1. Trending in Copyright
Setting the Standard in Fair Use:
Best Practice Codes
and
the Georgia State Decision
Kathryn Miller Goldman
Goldman & Minton, P.C.
Baltimore
www.charmcitylegal.com

2. Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work,
including such use by reproduction in copies or phonorecords or by any other means specified
by that section, for purposes such as criticism, comment, news reporting, teaching (including
multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
In determining whether the use made of a work in any particular case is a fair use the factors to
be considered shall include--
(1) the purpose and character of the use, including whether such use is of a commercial nature
or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a
whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
17 U.S.C.A. § 107
Limitations on exclusive rights: Fair use

3. Codes of Best Practices in Fair Use
Center for Social Media
School of Communication
American University

4. Documentary Filmmakers’ Statement of Best Practices in Fair
Use (November 2005)
Code of Best Practices in Fair Use for Online Video (June
2008)
Code of Best Practices in Fair Use for OpenCourseWare
(October 2009)
Code of Best Practices in Fair Use for Media Literacy
Education (June 2010)
Fair Use for Scholarly Research in Communication (June 2010)
Code of Best Practices in Fair Use for Poetry (January 2011)
Code of Best Practices in Fair Use for Academic and Research
Libraries (January 2012)
Codes of Best Practices
facilitated by the Center for Social Media

5. Society for Cinema and Media Studies Statement of
Fair Use Best Practices for Media Studies’
Publishing (April 2007)
Best Practices in Fair Use of Dance Related
Materials (2009)
Codes of Best Practices
facilitated by other organizations

6. Cambridge University Press, et al. v. Becker, et al. , ---
F.Supp.2d ----, 2012 WL 1835696,N.D.Ga.,2012.
The Claim:
Copyright infringement based on:
e-reserves (library managed course readings that are made
available to particular classes); and
individual course learning management pages
administered by faculty members
Cambridge University Press, et al. v.
Becker, et al.

7. The Plaintiffs:
Cambridge University Press
Oxford University Press
Sage Publications
an early filing in the case confirmed that the lawsuit was
in fact being funded 50% by the Copyright Clearance
Center (CCC) and 50% by the Association of American
Publishers (AAP)
Cambridge University Press, et al. v.
Becker, et al.

8. The Excerpts
125 excerpts listed in the complaint
Reduced to 99 before trial
Further reduced to 75 at trial
Cambridge University Press, et al. v.
Becker, et al.

9. The Defendants:
President of the University
Provost
Provost for Information Systems
Dean of Libraries
The Entire Board of Regents
NOT the 23 professors who posted the works
Cambridge University Press, et al. v.
Becker, et al.

10. The Original Claims:
Direct infringement
Contributory infringement
Vicarious infringement
Injunctive relief sought – not damages
Cambridge University Press, et al. v.
Becker, et al.

11. The Decision
Only five instances found to be infringing
If statistics from the reserves platform showed that no
students had actually accessed the excerpt – no
infringement
Use is permissible if the professor copies no more than 10
percent of the pages in the book
If excerpts available at a reasonable price and in a digital
format, the court could find in favor of the publishers
Cambridge University Press, et al. v.
Becker, et al.

12. Fair Use is becoming more predictable
Codes of Best Practices are an innovation form of
access to justice
Georgia State decision upholding the checklist
reinforces the usability of the fair use defense
Conclusion

13. • Butler, Brandon C. "ISSUE BRIEF: GSU Fair Use Decision Recap and Implications." Association of Research
Libraries, 15 May 2012. <http://www.arl.org/bm~doc/gsu_issuebrief_15may12.pdf>.
• Cambridge University Press, et al. v. Becker, et al. , --- F.Supp.2d ----, 2012 WL 1835696,N.D.Ga.,2012.
• Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).
• Heins, Marjorie, and Tricia Beckles. "WIll Fair Use Survive? Free Expression in the Age of Copyright Control."
The Free Expression Policy Project. Brennan Center for Justice at NYU School of Law, 05 Nov. 2005.
• Sag, Matthew. "Predicting Fair Use: An Empirical Study of Copyright's Fair Use Doctrine." DePaul University
College of Law, 2011. <http://www.law.depaul.edu/>.
• Smith, Kevin, and Siva Vaidhyanathan. "The Georgia State Copyright Case: Issues and Implications."
EDUCAUSE Homepage. EDUCAUSE, 8 Sept. 2011. <http://www.educause.edu/library/resources/georgia-state-
copyright-case-issues-and-implications>.
• Young, Jeffrey R. "Pushing Back Against Legal Threats by Putting Fair Use Forward." The Chronicle of Higher
Education, 29 May 2011. <http://chronicle.com/article/Pushing-Back-Against-Legal/127690/>.
References