Transformative Teaching and Educational Fair Use After Georgia State

Abstract

The Supreme Court has said that copyright’s fair use doctrine is a “First Amendment safety valve” because it ensures that certain crucial cultural activities are not unduly burdened by copyright. While many such activities (criticism, commentary, parody) have benefited from the courts’ increased attention to First Amendment values, one such activity, education, has been mired for years in a minimalist, market-based vision of fair use that is largely out of touch with mainstream fair use jurisprudence. The latest installment in the history of educational fair use, the 11th Circuit’s opinion in the Georgia State University e-reserves case, may be the last judicial word on the subject for years to come, and I argue that its import is primarily in its rejection of outdated guidelines and case law, rather than any affirmative vision of fair use, which the court studiously avoids. Because of the unique factual context of the case, it stops short of bridging the gap between educational fair use and modern transformative use jurisprudence. With help from recent scholarship on broad patterns in fair use case law, I pick up where the GSU court left off, describing a variety of common educational uses that are categorizable as transformative, and, therefore, entitled to broad deference under contemporary fair use doctrine. In the process, I show a way forward for vindicating fair use rights and First Amendment rights, by applying the transformative use concept at lower levels of abstraction to help practice communities make sense of the doctrine.

Video Streaming Licenses: Using a Decision Tree and Workflow Chart

“…1262-1263 [citations omitted]). Butler (2015) suggests that "making entire, unaltered works available for . .…”

“…On its face, factor three weighs against fair use because the use is of the entire work, but factor three may weigh in favor of fair use where viewing the entire film is pedagogically necessary, and, therefore, the amount taken is justified. Butler (2015) reminds us that the "amount of the work used should be appropriate to the transformative purpose" (p. 33). "[A]s Judge Leval argues, courts may look to the amount taken as an additional indicator of whether the use truly is transformative; taking too much supports an inference that the use is in fact merely substitutional or otherwise illegitimate" (Butler, 2015, p. 33, n. 214, citing Leval, 1990, p. 1123.…”

“…(Fromer, 2015, p. 628, quoting Campbell v. Acuff-Rose Music.) Butler (2015) points out that, in the Georgia State case, the 11th Circuit found "that absent a transformative use argument, the availability of a license for the use could still be decisive against a fair use claim" and that, where the use is non-transformative, the Court is required to give the fourth factor "additional weight" because "the threat of market substitution [is] more serious" (p. 5 n. 26, quoting Cambridge University Press v. Patton, 2014, pp. 1278-1282.…”

“…5 The structure of the SRDT acknowledges that courts weigh the existence of licensing against fair use. Butler (2015) suggests that "[t]he safe response may well be to forego fair use whenever there is a license available, and to tread very carefully indeed even when there is not" (p. 31).…”

Decoding Academic Fair Use: Transformative Use and the Fair Use Doctrine in Scholarship

“…Other scholars are more sanguine about theorizing predictable patterns in fair use cases (Samuelson, 2009). Certainly, recent scholarship has added clarity to how courts view one of the crucial aspects of contemporary fair use decisions, the transformative use doctrine (Butler, 2015). Butler suggests that the new emphasis on transformativeness by courts (discussed in more detail below) can liberate those wishing to engage in educational borrowing of copyrighted expression from outdated fair use paradigms that have dominated educational uses.…”