January 16, 2017

Four Fair Use Takeaways from Cambridge University Press v. Patton

The most important copyright and educational fair use case in recent memory (mine, at least) was decided by the Eleventh Circuit Court of Appeals last week. The case, Cambridge University Press v. Patton, challenged Georgia State University’s use of e-reserves in courses offered by the university. The copyrighted works at issue were scholarly books–i.e., a mix of monographs, edited volumes, and portions thereof–not textbooks. This case is important because of its broad applicability to similarly situated academic institutions throughout the country that routinely engage in the same practices for which GSU was sued. It’s also important because the court’s decision re-articulated and faithfully followed some foundational fair use principles from prior case law. Readers of the case who are proponents of a vigorous fair use doctrine shouldn’t be disheartened by the fact that the Eleventh Circuit reversed the district court’s ruling in favor of GSU and remanded the case for reconsideration. Ultimately, this case is good news for educational fair use. Here are four reasons why:

1)  The court made it clear that the implied license that comes to secondary users by operation of law through the doctrine of fair use is not negated by a secondary user’s failure to obtain an express license from the copyright owner, even in cases where a paid license from the copyright owner can be readily obtained. Nor does failure to obtain a paid license from the copyright owner convert a non-profit secondary use into a commercial use, notwithstanding the fact that the secondary user indirectly profits from the uncompensated use by saving the money s/he would otherwise have spent on a license.

2) The court emphasized that there are no shortcuts through the fair use analysis. Each of the four statutory factors, explained here in an earlier post, must be analyzed in a way that is tailored to the circumstances of each particular case. No mechanical weighing of factors is permitted, and no arbitrary quantitative thresholds for borrowing can be enshrined (e.g., 10%, which was the amount the district court erroneously held to be a legally meaningful benchmark). In rejecting the 10% threshold, the court went out of its way to say that the “Classroom Guidelines” memorialized in the legislative history of the 1976 Copyright Act and advocated by the plaintiffs as an upper limit on permissible borrowing “do not carry force of law.” Moreover, the court said, to the extent that the Guidelines serve any persuasive legal function, they suggest a floor rather than a ceiling for how much borrowing is fair.

3) Although the court declined to expand the concept of “transformativeness” to cover GSU’s allegedly infringing use of portions of the plaintiffs’ works, it held that a secondary user’s failure to transform the underlying work in the act of borrowing is not damning if the use is for education.

[W]e are persuaded that, despite the recent focus on transformativeness under the first factor, use for teaching purposes by a nonprofit, educational institution such as [GSU] favors a finding of fair use under the first factor, despite the nontransformative nature of the use.

More transformation is better, in other words, but lack of transformation doesn’t end the inquiry.

4) The court distinguished GSU’s non-profit use of copyrighted works from the for-profit uses that were at issue in the famous “coursepack cases” from the 1990s, which held that Kinko’s and other commercial copyshops were not protected by fair use for their preparation and sale of instructor-compiled collegiate coursepacks. Cambridge University Press argued that the coursepack cases should dictate the outcome for GSU, but the court disagreed.


  1. 4) is interesting, if it holds up, because it suggests a very fine-grained analysis of who is doing what. Usually outsourcing an action doesn’t substantially change the legal status of that action, but here apparently it does.