This case arose when professors at Georgia State University (GSU) engaged in the copying and distribution of excerpts of copyrighted academic works through GSU’s course management system for use in their courses. In April 2008 Cambridge University Press, Oxford University Press, and Sage Publishers (the Publishers) filed a copyright infringement action challenging these uses. Among the affirmative defenses that GSU asserted in their Answer was that any copying of the material was a fair use.
During the course of the case, more than twenty professors were accused of infringement and deposed to justify their use of electronic reserves. In September 2010, the court directed that the Publishers prove “a sufficient number of instances of infringement of Plaintiffs’ copyrights to show such ongoing and continuous misuse.” In May 2012, the district court issued a 350-page decision. It found only 74 claimed uses from 64 of Plaintiffs’ works even potentially infringing, and applied its conception of fair-use principles to these claims. The district court held that nearly all of the uses in question were fair use, and non-infringing, as GSU faculty used modest amounts of the texts in question for non-profit educational purposes. Ultimately the court found that the publisher’s had proven only five infringements and even these were “caused” by the 2009 Policy’s failure to limit copying to “decidedly small excerpts” (as defined by the court); to prohibit the use of multiple chapters from the same book; or to “provide sufficient guidance in determining the ‘actual or potential effect on the market or the value for the copyrighted work.’
In August 2012, the court issued an order providing for declaratory and injunctive relief, essentially limited to ordering GSU to “maintain copyright policies for Georgia State University which are not inconsistent” with the court’s previous orders. The court also held that the GSU was the “prevailing party” under 17 U.S.C. § 505 because they “prevailed on all but five of the 99 copyright claims which were at issue” when the trial began. This conclusion led the court to find that GSU were entitled to reasonable attorneys’ fees and costs because the Publishers’ “failure to narrow their individual infringement claims significantly increased the cost of defending the suit.” In September 2012, the district court awarded the GSU $2,861,348.71 in attorneys’ fees and $85,746.39 in costs and entered a final judgment that also incorporated its prior rulings on the merits.
The Publishers filed an appeal to the Eleventh Circuit Court of Appeals. In April 2013 the AAUP submitted an amicus brief in support of GSU. The AAUP urged the Court to affirm the district court’s judgment, but also to clarify that district courts assessing fair use claims may alternatively conduct a transformative use analysis to determine whether the use was fair. A transformative use analysis compares the purpose for which the professors use copyrighted material in their teaching with the original purpose for which the work was intended. The brief explained that in cases where the materials encompass more than a modest excerpt, the use may nonetheless be transformative, and the failure to consider whether the use was transformative would burden or restrict countless highly expressive uses that have long been an essential teaching tool. No decision has yet been issued by the Eleventh Circuit.