CAMBRIDGE UNIVERSITY PRESS v.

BECKER 1145
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

copyrights by allowing unlicensed excerpts

CAMBRIDGE UNIVERSITY PRESS; of copyrighted books to be posted electron-
Oxford University Press, Inc.; Sage ically and made available electronically to
Publications, Inc., Plaintiffs, students. Following bench trial, the United
States District Court for the Northern
v. District of Georgia, No. 1:08-CV-1425-
Mark P. BECKER, in his official capac- ODE, Orinda D. Evans, Senior District
ity as President of Georgia State Uni- Judge, 863 F.Supp.2d 1190, entered judg-
versity; Risa Palm, in her official ca- ment for publishing houses on few in-
pacity as Senior Vice President for fringement claims, but awarded attorney
Academic Affairs and Provost of fees to defendants. Parties appealed. The
Georgia State University; J.L. Albert, Court of Appeals, Tjoflat, Circuit Judge,
in his official capacity as Georgia 769 F.3d 1232, reversed and remanded. On
State University Associate Provost for remand, the District Court, Evans, Senior
Information Systems and Technology; District Judge, 371 F.Supp.3d 1218, grant-
Nancy Seamans, in her official capaci- ed partial declaratory and injunctive relief
to publishers, but it awarded attorney fees
ty as Dean of Libraries at Georgia
and costs to university, and, 2016 WL
State University; Robert F. Hatcher,
8941100, denied reconsideration. Parties
in his official capacity as Vice Chair
appealed. The Court of Appeals, William
of the Board of Regents of the Univer-
H. Pryor, Circuit Judge, 906 F.3d 1290,
sity System of Georgia; Kenneth R.
affirmed in part, vacated in part, and re-
Bernard, Jr., Larry R. Ellis, W. Mans-
manded with instructions.
field Jennings, Jr., James R. Jolly,
Donald M. Leebern, Jr., William Nes- Holdings: On remand, the District Court,
mith, Jr., Doreen Stiles Poitevint, Wil- Evans, Senior District Judge, held that:
lis J. Potts, Jr., C. Dean Alford, Kessel
(1) distribution of chapter from copyright-
Stelling, Jr., Benjamin J. Tarbutton,
ed book about qualitative research con-
III, Richard L. Tucker, Larry Walker,
stituted fair use;
Rutledge A. Griffin, Jr., C. Thomas
Hopkins, Jr., Neil L. Pruitt, Jr., and (2) distribution of four chapters from copy-
Philip A. Wilheit, Sr., in their official righted book about qualitative research
capacities as members of the Board of infringed copyright;
Regents of the University System of (3) distribution of chapter from copyright-
Georgia, Defendants. ed book of introductions to major musi-
cal works constituted fair use;
CIVIL ACTION NO. 1:08-CV-1425-ODE
(4) distribution of chapter from copyright-
United States District Court, ed book about race and ethnic relations
N.D. Georgia, Atlanta Division. constituted fair use;
Signed March 2, 2020 (5) distribution of chapter from copyright-
ed book about international health or-
Background: Academic publishing houses
ganizations constituted fair use;
brought copyright infringement action
claiming that members of board of regents (6) distribution of two chapters from copy-
of state university system and other offi- righted book about ethics constituted
cials at state university infringed on their fair use; and
1146 446 FEDERAL SUPPLEMENT, 3d SERIES

(7) distribution of two chapters from copy- nificant demand for excerpt, chapter was
righted book about user-based evalua- used for nonprofit educational purpose by
tion infringed copyright. nonprofit educational institution, excerpt’s
20 pages amounted to 2.61% of book, and
Ordered accordingly.
excerpt was not heart of work. 17
U.S.C.A. § 107.

1. Copyrights and Intellectual Property 3. Copyrights and Intellectual Property

O58 O58
State university’s unlicensed distribu- State university’s unlicensed distribu-
tion of unpaid digital copies of chapter tion of unpaid digital copies of chapter
from copyrighted academic non-fiction from copyrighted academic non-fiction
book about qualitative research for use by book about social theory for use by stu-
students as required reading for class con- dents as required reading for class consti-
stituted fair use of book, precluding in- tuted fair use of book, precluding infringe-
fringement claim under Copyright Act, ment claim under Copyright Act, even
even though widespread use of unpaid cop- though widespread use of unpaid copies
ies could cause substantial damage to pub- could cause substantial damage to publish-
lisher’s right to receive potential permis- er’s right to receive potential permissions
sions income for digital excerpts, since income for digital excerpts, since likelihood
likelihood of repetitive use was diminished, of repetitive use was diminished, given low
given lack of significant demand for ex- permissions sales for excerpt, chapter was
cerpt, chapter was used for nonprofit edu- used for nonprofit educational purpose by
cational purpose by nonprofit educational nonprofit educational institution, excerpt’s
institution, excerpt was narrowly tailored 12 pages amounted to 2.12% of book, ex-
to fit pedagogical aim of class, excerpt’s 11 cerpt fit professor’s pedagogical purpose,
pages amounted to 6.25% of book, and and excerpt was not heart of work. 17
excerpt was not heart of work. 17 U.S.C.A. § 107.
U.S.C.A. § 107.
4. Copyrights and Intellectual Property
2. Copyrights and Intellectual Property O58
O58
State university’s unlicensed distribu-
State university’s unlicensed distribu- tion of unpaid digital copies of four chap-
tion of unpaid digital copies of chapter ters from copyrighted academic non-fiction
from copyrighted academic non-fiction book about qualitative research for use by
book about feminist approaches to qualita- students as required reading for class was
tive research for use by students as re- not fair use of book, and thus infringed
quired reading for class constituted fair copyright, even though excerpts were used
use of book, precluding infringement claim for nonprofit educational purpose by non-
under Copyright Act, even though wide- profit educational institution and excerpts
spread use of unpaid copies could cause were not heart of work, since author opin-
substantial damage to publisher’s right to ion, subjective description, and evaluative
receive potential permissions income for expression dominated, excerpts’ combined
digital excerpts, since likelihood of repeti- 102 pages amounted to 8.38% of book, and
tive use was diminished, given lack of sig- widespread use of unpaid copies could
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1147
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

cause substantial damage to publisher’s tion, excerpt’s 32 pages amounted to 4.51%

right to receive potential permissions in- of book, excerpt fit professor’s pedagogical
come for digital excerpts, given high de- purpose, and excerpt was not heart of
mand for digital excerpts of book. 17 work. 17 U.S.C.A. § 107.
U.S.C.A. § 107.
7. Copyrights and Intellectual Property
5. Copyrights and Intellectual Property O58
O58
State university’s unlicensed distribu-
State university’s unlicensed distribu- tion of unpaid digital copies of two chap-
tion of unpaid digital copies of two chap- ters from copyrighted academic non-fiction
ters from copyrighted academic non-fiction book about qualitative research for use by
book about relationship between qualita- students as required reading for class was
tive research and indigenous perspectives not fair use of book, and thus infringed
for use by students as required reading for copyright, even though excerpts were used
class was not fair use of book, and thus for nonprofit educational purpose by non-
infringed copyright, even though excerpts profit educational institution, excerpts
were used for nonprofit educational pur- were not heart of work, and excerpts’ com-
pose by nonprofit educational institution bined 37 pages amounted to 3.24% of book,
and excerpts were not heart of work, since since author opinion and subjective de-
author opinion and evaluative nature of scription dominated, excerpts were entire,
chapters dominated, excerpts’ combined 37 rather than partial, chapters, and wide-
pages amounted to 5.98% of book, and spread use of unpaid copies could cause
widespread use of unpaid copies could substantial damage to publisher’s right to
cause substantial damage to publisher’s receive potential permissions income for
right to receive potential permissions in- digital excerpts, given ready market for
come for digital excerpts. 17 U.S.C.A. licensed digital excerpts of book. 17
§ 107. U.S.C.A. § 107.

6. Copyrights and Intellectual Property 8. Copyrights and Intellectual Property

O58 O58
State university’s unlicensed distribu- State university’s unlicensed distribu-
tion of unpaid digital copies of chapter tion of unpaid digital copies of chapter
from copyrighted academic non-fiction from copyrighted academic non-fiction
book about methodology of narrative inqui- book about qualitative research for use by
ry for use by students as required reading students as required reading for class con-
for class constituted fair use of book, pre- stituted fair use of book, precluding in-
cluding infringement claim under Copy- fringement claim under Copyright Act,
right Act, even though widespread use of even though author opinion and evaluative
unpaid copies could cause substantial dam- style dominated and widespread use of
age to publisher’s right to receive potential unpaid copies could cause substantial dam-
permissions income for digital excerpts, age to publisher’s right to receive potential
since likelihood of repetitive use was di- permissions income for digital excerpts,
minished, given low demand for excerpt, since likelihood of repetitive use was di-
chapter was used for nonprofit educational minished, given low permissions sales for
purpose by nonprofit educational institu- excerpt, chapter was used for nonprofit
1148 446 FEDERAL SUPPLEMENT, 3d SERIES

educational purpose by nonprofit edu- cerpt, chapter was used for nonprofit edu-
cational institution, excerpt’s 26 pages cational purpose by nonprofit educational
amounted to 4.61% of book, excerpt fit institution, excerpt’s 41 pages amounted to
professor’s pedagogical purpose, and ex- 5.77% of book, excerpt fit professor’s peda-
cerpt was not heart of work. 17 U.S.C.A. gogical purpose, and excerpt was not heart
§ 107. of work. 17 U.S.C.A. § 107.

9. Copyrights and Intellectual Property 11. Copyrights and Intellectual Property

O58 O58
State university’s unlicensed distribu- State university’s unlicensed distribu-
tion of unpaid digital copies of two chap- tion of unpaid digital copies of seven chap-
ters from copyrighted academic non-fiction ters from copyrighted academic non-fiction
book about feminist research for use by book about qualitative research for use by
students as required reading for class con- students as required reading for class was
stituted fair use of book, precluding in- not fair use of book, and thus infringed
fringement claim under Copyright Act, copyright, even though excerpts were used
even though excerpts were entire, rather for nonprofit educational purpose by non-
than partial, chapters and use of unpaid profit educational institution and they were
copies could cause substantial harm to not heart of work, since excerpts were
publisher’s potential permissions income dominated by author opinion, analysis,
for digital excerpts, since likelihood of re- evaluation, and subjective description, ex-
petitive use was diminished, given low per- cerpts’ combined 153 pages amounted to
missions sales for excerpts, chapters were 12.45% of book, excerpts were complete,
used for nonprofit educational purpose by rather than partial, chapters, and wide-
nonprofit educational institution, excerpts’ spread use of unpaid copies could cause
combined 38 pages amounted to 4.95% of substantial damage to publisher’s right to
book, excerpts fit professor’s pedagogical receive potential permissions income for
purpose, and excerpts were not heart of digital excerpts, given high digital permis-
work. 17 U.S.C.A. § 107. sions sales. 17 U.S.C.A. § 107.

10. Copyrights and Intellectual Property 12. Copyrights and Intellectual Property
O58 O58
State university’s unlicensed distribu- State university’s unlicensed distribu-
tion of unpaid digital copies of chapter tion of unpaid digital copies of chapter
from copyrighted academic non-fiction from copyrighted academic non-fiction
book about methodology of narrative inqui- book about feminist research for use by
ry for use by students as required reading students as required reading for class con-
for class constituted fair use of book, pre- stituted fair use of book, precluding in-
cluding infringement claim under Copy- fringement claim under Copyright Act,
right Act, even though widespread use of even though excerpt was entire, rather
unpaid copies could cause substantial dam- than partial, chapter and use of unpaid
age to publisher’s right to receive potential copies could cause substantial damage to
permissions income for digital excerpts, publisher’s right to receive potential per-
since likelihood of repetitive use was di- missions income for digital excerpts, since
minished, given very little demand for ex- likelihood of repetitive use was diminished,
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1149
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

given very little demand for excerpt, chap- cerpt’s 13 pages amount to 1.99% of book,
ter was used for nonprofit educational pur- excerpt was adequately tailored to profes-
pose by nonprofit educational institution, sor’s pedagogical purpose, and excerpt was
excerpt’s 18 pages amounted to 2.35% of not heart of work. 17 U.S.C.A. § 107.
book, excerpt fit professor’s pedagogical
purpose, and excerpt was not heart of 15. Copyrights and Intellectual Property
work. 17 U.S.C.A. § 107. O58
State university’s unlicensed distribu-
13. Copyrights and Intellectual Property
tion of unpaid digital copies of portion of
O58
introduction and entire conclusion from
State university’s unlicensed distribu- copyrighted academic non-fiction book
tion of unpaid digital copies of chapter about qualitative research for use by stu-
from copyrighted academic non-fiction dents as required reading for class was not
book about qualitative research for use by fair use of book, and thus infringed copy-
students as required reading for class was right, even though excerpts were used for
not fair use of book, and thus infringed nonprofit educational purpose by nonprofit
copyright, even though excerpt was used educational institution and were tailored to
for nonprofit educational purpose by non- professor’s pedagogical purpose, since ex-
profit educational institution, excerpt’s 32 cerpts’ combined 18 pages amounted to
pages amounted to only 2.80% of book, and 6.75% of pages of book, author opinion
excerpt was not heart of work, since ex- dominated excerpts, excerpts constituted
cerpt was complete, rather than partial, heart of the work, and widespread use of
chapter, and widespread use of unpaid cop- unpaid copies could cause substantial dam-
ies could cause substantial damage to pub- age to publisher’s right to receive potential
lisher’s potential permissions income for permissions income for digital excerpts,
digital excerpts, given strong demand for given ready market for excerpts. 17
excerpt. 17 U.S.C.A. § 107. U.S.C.A. § 107.

14. Copyrights and Intellectual Property 16. Copyrights and Intellectual Property
O58 O58
State university’s unlicensed distribu- State university’s unlicensed distribu-
tion of unpaid digital copies of chapter tion of unpaid digital copies of chapter
from copyrighted academic non-fiction from copyrighted academic non-fiction
book about qualitative research for use by book about children’s cognitive and social
students as required reading for class con- competencies for use by students as re-
stituted fair use of book, precluding in- quired reading for class constituted fair
fringement claim under Copyright Act, use of book, precluding infringement claim
even though widespread use of unpaid cop- under Copyright Act, even though ex-
ies could cause substantial damage to pub- cerpt’s 39 pages amounted to 12.19% of
lisher’s right to receive potential permis- book and was entire, rather than partial,
sions income for digital excerpts, since chapter, since use did not harm publisher,
likelihood of repetitive use was diminished, given that digital permissions were un-
given lack of demand for excerpt, chapter available at time of use, chapter was used
was used for nonprofit educational purpose for nonprofit educational purpose by non-
by nonprofit educational institution, ex- profit educational institution, excerpt
1150 446 FEDERAL SUPPLEMENT, 3d SERIES

served professor’s pedagogical purpose, tion, and excerpt fit professor’s pedagogi-
and excerpt was not heart of work. 17 cal purpose. 17 U.S.C.A. § 107.
U.S.C.A. § 107. 19. Copyrights and Intellectual Property
O58
17. Copyrights and Intellectual Property
State university’s unlicensed distribu-
O58
tion of unpaid digital copies of portion of
State university’s unlicensed distribu- chapter from copyrighted academic non-
tion of unpaid digital copies of chapter fiction book about composers, instruments,
from copyrighted academic non-fiction and musical topics for use by students as
book about understanding response to required reading for class constituted fair
trauma for use by students as required use of book, precluding infringement claim
reading for class constituted fair use of under Copyright Act, since excerpt was
book, precluding infringement claim under used for nonprofit educational purpose by
nonprofit educational institution, excerpt’s
Copyright Act, even though excerpt was
16 pages amounted to 4.83% of book, ex-
entire, rather than partial, chapter, since
cerpt fit professor’s pedagogical purpose,
likelihood that unpaid excerpt would sub-
excerpt was not heart of work, and use did
stitute for paid market was nonexistent,
not affect value of copyrighted work, given
given absence of digital permissions mar- that digital licenses were unavailable at
ket at time of use, chapter was used for time of use and use of small excerpt had
nonprofit educational purpose by nonprofit no impact on book sales. 17 U.S.C.A.
educational institution, excerpt’s 18 pages § 107.
amounted to 3.29% of book, excerpt served
20. Copyrights and Intellectual Property
pedagogical purpose of course, and excerpt
O58
was not heart of work. 17 U.S.C.A. § 107.
State university’s unlicensed distribu-
18. Copyrights and Intellectual Property tion of unpaid digital copies of portion of
O58 chapter from copyrighted academic non-
fiction book about composers, instruments,
State university’s unlicensed distribu- and musical topics for use by students as
tion of unpaid digital copies of chapter required reading for class constituted fair
from copyrighted academic non-fiction use of book, precluding infringement claim
book of introductions to major musical under Copyright Act, since excerpt was
works for use by students as required used for nonprofit educational purpose by
reading for class constituted fair use of nonprofit educational institution, excerpt’s
book, precluding infringement claim under 15 pages amounted to 4.63% of book, ex-
Copyright Act, even though excerpt’s 21 cerpt served professor’s pedagogical pur-
pages amounted to 20.79% of book, excerpt pose, excerpt was not heart of work, and
was dominated by analysis from author or harm to publisher stemming from unpaid
other historical analyses, and excerpt was use of excerpt was unlikely, given that
heart of work, since likelihood that unpaid digital licenses were unavailable at time of
excerpt would substitute for paid market use and use of small excerpt had no impact
was nonexistent, given that digital licenses on book sales. 17 U.S.C.A. § 107.
were unavailable at time of use, excerpt 21. Copyrights and Intellectual Property
was not so large as to substitute for book, O58
chapter was used for nonprofit educational State university’s unlicensed distribu-
purpose by nonprofit educational institu- tion of unpaid digital copies of portion of
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1151
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

chapter from copyrighted academic non- ican slaves for use by students as required
fiction book about analysis of composer’s reading for class was not fair use of book,
musical style for use by students as re- and thus infringed copyright, even though
quired reading for class constituted fair excerpt was used for nonprofit educational
use of book, precluding infringement claim purpose by nonprofit educational institu-
under Copyright Act, since excerpt was tion, tailored to professor’s pedagogical
used for nonprofit educational purpose by purpose, and not heart of work, since ex-
nonprofit educational institution, excerpt’s cerpt’s 35 pages amounted to 8.14% of
18 pages amounted to 4.75% of book, ex- pages of book, and widespread use of un-
cerpt fit professor’s pedagogical purpose, paid copies could cause substantial damage
excerpt was not heart of work, and use did to publisher’s right to receive potential
not affect value of, or potential market for, permissions income for digital excerpts,
copyrighted work, given that digital licens- given market for digital permissions sales.
es were unavailable at time of use and use 17 U.S.C.A. § 107.
of small excerpt had no impact on potential
book sales. 17 U.S.C.A. § 107. 24. Copyrights and Intellectual Property
O58
22. Copyrights and Intellectual Property
State university’s unlicensed distribu-
O58
tion of unpaid digital copies of chapter
State university’s unlicensed distribu- from copyrighted academic non-fiction
tion of unpaid digital copies of portion of book about race and ethnic relations for
chapter from copyrighted academic non- use by students as required reading for
fiction book about historical and cultural class constituted fair use of book, preclud-
significance of the organ for use by stu- ing infringement claim under Copyright
dents as required reading for class consti- Act, even though excerpt’s 29 pages
tuted fair use of book, precluding in- amounted to 12.5% of book, since excerpt
fringement claim under Copyright Act, was used for nonprofit educational purpose
since excerpt was used for nonprofit edu- by nonprofit educational institution, use
cational purpose by nonprofit educational did not have negative effect on market for
institution, excerpt’s 14 pages amounted sale of book itself, and there was little
to 3.57% of book, excerpt was tailored to prospect of repetitive use of excerpt. 17
serve professor’s pedagogical purpose, ex- U.S.C.A. § 107.
cerpt was not heart of work, and use did
not harm value of, or potential market 25. Copyrights and Intellectual Property
for, copyrighted work, given that digital O58
licenses were unavailable at time of use State university’s unlicensed distribu-
and use of small excerpt had no impact on tion of unpaid digital copies of chapter
potential book sales. 17 U.S.C.A. § 107. from copyrighted academic non-fiction
book about African American child devel-
23. Copyrights and Intellectual Property
opment for use by students as required
O58
reading for class constituted fair use of
State university’s unlicensed distribu- book, precluding infringement claim under
tion of unpaid digital copies of chapter Copyright Act, even though excerpt’s 24
from copyrighted academic non-fiction pages amounted to 9.38% of book, since
book about plantation life of African Amer- excerpt was used for nonprofit educational
1152 446 FEDERAL SUPPLEMENT, 3d SERIES

purpose by nonprofit educational institu- contained only objective information, ex-

