19 October 2018

Unreviewable Circuit Split(s)

Today, the Eleventh Circuit issued its second opinion (and, by my count, the eleventh substantive opinion overall) in the nearly-decade-old Cambridge Univ. Press v. Georgia State Univ. matter — the "electronic coursepack" case. You can find the opinion on the Court's website (PDF download). Unfortunately, the opinion is opaque, a bit oblivious, and fails to disclose the circuit split(s) at all.

The core of the opinion — and, ironically enough, the part that discloses the circuit splits to those of us who actually read both the Copyright Act and opinions interpreting it, instead of relying on half-assed/less-than-a-quarter-considered self-interested bullshit spewing forth from various "advocacy" organizations that never actually represent the full scope of those they claim to be speaking for — is, naturally enough, at the end.

We affirm the order denying the publishers’ request to reopen the record, but we vacate the judgment entered on remand. The district court must reinstate its earlier findings that factor four strongly disfavors fair use [under 17 U.S.C. § 107's framework] for 31 of the 48 excerpts. The district court must eschew a quantitative approach to the weighing and balancing of the fair-use factors and give each excerpt the holistic, qualitative, and individual analysis that the Act demands. And the district court must omit any consideration of price from its analysis of the third factor. Because the district court’s award of attorney’s fees and costs was based on its erroneous fair-use analysis, we also VACATE that award and the underlying determination that the University is the prevailing party.

Cambridge Univ. Press v. Albert, No. [20]16–15726 (11th Cir. 19 Oct 2018) ("Coursepack XI"), slip op. at 24–25. This is a smackdown for the "reuse" community that will entail substantial howling and claims that the decision eviscerates the Internet.

In no particular order, here are the circuit splits that I see Coursepack XI either creating or confirming. All deserve Supreme Court review, because all influence both individual conduct and specific litigation. I am… doubtful on whether there are even three votes on a petition for certiorari from the members of this Court now that Justice Kavanaugh has taken his seat.

  • At a fundamental level — one never acknowledged by this court, nor virtually ever by any other — this is a rejection of the fifth fair use factor. Section 107 provides for four factors to be considered "among others" in determining whether a specific use qualifies as a fair use: Character of the (re)use; the nature of the source work; the amount of the source work that has been reused; and the effect of the (re)use on the market value of the source work. Missing from this list is the pragmatic factor that usually dominates the decision to sue, the process of discovery, and the weights accorded the four factors: The administrative burden of obtaining permission for (re)use. This is the general class into which the "orphan works" problem falls. Here, the Eleventh Circuit has elsewhere in the opinion (pages 22–23 in particular) indicated that a substantial part of that administrative burden — the cost to the (re)user — is irrelevant. This is inconsistent with the Second Circuit's approach in the Google Books fiascos.
  • My mantra for two decades now has been that most copyright cases concern civil procedure and burdens of proof at least as much as they concern the details of copyright doctrine or the minutiae of originality determinations. Cf., e.g., Ellison v. America On-Line, Inc., 357 F.3d 1072, 1080 (reversing because the trial court improperly granted summary judgment by not considering a fact found elsewhere in the trial court's opinion). Coursepack XI is much the same. Today, the Eleventh Circuit rejects "mechanical" class-wide determinations of fair use. This, again, directly conflicts with the Google Books fiascos… which are not cited anywhere in Coursepack XI, and never characterize what was done by the trial judges in those matters as "mechanical" (although it undoubtedly was but for use of that word). Indeed, the closest the Eleventh Circuit comes to Second Circuit caselaw is citing a fragment from a marginally relevant opinion that doesn't quite mean what it says when considered "in light of the facts of [the] given case."
  • Coursepack XI also depends upon — but does not discuss — treating fair use as an affirmative defense that must be proven by a preponderence of the evidence by the party asserting fair use. This conflicts with the underlying assumptions in some mass-notification DMCA cases, such as Lenz v. Universal Music Corp., 801 F.3d 1126, later op., 815 F.3d 1145 (9th Cir. 2015) (holding that a DMCA notice may not be proper if the issuer of the notice fails to consider whether the complained-of (re)use constitutes fair use). And it sure as hell conflicts with the mantra of the internet "industry" and "reuse" community, both of which believe (without ever saying so) that there needs to be a bright-line rule that immunizes them from scrutiny by rapacious copyright owners who are seeking only to profiteer from culture. Or something like that.
  • Finally for the nonce, there's also an unstated circuit split with the Fifth Circuit regarding sovereign immunity of state actors. Georgia State University more probably than not qualifies as an "arm of the state" of Georgia, meaning that anything done specifically by it (or those standing in its shoes) is immune from copyright liability. Chavez v. Arte Publico Press, 204 F.3d 601 (5th Cir. 2000) (concerning a university press that is part of the University of Houston). To say the least, this area of jurisprudence is a mess; it also conflicts with substantial parts of the Google Books fiascos.

That's enough for now. If nothing else, this brouhaha is another exemplar for shifting all copyright matters to the Federal Circuit rather than leaving them in the regional circuits — if nothing else, at least the incorrect doctrine would be uniform, and consistent with the constitutional grant of power under Art. I § 8 cl. 8, which does not distinguish between "inventions" and "writings" except by acknowledging their respective existence. Too, that would be consistent with the internet "industry"'s call for broad, uniform protection for itself. But it would get things in front of judges with more knowledge of, or at least exposure to, both the limits and capabilities of science and engineering than is found in the regional circuits… funny how the internet "industry" isn't also calling for nonregionalized copyright appeals, isn't it?

Oh, you wanted to know the result? How pragmatic of you! The Eleventh Circuit basically held — although resubmitting on remand — that despite the inept presentation of the matter by counsel for the various publishers, the majority of the works (and perhaps virtually all of the works) that were taken for "coursepacks" had proper copyright claims, and that the fair use defense had not been established on its face but required reweighing. For a third time.