New Products: What’s Fair about Fair Use? The Battle Over E-Reserves at GSU (A) and (B)
Kyle Courtney, Copyright Advisor at Harvard University
Kyle K. Courtney, Harvard University’s Copyright Advisor in the Harvard Library Office for Scholarly Communication, wanted to develop a case study on the contentious institution of fair use at a university. He chose to focus on electronic reserves at Georgia State University, which faced a copyright infringement suit from Cambridge University Press, Oxford University Press, and Sage Publications. The case shows how the four factors of fair use, which are designed to support educational use and engender case-by-case analysis of copyrighted works, got caught in the crossfire between educators and publishers over extralegal, universal guidelines. What better format to bring fair use back to case-by-case analysis than a discussion-based case study?
Courtney first introduced the case study in his Copyright Immersion Program for Harvard University librarians designated as “Copyright First Responders.” Courtney has plans to use the case in his cyberlaw class at Northeastern University, which attracts students in law, criminal justice, and computer science. Courtney plans to teach the case in a continuing legal education program and to use taped segments of the Copyright Immersion Program for a massive open online course (MOOC). This case study could fit well in a number of other educational settings, such as intellectual property courses and professional development for general counsels or university officials.
Courtney shared with us his experiences as a first-time case study author:
EM: What inspired the case study?
KC: This was one of the most important library fair use cases in the last decade. It also marks a new era, one in which university presses sue university libraries. It’s a shift in the legal landscape.
This case involved a weighty decision for GSU: whether to go to trial and how to measure risk. It involved a lot of judgment, and judgment isn’t taught enough. This seemed like the ideal case for a teaching moment.
EM: What challenges and opportunities did the case writing process present?
KC: It was a challenge to lay out everything that happened before the suit: the GSU case itself represented a particular moment when decades of contention came to a head. There was very little precedent but so many forces at play: the libraries’ reliance on reserves, technological leaps, changing publishing models, and the challenges of copyright intersecting and sometimes interfering with education.
It was a rare opportunity to look inside at how these forces interact. It was a 353-page decision: you can’t not write a case study on that!
EM: What advice do you have for case writers and teachers in the legal classroom?
KC: Getting up to speed on the law can be complex. Spend time on the introduction: engagement with the first part is critical to having a good discussion because it sets the scene and establishes the foundation for the discussion. When I first taught the case, my students had to get up to speed on how the law had been interpreted in the past. For this reason, I’m not sure the case should be taught in one sitting.
I had my participants in teams representing multiple sides, because for them, identifying with libraries was already easy. By asking different teams to reach a middle ground you bring in negotiation. Where are there areas for wins? What do the sides have in common?
We also explored what other schools, like Cornell, have done with similar suits in the past and about what would happen if an institution chooses not to fight. I did this as a lark at the end, but it was a great exercise.
EM: How did the students react to the case study?
KC: They really liked it—even I was surprised at the amount of enthusiasm generated by something as routine as e-reserves. The case led to a robust discussion. I think the participants realized that their work today may have an impact on the law!
Case studies are great because they reflect the front-line problems that education has with copyright law. Capturing these problems is complex but proves that these issues can be reasoned, analyzed, and addressed. Cases give front-line people the sense that there is ground to be gained and that their newfound knowledge will serve them as better employees.
EM: What, if anything, would you do differently next time?
KC: I might spend more time hitting home the points in the introduction. With busy professionals, you can’t be sure they’ve read the whole case.
More generally, I think it helps to integrate case studies into classes where you’re building copyright law. Substantive legal courses don’t normally include opportunities for role play, but it’s a critical skill using the analytical side of your brain.