tion, excerpt was not heart of work, ex- cerpts’ combined 28 pages amounted to
cerpt was adequately tailored to fulfill pe- 3.87% of book, excerpts were not heart of
dagogical purpose of course, use did not work, excerpts fit professor’s pedagogical
have negative effect on market for pur- purpose, and permissions for digital ex-
chase of book itself, and there was only cerpts were not available at time of use.
small likelihood of repetitive use of ex- 17 U.S.C.A. § 107.
cerpt. 17 U.S.C.A. § 107.
28. Copyrights and Intellectual Property
26. Copyrights and Intellectual Property O58
O58
State university’s unlicensed distribu-
State university’s unlicensed distribu- tion of unpaid digital copies of chapter
tion of unpaid digital copies of chapter from copyrighted academic non-fiction
from copyrighted academic non-fiction book about language testing for use by
book about historical and modern chal- students as optional reading for class con-
lenges experienced by black families for stituted fair use of book, precluding in-
use by students as required reading for fringement claim under Copyright Act,
class constituted fair use of book, preclud- since excerpt was used for nonprofit edu-
ing infringement claim under Copyright cational purpose by nonprofit educational
Act, even though excerpt was dominated institution, excerpt’s 30 pages amounted to
by author opinion, since excerpt was used 7.14% of book, excerpt was not heart of
for nonprofit educational purpose by non- work, despite being integral to overall
profit educational institution, excerpt’s 20 work, excerpt served important pedagogi-
pages amounted to 4.81% of book, excerpt cal aims, use did not cause harm to poten-
was not heart of work, excerpt was suffi- tial market for book itself, and use did not
ciently tailored to serve professor’s peda- damage value of work, given that licenses
gogical purpose, use did not have negative to copy excerpt were not available at time
effect on market for purchase of book it- of use. 17 U.S.C.A. § 107.
self, and repetitive use of excerpt was un-
likely, given relatively little demand for 29. Copyrights and Intellectual Property
excerpt at time of use. 17 U.S.C.A. § 107. O58
State university’s unlicensed distribu-
27. Copyrights and Intellectual Property
tion of unpaid digital copies of two chap-
O58
ters from copyrighted academic non-fiction
State university’s unlicensed distribu- book about assessing speaking for use by
tion of unpaid digital copies of two chap- students as required reading for class con-
ters, one in its entirety and portion of stituted fair use of book, precluding in-
other, from copyrighted academic non-fic- fringement claim under Copyright Act,
tion book about ancient Egyptian materials even though excerpts’ combined 68 pages
and technology for use by students as amounted to 29.82% of book, since ex-
required reading for class constituted fair cerpts were used for nonprofit educational
use of book, precluding infringement claim purpose by nonprofit educational institu-
under Copyright Act, since excerpts were tion, excerpts promoted university’s peda-
used for nonprofit educational purpose by gogical aim, use did not affect potential
nonprofit educational institution, excerpts market for book itself, and use likely did
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1153
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

not affect value of work, given that digital from copyrighted academic non-fiction
permissions were not available at time of book about infectious disease for use by
use. 17 U.S.C.A. § 107. students as required reading for class con-
stituted fair use of book, precluding in-
30. Copyrights and Intellectual Property fringement claim under Copyright Act,
O58 even though excerpt was fairly dominated
State university’s unlicensed distribu- by author’s subjective analysis and evolu-
tion of unpaid digital copies of chapter tionary framework, since excerpt was used
from copyrighted academic non-fiction for nonprofit educational purpose by non-
book about learning vocabulary in another profit educational institution, excerpt’s 20
language for use by students as required pages amounted to 6.56% of book, excerpt
reading for class constituted fair use of was not heart of work, excerpt furthered
book, precluding infringement claim under pedagogical purpose of course, use did not
Copyright Act, since excerpt was used for cause any harm to potential market for
nonprofit educational purpose by nonprofit book itself, and use had no impact on value
educational institution, excerpt’s 36 pages of work, given that digital permissions
amounted to 7.33% of book, subject chap- were not available at time of use. 17
ter was not heart of work, and use likely U.S.C.A. § 107.
caused no damage to value of work, given
that digital permissions were not available 33. Copyrights and Intellectual Property
at time of use. 17 U.S.C.A. § 107. O58

31. Copyrights and Intellectual Property State university’s unlicensed distribu-

O58 tion of unpaid digital copies of chapter
from copyrighted academic non-fiction
State university’s unlicensed distribu-
book about role of language in human cog-
tion of unpaid digital copies of chapter
nition for use by students as required
from copyrighted academic non-fiction
reading for class constituted fair use of
book about international health organiza-
book, precluding infringement claim under
tions for use by students as required read-
ing for class constituted fair use of book, Copyright Act, since excerpt was used for
precluding infringement claim under nonprofit educational purpose by nonprofit
Copyright Act, since excerpt was used for educational institution, excerpt’s 23 pages
nonprofit educational purpose by nonprofit amounted to 3.75% of book, excerpt was
educational institution, excerpt was objec- not heart of work, excerpt served pedagog-
tively descriptive, excerpt’s 22 pages ical purpose of course, use did not have
amounted to 6.2% of book, subject chapter negative impact on potential market for
was not heart of work, and use did not book itself, and there likely was no repeti-
harm value of work, given that licensing in tive use of excerpts, given declining per-
any form, digital or otherwise, was not missions sales prior to challenged use of
available at time of use. 17 U.S.C.A. excerpt. 17 U.S.C.A. § 107.
§ 107.
34. Copyrights and Intellectual Property
32. Copyrights and Intellectual Property O58
O58 State university’s unlicensed distribu-
State university’s unlicensed distribu- tion of unpaid digital copies of chapter
tion of unpaid digital copies of chapter from copyrighted academic non-fiction
1154 446 FEDERAL SUPPLEMENT, 3d SERIES

book about United States history for use stituted fair use of book, precluding in-
by students as required reading for class fringement claim under Copyright Act,
constituted fair use of book, precluding since excerpts were used for nonprofit ed-
infringement claim under Copyright Act, ucational purpose by nonprofit educational
since excerpt was used for nonprofit edu- institution, excerpts’ combined 13 pages
cational purpose by nonprofit educational amounted to 3.56% of book, neither ex-
institution, excerpt’s 35 pages amounted to cerpt was heart of work, use did not im-
7% of book, excerpt was not heart of work, pact market for book itself, and use did not
excerpt advanced pedagogical aim of affect value of work, given that licensing
course, use did not have negative impact for digital excerpts was unavailable at time
on market for book itself, and it was un- of use. 17 U.S.C.A. § 107.
likely that there would have been much
repetitive use of excerpt in light of very 37. Copyrights and Intellectual Property
small permissions sales at time of use. 17 O58
U.S.C.A. § 107. State university’s unlicensed distribu-
tion of unpaid digital copies of chapter
35. Copyrights and Intellectual Property
from copyrighted academic non-fiction
O58
book about quantitative and qualitative re-
State university’s unlicensed distribu- search for use by students as required
tion of unpaid digital copies of chapter reading for class constituted fair use of
from copyrighted academic non-fiction book, precluding infringement claim under
book about American cultural history for Copyright Act, even though there was like-
use by students as required reading for lihood of small repetitive use of excerpt
class constituted fair use of book, preclud- which could have negative impact on mar-
ing infringement claim under Copyright ket for permissions sale, since publisher’s
Act, even though excerpt was dominated permissions revenue represented only
by analytical components, since excerpt small slice of overall value of work, use did
was used for nonprofit educational purpose not impact market for purchase of book
by nonprofit educational institution, ex- itself, excerpt was used for nonprofit edu-
cerpt’s 24 pages amounted to 6.09% of cational purpose by nonprofit educational
book, excerpt was not heart of work, ex- institution, excerpt’s 16 pages amounted to
cerpt narrowly served university’s peda- 2.04% of book, excerpt served pedagogical
gogical goals, use did not impact market purpose of course, and excerpt was not
for book itself, and use caused no harm to heart of work. 17 U.S.C.A. § 107.
value of work, given that licensing for digi-
tal excerpts was unavailable at time of use. 38. Copyrights and Intellectual Property
17 U.S.C.A. § 107. O58
State university’s unlicensed distribu-
36. Copyrights and Intellectual Property
tion of unpaid digital copies of chapter
O58
from copyrighted academic non-fiction
State university’s unlicensed distribu- book about American suburbanization for
tion of unpaid digital copies of portions of use by students as required reading for
two chapters from copyrighted academic class constituted fair use of book, preclud-
non-fiction book about ethics for use by ing infringement claim under Copyright
students as required reading for class con- Act, even though author opinion dominated
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1155
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

work, since excerpt was used for nonprofit cational institution, excerpt’s 33 pages
educational purpose by nonprofit edu- amounted to 6.61% of book, excerpt fur-
cational institution, excerpt’s 26 pages thered pedagogical goals of course, excerpt
amounted to 6.42% of book, excerpt fur- was not heart of work, use did not have
thered pedagogical aims of course, excerpt negative impact on market for purchase of
was not heart of work, use did not impact book itself, and it was unlikely that use
market for purchase of book itself, and substantially harmed value of book in light
there was relatively little risk of repetitive of small amount of permissions payments
use of excerpt, given that there was only suggesting little demand for excerpt at
slight interest in excerpt at time of use. time of use. 17 U.S.C.A. § 107.
17 U.S.C.A. § 107.
41. Copyrights and Intellectual Property
39. Copyrights and Intellectual Property O58
O58
State university’s unlicensed distribu-
State university’s unlicensed distribu- tion of unpaid digital copies of chapter
tion of unpaid digital copies of chapter from copyrighted academic non-fiction
from copyrighted academic non-fiction book about United States foreign policy
book about public housing and urban in- for use by students as required reading for
equality for use by students as required class constituted fair use of book, preclud-
reading for class constituted fair use of ing infringement claim under Copyright
book, precluding infringement claim under Act, since excerpt was used for nonprofit
Copyright Act, even though excerpt’s 33 educational purpose by nonprofit edu-
pages amounted to 10.78% of book and cational institution, excerpt’s 36 pages
excerpt was complete, rather than partial, amounted to 6.94% of book, excerpt was
chapter, since excerpt was used for non- not heart of work, use did not have nega-
profit educational purpose by nonprofit ed- tive impact on market for purchase of book
ucational institution, excerpt served peda- itself, and it was unlikely that value of
gogical purpose of course, excerpt was not work was substantially damaged by sub-
heart of work, use likely had no impact on ject unpaid use of excerpt, given either
sales of book itself, and use did not impact very small or nonexistent permissions
value of work, given that permissions for market at time of use. 17 U.S.C.A. § 107.
excerpts were not available at time of use.
17 U.S.C.A. § 107. 42. Copyrights and Intellectual Property
O58
40. Copyrights and Intellectual Property
State university’s unlicensed distribu-
O58
tion of unpaid digital copies of introduction
State university’s unlicensed distribu- and chapter from copyrighted academic
tion of unpaid digital copies of chapter non-fiction book about Latin American pol-
from copyrighted academic non-fiction itics for use by students as required read-
book about United States foreign policy ing for class constituted fair use of book,
for use by students as required reading for precluding infringement claim under Copy-
class constituted fair use of book, preclud- right Act, even though excerpts’ combined
ing infringement claim under Copyright 38 pages amounted to 12.71% of book,
Act, since excerpt was used for nonprofit since excerpts were used for nonprofit ed-
educational purpose by nonprofit edu- ucational purpose by nonprofit educational
1156 446 FEDERAL SUPPLEMENT, 3d SERIES

institution, and use did not harm publisher, stantial harm to publisher, given market
given that digital permissions were not for licensed digital excerpts. 17 U.S.C.A.
available at time of use. 17 U.S.C.A. § 107.
§ 107.
45. Copyrights and Intellectual Property
43. Copyrights and Intellectual Property O58
O58
State university’s unlicensed distribu-
State university’s unlicensed distribu- tion of unpaid digital copies of chapter
tion of unpaid digital copies of portions of from copyrighted academic non-fiction
two chapters from copyrighted academic book about qualitative research for use by
non-fiction book about child-rearing in dif- students as required reading for class was
ferent cultures for use by students as re- not fair use of book, and thus infringed
quired reading for class constituted fair copyright, even though excerpt was used
use of book, precluding infringement claim for nonprofit educational purpose by non-
under Copyright Act, since excerpts were profit educational institution, excerpt’s 18
used for nonprofit educational purpose by pages amounted to 1.58% of book, excerpt
nonprofit educational institution, excerpts’ was not heart of work, and use did not
combined 23 pages amounted to 7.85% of impact market for book itself, since wide-
book, excerpts furthered pedagogical pur- spread use of similar unlicensed excerpts
pose of course, excerpts were not full chap- could cause substantial harm to publisher,
ters, excerpts were not heart of work, use given high demand for licensed digital ex-
did not have negative impact on market for cerpts at time of use. 17 U.S.C.A. § 107.
purchase of book itself, and there was little
risk of repetitive use of excerpts in light of 46. Copyrights and Intellectual Property
low demand for excerpts at time of use. O58
17 U.S.C.A. § 107. State university’s unlicensed distribu-
tion of unpaid digital copies of two chap-
44. Copyrights and Intellectual Property
ters from copyrighted semi-academic non-
O58
fiction book about user-based evaluation
State university’s unlicensed distribu- for use by students as required reading for
tion of unpaid digital copies of two chap- class was not fair use of book, and thus
ters from copyrighted academic non-fiction infringed copyright, even though excerpts
book about organization of power in the were used for nonprofit educational pur-
United States for use by students as re- pose by nonprofit educational institution,
quired reading for class was not fair use of excerpts’ combined 37 pages amounted to
book, and thus infringed copyright, even 8.28% of book, excerpts were not heart of
though excerpts were used for nonprofit work, and use did not impact market for
educational purpose by nonprofit edu- book itself, since amount used became dis-
cational institution and use did not impact qualifying when combined with fact that
market for book itself, since excerpts’ com- two complete, rather than partial, chapters
bined 56 pages amounted to 12.5% of were used, and widespread use of similar
pages of book, author opinion and evalua- unlicensed excerpts could cause substantial
tion dominated excerpts, chapters were harm to publisher, given market for li-
heart of work, and widespread use of simi- censed digital excerpts at time of use. 17
lar unlicensed excerpts could cause sub- U.S.C.A. § 107.
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1157
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

Edward Bryan Krugman, John H. Anthony B. Askew, Stephen M. Schaet-

Rains, IV, Bondurant Mixson & Elmore, zel, Lisa Pavento, Robert James Leonard,
LLP, Atlanta, GA, Jonathan Bloom, Pro Meunier Carlin & Curfman, LLC, John
Hac Vice, R. Bruce Rich, Randi W. Singer, Weldon Harbin, King & Spalding, LLP,
Pro Hac Vice, Todd D. Larson, Weil Katrina M. Quicker, Baker Hostetler,
Gotshal & Manges, New York, NY, for LLP, Mary Josephine Leddy Volkert,
Plaintiffs. State of Georgia Law Department, Atlan-
ta, GA, for Defendant C. Dean Alford.
Katrina M. Quicker, Baker Hostetler,
LLP, Stephen M. Schaetzel, Anthony B.
OPINION
Askew, Lisa Pavento, Mary Katherine
Bates, Robert James Leonard, Meunier ORINDA D. EVANS, UNITED
Carlin & Curfman, LLC, John Weldon STATES DISTRICT JUDGE
Harbin, Natasha Horne Moffitt, King &
Table of Contents
Spalding, LLP, Mary Josephine Leddy
Volkert, State of Georgia Law Depart- I. INTRODUCTIONTTT1159
ment, Atlanta, GA, for Defendants J. L.
Albert, Kenneth R. Bernard, Jr., Robert II. FAIR USE ANALYSIS FOR INDI-
F. Hatcher, W. Mansfield Jennings, Jr., VIDUAL INFRINGEMENT CLAIMS:
James R. Jolly, Donald M. Leebern, Jr., FINDINGS OF FACT AND CONCLU-
William NeSmith, Jr., Doreen Stiles Poit- SIONS OF LAWTTT1162
evint, Willis J. Potts, Jr., Kessel Stelling, A. Professor KaufmannTTT1162
Jr., Benjamin J. Tarbutton, III, Richard L.
Maymester 2009: EPRS 8500TTT1162
Tucker, Mark P. Becker, Nancy Seamans,
Larry R. Ellis, Larry Walker, Neil L. 1. The Craft of Inquiry (Ox-
Pruitt, Jr. ford)TTT1162

Anthony B. Askew, Stephen M. Schaet- 2. Handbook of Feminist Research

zel, Mary Katherine Bates, Robert James (Sage)TTT1165
Leonard, Meunier Carlin & Curfman, 3. Handbook of Social Theory
LLC, Katrina M. Quicker, Baker Hostet- (Sage)TTT1168
ler, LLP, Mary Josephine Leddy Volkert,
4. The Sage Handbook of Qualitative
State of Georgia Law Department, John
Research (Third) (Sage)TTT1171
Weldon Harbin, Natasha Horne Moffitt,
King & Spalding, LLP, Atlanta, GA, for 5. Handbook of Critical & Indigenous
Defendant Risa Palm. Methodologies (Sage)TTT1174
6. Handbook of Narrative Inquiry
Anthony B. Askew, Stephen M. Schaet-
(Sage)TTT1176
zel, Lisa Pavento, Mary Katherine Bates,
Robert James Leonard, Meunier Carlin & Summer 2009: EPRS 8510TTT1179
Curfman, LLC, John Weldon Harbin, Na- 7. The Sage Handbook of Qualitative
tasha Horne Moffitt, King & Spalding, Research (Second) (Sage)TTT1179
LLP, Katrina M. Quicker, Baker Hostet-
Fall 2009: EPRS 8500TTT1182
ler, LLP, Atlanta, GA, for Defendants
Rutledge A. Griffin, Jr., C. Thomas Hop- 8. The Craft of Inquiry (Ox-
kins, Jr., Philip A. Wilheit, Sr. ford)TTT1182
1158 446 FEDERAL SUPPLEMENT, 3d SERIES

9. Approaches to Qualitative Research Fall 2009: MUS 8840TTT1211

(Sage)TTT1182
24. The Organ as a Mirror of Its Time
10. Handbook of Feminist Research (Oxford)TTT1211
(Sage)TTT1184
E. Professor DixonTTT1213
11. Handbook of Narrative Inquiry
Fall 2009: AAS 3000TTT1213
(Sage)TTT1186
12. The Sage Handbook of Qualitative 25. The Slave Community (Ox-
Research (Third) (Sage)TTT1188 ford)TTT1213

13. Handbook of Social Theory 26. African American Single Mothers

(Sage)TTT1191 (Sage)TTT1216
27. Black Children (Sage)TTT1219
B. Professor EspositoTTT1191
28. Black Families (Third)
Summer 2009: EPSF 8280TTT1191
(Sage)TTT1223
14. Handbook of Feminist Research
(Sage)TTT1191 F. Professor HartwigTTT1226

15. The Sage Handbook of Qualitative Fall 2009: AH 4900TTT1226

Research (Second) (Sage)TTT1193 29. Ancient Egyptian Materials &
16. The Sage Handbook of Qualitative Technology (Cambridge)TTT1227
Research (First) (Sage)TTT1195
G. Professor KimTTT1228
Fall 2009: EPRS 8520TTT1198
Fall 2009: AL 8550TTT1228
17. Theoretical Frameworks in Quali-
30. Fundamental Considerations in
tative Research (Sage)TTT1198
Language Testing (Oxford)TTT1228
C. Professor KrugerTTT1200 31. Assessing Speaking (Cam-
Summer & Fall 2009: EPY 7090TTT1200 bridge)TTT1230
18. Awakening Children’s Minds (Ox- 32. Learning Vocabulary in Another
ford)TTT1201 Language (Cambridge)TTT1231
Fall 2009: EPY 8220TTT1202 H. Professor McCombieTTT1233
19. Understanding Trauma (Cam- Fall 2009: ANTH 4440TTT1233
bridge)TTT1202
33. International Health Organisa-
D. Professor OrrTTT1204 tions (Cambridge)TTT1233
Summer 2009: MUS 8860TTT1204 34. Evolution of Infectious Disease
20. Liszt: Sonata in B Minor (Cam- (Oxford)TTT1235
bridge)TTT1204 I. Professor AnggoroTTT1236
21. The Cambridge Companion to
Fall 2009: EPY 8960TTT1236
Mendelssohn (Cambridge)TTT1206
35. Language Acquisition & Conceptu-
22. The Cambridge Companion to
al Development (Cambridge)TTT1236
Schumann (Cambridge)TTT1208
J. Professor DavisTTT1239
23. The Music of Berlioz (Ox-
ford)TTT1209 Fall 2009: HIST 7010TTT1240
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1159
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

36. Region, Race & Reconstruction 46. The Power Elite (Oxford)TTT1264
(Oxford)TTT1240
R. Professor OhmerTTT1266
37. The Unpredictable Past (Ox-
ford)TTT1242 Fall 2009: SW 8200TTT1266
47. The Sage Handbook of Qualitative
K. Professor FreemanTTT1244
Research (Second) (Sage)TTT1266
Fall 2009: JOUR 4800TTT1244
48. Utilization-Focused Evaluation
38. Living Ethics (Oxford)TTT1244 (Sage)TTT1269
L. Professor MoloneyTTT1245 III. SUMMARYTTT1271
Fall 2009: NURS 8035TTT1246 IV. RELIEF TO BE GRANTEDTTT1272
39. Handbook of Mixed Methods
V. COSTS AND ATTORNEYS’
(Sage)TTT1246
FEESTTT1272
M. Professor LasnerTTT1249
Fall 2009: PERS 2001TTT1249 I. INTRODUCTION

40. Crabgrass Frontier (Ox- This copyright infringement case is

ford)TTT1249 again before the Court on remand from
41. The Politics of Public Housing the United States Court of Appeals for the
(Oxford).TTT1252 Eleventh Circuit. Specifically, in Cam-
bridge IV 1 the Court of Appeals has given
N. Professor HanklaTTT1253 the following direction:
Fall 2009: POLS 3450TTT1253 In short, we held in Cambridge II
42. Contemporary Cases in U.S. For- that the District Court’s original fourth-
eign Policy (Sage)TTT1254 factor analysis was correct. That holding
precluded the district court from revisit-
43. U.S. Foreign Policy (Sage)TTT1256 ing the fourth factor in Cambridge III.
O. Professor McCoyTTT1259 On remand, the district court must rein-
state its original findings that the fourth
Fall 2009: POLS 8250TTT1259 factor strongly disfavors fair use for the
44. Regimes & Democracy in Latin 31 excerpts for which the publishers
America (Oxford)TTT1259 proved the availability of digital licenses.

