts at least eight historical moments" [Id. at 2-3]. The editors identify those eight historical moments as the traditional, the modernist, blurred genres, the crisis of representation, the postmodern, postexperimental inquiry, the methodologically contested present, and the fractured future [Id. at 3]. The future is said to be "concerned with moral discourse, with the development of sacred textualities" [Id.]. "The eighth moment [the fractured future] asks that the social sciences and the humanities become sites for critical conversations about democracy, race, gender, class, nation-states, globalization, freedom and community" [Id.]. This excerpt is primarily subjectively descriptive and contains considerable opinion of the editors.

Pages 357-375: The second reading assignment was all of chapter 14, titled "Critical Humanism and Queer Theory--Living With the Tensions." The material addresses what the author sees as the need to deal with the tensions between critical humanism and gay/queer research. The author's presentation is straightforward. He recognizes the inherent conflicts in the two traditions, but concludes that "there are some commonalities" [Id. at 370]. Both, for instance, would ask researchers to adopt a critically self-aware stance. Both would seek out a political and ethical background "even though, in a quite major way, they may differ on this--queer theory has a prime focus on radical gender change, and humanism is broader" [Id.]. The author's style is conventional; his approach is evaluative. This chapter contains author opinion.

Pages 443-465: This excerpt is the entirety of chapter 17, "Qualitative Case Studies." The author describes the nature of various types of case studies: the intrinsic case study; the instrumental case study; and the multiple case or collective case study. The chapter discusses case selection, the interactivity of the case study, the process of data gathering and the matter of triangulation. This chapter is objectively and subjectively descriptive. It contains author opinion.

Pages 651-679: This excerpt is chapter 25, titled "Narrative Inquiry--Multiple Lenses, Approaches, Voices." The chapter describes the diverse approaches to narrative inquiry, and various methodological issues in contemporary narrative inquiry. The author notes that "a major goal of this edition of the Handbook is exploring how qualitative research can 'advance a democratic project committed to social justice in an age of uncertainty'" [Id. at 667]. This chapter is both objectively and subjectively descriptive; it contains author opinion and evaluative description.

Under the standard set by the Court of Appeals, the foregoing excerpts as a whole disfavor fair use because author opinion, subjective description and evaluative expression dominate. Factor two disfavors fair use.

As to factor three ("the amount and substantiality of the portion used in relation to the copyrighted work as a whole"), Professor Kaufmann's selected excerpts constitute 8.38% of the pages in the book (102 pages in total) and the entirety of four chapters, one of which is the Introduction. The selections fit the pedagogical aim of the course. None of the chapters constitutes the heart of the work. However, even taking into account the impact of the favored nature of the use under factor one, the quantity of material used is extremely large. The use of four full chapters of the book leans very strongly against fair use. That the book contains 44 chapters does not alter the Court's thinking. Regarding the quality (value) of the material taken, a whole chapter of a book has greater value than part of a chapter because the whole chapter covers a complete, cohesive topic. Copying four chapters draws a very large amount of value. Also, the total page length of the excerpts (102 pages) is extremely large. This would cause considerable market substitution (lost permissions sales). Weighing all of these considerations together, factor three weighs against fair use.

As to the fourth fair use factor ("the effect of the use upon the potential market for or value of the copyrighted work"), the Court first notes that Professor Kaufmann's use of the excerpt of The Sage Handbook of Qualitative Research (Third Edition) did not affect the market for the book as a whole.

Plaintiffs produced evidence demonstrating that there was a ready market for licensed digital excerpts of this work in 2009 through CCC and through Sage's in-house program. The unpaid use of the excerpt by Professor Kaufmann and her students caused very small, but actual damage to the value of Sage's copyright. In addition, widespread use of similar unlicensed excerpts could cause substantial harm. Factor four strongly disfavors fair use.

A review of the fair use factors in this case shows that factor one favors fair use; factor two disfavors fair use; factor three strongly disfavors fair use; and factor four strongly disfavors fair use. While it is arguably unnecessary to do so, the Court will look further and will conduct a holistic evaluation of the four factors.

First, revisiting the factor three analysis, the Court finds that Professor Kaufmann's unlicensed use of four chapters of The Sage Handbook of Qualitative Research (Third Edition), is significantly excessive (8.38%; four chapters) requiring a significant adjustment of factor three, in Plaintiffs' favor.

The Court also finds that upon revisiting the factor four analysis, an adjustment favoring Plaintiffs' position is warranted. The Court's reasoning is as follows. The evidence shows that in 2008 colleges and universities paid $3,630.59 directly to Sage for excerpts from this book; in 2009 the permissions amount paid was $11,125.91. In addition, the book earned $3,174.20 in fees from CCC's ECCS and APS programs from 2004 to 2010.

The original version of The Sage Handbook of Qualitative Research was published in 1994; a second edition was published in 2000; the third edition, at issue here, was published in 2005. With respect to the third edition, the documentary evidence [Pls. Ex. 283] shows that book sales began with revenues of $379,940.00 in 2005, with the sales amount going down each year thereafter. In 2009, book sales brought in revenues of $153,234.95. But permissions revenue for Sage's in-house program jumped from $3,630.59 in 2008 to $11,125.91 in 2009. The trial evidence showed that Sage's in-house permissions were mostly for making digital copies of Sage's copyrighted books. The high demand for digital excerpts of The Sage Handbook of Qualitative Research (Third Edition) in 2009 underscores the negative impact of Defendants' unpaid use on the value of the copyrighted work. This determination further strengthens the factor four analysis in Plaintiffs' favor.

Thus, a holistic examination of the four factors, placing the burden of proof on Defendants, adjusting factors three and four in Plaintiffs' favor, and giving factor four extra weight, shows that Defendants' use of the excerpt from The Sage Handbook of Qualitative Research (Third Edition) was not a fair use.

In summary, this infringement claim succeeds.
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15 The amount earned would have been $190.46, the amount charged by CCC, [Jt. Ex. 5 at D-10], less the $3.00 service fee charged by CCC to users, less $28.12 in fees charged by CCC to publishers, less royalties Sage is obligated to pay the external editors.