Eleventh Circuit Sets Parameters of Fair Use Defense

In a 129-page opinion, the Eleventh Circuit Court of Appeals has provided a detailed analysis of the 'fair use' defense under the Copyright Act, as applied to digital course materials offered by a public university. Cambridge University Press v. Patton, Nos. 12-14676 & 12-15147 (11th Cir. 2014). Three publishing houses specializing in academic works ' Cambridge University Press, Oxford University Press, and Sage Publications ' sued a number of administrators and regents of Georgia State University (GSU) for copyright infringement, for permitting professors to make digital copies of book excerpts available to students without paying any license fees. In considering 74 instances of infringement allegedly occurring during three academic terms in 2009, the U.S. District Court for the Northern District of Georgia determined that there was no infringement in 26 cases, that the fair use defense applied in 43 cases, and that GSU had infringed without any defense in five cases. The court entered a narrow injunction against GSU, but concluded that GSU was the prevailing party and awarded it costs and attorneys' fees. The Eleventh Circuit concluded that the District Court had erred in applying the fair use factors and remanded the case for a 'holistic analysis' in which the factors were to be applied differently and more carefully balanced, rather than being accorded equal weight.