P. Professor WhittenTTT1261 Cambridge IV, 906 F.3d 1290, 1300 (11th

Cir. 2018).
Fall 2009: PSYC 4030TTT1261
In Cambridge IV the Court of Appeals
45. A World of Babies (Cam-
also held as follows:
bridge)TTT1261
(1) [this court] erred in utilizing a
Q. Professor HarveyTTT1264
quantitative rubric (25% for factor
Fall 2009: SOCI 8030TTT1264 one; 5% for factor two; 30% for

1. The previous opinions of this Court are des- of Appeals are designated as Cambridge II
ignated herein as Cambridge I and Cam- and Cambridge IV.
bridge III. The previous opinions of the Court
1160 446 FEDERAL SUPPLEMENT, 3d SERIES

factor three and 40% for factor educational purpose by a nonprofit

four). Instead, the court is directed educational institution, even though
to make a qualitative assessment of Defendants’ use is nontransforma-
the four factors combined without tive and it serves the same overall
‘‘a mathematical formula at any function as the original copyrighted
step of its analysis.’’ work. Cambridge II, 769 F.3d 1232,
Id. at 1300. The Court of Appeals further 1267 (11th Cir. 2014).
stated in Cambridge IV: (2) Regarding factor two, where the
We reiterate our holding in Cambridge excerpts of Plaintiffs’ works contain
II that ‘‘the fourth factor looms large in ‘‘evaluative, analytical or subjective-
the overall fair use analysis for each ly descriptive material that sur-
excerpt in this appeal, 769 F.3d at 1275, passes the bare facts necessary to
but we instruct the district court to eval- communicate information, or de-
uate the four factors qualitatively, not rives from the author’s experiences
quantitatively, and to take care to con- or opinions’’ id. at 1270, the second
sider them holistically ‘‘in the purposes factor is neutral, or even weighs
of copyright.’’ against fair use, or even weighs
‘‘against fair use in cases of ex-
Id. at 1301.
cerpts that [are] dominated by such
Finally, the Court of Appeals held in material.’’ Id. at 1270.
Cambridge IV that this court erred when
it considered the cost of purchasing licens- (3) The second factor is ‘‘of relatively
es in finding that the third factor favored little importance in this case.’’ Id. at
fair use in two instances. Id. at 1301. 1270.

The bottom line of the Court of Appeals’ (4) The third factor addresses ‘‘wheth-
decision in Cambridge IV is the following: er Defendants have ‘helped them-
selves overmuch’ of the copyrighted
The district court must reinstate its ear-
work in light of the purpose and
lier findings that factor four strongly
character of the use.’’ Id. at 1271.
disfavors fair use for 31 of the 48 ex-
cerpts. The district court must eschew a (5) Factor three is intertwined with
quantitative approach to the weighing factor one and also with factor four
and balancing of the fair use factors and in that it ‘‘partly functions as a
give each excerpt the holistic, qualitative heuristic to determine the impact
and individual analysis that the Act de- on the market for the original.’’ Id.
mands. And the district court must omit at 1271.
any consideration of price from its anal-
(6) In determining the permissible
ysis of the third factor.
quantity of materials which may be
Id. at 1302. copied under factor three one must
In Cambridge II the Court of Appeals consider ‘‘not only TTT the quantity
made the following rulings which continue of materials used, but TTT their
to be pertinent to resolution of the fair use quality and importance, too.’’ Id. at
defense. 1271.
(1) Factor one favors fair use where (7) Factor four counts more than any
Defendants’ use is for a nonprofit of the other factors where Defen-
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1161
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

dants’ use is nontransformative and set forth in previous opinions of this Court
Plaintiffs’ works are used for one of and the Court of Appeals, a brief overview
the purposes for which they are is provided here before turning to the new
marketed. Id. at 1275. Put another findings of fact and conclusions of law
way, factor four ‘‘looms large’’ in which are necessary to address the rulings
the fair use analysis in this case. Id. of the Court of Appeals in Cambridge IV.
at 1275.
Plaintiffs are three publishing houses
(8) Factor four considers the extent of that specialize in academic works. Plaintiff
market harm caused by Defen- Cambridge University Press (‘‘Cam-
dants’ actions and ‘‘whether unre- bridge’’) is the not-for-profit publisher of
stricted and widespread conduct of the University of Cambridge in Cam-
the sort engaged in by the Defen- bridge, England. Oxford University Press,
dants would result in a substantial- Inc. is a not-for-profit United States corpo-
ly adverse impact on the potential ration which is affiliated with Oxford Uni-
market.’’ Id. at 1275. The adverse versity in England. Plaintiff Sage Publica-
impact is primarily that of market tions, Inc. (‘‘Sage’’) is a for-profit Delaware
substitution; i.e., ‘‘use that sup- corporation.
plants any part of the normal mar-
Defendants are officials affiliated with
ket for a copyrighted work.’’ Id. at
Georgia State University in Atlanta, Geor-
1275. ‘‘The importance of the fourth
gia (‘‘Georgia State’’). Georgia State is one
factor will vary, not only with the
part of the University of Georgia system.
amount of harm, but also with the
relative strength of the showing on In early 2009 Georgia State formally
the other factors.’’ Id. at 1275. adopted a program which allowed profes-
sors to post excerpts of copyrighted works
(9) The main question under the fourth
on its electronic reserve system; students
factor is not whether Defendants’
enrolled in courses could digitally access
use of Plaintiffs’ works caused
and copy the excerpts. Access to the ex-
Plaintiffs to lose some potential rev-
cerpts ended at the end of the course and
enue. Rather it is ‘‘whether Defen-
restrictions applied to the use of the ex-
dants’ use--taking into account the
cerpts. No license fees were paid to Plain-
damage that might occur if ‘every-
tiffs for these uses. This case concerns the
body did it’ would cause substantial
unlicensed use of excerpts of certain of
economic harm such that allowing it
Plaintiffs’ copyrighted works during three
would frustrate the purposes of
semesters in 2009 following Georgia
copyright.’’ Id. at 1276.
State’s adoption of the electronic reserves
(10) ‘‘Where the evidence shows there (‘‘ERES’’) policy. A joint filing by the par-
is no significant demand for an ties on March 15, 2011 reflected 99 claimed
excerpt, the likelihood of repetitive infringements 2 [Doc. 266].
use is diminished.’’ Id. at 1279.
Defendants contend that the use of unli-
While the factual background relevant to censed excerpts pursuant to the 2009
consideration of these issues is extensively ERES program was protected by the fair

2. During the nonjury trial beginning May 17, claims and added one claim at the close of
2011 Plaintiffs’ evidence addressed 74 in- Plaintiffs’ case in chief. Plaintiffs did this by
fringement claims. Plaintiffs dropped 25 filing a notice in the Clerk’s Office on June 1,
1162 446 FEDERAL SUPPLEMENT, 3d SERIES

use defense as set forth in 17 U.S.C. § 107. Education [Tr. Vol. 5, Doc. 403 at 35-36].
This statute provides: Professor Kaufmann’s courses teach stu-
Notwithstanding the provisions of 106 dents methods for conducting qualitative
and 106A, the fair use of a copyrighted research, and consist predominantly of
work, including such use by reproduc- Ph.D. students [Id.].
tion in copies or phonorecords or by any
other means specified by that section, EPRS 8500 Qualitative/Interpretive Re-
for purposes such as criticism, comment, search in Education I, Maymester 2009
news reporting, teaching (including mul-
EPRS 8500 was taught by Professor
tiple copies for classroom use), scholar-
Jodie Kaufmann during Maymester and
ship, or research, is not an infringement
fall of 2009. The course syllabus required
of copyright. In determining whether
the use made of a work in any particular that students buy three texts, and that
case is a fair use the factors to be con- they complete several required readings
sidered shall include-- which had been posted on Georgia State’s
(1) the purpose and character of the electronic reserves system (‘‘ERES’’) [Tr.
use, including whether such use is Vol. 5, Doc. 403 at 68-76, 143-45; Pls. Exs.
of a commercial nature or is for 516, 518].
nonprofit educational purposes; 1. The Craft of Inquiry: Theories,
(2) the nature of the copyrighted work; Methods, Evidence (Robert R.
(3) the amount and substantiality of Alford, Oxford 1998)
the portion used in relation to the
copyrighted work as a whole; and The Craft of Inquiry was first published
by Oxford in 1998. It is a 176 page, eight
(4) the effect of the use upon the po-
tential market for or value of the chapter book authored by Robert R. Al-
copyrighted work. ford. It provides an overview of sociologi-
The fact that work is unpublished shall cal methodology and the relationships be-
not itself bar a finding of fair use if such tween the various approaches [Pls. Ex.
finding is made upon consideration of all 372]. The Craft of Inquiry retails for
the above factors. $32.95 [Jt. Ex. 5 at D-10]. The net sales
17 U.S.C. § 107. revenue from the date of first publication
through November 7, 2010 was $86,325.00
II. FAIR USE ANALYSIS FOR INDI- [Pls. Ex. 357]. Permissions to make li-
VIDUAL INFRINGEMENT
censed digital excerpts of the book were
CLAIMS: FINDINGS OF FACT
available in 2009 through Copyright Clear-
AND CONCLUSIONS OF LAW
ance Center (‘‘CCC’’). From July 1, 2004
A. Professor Kaufmann until December 1, 2010, The Craft of In-
Professor Kaufmann is an assistant pro- quiry earned $12.36 in ECCS permissions
fessor at Georgia State in the College of revenue [Pls. Ex. 375; see also Attachment

2011 that they were taking this action [Doc. lish a prima facie case of copyright infringe-
361]. The filing of the notice was announced ment (because of missing documents needed
by Plaintiffs in open court on June 1, 2011. to establish the publisher’s ownership of the
Defendants did not object to the dismissal of work or the lack of evidence reflecting copy-
the 25 claims or to adding one new claim. right registration) for 26 claims. The net re-
Defendants did not request that the 25 claims sult was that only 48 infringement claims
be dismissed with prejudice. In Cambridge I were left for decision on the merits in Cam-
this Court found that Plaintiffs failed to estab- bridge I.
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1163
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

to this Order].3 Defendants’ use of the excerpt was non-

One of the posted readings was an ex- transformative (in this case, mirror image
cerpt from The Craft of Inquiry: Theories, copying). It serves the same overall func-
Methods, Evidence (‘‘The Craft of Inqui- tion as the copyrighted work. The excerpt
ry’’), by Robert R. Alford [Pls. Ex. 372]. was used for a nonprofit educational pur-
Pages 21-31 (11 pages) of The Craft of pose by a nonprofit educational institution.
Inquiry, the entirety of chapter two and Thus, factor one favors fair use.
6.25% of the book, were uploaded to The second fair use factor is ‘‘the nature
ERES for distribution to the students in of the copyrighted work.’’ The Court
Professor Kaufmann’s EPRS 8500 May-
makes the following findings in that re-
mester 2009 course. This was required
gard: The Craft of Inquiry is an academic 5
reading [Doc. 403 at 120-21]. Had permis-
non-fiction 6 work concerning the process
sions been paid for the digital distribution
of constructing a research project. The
of this excerpt, Oxford would have earned
author’s thesis is that three major para-
less than $14.89 in net revenue from per-
digms of inquiry--multivariate, interpretive
missions income.4 The cost to students in
and historical--should be considered in this
the course would have been $20.16.
process. Various chapters of the book dis-
Fair Use Analysis cuss the three major paradigms. Professor
[1] As to the first element of fair use Kaufmann assigned the reading (via
(‘‘the purpose and character of the use’’), ERES) of chapter two, pages 21-31, ‘‘De-

3. Permissions revenues earned by Plaintiff- Furthermore, in Fiscal Year 2009, CCC

publishers serve as a useful proxy for estimat- paid royalties of $935,450.35 to Cambridge,
ing demand for licensed excerpts of the works $1,650,323.00 to Oxford, and $2,136, 912.89
at issue in this case. However, the Court does to Sage [Stipulations, Doc. 276 ¶ 33]. These
acknowledge that permissions revenues may figures make clear that Sage and Oxford had
not account for the full extent of copying of a larger presence in the excerpt market in
excerpts occurring at universities by profes- 2009 than did Cambridge.
sors and students. Based on Dr. Crews’s re-
port, the Court infers that unpaid use of ex- 4. The amount earned would have been
cerpts occurred at many universities other $20.16, the amount charged by CCC, [Jt. Ex.
than Georgia State in 2009. However, even if 5 at D-10], less the $3.00 service fee charged
earned permissions revenues do not reflect all
by CCC to users, less $2.57 in fees charged by
uses of an excerpt, they are still instructive as
CCC to publishers, less royalties Oxford is
to the relative demand for excerpts of various
obligated to pay the author.
works. For example, it is evident that a work
such as The Sage Handbook of Qualitative
Research (Second Edition), which earned 5. Almost all of the books involved in this case
$6,324.61 in ECCS revenue (ECCS revenue are academic in nature. By ‘‘academic,’’ the
means revenue from permissions which allow Court means ‘‘Of, relating to, or characteristic
the user to make digital copies. ECCS permis- of an educational institution or environment;
sions are obtained from CCC) from July 1, concerned with the pursuit of research, edu-
2004 through December 1, 2010 and cation, and scholarship; scholarly, education-
$45,498.72 in in-house permissions sales al, intellectual.’’ Academic, Oxford English
(probably digital) from Sage from 2004 Dictionary (3d ed. 2011).
through 2010, has stronger demand for li-
censed digital excerpts among academic users 6. All of the books involved in this case are
than Oxford’s The Craft of Inquiry, which was non-fiction.
used in the same course but has earned only
$12.36 through ECCS over the same time
period.
1164 446 FEDERAL SUPPLEMENT, 3d SERIES

signing a Research Project.’’ This chapter 7 small. This chapter is not the heart of the
advises that the writer should focus on the work. While chapter two has no greater
cognitive, not the emotional, choices that value than any other chapter of the book,
are presented. The writer should start the the Court does consider that a whole chap-
project by identifying a problem of interest ter of the book has greater value (quality)
and identifying theoretical and empirical than part of a chapter, because it covers a
entry points to the discussion. Then, the complete, cohesive topic. The favored edu-
writer should move back and forth be- cational use of factor one--rather than a
tween those ‘‘tracks of analysis’’ to formu- commercial use--tends to support more
late one or more research questions. Once copying rather than less; on the other
one or more research questions have been hand, the threat of market substitution
identified, the writer should turn to ‘‘a set pulls toward favoring less copying, rather
of choices you will make in your project,’’ than more. Taking into account the small
namely the three paradigms of inquiry. percentage of the book and the small num-
The writer’s style in this chapter is mod- ber of pages in the excerpt, the Court
estly conversational but still rather formal. finds the potential impact of market sub-
He addresses the reader as ‘‘you’’ and stitution to be within acceptable limits.
occasionally refers to himself as ‘‘I.’’ The Taking all of the foregoing into account,
chapter is objectively descriptive of the factor three favors fair use.
various steps in developing a research As to factor four (‘‘the effect of the use
question and the theoretical and empirical upon the potential market for or value of
‘‘tracks of analysis.’’ Chapter two has no the copyrighted work’’), the Court of Ap-
humorous or fanciful aspects. It is didactic peals held that the small excerpts involved
and prescriptive in a conventionally aca- in this case did not substitute for the
demic manner. It does contain some ele- books. Cambridge II, 769 F.3d at 1266.
ments of author opinion, though they are Hence, the potential market for the copy-
not identified as such. Author opinion does righted work was not affected. However,
not dominate. Under the standard set by
permissions to make digital copies of ex-
the Court of Appeals, factor two neither
cerpts from The Craft of Inquiry were
favors nor disfavors fair use. It is neutral.
readily available from CCC in 2009 [Pls.
As to factor three (‘‘the amount and Ex. 375] and Defendants did not pay for
substantiality of the portion used in rela- permissions (licenses) to copy the excerpt.
tion to the copyrighted work as a whole’’), Defendants’ unpaid use cost Oxford $14.89,
Professor Kaufmann uploaded one full thereby causing small but actual damage
chapter, 6.25% of the book (11 pages) [Pls. to the value of Oxford’s copyrighted work
Ex. 372]. This selection was narrowly tai- and depriving Oxford of $14.89 in permis-
lored to fit the pedagogical aim of the sions revenue. If ‘‘everybody’’ (colleges and
course and was not excessive for this pur- universities) had programs like Georgia
pose. The percentage of the book used is State’s allowing unpaid copying of ex-

7. The Court notes that factor two addresses the balance of the copyrighted work to deter-
‘‘the nature of the copyrighted work,’’ not mine that the nature of the excerpt fairly
‘‘the nature of the excerpt taken. As noted in reflects the nature of the copyrighted work.
Cambridge I, this Court has conducted a de- That approach has been continued in this
tailed, close examination of the excerpts used Opinion as well.
by Defendants and has sufficiently examined
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1165
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

cerpts, Oxford could lose substantial reve- 2. Handbook of Feminist Research:

nues from permissions sales excerpts of Theory and Praxis (Sharlene Nagy
this work, causing substantial damage to Hesse-Biber ed., Sage 2006)
the value of the copyrighted work. Factor The Handbook of Feminist Research
four strongly disfavors fair use. was first published by Sage in 2006 [Pls.
Ex. 247]. It is a 767 page, 43 chapter
In summary, factor one favors fair use;
volume edited by Sharlene Nagy Hesse-
factor two is neutral; factor three favors
Biber. The contributed chapters analyze
fair use; and factor four strongly disfavors feminist approaches to research methodol-
fair use. The Court will look further and ogy [Pls. Ex. 243; Jt. Ex. 5 at D-11]. The
will conduct a holistic evaluation for the Handbook of Feminist Research retails for
purpose of deciding the fair use defense. $146.00 [Jt. Ex. 5 at 11]. The book earned
The record evidence shows that Oxford net sales revenue in the amount of
$94,085.88 between publication and the end
has gotten little to no permissions income
of 2010 [Pls. Ex. 248]. There is no evidence
from sales of excerpts of the book since its
in the record reflecting that the work was
publication in 1998. Specifically, Oxford
available for licensed digital excerpts
only received $12.36 in electronic course
through CCC in 2009. However, licensed
content service (‘‘ECCS’’) permissions
digital excerpts of the book were available
from CCC in 2006 8 and $188.62 in Aca-
through Sage’s in-house permissions pro-
demic Permissions Service (‘‘APS’’) reve-
gram, and the book earned $938.46 in per-
nue in 2008 [Pls. Ex. 375]. There were no missions revenue from 2008 through the
permissions sales in 2009 [Pls. Ex. 375]. end of 2010 [Pls. Ex. 248]. In 2009, permis-
Oxford sold no inhouse permissions for sions revenue was $96.45 [Pls. Ex. 248].
copying excerpts of The Craft of Inquiry
Professor Kaufmann distributed unpaid
between publication in 1998 and November
digital copies of chapter 26 from the
7, 2010.9 There was little likelihood of re-
Handbook of Feminist Research: Theory
petitive use of excerpts in 2009. This evi-
and Praxis (‘‘Handbook of Feminist Re-
dence mitigates the finding on factor four
search’’) for her Maymester 2009 Qualita-
and calls for a mitigating adjustment of
tive/Interpretive Research in Education
factor four, in Defendants’ favor.10 course. The excerpt is titled ‘‘Feminist Re-
Weighing the four factors together, plac- search Ethics,’’ by Judith Preissle [Tr. Vol.
ing the burden of proof on Defendants, 5, Doc. 403 at 112; Pls. Ex. 243]. The
giving factor four (as adjusted) extra excerpt (pages 515-534) is 20 pages long
weight and factor two insubstantial weight and constitutes 2.61% of the book’s 767
(in this instance, no weight because factor total pages [Pls. Ex. 243]. It was required
two is neutral) as directed by the Court of reading [Doc. 403 at 112; Pls. Ex. 516].
Appeals, Defendants prevail on the fair Fair Use Analysis
use defense. Accordingly, this infringe- [2] As to the first element of fair use
ment claim fails. (‘‘the purpose and character of the use’’),

8. The Court infers that if ECCS permissions 10. As used in this Opinion, a ‘‘mitigating ad-
were available in 2006 they would have been justment on factor four in Defendants’ favor’’
available in 2009. results in factor four favoring Plaintiffs less
than it otherwise would, but still favoring
9. The record evidence ends at November 7,
Plaintiffs.
2010.
1166 446 FEDERAL SUPPLEMENT, 3d SERIES

