Benson: Copyright chat is a podcast dedicated to discussing important copyright matters. Host, Sara Benson, the copyright librarian from the University of Illinois, converses with experts from across the globe to engage the public with rights issues relevant their daily lives.

Laura Burtle is an associate dean of library administration at Georgia State University. She supports the mission, planning, and operations of the Acquisitions, Cataloguing, Collection Development, and Digital Library Services departments, and is a member of the senior leadership team. She is a library scholarly communications expert, and provides guidance and support in copyright, fair use, publishing, open access, author rights, and related areas. Welcome to copyright chat. Remotely today we have Laura Burtle with us. Welcome Laura.

Burtle: Thank you.

Benson: So Laura, you have been quite involved in the Georgia State University E-Reserves case. Can you tell me a little bit about your involvement in the case?

Burtle: Well, back in 2007, I was an associate dean that one of the areas that reported to me was reserves, and we got a threatening letter from the American Association of Publishers, that a number of other libraries got as well, warning us about using E-Reserves without paying permissions. Our university counsel looked at it, consulted, and came back, and said that we thought it was fair use, and responded that way to the publishers. And then about a year later, in 2008, we got served with a complaint, plaintiffs now being the 3 publishers that are involved in the lawsuit—Oxford, Cambridge, and Sage. So, I was involved from the very beginning.

Benson: And how long is this lawsuit been going on at this point?

Burtle: Over 10 years. We were sued, and I believe it was either April or May of 2008, the most recent decision we got was in October of 2018, and that was a remand back to the district court for yet another action by that district court, so we’re still not there.

Benson: And in the midst of this whole lawsuit, you went back to law school and got law degree, correct?

Burtle: I did! It made me annoyed, and I just decided that I wanted to learn more about law, and so I went to law school. And, believe it or not, going part time took me 5 years, and I completed the entire degree in the time that the lawsuit is still going on.

Benson: Wow so it was one of—that was when my thoughts, was that this lawsuit might have kind of prompted your interest in the law a little bit.

Burtle: A little bit. I had thought about it before, but I had never done anything, and this… just… it was really interesting just, you know, going through the whole process. I was, you know, subpoenaed, and went through discovery, and deposed, and testified, and it was it was interesting. So yeah, it made me want to learn more.

Benson: And what was that like, as a librarian, to be in the midst of a lawsuit about your job? Was it stressful? Can you tell us a little bit about that?

Burtle: Yes! It was very stressful. Not something that I was ever prepared for or expected to have to deal with. It was terrifying, you know, but I felt good that we had, you know, consulted about the university council at the beginning, so we knew that the library hadn’t responded poorly or anything like that, but it was quite a shock to get sued. That’s not something that happens to libraries almost ever—certainly not academic libraries and certainly not for copyright infringement. So that was that was alarming and then just, you know, having like email subpoena like having a discovery order on my email and having to go through finding all of these times when I had mentioned permission or copyright or anything like that. It was it was a huge time-suck and very alarming.

Benson: And so, I wonder what you have learned from that process that you could tell others about maybe like procedures that go on in the library in terms of how it might reflect in a lawsuit. Has that taught you anything?

Burtle: Well, I think, you know, it is important to have procedures. I mean, we could point out what procedures we had and that we were following them. So, I mean we weren’t acting negligently in any way. We had, you know, defined procedures that were being followed, and so we could point to those a lawsuit and say, you know, we are acting responsibly, this is what we’re doing, these are the considerations we take into account when deciding whether we can put something on electronic reserve without permissions, and these are the things that we won’t do that for, and so we had policies, and I think that was helpful. We didn’t feel like we had done anything really wrong, and I think that, you know, if we hadn’t had all those procedures and practices in place, we may have felt that way. So that would be my advice is to have a policy, have procedures and follow though.

Benson: And so one of the things that I heard had happened during depositions was that a lot of librarians were kind of questioned about their detailed responses to fair use checklists. Is that kind of what happened at court or during the depositions?

Burtle: Well, not so much the librarians—the actual teaching faculty were. They were asked, you know, quite in-depth about their fair use checklists and how they filled them out. The librarians had made a decision—we did not keep copies of the checklists. We had advised the faculty to keep them in case they were needed so a lot of the faculty were asked about that so, it’s about that, but not so much the librarians.

