Washington D.C;. Nov 8, 2014 -- AAP is pleased with the unanimous decision of the three-judge panel from the 11th Circuit U.S. Court of Appeals to reverse the district court’s judgment and vacate its injunction, declaratory relief and award of costs and fees. However, despite those actions, the two-judge majority opinion in the case contradicts Supreme Court and 11th Circuit precedent concerning two fundamental principles of copyright law—media neutrality and potential market harm. Properly construed, those principles compel a finding that Georgia State University’s systemic practice of replacing paid paper coursepacks with unpaid digital coursepacks violates fair use.
Media neutrality means that all copyrighted works have the same copyright protection across all formats. In this case, the concurring opinion of the third judge on the panel (agreeing with the result, but not all of the analysis) explained that: “The ‘use’ of a copyright protected work that had previously required the payment of a permissions fee, does not all of a sudden become ‘fair use’ just because the work is distributed via a hyperlink instead of a printing press.” GSU never disputed that it paid permission fees to create paper coursepacks; media neutrality means it must also pay such fees to post digitally equivalent coursepacks.
The majority opinion also erred by endorsing the district court’s inference of no market harm where licenses for posting digital excerpts were not readily available. Supreme Court and 11th Circuit precedents, however, hold that the test is whether the alleged infringer’s actions may significantly harm thepotential market for the rights holder’s work, whether or not the copyright holder is currently exploiting that market.
Tom Allen, President and CEO of the Association of American Publishers, said, in support of plaintiff publishers’ decision to file a petition asking all of the judges on Circuit Court to review the panel decision (en banc review):
"As universities continue to transition from instruction with print materials to the use of digital materials and online learning platforms, this closely watched test case will inform application of fair use in the academic setting. The vibrant educational publishing market that develops and provides quality content for students and teachers is at stake. If construed consistently with Supreme Court precedent on media neutrality and potential market harm, this case could provide much-needed clarity for applying fair use in a manner that ensures sustainable use of digital content and continued incentives to invest in innovative, high-quality learning solutions. Universities, libraries, faculty, publishers and authors would all benefit from added clarity in this complex area."