## Facts

- Three academic publishers sued Georgia State University officials in their official capacities over faculty posting digital excerpts of academic books to electronic reserves and course sites for student access without obtaining licenses.
- The university asserted the postings were fair use under 17 U.S.C. § 107 and implemented a 2009 policy requiring faculty to complete a fair-use checklist.
- After a bench trial, the district court evaluated alleged infringements individually and held most challenged excerpt postings were fair use, finding only a small number infringing.
- In its fair-use analysis, the district court treated the four § 107 factors as equally weighted, applied a mechanical “counting” approach, and used a “10 percent or one chapter” guideline for the amount-taken factor.
- The district court deemed the university the prevailing party and awarded attorney’s fees and costs against the publishers.

## Issues

1. Whether the district court applied the § 107 fair-use factors correctly to nonprofit educational posting of digital book excerpts on university course platforms.
2. Whether fair use may be determined by a mechanical methodology that gives each factor equal weight and treats “three factors for the user” as determinative.
3. Whether a “10 percent or one chapter” benchmark is a permissible rule for the amount-and-substantiality inquiry.
4. How licensing availability and market harm should be assessed under factor four, including allocation of burdens regarding whether a digital license existed for the specific use.
5. Whether the prevailing-party designation and fee award were proper given errors in the fair-use analysis.

## Decision

- The Eleventh Circuit affirmed that a work-by-work, instance-specific analysis can be used to evaluate alleged infringements and assess injunctive relief.
- The court reversed in part and remanded because the district court improperly treated the four factors mechanistically and with equal weight rather than conducting a contextual balancing.
- The court held factor one generally favored fair use due to nonprofit educational purpose, but the nontransformative character reduced the factor’s overall weight.
- The court held the district court erred in treating factor two as favoring fair use in every case; factor two often carries limited weight for published scholarly works but can cut against fair use when excerpts contain substantial authorial expression beyond bare facts.
- The court rejected the “10 percent or one chapter” approach under factor three and required a qualitative and quantitative, work-specific assessment tied to pedagogical justification and substitution risk.
- The court recognized that permissions markets can be relevant under factor four when licenses are available, reasonably priced, and reasonably convenient, and approved placing on the publishers the burden to show a license was actually available for the specific excerpt and use.
- The court vacated the prevailing-party determination and reversed the attorney’s fee award, remanding for reconsideration after applying the corrected fair-use framework.

## Legal Principles

- Fair use under 17 U.S.C. § 107 requires a case-specific balancing of all four factors; courts may not apply an arithmetic or “factor counting” method that treats each factor as equally weighted in every case.
- Nonprofit educational purpose favors fair use under factor one, but nontransformative uses may merit less weight than transformative uses in the overall balance.
- For factor two, the nature of scholarly, published, largely factual works often has limited impact, but the inquiry cannot be resolved by a blanket presumption; expressive, evaluative, or analytical content can weigh against fair use depending on what is taken.
- Factor three cannot be governed by a bright-line numerical threshold; the inquiry must consider both the amount taken and whether the excerpt captures qualitatively important material, in light of pedagogical purpose and the risk of substituting for sales or licensing.
- Under factor four, existing or potential licensing markets may be considered, but market harm depends on evidence that a usable license was available for the specific work, excerpt, and use; the rights holder bears the burden to prove such availability when asserting licensing-market harm.

## Conclusion

The Eleventh Circuit required the district court to redo its e-reserves fair-use determinations using a contextual balancing of § 107’s four factors rather than equal-weight, mechanical rules, rejecting a fixed “10 percent or one chapter” measure and vacating the prevailing-party and fee rulings pending reconsideration under the proper methodology.


Cambridge Univ. Press v. Patton, 769 F.3d 1232 (11th Cir. 2014)