Benson: Oh, I see OK, because it seems to me that that would be hard to kind of recreate after the fact. “What were you thinking when you checked this box that you might have checked two years ago?” Was that right?

Burtle: Right. A lot of that I mean it was certainly part of the depositions, and then it happened again during the trial. A lot of faculty were called to testify and asked to kind of recreate their thinking on things they chose. But I mean, they know why they use things in their classes and the context they use them in, and so they did that better than you might have expected.

Benson: Oh, that’s good to hear. One of my questions for you is what—where are we going from here? I mean, I know you don’t have a crystal ball, but you’ve been pretty invested in this case, and I guess I just wonder, you know, now that it’s been remanded yet again, and maybe you can talk a little bit about why you think it was remanded, and what might happen at this point, because it’s still ongoing.

Burtle: Yeah it was remanded again for the district court judge to do the fair use analysis one more time. This time it was pretty much focused on the fourth factor analysis, and so the court told the judge that she shouldn’t have redone on the fourth factor analysis the second time she went through this (after the first remand), that she should have left it like it was in the first opinion. And on that opinion, she only looked at whether there was a license, and if there was a license for the excerpt, she said it strongly favored infringement, it was strongly against fair use. And then in the second opinion, you know, she really looked at how much permissions income the different experts had made and then used that to judge whether it would be infringing under the fourth factor. So, the court now is telling her go back to your first decisions which, you know, those were mostly going to be infringing on that fourth factor. So, I think, you know, if we go through, if we actually get another opinion, I think it’s probably going to find far more infringements. Now that said, this is a 2009 group of records. You know, the record has never been reopened and so this is very old data. It’s, you know, relevant to this lawsuit. It’s not really reflective of the current realities. So, I’m not sure it’s going to have that much impact on current practices at all.

Benson: Right. So that’s a good point. So even if she, the judge, in this case is forced to, you know, find more infringement than maybe she would have found before, the only outcome here really is an injunction, right?

Burtle: Right, because we’re a state institution, we cannot be sued for damages, so it will be an injunction. And there has always been an injunction basically saying, “Follow whatever the district court had said in her last ruling,” because there’ve always been at least a few infringements found, so I would expect that to be the same result. It may result in there being more emphasis put on license availability into their fair use analysis in this context, but I think that’s the case already, so I’m not sure it would really have that much of an impact beyond some very narrow practices.

Benson: Right so I guess in terms of greater impact, which I’m sure the publishers were hoping for, they at the very least they do have some appellate court decisions that are leaning in favor of kind of a tighter analysis for non-transformative fair use analyses that focus more on the harm to the market share, right?

Burtle: Right, well they’re really emphasizing the importance of the digital license in the market analysis, not just the original work. And I mean that goes all the way back to the Texaco case—this is not new. but they’re really focusing on it and it hasn’t been really talked about on the Eleventh Circuit that much, so they’re really saying that the value of the copyright is the original work and the license, and you have to consider them both, and they’re both equally important. So, it’s, you know, it’s the way the world is now. We license everything. So, it matters in that case, but since we license everything, I’m not sure it’s going to change practice that much. Things have evolved so much since this all started.

Benson: Yeah can you talk a little bit about that? I mean are you referring to like e-book licensing and things of that sort?

Burtle: Yeah, yeah. I mean, libraries don’t buy that much anymore. We license everything. I mean, we’ve licensed—I mean, certainly almost all of our journals are licensed. We license, you know, huge amounts of books. More and more, we license books, we don’t purchase physical copy copies of things, and so you know we don’t—if somebody wants to put something on reserve now, chances are pretty good that we have an e-book and so it’s already licensed and we give them link, you know we don’t even we don’t make a copy of anything. We’re not using a print book, and I think that’s just common across the board.

Benson: Yeah, I agree it’s definitely becoming a bigger marketplace which has its own kind of complications for what types of licenses are being given out for e-books and how many people can access a particular e-book at a time and things of that nature. I guess I wonder how much we can limit our application though of this analysis to your particular jurisdiction. What do you think of our argument saying hey well that’s a thing but a happened in that circuit, and this doesn’t necessarily apply everywhere?

