Yes, the first judge got it wrong. Deciding if something is 'fair use' isn't like a math problem where you just add up points for and against. The judge created a simple rule that copying less than 10% of a book was always okay, but that's not how the law works. You have to look at each case individually and weigh all the reasons. The judge especially didn't give enough weight to the fact that GSU's free copies were taking away business from the publishers, who have a right to charge for their work.

Yes, the judge was wrong, and the reason is pretty simple. GSU knew it had to pay for paper copies. Just because they switched to putting the same chapters online doesn't magically make it free. They were using the same material for the same purpose—they just wanted to save money. That's not what 'fair use' is for. If you have to pay for the physical copy, you should expect to pay for the digital one too.

The lower court made mistakes in weighing the four fair use factors and applying factors two and three. It was wrong to give an order favoring GSU, declare them the winner, and award them fees. The court should not have treated the factors equally or mechanically, and should not have set a strict limit under factor three. The case is sent back to fix these errors.

I agree the case should be reversed and sent back, but I think the lower court made even bigger mistakes. The court should have focused on the use of the works, not just the user. GSU switching from paid paper copies to free digital copies was not fair use, even though GSU is a non-profit school. The court didn't need to look at each use separately here. I would reverse and send the case back.

Yes, the district court erred in its fair use analysis. The court improperly applied the four statutory factors by treating them as a mechanical, arithmetic formula rather than weighing them holistically in light of copyright's purposes. First, while correctly finding factor one (purpose and character) favored fair use due to the nonprofit educational context, the court erred on factor two (nature of the work) by finding it always favored fair use for informational works, ignoring their creative and evaluative elements. Most significantly, the court erred on factor three (amount and substantiality) by creating a rigid '10 percent-or-one-chapter' safe harbor, which is contrary to the required case-by-case analysis. Finally, while its analysis of factor four (market effect) was largely correct, the court failed to give it sufficient weight, which is critical in cases involving nontransformative uses that directly substitute for a potential licensing market. The district court's flawed methodology requires reversal and remand for a proper, balanced fair use analysis.

Yes, the district court's error was even broader and more fundamental. The court became lost in a mechanical checklist approach and failed to see the 'big picture' of the common law fair use doctrine, which is about fundamental fairness. The most crucial fact is that GSU knew it had to pay licensing fees for paper coursepacks; the use does not become 'fair' simply because the distribution method changed to a cheaper, digital format. This is a classic case of market substitution, where GSU's practice was primarily to save money. The principle of media neutrality dictates that switching from print to digital does not change the copyright analysis for the same underlying use. Therefore, GSU's systematic, nontransformative copying to create digital coursepacks without payment is not a fair use.

The District Court's grant of injunctive relief to Plaintiffs was based on a legally flawed methodology in balancing the four fair use factors and erroneous application of factors two and three. The District Court abused its discretion in granting the injunction, declaratory relief, and award of fees and costs to Defendants. The District Court erred by giving each of the four factors equal weight, treating the factors mechanistically, and by setting a 10 percent-or-one-chapter benchmark under factor three. The case is remanded for further proceedings consistent with the correct fair use analysis.

I concur with the decision to reverse and remand but believe the District Court's error was broader. The District Court should have focused on the use of the works, not just the user. GSU's use of unlicensed digital copies in place of licensed paper coursepacks was not fair use, even if done by a non-profit university. The District Court's work-by-work analysis was unnecessary on the facts of this case. I would reverse and remand for further proceedings.

Cambridge University Press v. Patton

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