Is the distribution of excerpts of copyrighted books fair use? CAMBRIDGE v. BECKER

A copyright is a set of exclusive rights granted to someone that creates an original work of authorship. Even though United States copyright law uses the word author, that word includes many other creative occupations like painters, sculptors, photographers, musicians and software writers. An original work of authorship is something created by one of these creative occupations. An author can register their copyright with the library of congress to strengthen the rights associated with the copyright, but registration is not required for the author to be granted a copyright to their work. Copyright grants an author the exclusive right to reproduce, distribute, perform, display, transmit and make derivative works based on the original. If someone other than the copyright owner attempts to exercise one of these exclusive rights that can be considered copyright infringement. A copyright owner can file a lawsuit for an injunction to stop copyright infringement and to get monetary damages for copyright infringement which has occurred.

The exclusive rights granted to a copyright owner are not unlimited. Fair use is an element of copyright law that excuses a defendant from liability for copyright infringement. The reason that fair use exists is that copyright law is intended to promote the advancement of the arts and sciences, a fair use of copyrighted matter is a use that promotes advances. The four factors judges considers in a fair use defense are: (1) the purpose and character of your use (2) the nature of the copyrighted work (3) the amount and substantiality of the portion taken, and (4) the effect of the use upon the potential market.

A significant cost of university education are textbooks. Students are required to purchase textbooks which can cost hundreds of dollars each, and sometimes the textbooks do not have all the material a professors wants to teach. Technology has made it easier to reproduce and distribute the contents of books. Some university professors choose to reproduce excerpts multiple different textbooks and distribute it to their students, rather than making their students buy multiple expensive textbooks. The question then becomes is university’s electronic distribution of unlicensed copyrighted works to students is a fair use?

Because there is no set mathematical formula to apply the fair use factors balancing them can be tricky at times. CAMBRIDGE UNIVERSITY PRESS, v. MARK P. BECKER, 1:08-cv-1425-ODE (N.D.GA 2020) is a case where the district court reviewed the fair use factors three separate times. The plaintiffs in this case are several publishers of university textbooks. The defendant is the president of Georgia State University acting in his official capacity. Professors at GSU copied several excepts from 48 different copyrighted textbooks owned by the plaintiff. The plaintiffs sued for copyright infringement and the defendant asserted the copying constituted a fair use.

In the first fair use analysis the district court found that use of 43 of the 48 works were fair uses because three or
more fair use factors favored GSU. The plaintiff appealed and the Court of Appeals for the Eleventh Circuit remanded the case for the district court to correct its “erroneous application of factors two and three” and its errors in weighing and balancing the four factors. The district court then assigned arithmetic weights to the four factors: 25% for factor one, 5% for factor two, 30% for factor three, and 40% for factor four. That resulted in a finding of fair use for 44 works. The plaintiff appealed a second time and the Eleventh Circuit remanded the case again with instructions that the four fair use factors be evaluated qualitatively, not quantitatively.

In the third fair use analysis the district court evaluated each of the fair use factors in turn. The defendant’s use was found to not be transformative because the use served the same purpose as the copyrighted work. However, because the defendant was a nonprofit educational institution the court found that the purpose and character of the use favored a finding of fair use. On the second factor, the nature of the copyrighted work, the court found the factor to be neutral, except when the author’s opinion and analysis dominated the excerpt. As to the third factor, the amount and substantiality of the work used, the court found this factor favored fair use except where a substantial amount or the heart of the work was used. For the fourth factor, the effect of the use on the potential market for or value of the work, the court the used revenues earned by the Publishers to estimate the market demand for the works. The court observed that even if small excerpts are not a substitute for entire books, excepts can cause revenue to decline.

Following the instructions from the Eleventh Circuit to holistically evaluate the factors, the district court gave the fourth factor “extra weight” and the second factor “insubstantial weight.” The court ultimately found that the defendant’s use of 11 of the works were not fair use, while its use of 37 works were fair use.

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