Burtle: Well because it is fairly novel (not—I mean, fair use analyses are certainly very common across the board), but this particular instance—looking at a nonprofit educational use of published academic works, there’s not a lot of other authority around to that particular very narrow topic, and so I think in that particular area, it probably will have a lot of persuasive impact—you know, authority across the board—even if it’s only binding in the Eleventh Circuit. So again, I don’t know that there will be a lot of other lawsuits. This has been very expensive, very long. I’m not sure anybody would have a taste for doing this again, but if they did, if a similar set of facts came up, I think it would probably have a fair amount of weight just for its persuasive authority, wherever it happened.

Benson: Do you think the publishers are going to start calling this a win?

Burtle: Yes. I mean they’re going to say they got they got a recognition, that license markets matter, and they’re focused on license markets, and I think they’re going to say, “Yes,” they won. We’re going to say, “Well, you know, we have made it quite clear that the costs from copying guidelines are not relevant, that the course pack cases don’t have anything to do with electronic reserves, and so we won.” I think it could go—we’re both going to declare victory whenever this ends.

Benson: Do you think the publishers are going to use this case though as a stick to maybe start threatening lawsuits, whether or not they would actually go through it to try to get some folks to settle, maybe if they find widespread copying at different institutions?

Burtle: Oh, I think they would. That’s been their practice. That said, I don’t think they’re going to find it, I mean it’s never been really clear how they even found it here. We didn’t deny it, so that never had to be addressed, but I’m not sure how publishers would be aware of it. It’s not something that’s easy to see, unless you’re in the library or whoever runs your course management system—they might be able to see what’s in there. But it’s very hard to tell otherwise, and so while they may want to use it as a stick, I’m not sure that they really are going to have much to point at.

Benson: Yeah. So, it’s from my understanding, and correct me if I’m wrong, I thought that they initially discovered what was going on at Georgia State because of a policy that was in place about E-Reserves, is that is that right or no?

Burtle: No, they had actual lists of books that were in our system. It wasn’t just the policy. I think the policy attracted their attention, because there was a policy that they didn’t like, and that had been a long-standing issue. How they actually got into our system has never really been clear.

Benson: That’s frightening… to me, at least…

Burtle: I mean, I’m not saying that they necessarily did anything nefarious, I mean, it was a hosted system. There may have been a hole somewhere where they got a peek, but you know, that’s not going to be something they can always go look at there’s not going to be any reason for them to be able to tell a university they have to show them what’s in their system, you know, without any calls and so, I think they’ll make that—you know, they’ll declare victory and say, “You have to license your E-Reserves,” but I’m not sure that they’re going to have a lot of opportunity to point out particular institutions and say, “You.” They can look at policies, but you know, the policy doesn’t mean that we’re not ever paying permissions, just because we have a policy doesn’t mean permissions aren’t being paid and you know, what they really don’t want to admit is that most faculty are not going to pay these permissions for reserves—they’re too expensive, there’s not a budget for it, they’re going to use something else. So, I mean, at Georgia State, if there’s you know, if somebody does an analysis and it’s really not fair use, we can’t argue that it’s fair use, you know, we’ll give them the price for the license, but generally what happens is they’ll just put a physical volume on reserve. Students can come in and use it in the library and that’s the fallback—not paying the license. There’s not a budget for the license.

Benson: Right and if there’s no E-Reserves, many academic libraries have moved away from the E-Reserves, then I wonder what the faculty member would do in that instance—potentially find a different source. Because at that point, the license—so some libraries pick up the e-licensing costs, and others try to pass it along to students and course packs and such things like that, but I think with more and more e-books the libraries are kind of picking up that cost again but just in a different route.

Burtle: Right, right. So, if we have an e-book and somebody wants to put it on reserve, we’ll check, and if we have a limited user license, if we have a one-user license or three-user license, we will generally increase the license count. So we are paying for it that way, but it’s a little bit different than the paying for the E-Reserves, because that would be, you know, with the CCC, it’s for those students, for that semester, whereas with the e-book, if we increase the license availably, everybody can have access to that, not just the students in the course. So, although we’re paying the license, it’s having much broader impact than it does if we would just pay it for one particular course E-Reserve. Does that make sense?

