For a lot of people, the first exposure to the arguments over fair use came through a content mashup like The Grey Album. Certainly, the availability of easily-copied digital media has raised the stakes for content owners. But the fight over fair use has been going on for over 15 years in what's usually considered a genteel setting: higher education. The New York Times is reporting that a group of publishers are suing Georgia State University over the digital distribution of class reading materials in a case that may help define the fair use of digital materials.

The three publishers involved, Cambridge University Press, Oxford University Press and Sage Publications, target the academic audience. As such, they might be considered the least likely to take on a university; campuses supply most of the authors they publish, and their products are typically sold to the academic world. Of course, this wouldn't be the first case of a group suing their audience over fair use.

The Times article points out that cases that defined fair use of classroom material date back to the early '90s, where the means of infringement was the photocopier. Back then, private entities that prepared material for university courses were found to have infringed the copyright of publishers in duplicating their material. A key feature of these cases, however, is that the infringers were private businesses that charged for their copying services; many universities are not-for-profit entities.

The ease of creating and distributing digital media has also radically changed the role not only of universities, but nearly everyone involved in the process of distributing classroom materials. Instead of farming out the creation of "course pack" material to a business, most campuses now provide server space for the material and leave it up to their faculty to decide what gets uploaded. Many faculty simply assume that any material used in teaching constitutes fair use.

Those faculty that take copyright issues seriously have to evaluate materials through a process that can be intimidating. One set of guidelines we found came in at 3,500 words—and that was only to determine whether faculty needed to read additional material. Other schools have a more orderly process for identifying and paying for copyrighted material, but still may not be able to police everything distributed by their faculty. These differences highlight a general problem that copyright holders face in the academic world: every university is distinct, and the solutions crafted during previous disputes can be hard to apply generally.

Two other trends are making the boundaries of fair use harder to determine. Some faculty are making it difficult to draw a line between classroom and copyrighted material by using their lectures as the basis for a copyrighted work. The second issue relates to the skyrocketing cost of textbooks and tuition. Faculty face serious ethical issues when they need to decide whether to compel their students to spend $100 simply to have access to a few chapters of a large text.

It's entirely possible that this case will never be decided, as many previous scuffles between publishers and universities have been settled before trials. Assuming it does make it through a trial, however, it may provide a significant opportunity for courts to weigh in on the general principles of fair use.

Further reading:

The Library Journal provides a discussion of prior legal wrangling between universities and publishers.