Yet Again -- New Standards for Calibrating Fair Use!

Concurrent Session 6

Session Materials

Brief Abstract

On March 31, 2016, a federal judge issued the latest ruling in the copyright infringement lawsuit against Georgia State University.  Emphasizing the non-transformative nature of the uses in question, the court laid out the newest standards for evaluating the four fair use factors.  These new standards will be detailed in this presentation.


Linda K. Enghagen is an attorney and Professor in the Isenberg School of Management at the University of Massachusetts at Amherst. An early entrant into distance education, her teaching career began in 1984 when she first taught Engineering Law & Ethics in the university’s video-based distance education program. In 1990, she became the first woman awarded the Outstanding Instructor Award from National Technological University. She is also the recipient of three outstanding teaching awards from the University of Massachusetts. Professor Enghagen’s early involvement in distance education led to her work related to legal literacy in the issues of the information age. In particular, this led to her interest in copyright law as it relates to educational settings. She serves as a Copyright Law Research Specialist for the Online Learning Consortium and regularly offers online workshops for them in relation to copyright compliance in educational settings. Her scholarly contributions related to intellectual property are directed to the needs of faculty members including two books, Technology and Higher Education: Approaching the 21st Century and Fair Use Guidelines for Educators, as well as numerous articles such as Plagiarism: Intellectual Dishonesty, Violation of Law or Both?, Fair Use in an Electronic World and Copyright Law and Fair Use—Why Ignorance Isn’t Bliss. She has created pamphlets and brochures about copyright law such as Copyright Compliance Made Simple: Six Rules for Course Design, Educators, Technology and the Law: Common Questions/Direct Answers and Legal Literacy in the Information Age: Ten (easy to understand) Rules of Thumb. In addition, she has been a guest commentator on a local NPR affiliate where she discussed copyright piracy in a piece entitled Napster Worries Me. In addition to regularly delivering conference presentations related to copyright issues, Professor Enghagen is a frequent speaker at workshops, seminars and symposia on copyright law in higher education.

Extended Abstract

In a case that began in April of 2008, Cambridge University Press, Oxford University Press and Sage Publications sued Georgia State University claiming that massive copyright infringement was occurring through the manner in which faculty and students utilized the university’s e-reserves and learning management systems.  After eight years of litigation, almost six hundred (600) pages of court opinions analyzing fair use, and over $3.3 million in attorney’s fees and costs, Georgia State University was found to have violated fair use in four (4) of the ninety-nine (99) original instances of alleged copyright infringement.  As instructed by the 2014 ruling from the Eleventh Circuit Court of Appeals, the judge re-examined the application of fair use eliminating the 10% or one (1) chapter approach taken in her original decision.  This presentation will detail the new standards for evaluating fair use as articulated in the latest court decision.  Further, the significance of the fact that this opinion focuses on the non-transformative nature of the uses litigated will be examined.  Finally, the ruling will be discussed in relation to its implications for policies and protocols utilized by institutions of higher education.