Defendants’ use of the excerpt is nontrans- studies performed by other feminist re-
formative (in this case, mirror image copy- searchers. The author complements these
ing). The excerpt fulfills the same purpose summaries with her own opinions on the
as the copyrighted work. The excerpt was ethics of feminist research. The additional
used for a nonprofit educational purpose observations provided by the author ap-
by a nonprofit educational institution. pear to come from her own analysis. Thus,
Thus, factor one favors fair use. the author’s contribution is twofold: she
synthesizes ethical conundrums within her
Moving to factor two (‘‘the nature of the
field while describing other unresolved
copyrighted work’’), the Handbook of Fem-
ethical issues. However, author opinion
inist Research is an academic book that
and analysis do not dominate. This ex-
aims to enhance the reader’s understand-
cerpt, therefore, neither favors nor disfa-
ing of feminist research. Through the in-
vors fair use under factor two.
troduction of different feminist theories
and methods, the book teaches the reader Moving to factor three (‘‘the amount and
how feminist schools of thought impact substantiality of the portion used in rela-
both feminist research and scholarship in tion to the copyrighted work as a whole’’),
women’s studies. The book contains four Professor Kaufmann uploaded 20 pages of
sections which (1) detail the rise of femi- the Handbook of Feminist Research to
nist research; (2) debate the existence of a ERES. These pages make up 2.61% of the
unique feminist method; (3) investigate total book, which is a very small (not mere-
theoretical and practical issues for feminist ly small) amount [Pls. Ex. 243]. This ex-
researchers; and (4) present a combination cerpt was narrowly tailored to fit the peda-
of various views within the field to foster gogical aim of the course. Additionally,
the creation of new research paradigms. chapter 26 does not constitute the heart of
Chapter 26, ‘‘Feminist Research Ethics,’’ the work. Factor three also considers the
begins by framing a concept of feminist purpose of the use and the impact of sub-
ethics that focuses on relationships be- stitution on the market for the work. Be-
tween the researcher and their subjects. cause the book was being used for a non-
The chapter then addresses how feminist profit, educational purpose, the very small
ethics has affected three areas of tradition- percentage of the book easily tilts in favor
al research: ethics of research purpose, of fair use. The page count adequately
ethics of research roles and conduct, and limits the substitution effect of the use; it
ethics of representation. The conclusion of results in a smaller potential loss of per-
the chapter focuses on how conducting missions payments. Even though a full
feminist research amplifies certain ethical chapter of the book was used, taking all of
challenges, including the disadvantages a the foregoing into account, factor three
researcher faces by remaining detached easily favors fair use.
from their subjects and the potential pow-
Factor four (‘‘the effect of the use upon
er wielded by participants.
the potential market for or value of the
Chapter 26 is written in a formal tone, copyrighted work’’).looks to the effect of
with use of the first person only to indicate Defendants’ use on the value of the copy-
the structure and direction of the work. righted work. Digital permissions were
The majority of the chapter is spent sum- available for excerpts of the Handbook of
marizing and detailing various ethical Feminist Research in 2009. By providing
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1167
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

the excerpts free to her class, Professor will conduct a holistic evaluation in order
Kaufmann deprived Sage of $31.30, less to rule on the fair use defense.
royalties payable to the external editor, in The Court first finds that a slight aug-
net revenue from permissions. This caused menting adjustment of factor three, in De-
actual, but tiny damage to the value of the fendants’ favor, should be made on account
copyrighted work. If ‘‘everyone’’ (colleges of the very small percentage (2.61%) of the
and universities) allowed unpaid use of copyrighted work which is represented by
copyrighted excerpts, it could cause sub- the excerpt chosen by Professor Kauf-
stantial harm to the value of the copyright- mann.
ed work. Factor four strongly disfavors In addition, a mitigating adjustment in
fair use. Defendants’ favor should also be made on
factor four. The Handbook of Feminist
In summary, factor one favors fair use; Research was first published in 2006 [Pls.
factor two is neutral; factor three favors Ex. 247]. The following table shows book
fair use; and factor four strongly disfavors sales for the Handbook of Feminist Re-
fair use. The Court will look further and search since its publication:

[Pls. Ex. 248]. the Handbook of Feminist Research, but

Over that same period of time, the Sage did provide the figures for their in-
Handbook of Feminist Research generat- house (presumably digital) permissions
ed a small amount of permissions revenue. sales. Those figures are listed below:
There is no evidence of CCC revenues for

[Pls. Ex. 248]. Defendants’ actions had some very small

Based on the data listed above, the impact on the value of the copyrighted
Court finds that the value of the copy- work, including the value of permissions
righted work in 2009 was almost exclusive- sales. But it is unlikely that Defendants’
ly in book sales, not permissions. Defen- use of unpaid excerpts (even assuming the
dants’ actions had no impact on book sales. widespread availability of programs like
1168 446 FEDERAL SUPPLEMENT, 3d SERIES

Georgia State’s) substantially damaged the evidence in the record reflecting that the
value of the copyrighted work. That is be- work was available for licensed digital ex-
cause there was little interest in excerpts cerpts through CCC in or before 2009.
of the Handbook of Feminist Research in Licensed digital excerpts of this work were
2009; therefore, there was little likelihood available directly from Sage; the book
of repetitive use of excerpts in 2009. For earned £2,470.01 from Sage’s in-permis-
that reason, the factor four outcome is sions program from 2001 through 2010
mitigated. [Pls. Ex. 291]. The Court infers that all of
the permissions sales were to customers in
Weighing the factors (as adjusted) to- the United Kingdom and that none were to
gether, placing the burden of proof on customers in the United States.
Defendants, and taking into account the
Professor Kaufmann requested that
Court of Appeals’ admonition that factor
pages 217-228 of the Handbook of Social
four ‘‘looms large,’’ the Court finds that
Theory, one chapter,11 be uploaded to
the overall weight of the four factors fa-
Georgia State’s ERES system for distribu-
vors fair use. Defendants accordingly pre-
tion to the students in her EPRS 8500
vail on their fair use defense as to the Maymester 2009 course as required read-
Handbook of Feminist Research. This ing [Tr. Vol. 5 at 113; Pls. Exs. 288, 516].
copyright infringement claim fails. The excerpt was Chapter 17, ‘‘Symbolic
3. Handbook of Social Theory (George Interactionism at the End of the Century,’’
Ritzer & Barry Smart eds., Sage which was written by Kent Sandstrom,
2001) Daniel Martin, and Gary Alan Fine. Had
permissions fees been paid via Sage’s per-
The Handbook of Social Theory was missions program for the digital distribu-
first published by Sage in 2001 in the tion of this excerpt, students would have
United Kingdom and subsequently pub- paid--and Sage would have earned--$18.72
lished in the United States [Pls. Ex. 288]. in net revenue.12
It is a 564 page, 39 chapter volume edited Fair Use Analysis
by George Ritzer and Barry Smart. The
work provides an overview of social theory, [3] As to the first element of fair use
and the chapters in the book discuss (‘‘the purpose and character of the use’’),
strengths and weaknesses of contemporary Defendants’ use of the excerpt is nontrans-
social theory [Pls. Ex. 288; Jt. Ex. 5 at D- formative (in this case, mirror image copy-
12]. The Handbook of Social Theory re- ing). The excerpt served the same function
tails for $150.00 in hardcover and $69.95 in as the original copyrighted work. The ex-
cerpt was used for a nonprofit educational
paperback [Jt. Ex. 5 at D-12]. The net
purpose by a nonprofit educational institu-
sales revenue the book has earned
tion. Thus, factor one favors fair use.
(through 2010) amounts to £63,483.74 in
the United Kingdom and $62,454.14 in the The second fair use factor is ‘‘the nature
United States [Pls. Ex. 291]. There is no of the copyrighted work.’’ The Court

11. The assigned material did not include 12. The amount Sage earned would have been
those footnotes which appeared on pages 229- $18.72, the amount charged through its in-
231 at the end of the chapter. For purposes of house program, less royalties it is obligated to
this opinion the Court considers that the full pay the external editor.
chapter was assigned reading.
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1169
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

makes the following findings in that re- Chapter 17 is written in a formal tone,
gard: The Handbook of Social Theory is with no use of the first person or conversa-
an academic book that seeks to survey and tional techniques. The majority of the ex-
define the field of social theory in three cerpt is spent summarizing and comparing
steps. The book first discusses the classic other scholarly research in the field. Chap-
social theorists, such as Karl Marx and ter 17 presents little to no direct opinion of
Max Weber. The second step builds on the the authors beyond the summaries of their
work of the classic theorists to present previous works and is devoid of discussion
how the field has changed in light of cur- of the authors’ personal experiences. The
rent developments in postmodernism, ra- chapter is both objectively and subjectively
tional choice theory, and contemporary descriptive. Because the authors’ opinion
feminism. The conclusion of the book high- and subjective description do not dominate
lights the current debates within the field the discussion, factor two neither favors
as a springboard towards further develop- nor disfavors fair use. It is neutral.
ment of social theory.
As to factor three (the ‘‘amount and
Chapter 17, ‘‘Symbolic Interactionism,’’ substantiality of the portion used in rela-
provides an overview of the developments tion to the copyrighted work as a whole’’),
within symbolic interactionism, which is a ‘‘Social Interactionism’’ is a 12-page chap-
subset of social theory. The chapter begins ter, making up 2.12% of the total pages in
by providing six guiding premises of sym- the Handbook of Social Theory [Pls. Ex.
bolic interactionism: (1) people are unique 288]. The amount taken is tiny, even with-
creatures because of their ability to use out the leavening effect of the nonprofit
symbols; (2) people become distinctively educational purpose and character of the
human through their interaction; (3) peo- use. Professor Kaufmann assigned the en-
ple are conscious and self-reflexive beings tire chapter, which gives the excerpt
who actively shape their own behavior; (4) greater value than if only part of the chap-
people are purposive creatures who act in ter had been assigned. However, this chap-
and towards situations; (5) human society ter does not have any greater value than
consists of people engaging in symbolic the other chapters in the work, and does
interaction; and (6) to understand people’s not constitute the heart of the work. The
social acts, we need to use methods that excerpt fit Professor Kaufmann’s pedagog-
enable us to discern the meanings they ical purpose, and the very small number of
attribute to these acts. pages portends a small impact on the per-
missions market. Taking all of the forego-
With these premises in mind, the bulk of
ing into account, factor three easily favors
the chapter surveys the contributions
fair use.
made by various lines of social interaction-
ism research. These lines include work on The fourth fair use factor (‘‘the effect of
the concept of self, emotional contribu- the use upon the potential market for or
tions, and the construction of social prob- value of the copyrighted work’’), looks to
lems. The authors close by discussing how the effect of Defendants’ use on the value
issues relating to developments in femi- of the copyrighted work. Digital permis-
nism, critical interactionism, and postmo- sions were available for excerpts from
dernism will shape the discussion of sym- Sage; there is no evidence that ECCS
bolic interactionism in the future. permissions were available from CCC.
1170 446 FEDERAL SUPPLEMENT, 3d SERIES

APS (hard copy) permissions were avail- First, the Court finds that an adjust-
able through CCC. Professor Kaufmann’s ment, in Defendants’ favor, should be
failure to obtain licensed excerpts from made to factor three on account of the
Sage caused very small harm to Sage; very small size of the excerpt (2.12%).
widespread use of unlicensed excerpts
could cause substantial harm.13 Factor four Next, the Court finds that a mitigating
strongly disfavors fair use. adjustment to factor four should be made,
In summary, factor one favors fair use; in Defendants’ favor, on account of the
factor two is neutral; factor three favors evidence pertaining to low permissions
fair use; and factor four strongly disfavors sales. The following table shows all book
fair use. The Court will look further and sales, all of which apparently were to cus-
will conduct a holistic evaluation to rule on tomers in the United Kingdom.
the fair use defense.

[Id.]. The following table shows all permis-

sions revenues from the Handbook of So-
cial Theory since 2004:

[Editor’s Note: The preceding image contains the reference for footnote 14].

13. The Court infers that if Professor Kauf- 14. APS revenues add information concerning
mann had sought digital permissions from the relative appeal of various excerpts to
Sage, it would have provided digital permis- users. Sage’s in-house program provides digi-
sions. tal excerpts to users. The APS sales evidently
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1171
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

[Id.; Pls. Ex. 292]. cerpts of this work are available directly
from Sage; the book earned $18,711.95
Based on the foregoing data, the Court
through Sage’s in-house permissions pro-
finds it is unlikely that there would have
gram from publication to December 1,
been repetitive use of excerpts of the
2010 [Pls. Ex. 283].
Handbook of Social Theory in 2009; there
was not much demand for excerpts in the Professor Kaufmann caused pages 1-32,
United States. This mitigates the factor 357-375, 443-465, and 651-679 of The Sage
four outcome. Handbook of Qualitative Research (Third
Edition), the entirety of four chapters and
Weighing the four factors (as adjusted)
8.38% of the book, to be uploaded to Geor-
together, placing the burden of proof on
gia State’s ERES system for distribution
Defendants, and recognizing that factor
to the students in her EPRS 8500 May-
four ‘‘looms large,’’ the Court finds that
mester 2009 course as required reading
Defendants’ use was a fair use. According-
[Tr. Vol. 5 at 80-81 and 106-111]. Had
ly, Defendants have proven their fair use
permissions been paid via CCC for the
defense, and this copyright infringement
distribution of these chapters, Sage would
claim fails.
have earned under $159.34 in net revenue
4. The Sage Handbook of Qualitative Re- from permissions income.15 The cost to
search (Third Edition) (Norman K. Den- students in the course would have been
zin & Yvonna S. Lincoln, eds., Sage 2005) $190.46.

The Sage Handbook of Qualitative Re- Fair Use Analysis

search (Third Edition) was first published
[4] As to the first element of fair use
by Sage in 2005. It is a 1,229 page, 44
(‘‘the purpose and character of the use’’),
chapter volume edited by Norman K. Den-
Defendants’ use of the excerpt is nontrans-
zin and Yvonna S. Lincoln. The chapters
formative (in this case, mirror image copy-
analyze the theory and practice of qualita-
ing). The excerpt fulfills the same purpose
tive research [Pls. Ex. 267]. The Sage
as the copyrighted work. The excerpt was
Handbook of Qualitative Research (Third
used for a nonprofit educational purpose
Edition) retails for $156.00 [Jt. Ex. 5 at D-
by a nonprofit educational institution.
13]. The book earned $1,327,804.06 in net
Thus, factor one favors fair use.
sales revenue through December 2010
[Pls. Ex. 283]. Permissions for licensed The second fair use factor is ‘‘the nature
digital excerpts of the book were available of the copyrighted work.’’ The Court
through CCC in 2009 [Pls. Ex. 358]. From makes the following findings in that re-
publication until December 1, 2010, The gard: the first excerpt was pages 1-32, the
Sage Handbook of Qualitative Research Introduction to the book. The Introduc-
(Third Edition) earned $1,131.86 in ECCS tion, which was written by the external
permissions revenue [Pls. Ex. 287]. In ad- editors of the book, forecasts what will be
dition, permissions to make licensed ex- in the book. It states: ‘‘[i]n this introducto-

were made to customers in the United States; 15. The amount earned would have been
the in-house permissions sales apparently $190.46, the amount charged by CCC, [Jt. Ex.
were made to customers in the United King- 5 at D-10], less the $3.00 service fee charged
dom. by CCC to users, less $28.12 in fees charged
by CCC to publishers, less royalties Sage is
obligated to pay the external editors.
1172 446 FEDERAL SUPPLEMENT, 3d SERIES

ry chapter, we define the field of qualita- ward. He recognizes the inherent conflicts
tive research, then navigate, chart, and in the two traditions, but concludes that
review the history of qualitative research ‘‘there are some commonalities’’ [Id. at
in the human disciplines’’ [Id. at 2]. In 370]. Both, for instance, would ask re-
addition, ‘‘[w]e also present a conceptual searchers to adopt a critically self-aware
framework for reading the qualitative re- stance. Both would seek out a political and
search act as a multicultural, gendered ethical background ‘‘even though, in a
process and then provide a brief introduc- quite major way, they may differ on this--
tion to the chapters that follow’’ [Id.]. The queer theory has a prime focus on radical
introduction states, ‘‘This volume is intend- gender change, and humanism is broader’’
ed to serve as a bridge connecting histori- [Id.]. The author’s style is conventional; his
cal moments, politics, the decolonization approach is evaluative. This chapter con-
project, research methods, paradigms, and tains author opinion.
communities of interpretive scholars’’ [Id.]. Pages 443-465: This excerpt is the en-
Qualitative research is stated to be a field tirety of chapter 17, ‘‘Qualitative Case
of inquiry which ‘‘crosscuts disciplines, Studies.’’ The author describes the nature
fields, and subject matters’’ [Id.]. Also, of various types of case studies: the intrin-
‘‘[i]n North America, qualitative research sic case study; the instrumental case
operates in a complex historical field that study; and the multiple case or collective
crosscuts at least eight historical mo- case study. The chapter discusses case se-
ments’’ [Id. at 2-3]. The editors identify lection, the interactivity of the case study,
those eight historical moments as the tra- the process of data gathering and the mat-
ditional, the modernist, blurred genres, the ter of triangulation. This chapter is objec-
crisis of representation, the postmodern, tively and subjectively descriptive. It con-
postexperimental inquiry, the methodologi- tains author opinion.
cally contested present, and the fractured
Pages 651-679: This excerpt is chapter
future [Id. at 3]. The future is said to be
25, titled ‘‘Narrative Inquiry—Multiple
‘‘concerned with moral discourse, with the
Lenses, Approaches, Voices.’’ The chapter
development of sacred textualities’’ [Id.]. describes the diverse approaches to narra-
‘‘The eighth moment [the fractured future] tive inquiry, and various methodological
asks that the social sciences and the hu- issues in contemporary narrative inquiry.
manities become sites for critical conversa- The author notes that ‘‘a major goal of this
tions about democracy, race, gender, class, edition of the Handbook is exploring how
nation-states, globalization, freedom and qualitative research can ‘advance a demo-
community’’ [Id.]. This excerpt is primarily cratic project committed to social justice in
subjectively descriptive and contains con- an age of uncertainty’ ’’ [Id. at 667]. This
siderable opinion of the editors. chapter is both objectively and subjectively
descriptive; it contains author opinion and
Pages 357-375: The second reading as-
evaluative description.
signment was all of chapter 14, titled
‘‘Critical Humanism and Queer Theory-- Under the standard set by the Court of
Living With the Tensions.’’ The material Appeals, the foregoing excerpts as a whole
addresses what the author sees as the disfavor fair use because author opinion,
need to deal with the tensions between subjective description and evaluative ex-
critical humanism and gay/queer research. pression dominate. Factor two disfavors
The author’s presentation is straightfor- fair use.
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1173
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

As to factor three (‘‘the amount and damage to the value of Sages copyright. In
substantiality of the portion used in rela- addition, widespread use of similar unli-
tion to the copyrighted work as a whole’’), censed excerpts could cause substantial
Professor Kaufmann’s selected excerpts harm. Factor four strongly disfavors fair
constitute 8.38% of the pages in the book use.
(102 pages in total) and the entirety of four
A review of the fair use factors in this
chapters, one of which is the Introduction.
case shows that factor one favors fair use;
The selections fit the pedagogical aim of
factor two disfavors fair use; factor three
the course. None of the chapters consti-
strongly disfavors fair use; and factor four
tutes the heart of the work. However, even
strongly disfavors fair use. While it is ar-
taking into account the impact of the fa-
guably unnecessary to do so, the Court will
vored nature of the use under factor one,
look further and will conduct a holistic
the quantity of material used is extremely
evaluation of the four factors.
large. The use of four full chapters of the
book leans very strongly against fair use. First, revisiting the factor three analy-
That the book contains 44 chapters does sis, the Court finds that Professor Kauf-
not alter the Court’s thinking. Regarding mann’s unlicensed use of four chapters of
the quality (value) of the material taken, a The Sage Handbook of Qualitative Re-
whole chapter of a book has greater value search (Third Edition), is significantly ex-
than part of a chapter because the whole cessive (8.38%; four chapters) requiring a
chapter covers a complete, cohesive topic. significant adjustment of factor three, in
Copying four chapters draws a very large Plaintiffs’ favor.
amount of value. Also, the total page
The Court also finds that upon revisiting
length of the excerpts (102 pages) is ex-
the factor four analysis, an adjustment fa-
tremely large. This would cause considera-
voring Plaintiffs’ position is warranted.
ble market substitution (lost permissions
The Court’s reasoning is as follows. The
sales). Weighing all of these considerations
evidence shows that in 2008 colleges and
together, factor three weighs against fair
universities paid $3,630.59 directly to Sage
use.
for excerpts from this book; in 2009 the
As to the fourth fair use factor (‘‘the permissions amount paid was $11,125.91.
effect of the use upon the potential market In addition, the book earned $3,174.20 in
for or value of the copyrighted work’’), the fees from CCC’s ECCS and APS pro-
Court first notes that Professor Kauf- grams from 2004 to 2010.
mann’s use of the excerpt of The Sage
The original version of The Sage Hand-
Handbook of Qualitative Research (Third
book of Qualitative Research was publish-
Edition) did not affect the market for the
ed in 1994; a second edition was published
book as a whole.
in 2000; the third edition, at issue here,
Plaintiffs produced evidence demon- was published in 2005. With respect to the
strating that there was a ready market for third edition, the documentary evidence
licensed digital excerpts of this work in [Pls. Ex. 283] shows that book sales began
2009 through CCC and through Sage’s in- with revenues of $379,940.00 in 2005, with
house program. The unpaid use of the the sales amount going down each year
excerpt by Professor Kaufmann and her thereafter. In 2009, book sales brought in
students caused very small, but actual revenues of $153,234.95. But permissions
1174 446 FEDERAL SUPPLEMENT, 3d SERIES

revenue for Sage’s in-house program ogies retails for $146.00 [Jt. Ex. 5 at D-15].
jumped from $3,630.59 in 2008 to It has earned $161,204.62 in net sales reve-
$11,125.91 in 2009. The trial evidence nue [Pls. Ex. 237]. Licensed digital ex-
showed that Sage’s in-house permissions cerpts of the book were available through
were mostly for making digital copies of CCC in 2009 [Pls. Ex. 238]. From July 1,
Sage’s copyrighted books. The high de- 2004 until December 1, 2010, the Hand-
mand for digital excerpts of The Sage book of Critical and Indigenous Methodol-
Handbook of Qualitative Research (Third ogies earned $138.04 in ECCS permissions
Edition) in 2009 underscores the negative revenue in 2009 and 2010 combined [Pls.
impact of Defendants’ unpaid use on the Ex. 238]. In addition, licensed excerpts of
value of the copyrighted work. This deter- this work were available directly from
mination further strengthens the factor Sage; the book earned $383.15 through
four analysis in Plaintiffs favor. Sage’s in-house permissions program [Pls.
Ex. 237].
Thus, a holistic examination of the four
factors, placing the burden of proof on Professor Kaufmann requested pages
Defendants, adjusting factors three and 85-99 and 135-156 of the Handbook of Crit-
four in Plaintiffs’ favor, and giving factor ical and Indigenous Methodologies, the
four extra weight, shows that Defendants’ entirety of two chapters, be uploaded to
use of the excerpt from The Sage Hand- Georgia State’s ERES system for distribu-
book of Qualitative Research (Third Edi- tion to the students in her EPRS 8500
tion) was not a fair use. Maymester 2009 course as required read-
In summary, this infringement claim ing [Tr. Vol. 5 at 114-116], The two chap-
succeeds. ters copied were ‘‘Critical Race Theory
and Indigenous Methodologies’’ by Chris-
5. Handbook of Critical and Indigenous topher Dunbar, Jr. and ‘‘Indigenous Know-
Methodologies (Norman K. Denzin & ledges in Education: Complexities, Dan-
Yvonna S. Lincoln eds., Sage 2008) gers, and Profound Benefits’’ by Joe L.
The Handbook of Critical and Indige- Kintheloe and Shirley R. Steinberg. To-
nous Methodologies was first published by gether, the two chapters represent 5.98%
Sage in 2008 [Pls. Ex. 231]. It is a 619 of the total work. Had permissions been
page, 30 chapter volume edited by Norman paid via CCC for the distribution of these
K. Denzin, Yvonna S. Lincoln, and Linda two excerpts, Sage would have earned less
Tuhiwai Smith. The chapters contain ideas than $57.24 in net revenue from permis-
and analysis concerning the relationship sions income.16 The cost to students in the
between critical methodologies and indige- course would have been $70.34.
nous perspectives [Pls. Ex. 231]. The book
Fair Use Analysis
seeks to show ‘‘how critical qualitative re-
search can be used to address issues that [5] As to the first element of fair use
matter to oppressed, colonized per- (‘‘the purpose and character of the use’’),
sonsTTTT’’ [Pls. Ex. 231 at xii]. The Hand- Defendants’ use of the excerpt is nontrans-
book of Critical and Indigenous Methodol- formative (in this case, mirror image copy-

16. The amount earned would have been by CCC to users, less $10.10 in fees charged
$70.34, the amount charged by CCC, [Jt. Ex. by CCC to publishers, less royalties Sage is
5 at D-15], less the $3.00 service fee charged obligated to pay the external editors.
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1175
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

ing). The excerpt fulfills the same purpose ical discussion to link the various aspects
as the copyrighted work. The excerpt was of the literature together. Further, the
used for a nonprofit educational purpose excerpt devotes a section to a discussion of
by a nonprofit educational institution. the author’s personal experiences in doing
Thus, factor one favors fair use. research.

