Jenner & Block

“Fair Use: Market Harm Is Not Merely Academic,” Los Angeles Daily Journal

Jenner & Block Partner Andrew J. Thomas wrote “Fair use: market harm is not merely academic,” which was recently published as the July 2012 “Content Matters” column in the Los Angeles Daily Journal and San Francisco Daily Journal.  In the article, Mr. Thomas analyzes a recent decision of the U.S. District Court for the Northern District of Georgia in Cambridge University Press v. Becker, which, he writes, is a reminder to the publishing industry that “the fair use inquiry into potential market harm continues to be the most important part of the analysis in many circumstances.”  The copyright infringement suit brought by academic publishers involved digital excerpts from scholarly texts stored in an electronic reserve system in the Georgia State University library and made available to students at no charge.  Mr. Thomas comments that, while Judge Orinda Evans’ 350-page opinion overwhelmingly vindicated GSU’s fair use arguments in regard to these works, much of her analysis is “questionable and likely to be controversial.”  He discusses the court’s application of four factors required by federal copyright law to be considered in determining fair use and notes that, in the five claims in this case where fair use was rejected (out of 74 claims of infringement), the court based its ruling primarily on the “market harm” factor, specifically pointing to the ready availability of digital excerpt licenses for those five works.  Mr. Thomas concludes that the result in Becker “both underscores the importance of a close correlation between the defendant’s conduct and the licensing market that is alleged to be harmed, and also indicates that, even in the academic context, uses of copyrighted material that directly intrude on existing, legitimate, and easily accessed licensing markets are likely to be found unfair.”