If your collegiate experience was anything like mine, it probably involved frequent trips to the library in order to check out photocopied book chapters on Hegel and Wittgenstein from the “reserves desk" (and involved frequent curses directed to those other readers who, like me, were attempting to cram a chapter an hour before class and had checked out all available copies.) Today, of course, you can just get "e-reserves" through a browser, but the very ease of copying and distribution found in the new systems has publishers worried. Certain courses and professors use reserves quite liberally as a way to ensure poor students don't need to buy entire books for the sake of a few pages. But are reserves actually copyright infringement on a massive scale?

Some publishers think so. Although hesitant to go after educational users over small excerpts, publishers like Oxford University Press, Cambridge University Press, and Sage Publications came to believe that many professors were stepping over even the broad lines around “fair use” and depriving the publishers of licensing revenue in the process. In 2008, they launched a major test case, suing Georgia State University in federal court.

In a massive 350-page ruling (PDF) handed down on Friday, the judge overseeing the case dug deep into the questions surrounding fair use and concluded that copyright was meant to promote the writing of more books. And, the judge concluded, "There is no reason to believe that allowing unpaid, nonprofit academic use of small excerpts in controlled circumstances would diminish creation of academic works."

Meet the "four factors"

The specifics of the ruling are tedious; the judge spends hundreds of pages running through each specific infringement to determine if it qualifies as fair use. But the broader argument is a resounding defense of the concept. Let's run through the judge's analysis of the crucial "four factors" for a fair use claim.

Factor one, "The purpose and character of your use”: The excerpts are used for teaching and scholarship, and by nonprofit educational institutions, all of which are heavily in favor of a fair use finding.

Factor two, "The nature of the copyrighted work”: Because they don't involve fiction but rather "informational" works, this goes in favor of the universities.

Factor three, "The amount and substantiality of the portion taken": This gets tricky. The judge recognizes that massive copying from books is impermissible, but drawing lines here is hard. Here's how the line was drawn.

"Where a book is not divided into chapters or contains fewer than ten chapters, unpaid copying of no more than 10 percent of the pages in the book is permissible under factor three.... In practical effect, this will allow copying of about one chapter or its equivalent. Where a book contains ten or more chapters, the unpaid copying of up to but no more than one chapter (or its equivalent) will be permissible under fair use factor three."

One chapter good, two chapters bad. If professors keep their copying to one chapter or less, the judge concludes it's a fair use.

Factor four, "The effect of the use upon the potential market”: For academic work, the financial rewards are minimal. Articles, which can take months to write and research, generally earn no money at all; revenue on most academic books, many professors have told me, is large enough only to pay for a dinner out once or twice a year.

Even for the publishers in the case, the money made from licensing excerpts is small. If you throw corporate licensing into the mix, it accounted for less than one percent of their revenue in 2009. Limit the analysis to academic work, and such licensing revenue accounted for just one quarter of one percent of revenue.

Since neither the authors nor the publishers make much money from licensing, the judge concluded that the existence of e-reserves does little to harm the market for their works and provides no disincentive to create.

Fair use is hard

So—crushing victory for Georgia State, whose professors can now dance gleefully through the ash of their foes in publishing? Not quite. After years of litigation, the case came down to 75 particular items that the publishers argued were infringing. Five unlicensed excerpts (from four different books) did exceed the amount allowed under factor three above. These books include The Sage Handbook of Qualitative Research in both its second and third editions, along with The Power Elite and the no-doubt-scintillating tome Utilization-Focused Evaluation (Third Edition).

While the university had issued a 2009 guide designed to help faculty know when they needed a license for excerpts, the judge found that the policy "did not limit copying in those instances to decidedly small excerpts as required by this Order. Nor did it proscribe the use of multiple chapters from the same book."

Still, copyright and fair use can be murky, and the judge found no bad faith on the school's part, concluding: "The truth is that fair use principles are notoriously difficult to apply."

The publishers will prevail on the five claims in the four books mentioned above; the other 94 are fair uses. And both publishers and universities should now have more clarity about the proper limits of unlicensed copying.