The second fair use factor is ‘‘the nature Chapter seven, ‘‘Indigenous Knowledges
of the copyrighted work.’’ The Court in Education,’’ calls for an evaluation of
makes the following findings in that re- how indigenous knowledge can change the
gard: The Handbook of Critical and Indig- way educators approach research. The au-
enous Methodologies is an academic book. thors argue that methods of creating and
The introduction states that the book looks maintaining indigenous knowledge must be
to develop and connect indigenous method- sustained in order for the greater aca-
ologies 17 to existing areas of qualitative demic community to better access and ap-
research in order to expand and further preciate the contributions indigenous
understand the field of qualitative re- knowledge can make to the field. Chapter
search. The book has four parts; ‘‘Locating seven goes on to discuss the benefits of
the Field: Performing Theories of Decolon- incorporating indigenous knowledge, in-
izing Inquiry’’; ‘‘Critical and Indigenous cluding the reciprocal effect indigenous
Pedagogies’’; ‘‘Critical and Indigenous knowledge may have on dominant cultures
Methodologies’’; and ‘‘Power, Truth, Eth- and the ability to create a body of knowl-
ics, and Social Justice.’’ edge which better serves those indigenous
people.
Chapter five, ‘‘Critical Race Theory and
Indigenous Methodologies,’’ rests on two Chapter seven is highly evaluative, rely-
themes which are interwoven throughout ing heavily on the authors’ experiences and
the chapter. The chapter first provides an opinions. The writing style is formal, but
overview and critique of critical race theo- also somewhat conversational. The chapter
ry, which seeks to analyze both the racially is didactic, inviting the reader to under-
insensitive segments of the American stand the benefits of protecting and incor-
psyche as well as enhance and expand porating indigenous knowledge in the hope
upon race consciousness in people of color that future researchers will accept and
[see Pls. Ex. 231 at 87]. Chapter five then implement the authors’ premise. Given the
discusses the importance of incorporating dominance of author opinion and the evalu-
the methods of indigenous scholars to cre- ative nature of these two chapters, factor
ate new research methodologies which two weighs against a finding of fair use.
both challenge the status quo and incorpo-
As to factor three (‘‘the amount and
rate the key aspects of indigenous knowl-
substantiality of the portion used in rela-
edge into critical race theory.
tion to the copyrighted work as a whole’’),
Chapter five is formally written to in- the chapters in question total 37 pages, or
form the reader of previous critical race 5.98% of the entire work [Id.]. This is a
literature, with the author adding analyt- small percentage of the overall work and a

17. The preface defines indigenous methodolo- peoples’’ [Pls. Ex. 231 at x]. The preface con-
gies as ‘‘research by and for Indigenous peo- tains no definition of indigenous, but implies
ples, using techniques and methods drawn that the term includes native, non Western
from the traditions and knowledges of these residents of various geographic locations.
1176 446 FEDERAL SUPPLEMENT, 3d SERIES

somewhat large number of pages. The The Court finds that between 2009 and
chapters fit Professor Kaufmann’s peda- 2010 Sage collected net ECCS permissions
gogical purpose, and neither constitutes revenue of $138.04 from CCC for excerpts
the heart of the work. On the other hand, of Handbook of Critical and Indigenous
the use of two whole chapters leans Methodologies. One-half of that amount
against fair use. Use of a whole chapter-- ($69.02) was in 2009 and one-half in 2010.
and even more so use of two chapters-- Sage also collected $383.15 in in-house per-
represents a greater taking of value than missions for these excerpts in 2009. There
merely part of a chapter. Considering this is no evidence of any permissions income
in combination with the quantity taken, from any source prior to 2009. Based on
factor three disfavors fair use. this data, the Court finds there was very
As to the fourth fair use factor (‘‘the little prospect of repetitive use of excerpts
effect of the use upon the potential market of Handbook of Critical and Indigenous
for or value of the copyrighted work’’), the Methodologies in 2009. Therefore, a miti-
Court first looks to whether Professor gating adjustment of factor four, favoring
Kaufmann’s use of the Handbook of Criti- Defendants, is made.
cal and Indigenous Methodologies affected
Weighing the factors (as adjusted) to-
the market for purchasing the book as a
gether, placing the burden of proof on
whole. Students would not pay $146.00 for
Defendants, recalling that factor two has
the entire book when only 37 of 619 pages
insubstantial weight and factor four ‘‘looms
were required reading. Neither would a
large,’’ the Court finds that Defendants do
professor require students to purchase the
not prevail on their fair use defense. Ac-
entire book in such an instance. Therefore,
cordingly, this infringement claim suc-
the Court rejects any argument that the
ceeds.
use of the excerpt from the Handbook of
Critical and Indigenous Methodologies 6. Handbook of Narrative Inquiry:
had a negative effect on the market for Mapping a Methodology (D. Jean
sale of the book itself. Clandinin ed., Sage 2006)
However, Defendants’ use did cause ac- The Handbook of Narrative Inquiry
tual though tiny damage to the value of was first published by Sage on December
Sage’s copyrighted work in 2009. If ‘‘ev- 28, 2006 [Pls. Ex. 258]. It is a 710 page, 24
eryone’’ (colleges and universities) used chapter volume edited by D. Jean Clandi-
unpaid excerpts of the Handbook of Criti- nin. The chapters present an interdiscipli-
cal and Indigenous Methodologies it could nary overview of the methodology of nar-
cause substantial damage to the value of rative inquiry [Pls. Ex. 258; Jt. Ex. 5 at D-
the copyrighted work. Thus, factor four 17]. The Handbook of Narrative Inquiry
strongly disfavors fair use.
retails for $146.00 [Jt. Ex. 5 at D-17]. It
A review of the fair use factors in this has earned $131,515.66 in net sales reve-
case shows that factor one favors fair use; nue [Pls. Ex. 262]. Licensed digital ex-
factor two disfavors fair use; factor three cerpts of the book were also available
disfavors fair use; and factor four strongly through CCC in 2009 [Pls. Ex. 264]. From
disfavors fair use. The Court will look fur- July 1, 2004 until December 1, 2010, the
ther and will conduct a holistic assessment Handbook of Narrative Inquiry earned
of the four factors to rule on the fair use $18.52 in ECCS permissions revenue; all of
defense. this was in 2009 [Pls. Ex. 264]. In addition,
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1177
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

licensed digital excerpts of this work were ing the historical background of the field,
available directly from Sage during 2004- and then moves to analyze different areas
2010; the book earned $437.28 through of narrative inquiry including traditional
Sage’s in-house permissions program, methodologies and professions driving nar-
$112.60 of which was in 2009 [Pls. Ex. 262]. rative research. This investigation of the
field is expanded by the introduction of
Professor Kaufmann requested that
ethical concerns, representation issues,
pages 3-34 of the Handbook of Narrative
and a discussion of areas of narrative in-
Inquiry be uploaded to Georgia State’s
quiry that need special attention, before
ERES system for distribution to the stu-
finishing with a forward-looking overview
dents in her EPRS 8500 Maymester 2009
of the field.
course as required reading [Tr. Vol. 5 at
117-118]. The excerpt was the entirety of Chapter one’s stated goal is ‘‘marking
chapter one, which was written by Stefinee off the territory of this methodology’’ [Pls.
Pinnegar and J. Gary Daynes and entitled Ex. 258 at 3]. The chapter provides defini-
‘‘Locating Narrative Inquiry Historically: tions for qualitative inquiry and narrative
Thematics in the Turn to Narrative.’’ The inquiry, detailing the differences between
chapter represents 4.51% of the total the two. The discussion then shifts to the
work. Had permissions been paid via CCC four themes in research which cause a
for the digital distribution of this excerpt, researcher to ‘‘turn,’’ or change his way of
Sage would have earned less than $33.32 in thinking. These themes, which include the
net revenue from permissions income.18 relationship between the researcher and
The cost to students in the course would the researched and the jump from num-
have been $52.60. bers to words as data, are then elaborated
Fair Use Analysis upon through examples and explanations
based on various historical studies by
[6] As to the first element of fair use scholars in the field.
(‘‘the purpose and character of the use’’),
Defendants’ use of the excerpt is nontrans- ‘‘Locating Narrative Inquiry Historical-
formative (in this case, mirror image copy- ly’’ is simultaneously objectively and sub-
ing). The excerpt fulfills the same purpose jectively descriptive, as the chapter aims
as the copyrighted work. The excerpt was to acquaint readers with narrative inquiry
used for a nonprofit educational purpose through summaries and explanations of
by a nonprofit educational institution. previous work in the field. The chapter is
Thus, factor one favors fair use. formally written, and stems more from the
authors’ knowledge of the literature rather
The second fair use factor is ‘‘the nature
than their experiences and opinions. Fair
of the copyrighted work.’’ The Court
use factor two is neutral for this work.
makes the following findings in that re-
gard: the Handbook of Narrative Inquiry As to factor three (‘‘the amount and
is an academic book which provides a com- substantiality of the portion used in rela-
prehensive analysis of the field of narra- tion to the copyrighted work as a whole’’),
tive research. The book begins by discuss- here, Professor Kaufmann used 32 pages,

18. The amount earned would have been by CCC to users, less $9.28 in fees charged by
$52.60, the amount charged by CCC, [Jt. Ex. CCC to publishers, less any royalties Sage is
5 at D-17], less the $3.00 service fee charged obligated to pay the author.
1178 446 FEDERAL SUPPLEMENT, 3d SERIES

which equates to 4.51% of the work [Pls. book in such an instance. The use of the
Ex. 258]. This is a small percentage, espe- excerpt from the Handbook of Narrative
cially taking into account the favored edu- Inquiry did not have a negative effect on
cational purpose established by factor one. the market for purchase of the book itself.
As to the quality of the excerpt, the use of
Plaintiffs produced evidence demon-
a whole chapter increases the excerpt’s
strating that there was a ready market for
value. But the chapter selected by Profes-
licensed digital excerpts of this work in
sor Kaufmann is not the heart of the work.
2009 through CCC and Sage’s in-house
It did fit Professor Kaufmann’s pedagogi-
program. The unpaid use of excerpt by
cal purpose. And the potential impact of
Professor Kaufmann and her students
market substitution is sufficiently blunted
caused very small, but actual, damage to
by the small size of the excerpt. Taking all
the value of Sage’s copyright. In addition,
of this into account, factor three favors fair
widespread use of similar unlicensed ex-
use.
cerpts could cause substantial harm. Sage
As to the fourth fair use factor (‘‘the lost permissions income. Factor four
effect of the use upon the potential market strongly disfavors fair use.
for or value of the copyrighted work’’), the
In summary, fair use factor one favors
Court first looks to whether Professor
fair use; factor two is neutral; factor three
Kaufmann’s use of the Handbook of Nar-
favors fair use; and factor four strongly
rative Inquiry affected the market for
disfavors fair Use. The Court will look
purchasing the book as a whole. Students
further and will conduct a holistic evalua-
obviously would not pay $146.00 for the
tion of the fair use factors.
entire book for which only 32 of 710 pages
were required reading for Professor Kauf- The following table demonstrates book
mann’s course. Neither would a professor sales data for the Handbook of Narrative
require students to purchase the entire Inquiry since its publication in 2006:19

[Pls. Ex. 262]. The following table demon- Handbook of Narrative Inquiry since
strates permissions sales data for the 2006:

19. The book was first published on December 2006 [Pls. Exs. 262, 264].
28, 2006 [Pls. Ex. 261]. Accordingly, there are
no book sales or permissions sales figures for
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1179
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

[Pls. Exs. 262, 264]. 7. The Sage Handbook of Qualitative Re-

search (Second Edition) (Norman K.
The limited permissions revenue real-
Denzin & Yvonna S. Lincoln eds.,
ized by Sage from the Handbook of Nar-
Sage 2000)
rative Inquiry shows low demand for ex-
cerpts of the book in 2009. The risk of The Sage Handbook of Qualitative Re-
repetitive use of these excerpts was low in search (Second Edition) was first publish-
2009. The Court finds a mitigating adjust- ed by Sage in 2000 [Pls. Ex. 265]. It is a
ment should be made to factor four, in 1,142 page, 36 chapter volume edited by
Defendants’ favor. Norman K. Denzin and Yvonna S. Lincoln.
The chapters contain research and analysis
Weighing all four factors (as adjusted)
concerning the theory and practice of qua-
together, placing the burden of proof on
litative research [Pls. Ex. 265; Jt. Ex. 5 at
Defendants, and heeding the admonition
D-19]. The Sage Handbook of Qualitative
that factor four ‘‘looms large,’’ the Court
Research (Second Edition) retails for
finds that Defendants succeed with their
$175.00, but is out of print [Jt. Ex. 5 at D-
fair use defense; this claim of copyright
19]. The book has earned $1,300,053.54 in
infringement fails.
net sales revenue [Pls. Ex. 283]. Licensed
EPRS 8510 Qualitative Research in Edu- digital excerpts of the book were available
cation II-Data Collection, Summer 2009 through CCC in 2009 [Pls. Ex. 286]. From
July 1, 2004 until December 1, 2010, The
Professor Kaufmann’s EPRS 8510
Sage Handbook of Qualitative Research
course looks at ways for students to collect
(Second Edition) earned $6,324.61 in
data for qualitative research [Tr. Vol. 5,
ECCS permissions revenue [Pls. Ex.
Doc. 403 at 38, 135]. Nine students were
286].20 In addition, licensed digital excerpts
enrolled in the course during the summer
of this work were available directly from
2009 semester [Id. at 135]. The course
Sage; the book has earned $58,904.47 from
lasts roughly six weeks [Id. at 136]. As
2000 through 2010 through Sage’s in-house
evidenced by the syllabus for this course
permissions program [Pls. Ex. 283]. This
and Professor Kaufmann’s testimony, stu-
includes $3,814.52 in 2009.
dents were required to purchase three
texts for the course, as well as complete Professor Kaufmann caused pages 717-
several readings posted on ERES [Id. at 732 and 923-943 of The Sage Handbook of
136; Pls. Ex. 517]. All assigned readings, Qualitative Research (Second Edition)
both from the textbooks and ERES, were (‘‘Handbook, Second Ed.’’), the entirety of
required [Doc. 403 at 136]. chapters 27 and 36, to be uploaded to

20. This amount represents permissions in- come only for the second edition of this work.
1180 446 FEDERAL SUPPLEMENT, 3d SERIES

Georgia State’s ERES system for distribu- sociology is, above all, a process of see-
tion to the students in her EPRS 8510 ing guided by theory. Because visual
summer 2009 course as required reading sociology is a grab bag of research ap-
[Tr. Vol. 403, Doc. 403 at 136-41; Pls. Ex. proaches and perspectives on under-
517]. The excerpted chapters were ‘‘Reim- standing images in society, I aim to
agining Visual Methods: Galileo to Neuro- make several attenuated arguments and
mancer’’ by Douglas Harper and ‘‘Writing: to weave them into a whole.
A Method of Inquiry’’ by Laurel Richard- [Pls. Ex. 265 at 717]. The author’s style is
son [Pls. Ex. 265]. Together, the chapters somewhat conversational, though still fair-
represent 3.24% of the total 1,142-page ly formal. The first section of the chapter,
work and have a combined total of 37 titled ‘‘Visual Methods and the History of
pages [Id.]. Had permissions been paid via Recorded Perception,’’ outlines the devel-
CCC for the distribution of these excerpts, opment of recorded perception though the
Sage would have earned less than $34.04 in telescope, the camera, motion pictures,
net revenue from permissions income. television, video cameras, digital imagery,
compact discs, and the creation of a virtual
Fair Use Analysis
reality through electronic manipulation.
[7] As to the first element of fair use This section is objectively descriptive.
(‘‘the purpose and character of the use’’),
The next section of the chapter, titled ‘‘A
Defendants’ use of the excerpt is nontrans- Visual Social Science through Research
formative (in this case, mirror image copy- Photography,’’ pages 720-724, shifts to the
ing). The excerpt serves the same purpose idea that the creator of images has oppor-
as the original work. The excerpt was used tunities to make visual statements by
for a nonprofit educational purpose by a ‘‘knowing how the camera interprets social
nonprofit educational institution. Thus, fac- reality’’ [Id. at 724]. This section is both
tor one favors fair use. objectively and subjectively descriptive. It
includes author opinion.
As to factor two (‘‘the nature of the
copyrighted work’’), the first excerpt uti- The next section of chapter 26, ‘‘Visual
lized was chapter 27, ‘‘Reimagining Visual Narratives,’’ pages 724-725, expands on the
Methods—Galileo to Neuromancer,’’ pages idea of the photographer as narrator, par-
717-732. At the beginning of this chapter ticularly when a succession of photographs
the author outlines his approach to the may be used to develop a point of view.
subject: The author states,

First, I suggest a context in which to see The visual narrative, like the individual
photography and social research, this frames from which it is made, is a result
being the history of recorded perception. of choices and decisions. If a researcher
Next, I present visual sociology as field is conscious of these choices, the visual
work photography guided by several re- narrative may become a useful way to
search traditions. Third, I describe the study certain kinds of social patterns.
social influences around which ‘‘picture The methods used will, of course, influ-
ence the questions asked.
making’’ has taken place, noting how the
social power involved in making images [Id. at 725]. The Court considers this sec-
redefines institutions, groups and indi- tion to be mostly objectively descriptive. It
viduals. Finally, I suggest that visual does include author opinion.
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1181
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

The next section, ‘‘Eliciting Cultural Ex- elements which are objectively and subjec-
planation,’’ pages 725-727, explains that tively descriptive.
photographic images ‘‘elicit cultural infor-
The second excerpt assigned by Profes-
mation that ranges from the micro (norma-
sor Kaufmann from the Handbook, Second
tive negotiation of social action) to cultural
Ed. was chapter 36, titled ‘‘Writing--A
definition’’ [Id. at 726-27]. This section is
Method of Inquiry’’ [Id. at 923-943]. In the
objectively and subjectively descriptive. It
first part of the chapter, titled ‘‘Writing in
includes author opinion.
Contexts,’’ pages 924-940, the author dis-
The next section, ‘‘Experience and Im- cusses the historical roots of social scienti-
age,’’ page 727, discusses the ‘‘phenomeno- fic writing, including its dependence upon
logical mode.’’ ‘‘The vantage point from metaphor and prescribed writing formats,
this view is the self TTT’’ [Id. at 727]. The creative analytic practices, and the future
author states this is a fourth way to look at of ethnography. This section is objectively
images. This represents author opinion. descriptive.

