In a “friend of the court” brief filed earlier this month, the NWU joined a diverse coalition of writers and photographers to oppose the wholesale scanning of books and journals that are being used for university classes without payment to the original authors or publishers.
Instead of having students buy the books for their classes, or putting printed copies purchased by the college on reserve for students at the campus library, Georgia State University has been scanning readings and making electronic copies available for students. In essence, the school has been buying one copy of each book or journal, scanning it, and then publishing a bootleg e-book anthology for each class, without paying for the right to do so.
If this kind of blatant violation of writers’ copyrights becomes more widespread, it could destroy the market for digital copies of articles, chapters, and excerpts used for class reading, while denying writers control over which versions of their work are reprinted electronically and distributed to students. It would also undermine writers’ revenues from academic writers’ websites, where they can benefit from online advertising and licensing of short-form e-books and digital downloads.
Many NWU members write books and articles intended primarily for classroom use and/or academic audiences. Class readings aren’t limited to “academic” works, either. University bootlegging without permission or payment violates the rights of many other writers and can under cut their income.
In our argument to the US Court of Appeals, which is hearing the case against GSU, the NWU joined forces with the Authors Guild, the American Society of Journalists and Authors (ASJA), the Association for Garden Communicators, the Dramatists Guild, the Horror Writers Association, the Mystery Writers of America, the National Association of Science Writers, the National Press Photographers Association (NPPA), the Romance Writers of America, the Science Fiction and Fantasy Writers of America (SFWA), the Songwriter’s Guild of America, and the Textbook and Academic Authors Association.
Twenty-five years ago, when copy shops started making photocopied “coursepack” collections of class readings, which were copied from books and journals, a Federal court ruled that this was copyright infringement, not “fair use.” But in the case against GSU for doing essentially the same thing, only in digital “e-book” rather than photocopy format, the lower court ignored that precedent, and found that copying coursepacks electronically is “fair use” and therefore doesn’t require payment.
That ruling is now on appeal. The lawsuit against GSU was brought by major academic publishers, but in our “friend of the court” brief, the NWU and other writers argue that digital coursepacks or “electronic reserves”— scans made by the university and distributed gratis to each student in the class—implicate writers’ rights as well as publishers’.
According to the brief signed by the NWU:
Though we sometimes refer to these works in this brief as “scholarly” or “academic” works, we note that the types of works used in higher-education courses include novels, plays, poetry, creative and historical nonfiction, and fiction, as well as anthologies, annual review or conference proceedings books, literary journals, reference works, handbooks, and monographs….
The district court’s ruling, if left standing, creates a dangerous precedent for authors, particularly those who write books used for educational purposes. Affirmance of the district court’s analysis would mean that these owners essentially have no copyright and no control over the use of their works…. The district court’s methods, and the outcome it reaches, are inconsistent with the law of fair use and should be reversed….
An author … may want to take advantage of one of the many new digital self-publishing platforms to distribute the work herself; many members of amici have released digital excerpts on these platforms or on their own websites.
Because the district court disregarded potential markets for excerpt use, it also inherently failed to consider the effects of potential widespread and unrestricted use in those markets. The relevant inquiry … is not simply whether GSU is engaging in unlicensed uses of copyrighted works, but rather what would happen if every university decided that fair use excused the need for payment?
Excerpt use is common in higher education, and has been since photocopying enabled the provision of excerpted chapters to students…. In particular, the nature of scholarly works (which the district court also did not consider) lends itself to excerpt use. These types of works are well suited to classroom use on a chapter-by-chapter basis. Many of the books at issue, for example, are collections of stand-alone articles, often authored by different individuals.
Others are scholarly works by one or two authors for which there is frequently one key chapter that represents the heart of the work and most of the book’s value. It is common for professors to assign only the key chapter in such works and, accordingly, professors often distribute or provide access to the assigned excerpt rather than require students to purchase the whole book. But scholarly works are not the only works impacted; other works written by non-academics— biographies, historical fictions, and even fictional novels—are often assigned as mandatory reading, and professors often will only require students to read certain excerpts or chapters…. The relevant market … is not a market for books, but rather is a market for articles, chapters, and other excerpts from books….
Self-publishing platforms allow authors to publish and sell secondary editions, updates and/or new versions of their works, including articles and individual chapters through the authors’ own websites. Relatedly, there is also a growing market for short-form works in digital format…. The district court did not inquire at all into the likely trajectory of the growth curve of these new secondary markets, or the total potential market over the life of the copyright of these works….
For the reasons set forth above, and for those set forth in Appellants’ brief, amici curiae respectfully request that the decision below be reversed and remanded with respect to the district court’s findings of fair use.