Penn profs file brief in support of e-reserves

Amicus Brief

The academic community is closely watching a court case involving Georgia State University’s e-reserves. The outcome of the case, now on appeal, could affect how professors assign published works in courses and how students engage in critical classroom discussions about those works. Examples of e-reserves include Blackboard and Canvas.

On Wednesday, April 24, Peter Decherney, an associate professor of English and cinema studies and director of the Cinema Studies Program, and Tsitsi Jaji, an assistant professor in the Department of English, filed an amicus brief in the U.S. Court of Appeals for the 11th Circuit in support of Georgia State University. The brief was filed by a team of law students from the USC Intellectual Property and Technology Clinic, led by Jack Lerner.

The case, Cambridge University Press v. Becker, began in April 2008 when three academic publishers—Cambridge University Press, Oxford University Press, and SAGE Publishers—sued Georgia State University (GSU) for “pervasive, flagrant and ongoing unauthorized distribution of copyrighted materials” through the library’s e-reserve system.

Last May, after a review of 75 alleged infringements, a U.S. District Court in Atlanta found only five infringing uses and ruled in favor of the university, stating that GSU’s e-reserves policy is consistent with established best practices for fair use at academic and research libraries, and that these uses have no negative effect on scholarship.

“That’s a big win, but the ruling was overly narrow,” says Decherney, who regularly testifies before the U.S. Copyright Office.The lower court didn’t consider the transformation that occurs when works are used for educational purposes.”

Although the district court found many of the uses in question to be fair, professors often need to use more than a modest amount of the work to make their point.

Media professors routinely assign copyrighted materials to comment on the institutional, cultural, and political influences on the production of the works. Such a use has been held to be fair in other contexts.

In their brief, Decherney and Jaji argue that the court should go further to clarify that professors routinely use assigned materials in ways that qualify as transformative.

Jaji’s use of transformative materials in the classroom is detailed in the amicus brief.

“I shared an account [with the law students from USC] of how I use copyrighted video content in my music and literature courses to illustrate musical exchanges between Africans and African Americans,” she says. “Once the students had drafted the brief, they invited me to sign on as an amicus curiae.”

Carol Muller, a professor in the Department of Music at Penn, is also cited in the legal brief. She teaches a variety of courses pertaining to contemporary and world music. If the transformative use of assigned materials isn’t recognized as fair use, then the use could be considered infringing if a reasonable licensing market for it exists. If Muller can’t assign musical works from e-reserves, her students can’t discuss them critically in class.

Arguments in the case are expected to begin next month.

Originally published on May 2, 2013