The next section of chapter 26 is titled The second part of the chapter, ‘‘Writing
‘‘The Social Construction of Photography Practices,’’ pages 940-943, urges the use of
in Visual Sociology,’’ pages 727-728. The metaphors which enable the reader to de-
author states, ‘‘It is not enough to describe rive sensory content from the material. It
visual research in terms offered above. advocates careful choice of topic including,
Like all research, visual research depends for example, consideration of who is the
upon and redistributes social power’’ [Id.]. audience. It advocates choosing a journal
This represents author opinion. article ‘‘that exemplifies excellence in qua-
litative research [Id. at 940]. The author
In the final section of chapter 26, ‘‘The suggests joining a creative writing group
Essence of Visual Sociology; and Where or writing support group, keeping a jour-
Are We Going?,’’ pages 728-731, the author nal and numerous other ways of extending
summarizes as follows: one’s creative power. This excerpt overall
Assuming we are talking about research undoubtedly contains a good bit of author
methods (given that this is a handbook opinion. It also contains subjective and
of qualitative methods), and assuming objective description.
we are speaking about the photographic
Viewed together, the two chapters cho-
end of the movement, the simplest way
sen by Professor Kaufmann contain some
to do visual sociology is to photograph
objective description, but subjective de-
with sociological consciousness. Howard
scription and author opinion dominate.
Becker (1974) was the first to make this
Factor two disfavors fair use.
argument and the point has not been
made more elegantly since then. As to factor three (the ‘‘amount and
substantiality of the portion used in rela-
[Id. at 729].
tion to the copyrighted work as a whole’’),
Overall, this chapter seeks to instruct a Professor Kaufmann uploaded two full
sociology student on how to use photo- chapters of the Handbook, Second Ed. to
graphic technology to make a sociological ERES. This represents 37 pages and
point. Most basically, it is a how-to-do-it 3.24% of the total book [Doc. 265]. The
instruction. It includes author opinion plus chapters are not the heart of the work.
1182 446 FEDERAL SUPPLEMENT, 3d SERIES

The amount of material used by Professor sumably digital) permissions income [Pls.
Kaufmann was very small (not merely Ex. 283] and $6,324.61 in ECCS permis-
small) as a percentage of the total book. sions income [Pls. Ex. 286] from permis-
Factor three’s relationship to factor one sions sales for excerpts of the book. This
makes it even clearer that 3.24% of the includes $3,814.52 in in-house permissions
total work tends to favor fair use. The sales in 2009. This calls for enhancement of
selection fit Professor Kaufmann’s peda- factor four, in Plaintiffs’ favor.
gogical purpose. Nonetheless, two full Weighing the fair use factors (as adjust-
chapters were copied, and chapters have ed) together, placing the burden of proof
greater value than parts of chapters. In on Defendants, giving factor two insub-
addition, the amount taken is a heuristic stantial weight and factor four additional
for impact on the market (it has a relation- weight, the Court finds that the fair use
ship to the amount of potential lost permis- defense fails. Accordingly, this copyright
sions); the Court finds that the use of 37 infringement claim succeeds.
pages combined with the use of two chap-
EPRS 8500 Qualitative/Interpretive Re-
ters causes factor three to disfavor fair
search in Education II, Fall 2009
use.
Professor Kaufmann also taught EPRS
Turning to factor four (‘‘the effect of the 8500 in the fall of 2009 [Tr. Vol. 5, Doc. 403
use upon the potential market for or value at 143-45; Pls. Ex. 518].
of the copyrighted work’’), Plaintiffs pro-
8. The Craft of Inquiry: Theories,
duced evidence that there was a ready
Methods, Evidence (Robert R.
market for licensed digital excerpts of this
Alford, Oxford 1998)
work in 2009 through CCC and Sage’s in-
house program [Pls. Exs. 283, 286]. If One of the posted readings for EPRS
Georgia State had purchased permissions 8500 in the fall 2009 semester was an
for its digital use of the instant excerpts, excerpt from The Craft of Inquiry [Pls.
Sage would have earned $34.04 in net rev- Ex. 372]. Professor Kaufmann uploaded
enue from permissions income. Wide- the entirety of chapter two, or 6.25% of the
spread use of unlicensed excerpts by other book, to Georgia State’s ERES system
colleges and universities could cause sub- [Doc. 403 at 168; Pls. Ex. 372].
stantial harm to the market for permis- Fair Use Analysis
sions. The unpaid use of the excerpt by
Because Professor Kaufmann used this
Professor Kaufmann and her students
excerpt previously during the Maymester
caused very small, but actual, damage to
term, and it has already been discussed
the value of Sage’s copyrighted work. Fac-
above, see pp. 8-14 above, the fair use
tor four strongly disfavors fair use.
analysis need not be repeated. Professor
In summary, factor one favors fair use; Kaufmann’s use in the fall of 2009 was a
factor two disfavors fair use; factor three fair use.
disfavors fair use; and factor four strongly 9. Approaches to Qualitative Research: A
disfavors fair use. The Court will look fur- Reader on Theory and Practice (Shar-
ther and will conduct a holistic evaluation lene Nagy Hesse-Biber & Patricia
to resolve the fair use defense. Leavy eds., Oxford 2004)
From July 1, 2004 through December 1, Approaches to Qualitative Research was
2010 Sage had $45,498.78 in in-house (pre- first published by Oxford in 2004 [Pls. Ex.
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1183
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

349]. It is a 564 page, 25 chapter volume studies. The book starts by discussing the
edited by Sharlene Nagy Hesse-Biber and various epistemological and theoretical
Patricia Leavy. The chapters provide a choices a researcher considers in designing
comprehensive overview and analysis of and approaching qualitative research. The
the theoretical underpinnings of qualitative range of analytical choices and methods of
research and applications for practice [Pls. studying culture are also presented, with
Ex. 349]. Approaches to Qualitative Re- emphasis on potential concerns research-
search retails for $92.00 in hardcover and ers face in their role as both individuals
$49.95 in paperback [Jt. Ex. 5 at D-58]. interacting with subjects and researchers
There is no evidence in the record to show trying to avoid intrusion on their subjects.
how much, if any, net sales revenue the Finally, the book teaches the reader how
book has earned. Licensed digital excerpts to interpret qualitative data and transform
of the book were available through CCC in that data into scholarship.
2009 [Pls. Ex. 353]. From July 1, 2004 until
Chapter 21, ‘‘The Art and Politics of
December 1, 2010, Approaches to Qualita-
Interpretation,’’ addresses the ways in
tive Research earned $172.59 in ECCS
which a writer can make raw qualitative
permissions revenue [Pls. Ex. 353]. data meaningful to a reader. The chapter
Professor Kaufmann assigned chapter highlights themes that should come out in
21 of Approaches to Qualitative Research the researcher’s writing, including descrip-
for her November 30, 2009 class session tions that provide context and insight into
[Pls. Ex. 518]. The chapter, pages 447-472, the subjects of the study. A writer should
is titled ‘‘The Art and Politics of Interpre- also identify any research shortfalls due to
tation,’’ and was written by Norman K. personal style or bias. The chapter briefly
Denzin [Pls. Ex. 349]. The chapter is 26 describes various interpretive practices in
pages long and 4.61% of the 564-page book qualitative research, and weighs the bene-
[Id.]. It was required reading for the fits and costs of each. Finally, the chapter
course [Tr. Vol. 5, Doc. 403 at 169-70]. ends with the author’s observations about
the future of qualitative studies.
Fair Use Analysis
Chapter 21 is didactic; it seeks to teach
[8] As to the first element of fair use techniques for writing about qualitative re-
(‘‘the purpose and character of the use’’), search. It is also evaluative, analyzing the
Defendants’ use of the excerpt is nontrans- merits of various methods of writing about
formative (in this case, mirror image copy- qualitative research. The chapter has a
ing). The excerpt serves the same purpose formal style. While it is a close question,
as the original work. The excerpt was used the Court finds that author opinion and
for a nonprofit educational purpose by a evaluative style dominate. Factor two thus
nonprofit educational institution. Thus, fac- disfavors fair use.
tor one favors fair use.
Factor three requires an analysis of the
Factor two looks to the nature of the ‘‘amount and substantiality of the portion
copyrighted work. Approaches to Qualita- used in relation to the copyrighted work as
tive Research is an academic book that a whole’’. ‘‘The Art and politics of Inter-
aims to provide the reader with both a pretation’’ is a 26-page chapter, making up
survey of qualitative research and the tools 4.61% of the total pages in Approaches to
and skills necessary to conduct qualitative Qualitative Research [Pls. Ex. 349]. This is
1184 446 FEDERAL SUPPLEMENT, 3d SERIES

a small percentage of the overall book; it is The record contains no other evidence of
more than easily validated by the purpose permissions sales, which demonstrates that
and character of the use under factor one, there was a low risk of repetitive use of
and is small enough to adequately mitigate unpaid excerpts for Approaches to Quali-
the substitution effect under factor four. tative Research in 2009. The record also
Professor Kaufmann assigned the entire contains no data concerning revenue from
chapter, which gives the excerpt greater book sales which occurred.21 The Court
value than if only part of the chapter had finds that factor four should be adjusted so
been assigned. However, the chapter is not as to mitigate the outcome on factor four,
in Defendants’ favor.
the heart of the work. The chapter narrow-
ly served Professor Kaufmann’s pedagogi- Weighing all of the factors (as adjusted)
cal purpose. Weighing the foregoing con- together, placing the burden of proof on
siderations, factor three favors fair use. Defendants, and giving factor two insub-
stantial weight and factor four additional
Factor four measures the effect of De- weight as directed, Defendants’ use of Ap-
fendants’ use on the value of the copy- proaches to Qualitative Research is pro-
righted work and on the potential market tected by fair use. Thus, this infringement
for the copyrighted work. Because Defen- claim fails.22
dants used Oxford’s copyrighted material 10. Handbook of Feminist Research:
without payment, the value of Oxford’s Theory and Praxis (Sharlene Nagy
copyright was impaired to a minuscule de- Hesse-Biber ed., Sage 2006)
gree. Sage lost approximately $55.69 in net Professor Kaufmann used two chapters
revenue as a result of Professor Kauf- from the Handbook of Feminist Research
mann’s use. But widespread use of unpaid in her fall 2009 Qualitative/Interpretive
excerpts at other colleges or universities Research in Education course [Tr. Vol. 5,
could cause substantial damage to the val- Doc. 403 at 154; Pls. Ex. 518]. The first
ue of the copyrighted work. Factor four excerpt, chapter 26 of the book (pages 515-
strongly disfavors fair use. 534), is titled ‘‘Feminist Research Ethics,’’
by Judith Preissle [Pls. Ex. 243]. The sec-
In summary, factor one favors fair use;
ond excerpt, chapter eight of the book
factor two disfavors fair use; factor three
(pages 155-172), is titled ‘‘Toward Under-
favors fair use; and factor four strongly
standings of Feminist Ethnography,’’ by
disfavors fair use. The Court will look fur-
Wanda S. Pillow and Cris Mayo [Id.]. The
ther and will conduct a holistic assessment excerpts combine to total 38 pages and
to rule on the fair use defense. constitute 4.95% of the pages in the book
The record reflects that Oxford received [Id.]. They were required reading [Doc.
only $131.29 in APS income and $172.59 in 403 at 154-56; Pls. Ex. 518].
ECCS income through CCC from January Fair Use Analysis
1, 2005 to November 19, 2010 for permis- [9] As to the first element of fair use
sions to copy this excerpt [Pls. Ex. 353]. (‘‘the purpose and character of the use’’),

21. Obviously there were book sales. Sage ten- 22. The Court also finds that even without the
dered a copy of Approaches to Qualitative mitigating adjustment of factor four, weighing
Research as evidence in this case, and Sage’s the four factors would yield a determination
claims of copyright infringement for this book that Defendants’ use was a fair use.
involve Georgia State’s copy of the book.
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1185
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

Defendants’ use of the excerpt was non- cultures. The authors write in a formal
transformative (here, mirror-image copy- tone with little to no discussion of their
ing). The excerpt serves the same purpose own experiences or opinions.
as the copyrighted original. The excerpt
Considering the nature of chapters eight
was used for a nonprofit educational pur-
and 26 together, the Court finds that fac-
pose by a nonprofit educational institution.
tor two weighs neither for nor against fair
Thus, factor one favors fair use.
use in this instance. It is neutral.
Moving to factor two (‘‘the nature of the
Moving to factor three (the ‘‘amount and
copyrighted work’’), the Court notes that it
substantiality of the portion used in rela-
has already assessed the Handbook of
tion to the copyrighted work as a whole’’),
Feminist Research and specifically, chap-
Professor Kaufmann uploaded two chap-
ter 26, under the fair use factor two rubric.
ters of the Handbook of Feminist Re-
See supra pp. 1165–66. There is no need to
search to ERES. Chapter eight totals 18
duplicate that description here. The Court
pages, while chapter 26 totals 20 pages,
found that chapter 26 balances objective
bringing the combined total of the two
description with author opinion, and it is
excerpts to 38 pages, which is not a small
therefore neutral under the factor two
number of pages [Pls. Ex. 243]. That com-
analysis.
bined total is 4.95% of the total book,
Chapter eight, ‘‘Toward Understandings which is a small percentage of the copy-
of Feminist Ethnography,’’ starts by es- righted work. The excerpts were tailored
tablishing the benefits of using identity to fit Professor Kaufmann’s pedagogical
categories, such as race and gender, in purpose. Chapters eight and 26 do not
qualitative research. Noting that these cat- constitute the heart of the work. However,
egories can also overlap, the chapter also two whole chapters were used, and whole
discusses the intersection of identity cate- chapters represent greater value than an
gories. The chapter then narrows its focus equal number of pages which do not com-
to feminist custom and culture by chroni- prise whole chapters. Thus, factor three
cling past work on feminist ethnography. disfavors fair use.
Using these past works as an example, the
Factor four evaluates ‘‘the effect of the
chapter concludes by developing the dis-
use upon the potential market for or value
tinctions created between feminist ethnog-
of the copyrighted work.’’ Digital permis-
raphy and other identity categories when a
sions were available for excerpts of the
researcher studies, analyzes, and writes
Handbook of Feminist Research in 2009
about feminist culture.
[Pls. Ex. 248]. By providing the excerpts
Chapter eight is primarily objective, free to her class, Professor Kaufmann de-
with long descriptions of previous authors’ prived Sage of less than $223.50 23 [Jt. Ex.
work. Complementing these objective de- 5, Doc. 266-4 at D-59]. This caused actual,
scriptions are analytical passages which but tiny, damage to the value of the copy-
develop and explore various issues present righted work. In addition, if other colleges
when researching feminism and feminist and universities allowed unpaid use of ex-

23. The figure provided in the parties’ joint this Court previously excluded from the rele-
exhibit overstates the amount lost for this use vant fair use inquiry.
because the calculation includes pages that
1186 446 FEDERAL SUPPLEMENT, 3d SERIES

cerpts of copyrighted works, it could cause fair use. The Court will look further and
substantial harm to the potential market will conduct a holistic evaluation of the
for or the value of the copyrighted work. factors to rule on the fair use defense.
Factor four strongly disfavors fair use.
The following table shows book sales for
In summary, factor one favors fair use;
factor two is neutral; factor three disfavors The Handbook of Feminist Research since
fair use; and factor four strongly disfavors its publication:

[Pls. Ex. 248]. the Handbook of Feminist Research, but

Over that same period of time, the Sage did provide the figures for their in-
Handbook of Feminist Research generat- house (presumably digital) permissions
ed a small amount of permissions revenue. sales. Those figures are listed below:
There is no evidence of CCC revenues for

[Pls. Ex. 248]. adjustment of factor four, favoring Defen-

Based on the foregoing data, the Court dants, is warranted.
finds that the value of the copyrighted Weighing all factors (as adjusted) to-
work in 2009 was primarily in book sales, gether, placing the burden of proof on
not permissions. Defendants’ actions had Defendants, and recalling that factor four
no impact on book sales. In 2009 Sage had ‘‘looms large,’’ the Court finds that Defen-
only $96.45 in permissions revenue from dants prevail on their fair use defense.
Handbook of Feminist Research. Repeti- This copyright infringement claim fails.
tive use of excerpts of the copyrighted
11. Handbook of Narrative Inquiry:
work was unlikely. Thus, it is unlikely that
Mapping a Methodology (D. Jean
Defendants’ use of unpaid excerpts in 2009
Clandinin ed., Sage 2006)
(even assuming the widespread availability
of programs like Georgia State’s) substan- Professor Kaufmann again used the
tially damaged the value of the copyright- Handbook of Narrative Inquiry in her fall
ed work. For this reason, a mitigating 2009 Qualitative/Interpretive Research in
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1187
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

Education Course, but assigned a different Chapter two is primarily objective, as

chapter than the one used in her Maymes- the authors describe the different methods
ter class [Tr. Vol. 6, Doc. 404 at 21; Pls. of inquiry and the general theories which
Ex. 518]. That new assignment required underlie those methods. The chapter is
her students to read chapter two (pages written in a formal tone, and aims to pro-
35-75), titled ‘‘Mapping a Landscape of vide the reader with a brief education on
Narrative Inquiry: Borderland Spaces and various forms of narrative inquiry. Author
Tensions’’ (‘‘Mapping a Landscape’’), by D. analysis does not dominate. Taking all of
Jean Clandinin and Jerry Rosiek [Pls. Ex. this into account, factor two is neutral for
258]. The chapter totaled 41 pages, or this work.
5.77% of the overall book [Id.].
Factor three addresses the quantity and
Fair Use Analysis quality of the excerpt used as it relates to
the work as a whole. Here, Professor
[10] As to the first element of fair use
Kaufmann used 41 pages of the Handbook
(‘‘the purpose and character of the use’’),
of Narrative Inquiry, which is the equiva-
Defendants’ use of the excerpt was non-
lent of 5.77% of the overall book [Pls. Ex.
transformative (in this case, mirror image
258]. This is a small percentage. As for the
copying). It serves the same overall func-
value of the excerpt, chapter two is not the
tion as the copyrighted work. The excerpt
heart of the work, although a full chapter
was used for a nonprofit educational pur-
has more value than a part of a chapter.
pose by a nonprofit educational institution.
Use of the excerpt was narrowly tailored
Thus, factor one favors fair use.
to serve Professor Kaufmann’s pedagogical
Factor two assesses the nature of the interest. The number of pages copied was
copyrighted work. As previously discussed, quite large but not too large given the
the Handbook of Narrative Inquiry is an limitation to one chapter, the small per-
academic book. See supra pp. 1177–78. centage of the copyrighted work, and the
nonprofit educational nature of the use, yet
Chapter two, ‘‘Mapping a Landscape,’’ taking into account the potential impact of
begins by defining narrative inquiry as the market substitution. Factor three favors
studying of experiences, as embodied in fair use.
the continuous interaction of human
thought with the personal, social, and ma- Factor four evaluates ‘‘the effect of the
terial environment. With this definition in use upon the potential market for or value
mind, the chapter then compares and con- of the copyrighted work.’’ Permissions to
trasts narrative inquiry with other forms make digital excerpts from CCC and Sage
of inquiry, such as post-postivism, Marx- were available in 2009 [Pls. Exs. 262, 264].
ism, critical theory, and post-structuralism. Had permissions been paid, Sage would
By performing this comparison, the chap- have earned less than $102.46 in net reve-
ter creates its metaphorical map, noting nues from digital permissions. Cambridge
where the fields of inquiry reside and in- I, 863 F. Supp. 2d 1190, 1275 (N.D. Ga.
tersect with one another. The chapter con- 2012). This represents actual, but minus-
cludes with a closer look at the ‘‘borders’’ cule, damage to the value of Sage’s copy-
of the various methods of inquiry and ad- righted work. Further, widespread unpaid
dresses what occurs when the different use of excerpts by other universities could
fields of inquiry blur together. cause substantial damage to the value of
1188 446 FEDERAL SUPPLEMENT, 3d SERIES

the copyrighted book, Handbook of Narra- fair use. The Court will look further and
tive Inquiry. Factor four strongly disfa- will conduct a holistic evaluation.
vors fair use.
The following table demonstrates book
In summary, factor one favors fair use;
sales data for the Handbook of Narrative
factor two is neutral; factor three favors
fair use; and factor four strongly disfavors Inquiry since its publication in 2006:24

[Pls. Ex. 262]. The following table demon- Handbook of Narrative Inquiry since
strates permissions sales data for the 2006:

[Pls. Exs. 262, 264]. 12. Sage Handbook of Qualitative Re-

search, Third Edition (Norman K.
The evidence here shows that in 2009 Denzin & Yvonna S. Lincoln eds.,
there was very little demand for excerpts Sage 2005)
of the Handbook of Narrative Inquiry.
In the fall semester of 2009, Professor
Thus, there was little risk of repetitive use Kaufmann again assigned excerpts from
of these excerpts. For this reason there the Sage Handbook of Qualitative Re-
should be a mitigating adjustment to fac- search, Third Edition (‘‘Handbook, Third
tor four in Defendants’ favor. Ed.’’) as required reading for her EPRS
8500 course on Qualitative/Interpretive
Weighing all factors (as adjusted) to-
Research in Education [Tr. Vol. 5, Doc.
gether, placing the burden of proof on
403 at 145-152; Pls. Ex. 518]. Specifically,
Defendants, giving extra weight to factor she requested that seven chapters, or
four and no weight to factor two (since it is pages 1-32, 109-138, 357-375, 443-465, 547-
neutral), Professor Kaufmann’s use of the 557, 915-932, and 959-978 of the Handbook,
Handbook of Narrative Inquiry qualifies Third Ed. be uploaded to ERES [Doc. 403
as a fair use. Sage’s claim of infringement at 145-152; Pls. Ex. 518]. The excerpts
as to this work, therefore, fails. posted to ERES consisted of 153 pages

