Eleventh Circuit Sets Parameters of Fair Use Defense

The plaintiffs publish advanced scholarly works for use in upper-level undergraduate and graduate courses, not large, general textbooks for entry-level courses. In addition to single author works, they publish compilations of works by multiple authors. Those works are marketed to professors at universities and colleges. The professors may assign excerpts from those books rather than the entire books to their students. They may do that by placing the book on reserve at the campus library, by preparing bound, photocopied, paper 'coursepacks' containing excerpts from multiple works, or by distributing digital excerpts over the Internet.

GSU, a public university in Atlanta, uses two digital distribution systems for course materials: an electronic reserve system managed by GSU's library staff, and a course management system under which professors can upload digital copies of materials directly to their course web sites. The systems are popular with students and have largely replaced paper coursepacks. Students buy paper coursepacks from the GSU bookstore, but pay for digital materials only indirectly, through tuition and fees. Such systems are available nationwide, not just at GSU. Whereas GSU pays licensing fees for materials in paper coursepacks (utilizing well-established channels such as Copyright Clearance Center (CCC)), the plaintiffs alleged that thousands of digitized copyrighted works are made available on GSU's electronic systems without license payments. Under GSU guidelines in effect when the suit was filed in 2008, professors could post digital copies of excerpts consisting of up to 20% of a work without obtaining a license. GSU raised the fair use defense that any alleged use of copyrighted materials was for the purpose of teaching, scholarship or research and for nonprofit educational purposes.