The 11th Circuit Court of Appeals recently released its opinion in Cambridge v. Patton, the Georgia State course reserves case.
As InsideHigherEd noted, "proponents of fair use said the opinion in Cambridge v. Patton recognizes that colleges and universities can legally create digital reserves of books in their collections," but the appeals court reversed the lower court's decision creating a bright-line rule for fair use.
"[T]he appeals court instead issued a stern warning against quick-fix, one-size-fits-all solutions to legal disputes -- specifically, the idea that copying less than a chapter or 10 percent of a book automatically protects an institution from a lawsuit."
Cambridge v. Patton "concerns an initiative created by Georgia State University, which in 2004 began letting faculty members scan book and journal excerpts and host them in the university’s e-reserves. Instead of waiting in turn for their classmates to finish an assigned reading on hold in the library, students could read the digitized version online. Three publishers, Cambridge University Press, Oxford University Press and Sage Publications, said Georgia State’s actions, similar to those used at many other colleges, constituted copyright violations. Judge Orinda D. Evans in May 2012 endorsed the university's practices, ruling in its favor on 94 of 99 instances of alleged copyright violation. As long as the university didn’t make too much of the copyrighted books or articles available -- up to 10 percent or one chapter, whichever is less -- the digitized copies were considered fair use of the works, she ruled."
The 11th Circuit Court of Appeals "dismissed the 'blanket 10-percent-or-one-chapter benchmark.' Instead, the opinion reads, each excerpt should be considered on its own."
While it's great that libraries can create digital reserves of books, the 11th Circuit recognized past precedent that fair use is not a simple determination. Fair use requires a case-by-case analysis that will inevitably result in continued litigation.