24. The book was first published on December no book sales or permissions sales figures for
28, 2006 [Pls. Ex. 261]. Accordingly, there are 2006 [Pls. Exs. 262, 264].
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1189
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

total or 12.45% of the 1,229-page book [Pls. ues by focusing on research on the Maori
Ex. 267]. people, an indigenous community in New
Zealand. After describing background is-
Fair Use Analysis
sues involved in studying indigenous peo-
[11] As to the first element of fair use ple, the author introduces the ‘‘Kaupapa
(‘‘the purpose and character of the use’’), Maori’’ approach to research. The remain-
Defendants’ use of the excerpt is nontrans- der of the chapter is devoted to describing
formative (in this case, mirror image copy- three research studies that the author per-
ing). The excerpt serves the same purpose formed using the Kaupapa Maori ap-
as the original work. The excerpt was used proach, and contrasting the approach with
for a nonprofit educational purpose by a Western traditions. Overall, the chapter
contains some objective description but it
nonprofit educational institution. Thus, fac-
is dominated by the author’s opinion and
tor one favors fair use.
evaluative assessment.
Factor two (‘‘the nature of the copy-
The second excerpt is pages 547-557, or
righted work’’) disfavors fair use for the
all of chapter 22, ‘‘Testimonio, Subalterni-
reasons which follow. As an initial matter,
ty, and Narrative Authority,’’ by John Bev-
the Court has already evaluated three of
erly. In chapter 22, the author discusses
the seven total excerpts under the rubric
the ‘‘testimonio,’’ which is a testimonial
of factor two, including (1) pages 1-32 (in-
narrative ‘‘produced in the form of a print-
troduction); (2) pages 357-375 (chapter 14);
ed text, told in the first person by a narra-
and (3) pages 443-465 (chapter 17) [see
tor who is also the real protagonist or
supra pp. 1171–73]. There is no need to
witness of the events she or he recounts’’
rehash the nature of these chapters at [Id. at 547]. The author contrasts testimo-
length, but in relevant part, the Court nio with other similar narrative formats,
found as follows: (1) the introduction is such as autobiography, diary and ethno-
both objectively and subjectively descrip- graphic writing. The author examines one
tive and it contains a considerable amount testimonio to illustrate the distinctive fea-
of author/editor opinion; (2) chapter 14 is tures of the format. For instance, in re-
evaluative and contains author opinion; and sponse to a criticism regarding the histori-
(3) chapter 17 is primarily objectively de- cal accuracy of the testimonio, he explains
scriptive. that because it is a witness’s account of an
event, it necessarily reflects the speaker’s
This Court has yet to assess four of the
reality rather than a detached observer’s.
seven excerpts in light of factor two. The
Along these lines, the author explains that
first relevant excerpt is pages 109-138, or
testimonios are a union of objectivity and
the whole of chapter five, ‘‘Freeing Our-
solidarity, and are typically used to tell
selves from Neocolonial Domination in Re-
stories of oppressed or subaltern peoples.
search: A Kaupapa Maori Approach to
Overall, the author’s approach to this
Creating Knowledge,’’ by Russell Bishop.
chapter is evaluative. While it contains
In this chapter, the author identifies and
some objective description, it is dominated
sets aside research traditions that rein-
by the author’s own subjective observa-
force or reflect colonial power imbalances
tions and critiques.
in the study of indigenous cultures. He
also explores alternative paradigms that The third relevant excerpt is pages 915-
embody non-Western experiences and val- 931, or the whole of chapter 36, ‘‘Relativ-
1190 446 FEDERAL SUPPLEMENT, 3d SERIES

ism, Criteria, and Politics,’’ by John K. portions of the work are dominated by
Smith and Phil Hodkinson. In the chapter, author opinion, analysis, evaluation, and
the authors respond to an issue touched on subjective description. Thus, factor two
in the first edition of the Handbook: the disfavors fair use.
age of relativism in research, or the real-
ization that there is no possibility of theo- Turning to factor three (the ‘‘amount
ry-free observation and knowledge. In this and substantiality of the portion used in
vein, the authors discuss two ideas: (1) that relation to the copyrighted work as a
researchers cannot step outside of their whole’’), Professor Kaufmann uploaded 153
own social and historical standpoints; and pages, or 12.45% of the Handbook, Third
(2) the decisions about research criteria Ed., to ERES [Pls. Ex. 267]. The number
and judgments about the worth of re- of pages copied is extremely large, even
search represent social activities. The au- considering that the excerpts served the
thors summarize several responses to the pedagogical aims of the course, and that
question of how to select criteria to evalu- none of the excerpts is the heart of the
ate research quality and methodology. work. An even more compelling factor
Chapter 36 is academic and somewhat weighing against fair use is that seven
philosophical. It contains relatively equal complete chapters were used. Professor
parts objective description of historical re- Kaufmann captured a very large amount of
search, and subjective evaluation and anal- the book’s value by copying and distribut-
ysis. ing seven complete chapters. Because fac-
tor three takes into account the market
The final excerpt is pages 959-978, or all
impact caused by substitution, the unpaid
of chapter 38, ‘‘Writing: A Method of In-
use of seven complete chapters certainly
quiry,’’ by Laurel Richardson and Eliza-
weighs against a finding of fair use. Based
beth Adams St. Pierre, which is a revision
on these considerations, Professor Kauf-
of a chapter by the same name in previous
mann used much too much of the work--
editions of the Handbook. Chapter 38 is
both with respect to its quantity and quali-
divided into three parts. The first part,
ty--for factor three to weigh in Defendants’
written by Richardson, discusses creative
and analytical social scientific writing, favor. Factor three weighs against fair use.
writing in the genre of ethnography, and Turning to factor four (‘‘the effect of the
the direction that her work has taken. The use upon the potential market for or value
second part, written by St. Pierre, ana- of the copyrighted work’’), digital permis-
lyzes writing as a method of qualitative sions were available for excerpts of the
inguiry, with reference to the author’s own Handbook, Third Ed., in 2009 through
personal experiences using writing as a CCC and Sage’s in-house permissions pro-
method. In the third and final part, Rich- gram [Pls. Exs. 283, 286, 287]. If Georgia
ardson gives 16 examples of exercises that
State had purchased permissions from
help engage the writer to write as a meth-
Sage for its use of the Handbook, Third
od of knowing. The nature of this chapter,
Ed. in Professor Kaufmann’s class, Sage
which is fueled primarily by the authors’
would have earned less than $467.31 in net
own personal experiences and opinions,
revenue from permissions. In other words,
does not support a finding of fair use.
Georgia State’s unpaid use caused Sage
Overall, the nature of the excerpts disfa- some actual harm. It follows that wide-
vors fair use. In particular, the excerpted spread unpaid copying of excerpts of the
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1191
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

book could cause substantial harm to the term. The fair use analysis is on pages 21-
value of the copyrighted work. Factor four 25 above. The use of this excerpt in the fall
weighs strongly against fair use. of 2009 was a fair use.

To recap, factor one favors fair use;

factors two and three both disfavor fair B. Professor Esposito
use, and factor four strongly disfavors fair Professor Esposito is a professor in the
use. Consistent with the Court of Appeals’ Educational Policy Studies department at
direction, factor four is the most substan- Georgia State [Tr. Vol. 6, Doc. 404 at 52].
tial factor, and factor two has insubstantial
weight. Also, the Court affords factor EPSF 8280 Anthropology of Education,
three substantial additional weight in this Summer 2009
instance because Defendants used a nota-
In the summer of 2009, Professor Espo-
bly excessive quantity and quality of the
sito taught EPSF 8280, Anthropology of
copyrighted work. Finally, factor four is
Education [Id. at 81]. EPSF 8280 is a
augmented yet further in Plaintiffs’ favor
graduate course that explores the method-
on account of significant digital permis-
ology of ethnography and the study of
sions sales in 2009 showing high repetitive
culture in school settings [Id.]. Twenty two
use of excerpts of the Handbook, Third
graduate students were enrolled in Profes-
Ed. Defendants have clearly failed to dis-
sor Esposito’s EPSF 8280 course during
charge their burden with respect to this
the summer 2009 semester [Id. at 52]. As
use. The Court thus finds that Professor
evidenced by the Syllabus, students were
Kaufmann’s use of the Handbook, Third
required to purchase five texts for this
Ed. in the fall of 2009 was not a fair use.
Accordingly, this claim of copyright in- course, as well as complete several re-
fringement succeeds. quired readings posted on ERES [Id. at
79, Pls. Ex. 547].
13. Handbook of Social Theory (George
Ritzer & Barry Smart eds., Sage 14. Handbook of Feminist Research:
2001) Theory and Praxis (Sharlene Nagy
Hesse-Biber ed., Sage 2006)
Professor Kaufmann assigned chapter
17 of the Handbook of Social Theory for Professor Esposito assigned chapter
her September 28, 2009 class session in eight, titled ‘‘Toward Understandings of
EPRS 8500 [Tr. Vol. 5, Doc. 403 at 157; Feminist Ethnography,’’ of the Handbook
Pls. Ex. 518]. The chapter (pages 217-228) of Feminist Research [Tr. Vol. 6, Doc. 404
is titled ‘‘Symbolic Interactionism at the at 56]. The excerpt (pages 155-172) is 18
End of the Century,’’ (‘‘Symbolic Interac- pages long and 2.35% of the pages in the
tionism’’), and was written by Kent L. 767-page book [Pls. Ex. 243]. It was re-
Sandstrom, Daniel D. Martin, and Gary quired reading [Doc. 404 at 56-57; Pls. Ex.
Alan Fine [Pls. Ex. 288]. The chapter is 12 547].
pages long and 2.12% of the 564-page book
Fair Use Analysis
[Id.]. It was required reading [Doc. 403 at
157]. [12] As to the first element of fair use
(‘‘the purpose and character of the use’’),
Fair Use Analysis
Defendants’ use of the excerpt was non-
Professor Kaufmann used the same ex- transformative (in this case, mirror image
cerpt previously during the Maymester copying). It serves the same overall func-
1192 446 FEDERAL SUPPLEMENT, 3d SERIES

tion as the copyrighted work. The excerpt tion. Moreover, the excerpt was narrowly
was used for a nonprofit educational pur- tailored to fit Professor Esposito’s peda-
pose by a nonprofit educational institution. gogical purpose. Weighing all of these con-
Thus, factor one favors fair use. siderations together, factor three easily fa-
vors fair use.
Turning to factor two (‘‘the nature of the
copyrighted work’’), as previously dis- Factor four looks to ‘‘the effect of the
cussed, the Handbook of Feminist Re- use upon the potential market for or value
search broadly covers feminist theories, of the copyrighted work.’’ Digital permis-
research, and practice. See supra p. 1165. sions were available for excerpts of the
This Court has already evaluated chapter Handbook of Feminist Research in 2009
eight under the fair use factor two rubric, [Pls. Ex. 248]. By providing the excerpts
and concluded that chapter eight contains free to her class, Professor Esposito de-
both objective description and author anal- prived Sage of $47.52, less royalties pay-
ysis; analysis does not dominate. See supra able to the external editor, in net revenue
pp. 1184–85. Accordingly, fair use factor from permissions. Cambridge I, 863 F.
two is neutral. Supp. 2d at 1283. This caused actual, but
tiny, damage to the value of the copyright-
Moving to factor three (the ‘‘amount and ed work. In addition, if ‘‘everyone’’ (col-
substantiality of the portion used in rela- leges and universities) allowed unpaid use
tion to the copyrighted work as a whole’’), of copyrighted excerpts, it could cause sub-
Professor Esposito uploaded one chapter stantial harm to the value of the Handbook
of the Handbook of Feminist Research to of Feminist Research. Factor four strong-
ERES. Chapter eight totals 18 pages, ly disfavors fair use.
which is 2.35% of the book [Pls. Ex. 243].
This is a very small number of pages and In summary, factor one favors fair use;
a very small percentage of the overall factor two is neutral; factor three favors
book. Even though a whole chapter was fair use; and factor four strongly disfavors
used—and a whole chapter has more value fair use. The Court will look further and
than part of a chapter--chapter eight does will conduct a holistic evaluation of the
not constitute the heart of the work. Anal- four factors.
ysis of factor three requires assessing the
First, the Court finds that an adjust-
quality and quantity of the work in light of
ment to factor three should be made, in
the purpose of the use and the threat of
Defendants’ favor, because the percentage
substitution on the market for the work.
of the copyrighted work used by Professor
The book’s use for a nonprofit, educational
Esposito was so very small (2.35%).
purpose amply endorses the amount and
percentage of the book which was used. The following table shows book sales for
The small page count strongly mitigates the Handbook of Feminist Research since
the potential impact of market substitu- its publication:
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1193
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

[Pls. Ex. 248]. the Handbook of Feminist Research, but

Over that same period of time, the Sage did provide the figures for its in-
Handbook of Feminist Research generat- house (presumably digital) permissions
ed a small amount of permissions revenue. sales. Those figures are listed below:
There is no evidence of CCC revenues for

[Pls Ex. 248]. ‘‘looms large,’’ the Court finds that the
overall weight of the four factors favors
Based on the data listed above, the
fair use. Defendants accordingly prevail on
Court finds that the value of the copyright-
their fair use defense as to this work, and
ed work in 2009 was almost exclusively in
this infringement claim fails.
book sales, not permissions. Defendants’
actions had no impact on book sales. De- 15. The Sage Handbook of Qualitative Re-
fendants’ actions could have had some very search (Second Edition) (Norman K.
small impact on the actual or potential Denzin & Yvonna S. Lincoln eds.,
market for digital permissions sales. How- Sage 2000)
ever, the likely effect of Defendants’ con-
The Sage Handbook of Qualitative Re-
duct is diminished by the fact that there
search (Second Edition) was first publish-
was very little demand for excerpts of the
ed by Sage in 2000 [Pls. Ex. 265]. It is a
Handbook of Feminist Research in 2009;
1,142 page, 36 chapter volume edited by
hence repetitive use of the excerpt was
Norman K. Denzin and Yvonna S. Lincoln.
unlikely. This calls for some mitigation in
The chapters analyze the theory and prac-
the strength of factor four, in Defendants’
tice of qualitative research [Pls. Ex. 265;
favor.
Jt. Ex. 5 at D-14]. There is conflicting
Weighing all four factors (as adjusted) evidence in the record as to the retail price
together, placing the burden of proof on for The Sage Handbook of Qualitative Re-
Defendants, and recalling that factor four search (Second Edition); the parties alter-
1194 446 FEDERAL SUPPLEMENT, 3d SERIES

natively assert that it retails for $156.00 Defendants’ use of the excerpt is nontrans-
and for $175.00 [Jt. Ex. 5 at D-19, D-23]. formative (in this case, mirror image copy-
There is conflicting evidence of whether ing). The excerpt serves the same purpose
The Sage Handbook of Qualitative Re- as the original work. The excerpt was used
search (Second Edition) is currently out of for a nonprofit educational purpose by a
print [Jt. Ex. 5 at D-19, D-23]. A reprint is nonprofit educational institution. Thus, fac-
available for an extra charge. The book has tor one favors fair %CO use.
earned $1,300,053.54 in net sales revenue
[Pls. Ex. 283]. Licensed digital excerpts of The second fair use factor is ‘‘the na-
the book were available through CCC in ture of the copyrighted work.’’ The Court
2009 [Pls. Ex. 286]. From July 1, 2004 until makes the following findings in that re-
December 1, 2010, The Sage Handbook of gard: chapter 17 begins with an introduc-
Qualitative Research (Second Edition) tion to the work done by ethnographers 27
earned $6,324.61 in ECCS permissions in studying various sections of the popula-
revenue including $3,814.52 in 2009 [Pls. tion. This introduction includes an histori-
Ex. 286]. In addition, licensed excerpts of cal overview of some of the earliest eth-
this work were available directly from
nographic studies, which were originally
Sage in 2009; the book has earned $58,-
carried out in the late nineteenth century.
904.47 25 through Sage’s in-house permis-
The excerpt then discusses the ‘‘genres’’
sions program from 2000 through 2010
of ethnography, or the ways in which eth-
[Pls. Ex. 283].
nographers chose to relay their studies to
Professor Esposito requested that pages
the public. Finally, the chapter highlights
455-486 of The Sage Handbook of Qualita-
the ways in which the character and
tive Research (Second Edition) be upload-
background of the ethnographer affects
ed to ERES for distribution to students in
her EPSF 8280 course [Pls. Ex. 265; Tr. the results of the ethnographer’s re-
Vol. 6 at 54]. The excerpted chapter was search.
entitled ‘‘Ethnography and Ethnographic Chapter 17 consists primarily of objec-
Representation’’ by Barbara Tedlock. The tive surveys of the field of ethnography.
excerpt was one chapter of the book total-
The excerpt goes to great lengths to de-
ing 32 pages, or 2.80% of the total work
scribe the studies and works of ethnogra-
[Pls. Ex. 265]. Had permissions been paid
phers, but does not incorporate the au-
via CCC for the distribution of this ex-
thor’s experiences. The chapter is didactic,
cerpt, Sage would have earned less than
$83.78 in net revenue from permissions.26 using a formal tone to teach individuals
The cost to students in the course would how to approach %CO ethnography and
have been $101.56. ethnographic studies. Chapter 17 is neutral
under factor two of the fair use analysis.
Fair Use Analysis
[13] As to the first element of fair use Factor three assesses the ‘‘amount and
(‘‘the purpose and character of the use’’), substantiality of the portion used in rela-

25. This amount represents permissions in- by CCC to publishers, less royalties Sage is
come only for the second edition of this work. obligated to pay the external editors.

26. The amount earned would have been 27. ‘‘Ethnography’’ is a branch of anthropolo-
$101.56, the amount charged by CCC, [Jt. Ex. gy that studies people, societies, and cultures.
5 at D-23], less the $3.00 service fee charged Ethnography, Oxford English Dictionary (3d
by CCC to users, less $14.78 in fees charged ed. 2011).
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1195
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

tion to the copyrighted work as a whole.’’ Plaintiffs produced evidence demon-

Here, Professor Esposito used 32 pages of strating that there was a ready market for
the Handbook, Second Edition, which rep- licensed digital excerpts of this work in
resents 2.80% of the overall page count for 2009 through CCC and through Sage’s in-
the book [Pls. Ex. 265]. The excerpt fit house program. The unpaid use of the
Professor Esposito’s pedagogical purpose. excerpt by Professor Esposito and her stu-
The percentage of the book used by Pro- dents caused very small, but actual, dam-
fessor Esposito was very small (not merely age to the value of Sage’s copyright. In
small) as a percentage of the total work. addition, widespread use of similar unli-
The favored educational nature of the use censed excerpts could cause substantial
further affirms that this percentage and harm. Sage lost permissions income. Fac-
the length of the excerpt favors fair use. tor four strongly disfavors fair use.
The number of pages taken is also a heu- In summary, factor one favors fair use;
ristic for impact on the market (it has a factor two is neutral; factor three favors
relationship to the amount of lost permis- fair use; and factor four strongly disfavors
sions); the Court finds that the impact is fair use. The Court will look further and
small enough given the very small percent- will conduct a holistic evaluation of the
age of the work which was used. While four factors.
Professor Esposito used a whole chapter
The Court finds that the very small
of the book it is not the heart of the work.
percentage of the copyrighted work which
Taking all of this into account, factor three
is represented by the excerpt (2.8%) calls
favors fair use. for an adjustment of factor three, in De-
As to the fourth fair use factor (‘‘the fendants’ favor.
effect of the use upon the potential market In addition, the Court finds that strong
for or value of the copyrighted work’’), the demand for excerpts of the book in 2009
Court first looks to whether Professor Es- calls for an augmenting adjustment of fac-
posito’s use of The Sage Handbook of Qua- tor four, in Plaintiffs’ favor.
litative Research (Second Edition) affect-
After considering all four fair use fac-
ed the market for purchasing the book as a
tors (as adjusted), weighing them together,
whole. The sales revenue for The Sage
placing the burden of proof on Defendants,
Handbook of Qualitative Research (Sec-
and recalling that factor four ‘‘looms
ond Edition) in 2009 was $0.00. The book
large,’’ the Court finds that Defendants
is technically out of print, but a reprint is
have not met their burden of proving that
available at an extra charge. The Court
Professor Esposito’s use of The Sage
treats this as in print. Students would not
Handbook of Qualitative Research (Sec-
pay $156.00 or $175.00 for an entire book ond Edition) was a fair use under the
when only 32 pages were required reading Copyright Act. Thus, this claim of copy-
for Professor Esposito’s course. Neither right infringement succeeds.
would a professor require students to pur-
chase the entire book in such an instance. 16. Sage Handbook of Qualitative Re-
Therefore, the Court rejects any argument search (First Edition) (Norman K.
Denzin & Yvonna S. Lincoln eds.,
that the use of the excerpt from The Sage
Sage 1994)
Handbook of Qualitative Research (Sec-
ond Edition) had a negative effect on the The Sage Handbook of Qualitative Re-
market for purchase of the book itself. search (First Edition) was first published
1196 446 FEDERAL SUPPLEMENT, 3d SERIES

by Sage in 1994 [Defs. Ex. 739]. It is a 653 Factor two addresses the nature of the
page, 36 chapter volume edited by Norman work. The Handbook, First Ed. roughly
K. Denzin and Yvonna S. Lincoln. The divides into three sections. First, the book
chapters provide analysis on the theory locates the field of qualitative research by
and practice of qualitative research [Jt. analyzing historical qualitative studies and
Ex. 5 at D-24]. The Sage Handbook of discussing major research paradigms
Qualitative Research (First Edition) is out which influence modern qualitative field-
of print [Jt. Ex. 5 at D-24] but reprints are work. The book then moves to the more
available at an extra charge. There is no practical aspects of performing qualitative
evidence in the record of the net sales research, including qualitative study de-
revenue from sales of the book itself. Ex- sign and ways to collect and interpret qua-
cerpts from the book were available for litative data. The concluding section of the
digital licensing through CCC in 2009 [Pls. book discusses where qualitative research
Ex. 287]. From July 1, 2004 until Decem- may go in the future.
ber 1, 2010, The Sage Handbook of Quali-
tative Research (First Edition) earned Chapter four, ‘‘Working the Hyphens,’’
$4,632.40 in ECCS permissions revenue alludes to the qualitative research concept
[Pls. Ex. 287].28 of ‘‘self-other,’’ in which a qualitative re-
searcher maintains separation and inde-
For her summer 2009 class, Professor pendence from the study subjects. The
Esposito assigned ‘‘Working the Hyphens: author of the chapter suggests that re-
Reinventing Self and Other in Qualitative searchers should abandon this separation
Research’’ (‘‘Working the Hyphens’’) by and examine their relationships with their
Michelle Fine [Tr. Vol. 6, Doc. 404 at 58; subjects instead. This examination in-
Pls. Ex. 547]. ‘‘Working the Hyphens’’ cludes re-evaluating common assumptions
(pages 70-82) is the fourth of 36 chapters of qualitative research, including the char-
in the Sage Handbook of Qualitative Re- acterization that qualitative research sub-
search (First Edition) (‘‘Handbook, First jects, such as indigenous peoples, are sep-
Ed.’’) [Defs. Ex. 739]. The chapter is 13 arated from the general population. The
pages in length and represents 1.99% of chapter also details various qualitative re-
the pages in the 653-page book [Id.]. It search writings that speak against sepa-
was required reading [Pls. Ex. 547]. rating the researcher from the subject.
Fair Use Analysis These works voice their discontent by ei-
ther offering critiques which disturb the
[14] As to the first element of fair use division between researcher and subject or
(‘‘the purpose and character of the use’’), encouraging researchers to let their per-
Defendants’ use of the excerpt was non- sonal characteristics overcome the separa-
transformative (in this case, mirror image
tion to enhance the resulting qualitative
copying). It serves the same overall func-
scholarship.
tion as the copyrighted work. The excerpt
was used for a nonprofit educational pur- The chapter objectively describes two
pose by a nonprofit educational institution. forms of previous qualitative literature: (1)
Thus, factor one favors fair use. examples of the self-other separation or (2)

