I have held off posting anything about the Georgia State e-reserves case, figuring that others would say the most important things. That has happened. Claire Stewart has a wonderful post outlining the major issues and relevant literature, and she advances a strong argument why GSU's use could be a fair use. I particularly like that she lists the schools of the authors listed in the complaint. I wonder how many of them know - and would approve - that their work is being used to bring legal action against their colleagues at GSU who only admire their work enough to want to use it in class? I think it is particularly ironic that at least two of the authors are at UC San Diego, which faced its own challenge from the AAP.
While these three postings provide all you really need to know about the case, there are lots of other issues that will emerge from it. Let me tackle three: fair use, the risks the AAP faces, and most of all, the implications for everyone other than libraries.
Fair Use. In the policy statements that AAP has crafted with other universities (such as Syracuse's recent policy), the existence of fair use is recognized but its scope and boundaries are not discussed. The GSU suit is different - what constitutes educational fair use is front and center. The complaint is filled with language that suggests that the issue of what constitutes acceptable fair use is settled law, and contends that the state's guide to understanding copyright - developed by a committee of experienced lawyers and educators, including the late and sorely missed L. Ray Patterson, has fair use parameters that "plainly exceed legal boundaries." Perhaps so - but only if you accept that the procedures that commercial copy shops must follow also apply to non-commercial, educational course packs and course reserves (something that as far as I know has never been tested).
AAP's risk. There is a chance that the courts will find the negative market impact of classroom use of copyrighted material outweighs all other fair use factors. There is just as great a chance that the court will conclude that the non-commercial, educational purpose of the use, which is specially singled out in the introduction to the fair use section, takes precedence. In other words, commercial copying for educational use could continue to be unfair, but non-commercial copying for educational use could be accepted. (And remember that a sizable minority in the Princeton v MDS case found even commercial copying to be ok.) If AAP loses, it could eliminate a lot of revenue it currently receives but which probably doesn't need to be paid (such as permission fees for course packs from non-profit campus bookstores). I really don't understand why they filed this suit - unless they really, truly believe that there is no difference between commercial and non-commercial use.
The Peril for Users. One can look at course reserves from the perspective of the actors: the faculty members, librarians, and university that collectively copy and make available hundreds of chapters in any one semester. This might look like wholesale publishing - and hence an infringement.
But look at it from the perspective of the student. She is given a syllabus that says "read chapter 4 in week 7." I trust that instruction is not a copyright violation! She then goes to the library, gets the book, and makes a photocopy of the chapter. Again, I hope our sense of fair use extends to this copying. Next year, the professor offers the same instruction, a different student goes to the library, gets the book, and makes a photocopy. Again, I hope that his copying is a fair use. End result: two students in two different years get photocopies of the chapter and have not paid any permission.
Now imagine the library or the instructor says "I will make education more efficient by placing one copy of that chapter on a server, thus obviating the need for each student to get the book and make a copy. I will not force the student to print the item, but that option is available if he or she wants it. I am acting as an agent for the student, helping them learn." The end result in this system: two students in two different years can get printouts of the chapter without paying permission, same as before.
My big worry: if a library can't make a copy of an article in advance on behalf of the student, does this suggest that the student himself or herself also cannot make a copy of that chapter? Can the student no longer come to the library and make a copy of a chapter herself? In other words, does fair use really disappear whenever there is a market that licenses reproductions?
There is, BTW, an interesting case in Michigan that is going to test the limits of the ability of students to copy: Blackwell v Miller. Miller owns a copy shop in Michigan that allows students to copy items from course packs on self-service photocopy machines. If the students' copying is legal, it is hard to imagine how the copy shop could be held liable. GSU may be more actively involved in copying than is Miller - but then GSU is a non-profit, educational institution and not a for-profit enterprise.