Benson: Yes, I think that’s a much better way to go, but some books are not available in e-license. Which is—that’s the rub, right?

Burtle: Right, right. Of course, we’ll still do a fair use analysis. Just because there is a license, does not mean there can never be fair use. There may still be fair use and we’ll wait for the court to rule again to look at how about how she does the analysis this time, and if it gets appealed again, how the Eleventh Circuit addresses the way that it’s done, but all of that aside, there are still going to be fair uses. And so, you know, we’ll certainly still do what we’ve always done—digitize what we need to and put it in the E-Reserve system. And again, if we don’t have confidence that it is fair use, we’ll just put a print copy on reserve and students can come in and use it, so…

Benson: I like your point there, because I agree that we shouldn’t view this as a black-and-white issue like, “There’s a there’s a license for a chapter, but we really only need half of a page,” and you know, should I have to pay for one whole chapter when I’m going to use half of one page. You know, at some point there’s still a fair use, even with a license available.

Burtle: Yeah, and I mean the courts—the Eleventh Circuit and the district court—but I mean, both of the courts have said it cannot be the case that simply by providing a license there can never be fair use. I mean nobody is saying that. And I think it’s important to remember, you know, it may be narrower, we may have more trouble showing a fair use for this particular kind of use, but it’s not that it’s never going to be there.

Benson: Yes, I completely agree with you. Now do you have an idea of when we will hear something from the district court in this case again?

 

Burtle: No. We have not even received a scheduling order, so I have no idea.

Benson: So, this is really to be continued, and it’s just been going on for such a long time.

Burtle: It has been going on for such a long time it would be lovely if we could just…I mean if we could just settle this, everybody could just be happy, but I’m just not seeing that happen. We haven’t been able to this far, and so you know, there’s always discussions. The courts expected you to discuss that, but so far, we haven’t been able to do so, we’re waiting for a scheduling order, and we’ll see what the district court asked for.

Benson: If there were to be a settlement, what would it be on the basis of, because really all they’re getting is an injunction for works that, like you said, you’re no longer even using necessarily.

Burtle: Right, right. I think it would just be on the basis of what the Eleventh Circuit has said about license availability. I mean, we’d have to just agree to leave it where it is, and I don’t think they want to do that, and we don’t really want to do that either.

Benson: So basically—agree to follow what the Eleventh Circuit said in your new practice of E-Reserves going forward?

Burtle: Yeah, I mean it would have to be. I mean, there would be something far more specific if it were a settlement, and I just don’t see that happening. We have never been able to agree on anything more specific, so I don’t see it happening, no.

Benson: Well I think I’m with you there, but I, like you, wish this lawsuit would end.

Burtle: It’s ridiculous I can’t believe it’s got all this long.

Benson: Well I really thank you for joining me today, I think you’ve shed a lot of light on some of the backstory to this issue and some of your own experiences with this issue. Is there anything else you’d like to tell listeners about the case or your experience throughout the case?

Burtle: Well I think it’s—it was a situation when we were first sued, a lot of libraries thought that we were doing something unusual, that we were causing a problem, and as, you know, this has gone on, people realized we were doing the same thing as everybody else, we were not bad actors, and, you know, now people appreciate that we continue to fight this, and I appreciate that people are recognizing us for that. We all wish it would be over, and that we would come out with an outcome that we can all live with, but at this point, I think people need to—you know, we are just going on with our business. Fair use is still a thing. We can still rely on it, and we shouldn’t be afraid of it, but there are always going to be lawsuits, always going to be cases, that come out that help us define exactly what we can and can’t do.

Benson: Well, yes and I agree. I actually—I am one of those in the realm of thanking your library for fighting this battle for so long on behalf of all academic libraries who, like you said, engage in various analyses on a daily basis. So, you’ve really kind of taken a big punch for the team. I know it’s not been any fun.

Burtle: All right well thank you. I enjoyed talking with you.

Benson: Yeah, thanks for joining me today, and have a happy holiday season.

Burtle: You too. Bye.

Benson: Bye.