28. This figure is the Court’s estimation of mentary evidence provided at trial.
ECCS revenue based on its review of docu-
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1197
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

works that call for a re-analysis of the for or value of the copyrighted work. Digi-
separation. The chapter is written in a tal permissions of the Handbook, First Ed.
formal tone and is devoid of any fanciful were available in 2009 [Pls. Ex. 287]. The
language or descriptions. The author in- unpaid use by Professor Esposito cost
cludes some personal accounts of her Sage less than $34.03 in net revenue. Cam-
struggle with the self-other separation at bridge I, 863 F. Supp. 2d at 1286 n.87. This
the beginning of the chapter, but the re- amount represents actual damage to the
mainder of the excerpt does not draw ex- value of Sage’s copyrighted work, but the
tensively on her experience. Overall, au- damage was minuscule. Nevertheless, if
thor opinion, subjective description and unpaid use of excerpts of copyrighted
evaluative approach are present but do not books became widespread at colleges and
dominate. Based on these aspects of the universities, it could substantially damage
excerpt, fair use factor two is neutral. Sage’s ability to receive digital permissions
Factor three assesses the amount and income for excerpts of the Handbook,
substantiality of the excerpt in relation to First Ed. Thus, Defendants’ use (and the
the work as a whole. The chapter, ‘‘Work- use of others) could substantially damage
ing the Hyphens’’ is 13 pages long, and the value of the copyrighted work. Factor
represents 1.99% of the total pages of the four strongly disfavors fair use.
Handbook, First Ed. [Defs. Ex. 739]. The In summary, factor one favors fair use;
chapter is a tiny part of the total work, factor two is neutral; factor three favors
and it is adequately tailored to the peda- fair use; and factor four strongly disfavors
gogical purpose of Professor Esposito’s fair use. The Court will look further and
course. It does not constitute the heart of will conduct a holistic evaluation of the
the work. The 13-page length of the ex- four factors.
cerpt is easily accommodated by the non-
profit, educational use favored by factor First, the Court finds that factor three
one and it portends small impact from should be adjusted, in Defendants’ favor,
market substitution, a concern of factor because the excerpt used was not merely
four. Taking all of these considerations small; it was tiny.
into account, factor three easily favors fair
In addition, permissions sales in the
use.
years leading up to 2009 showed a down-
Factor four looks to the effect of Profes- ward trend and permissions sales were
sor Esposito’s use on the potential market very modest in 2009.
1198 446 FEDERAL SUPPLEMENT, 3d SERIES

[Docs. 286, 287]. quired readings posted on ERES [Pls. Ex.

513; Tr. Vol. 6 at 86-87].
Thus, the projected effect of Defendants’
use of the unpaid excerpt on the value of 17. Theoretical Frameworks in Qualitative
the copyrighted work should be diminished Research (Vincent A. Anfara & Norman
on account of lack of demand for the ex- T. Mertz eds., Sage 2006)
cerpt in 2009. Repetitive use of excerpts
Theoretical Frameworks in Qualitative
was unlikely in 2009. Accordingly, a miti- Research was first published by Sage in
gating adjustment of factor four, in Defen- 2006 [Pls. Ex. 305]. It is a 237 page, ten
dants’ favor, will be made. chapter volume edited by Vincent A. An-
Weighing all four fair use factors (as fara and Norma T. Mertz. The chapters
adjusted) together, placing the burden of provide analysis on the role of the theoreti-
proof on Defendants, and recalling that cal framework in qualitative research
factor four ‘‘looms large,’’ the Court finds through case examples [Jt. Ex. 5 at D-63].
that Professor Esposito’s use of the Hand- The book retails for $51.95 [Jt. Ex 5 at D-
book, First Ed. was a fair use. Accordingly, 63]. The book has earned $75,320.69 in net
this copyright infringement claim fails. sales revenue [Pls. Ex. 308]. There is no
evidence in the record of any permissions
EPRS 8520 Qualitative Research in Edu- revenue earned through CCC. However,
cation III, Fall 2009 licensed digital excerpts of the book were
available in 2009 through Sage’s in-house
EPRS 8520 is a graduate course that
permissions program, and the book has
focuses on data analysis [Tr. Vol. 6 at 87].
earned $138.61 in permissions revenue
Fourteen doctoral candidates were en-
[Pls. Exs. 308, 309].
rolled in Professor Esposito’s course dur-
ing the fall 2009 semester [Jt. Ex. 5 at D- Professor Esposito requested that pages
63; Tr. Vol. 6 at 61, 88]. As evidenced by xxiii-xxxii 29 and pages 189-196 of Theoreti-
the syllabus for this course, students were cal Frameworks in Qualitative Research
required to purchase two texts for this be uploaded to ERES for distribution to
course, as well as complete several re- students in her EPRS 8520 course [Tr.

29. Although Joint Exhibit 5 states that the portion of the introduction, beginning at page
entire introduction, appearing on pages xii- xxiii. The Court credits this testimony. Thus,
xxx, was uploaded to ERES, Professor Esposi- the Court will consider the smaller excerpt for
to testified at trial that she assigned only a purposes of the fair use determination.
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1199
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

Vol. 6 at 88; Pls. Ex. 639]. The two ex- abstract key points for application in fu-
cerpts are a portion of the introduction ture qualitative research.
and the entirety of the conclusion of the
The section of the Introduction assigned
book, totaling sixteen pages, or 6.75% of
by Professor Esposito, pages xxiii-xxxii,
the total work [Pls. Ex. 305]. Both the
begins by using summaries of other au-
introduction and conclusion were written
thors’ works to demonstrate two instances
by the book’s editors, Vincent A. Anfara
where theory directly affects qualitative
and Norma T. Mertz. Had permissions research. In the first instance, %CO theo-
been paid through its in-house permissions ry affects the manner in which a research-
program to license this excerpt, Sage er designs his study. Theory also affects
would have earned $26.88 less royalties the underlying epistemology of the qualita-
payable to the external editors. The cost to tive study. The excerpt then defines the
students in the course would have been concept of a ‘‘theoretical framework’’ and
$26.88. provides additional discussion on both the
Fair Use Analysis boundaries of the definition and short ex-
amples of theoretical frameworks in prac-
[15] As to the first element of fair use tice. The Introduction finishes by outlining
(‘‘the purpose and character of the use’’), the remainder of the book for the reader.
Defendants’ use of the excerpt is nontrans-
The Introduction is didactic, teaching
formative (in this case, mirror image copy-
the reader about the role of theory in
ing). The excerpt serves the same purpose
qualitative research and defining theoreti-
as the original copyrighted work. The ex-
cal frameworks for use in the remainder of
cerpt was used for a nonprofit educational
the book. The central takeaway from the
purpose by a nonprofit educational institu-
excerpt, the definition of theoretical frame-
tion. Thus, factor one favors fair use.
works, seems to come directly from the
The second fair use factor is ‘‘the nature authors’ opinions or experience in qualita-
of the copyrighted work.’’ The Court tive research. The other parts of the ex-
makes the following findings in that re- cerpt consist of objective descriptions of
gard: Theoretical Frameworks in Qualita- either previous qualitative studies or the
tive Research is an academic work which other chapters of the book.
provides an overarching explanation of The Conclusion, pages 189-196, high-
theoretical frameworks, both in their use lights two questions about theoretical
in and effect on qualitative research. The frameworks: (1) how to find a theoretical
book first discusses the role of theory in framework, and (2) what type of effect the
qualitative research, defining a ‘‘theoretical theoretical framework will have on the re-
framework’’ as ‘‘any empirical or quasi- search. The authors then answer these
empirical theory of social and/or psycho- questions by emphasizing key points from
logical processes TTT that can be applied to the previous chapters. The Conclusion in-
the understanding of phenomena’’ [Pls. Ex. cludes insight from the authors them-
305 at xxvii]. Relying on this definition, the selves, with suggestions such as finding
book presents ten chapters in which vari- theoretical frameworks by searching other
ous qualitative researchers discuss the the- forms of scholarship and realizing that a
oretical frameworks they applied in select theoretical framework will focus the study
qualitative studies. The conclusion reflects and reveal more meaningful conclusions
on the different chapters and attempts to within the study itself.
1200 446 FEDERAL SUPPLEMENT, 3d SERIES

The Conclusion is also didactic, provid- Professor Esposito used include the heart
ing the reader with concrete advice on how of the work, which makes factor three
to use a theoretical framework when per- ultimately come down against fair use.
forming qualitative research. The excerpt
As to the fourth fair use factor (‘‘the
also synthesizes the previous chapters’
effect of the use upon the potential market
analysis into additional advice, using the
for or value of the copyrighted work’’),
high points of the other authors’ work as
Professor Esposito’s use of Theoretical
teaching tools and examples. The Conclu-
Frameworks in Qualitative Research did
sion maintains a formal tone, and does not
not affect the market for purchasing the
contain any fanciful or humorous elements.
book. However, Professor Esposito de-
Author opinion dominates both excerpts.
prived Sage of $26.88 in royalties. Because
Factor two disfavors fair use.
there was a ready market for licensed
Factor three looks to ‘‘the amount and digital excerpts of this work through
substantiality of the portion used in rela- Sage’s in-house program in 2009, the un-
tion to the copyrighted work as a whole.’’ paid use of the excerpt by Professor Espo-
It considers the quantity and quality (val- sito and her students caused very small,
ue) of the portion used, plus the purpose of but actual, damage to the value of Sage’s
the use and the potential harm of market copyright. In addition, widespread use of
substitution. Here, Professor Esposito pro- similar unlicensed excerpts could cause
vided 18 pages to her students, or 6.75% of substantial harm. Sage lost permissions
the total pages in Theoretical Frameworks income. Factor four strongly disfavors fair
in Qualitative Research [Pls. Ex. 303]. use.
This is a small number of pages and a In summary, factor one favors fair use;
small percentage of the copyrighted work. factor two disfavors fair use; factor three
Additionally, the excerpts were tailored to disfavors fair use; and factor four strongly
fit Professor Esposito’s pedagogical pur- disfavors fair use. The Court will look no
pose. However, the excerpts used by Pro- further. Weighing all factors together, De-
fessor Esposito were of great value in the fendants’ fair use defense fails. This copy-
overall structure of the book. The excerpt right infringement claim succeeds.
of the Introduction provides a working def-
inition of theoretical frameworks, while the The Court notes Defendants have con-
Conclusion synthesizes the major themes ceded this outcome in their remand brief.
of each chapter for application by the read-
er in future qualitative studies. While the C. Professor Kruger
remainder of the book provides the exam-
Dr. Anne Cale Kruger was an Associate
ples which the Conclusion relies upon, the
Professor who taught graduate courses in
two excerpts capture the heart of the
educational psychology and special edu-
work.
cation [Tr. Vol. 10, Doc. 393 at 4, 6].
The educational purpose of the use leans
EPY 7090 Psychology of Learning and the
toward supporting the amount of material
Learner, Summer & Fall 2009
used, and harm from market substitution
is reduced by the small size of the excerpt. In the summer and fall semesters of
But the small excerpts of Theoretical 2009, Professor Kruger taught EPY 7090,
Frameworks in Qualitative Research that or ‘‘Psychology of Learning and the
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1201
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

Learner,’’ which was a single course that Defendants’ use of the excerpt was non-
spanned over two semesters [Pls. Ex. 553]. transformative (in this case, mirror image
The course covered the psychological prin- copying). It serves the same overall func-
ciples that underlie teaching and learning tion as the copyrighted work. The excerpt
that occur in school, and it was taught to was used for a nonprofit educational pur-
master’s degree students studying early pose by a nonprofit educational institution.
childhood [Id.; Doc. 393 at 7]. There was Thus, factor one favors fair use.
no required textbook, and Professor Krug-
As is relevant to factor two (‘‘the nature
er posted all required readings on ERES
of the copyrighted work’’), Awakening
[Pls. Ex. 553].
Children’s Minds is a work intended for
18. Awakening Children’s Minds: How teachers and parents. The author adopts
Parents and Teachers Can Make a the ‘‘sociocultural theory,’’ which originat-
Difference (Laura E. Berk, Oxford ed from the work of psychologist Lev Vyg-
2001) otsky, as her operating framework.
Awakening Children’s Minds was first Chapter six focuses on the application of
published by Oxford in 2001 [Pls. Ex. 354]. sociocultural theory to early childhood
It is a 320 page, seven chapter book au- classrooms. The author discusses three
thored by Laura E. Berk that advises par- themes: (1) teaching in the ‘‘zone,’’ or in
ents and teachers of young children on the range of tasks that a child cannot yet
how they can encourage children’s cogni- master independently but can master
tive and social competencies [Pls. Ex. 354; through collaboration; (2) ensuring that
Jt. Ex. 5 at D-26]. The book is highly the classroom is rich in dialogue; and (3)
readable and probably sells well to general ensuring that the classroom provides an
audiences such as parents of young chil- abundance of literacy related activities.
dren and not just to the academic commu-
The tone of chapter six is conversational,
nity. The book retails for $28.00 [Jt. Ex. 5
and the writing is straightforward. The
at D-26]. The net sales revenue from the
excerpt does not contain any humorous or
date of first publication through November
fanciful elements. It provides some exam-
7, 2010 was $130,482.00 [Pls. Ex. 357].
ples that may come from the author’s own
There is no evidence in the record reflect-
imagination and experiences. However, the
ing that the work was available for li-
%CO author primarily presents informa-
censed digital excerpts in 2009, though it
tion and support derived from others’
earned $171.36 in ECCS permissions reve-
works in a way that is practical and useful
nue in 2010 [Pls. Ex. 358].
for parents. For example, while the chap-
One such required reading was an ex- ter provides contemporary examples of
cerpt from Awakening Children’s Minds classroom methods, it repeatedly traces
by Laura E. Berk. The excerpt consisted those methods to principles from Vygot-
of pages 181-219 (39 pages), or the whole sky’s psychology. The chapter is not ana-
of chapter six: ‘‘Learning in Classrooms’’ lytical or evaluative. The chapter does con-
[Pls. Ex. 354]. It constituted 12.19% of the vey the author’s overall opinion that the
320-page book [Id.]. sociocultural approach to early childhood
education is preferable to a traditional
Fair Use Analysis
‘‘whole-classroom’’ approach, but it is not
[16] As to the first element of fair use dominated by the author’s opinion. Accord-
(‘‘the purpose and character of the use’’), ingly, factor two is neutral.
1202 446 FEDERAL SUPPLEMENT, 3d SERIES

Turning to factor three (‘‘the amount EPY 8220 Advanced Developmental Psy-
and substantiality of the portion used in chology: Personality and Socialization, Fall
relation to the copyrighted work as a 2009
whole’’), the uploaded excerpt contains 39
Professor Kruger taught a seminar
pages, and represents 12.19% of the entire
book. Use of this excerpt served the called ‘‘Advanced Developmental Psycholo-
course’s pedagogical purpose. Even taking gy: Personality and Socialization,’’ or EPY
into account Defendants’ favored nonprofit 8220, to doctoral students at Georgia State
use, the quantity of material used is exces- in the fall 2009 semester [Tr. Vol. 10, Doc.
sive, particularly when the potential im- 393 at 7-8]. The seminar sought to actively
pact of market substitution is considered. explore and generate independent thinking
Also, the quality (value) of the excerpt is and communication regarding research in
somewhat greater as an entire chapter-- social and personality development [Pls.
which covers a discrete topic--as opposed Ex. 554]. Professor Kruger did not assign
to a portion of a chapter. Even though any required textbooks for the course, and
chapter six is not the heart of the work, all required readings were uploaded to
the Court concludes that factor three dis- ERES [see id.; Doc. 393 at 11-12].
favors fair use.
19. Understanding Trauma: Integrating
Factor four is ‘‘the effect of the use upon Biological, Clinical, and Cultural
the potential market for or value of the Perspectives (Laurence J. Kirmayer,
copyrighted work.’’ Oxford has produced Robert Lemelson, & Mark Barad eds.,
no evidence that excerpts of Awakening Cambridge 2007)
Children’s Minds were available for pur-
Understanding Trauma: Integrating
chase in 2009. The record does contain
Biological, Clinical, and Cultural Perspec-
evidence that Oxford earned $140.55 in
tives (‘‘Understanding Trauma’’) was first
royalties from digital permissions sales
published by Cambridge in 2007 [Pls. Ex.
through ECCS in 2010 [Pls. Ex. 358]. In
142]. It is a 547 page, 21 chapter volume
2010, Oxford earned $140.55 in ECCS per-
edited by Laurence J. Kirmayer, Robert
missions sales [Pls. Ex. 358]. However, the
Court does not assume that if permissions Lemelson, and Mark Barad [Pls. Ex. 142].
were available in 2010, they would have The book provides interdisciplinary analy-
been available in 2009. Because digital per- ses of the individual and collective re-
missions were unavailable in 2009, Defen- sponse to trauma. The book retails for
dants’ use in 2009 did not harm Oxford. $110.00 in hardback and $35.99 in paper-
Factor four favors fair use. back [Jt. Ex. 5 at D-66]. The net sales
revenue from date of first publication to
In this instance, factors one and four December 31, 2010 was £33,629.00 [Pls.
weigh in favor of fair use, factor two is Ex. 146]. There is no evidence in the rec-
neutral, and factor three disfavors fair use. ord reflecting that the work was available
Weighing the factors together, placing the for licensed digital excerpts in 2009.
burden of proof on Defendants, and recall-
ing that factor four ‘‘looms large,’’ the Professor Kruger uploaded to ERES an
overall balance tips in Georgia State’s fa- excerpt from Understanding Trauma [Pls.
vor. Georgia State’s use of Awakening Ex. 554]. Specifically, she assigned chapter
Children’s Minds was a fair use. This in- 11: ‘‘The Developmental Impact of Child-
fringement claim fails. hood Trauma’’ by Bessel A. van der Kolk
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1203
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

[Pls. Ex. 142]. The excerpt consisted of not accurately reflect all of the symptoms
pages 224-241 (18 pages), or 3.29% of the of childhood trauma, such as impulse con-
547 pages in Understanding Trauma [Id.]. trol, aggression, attentional and dissocia-
tive problems, and relationship problems.
Fair Use Analysis
Moreover, the author notes, other symp-
[17] As to the first element of fair use toms are often diagnosed as separate psy-
(‘‘the purpose and character of the use’’), chiatric illnesses and described as being
Defendants’ use of the excerpt was non- ‘‘comorbid’’ with PTSD, which incorrectly
transformative (in this case, mirror image reflects that they occurred independently
copying). It serves the same overall func- from the PTSD symptoms rather than as a
result of the same traumatic event. The
tion as the copyrighted work. The excerpt
author cautions that these imprecise diag-
was used for a nonprofit educational pur-
noses may result in application of unhelp-
pose by a nonprofit educational institution.
ful treatment methods.
Thus, factor one favors fair use.
After proposing that PTSD is an ill-
With respect to factor two (‘‘the nature fitting diagnosis for the full range of
of the copyrighted work’’), Understanding posttraumatic symptoms in children, the
Trauma is an academic work comprised of author examines the nature, causes, and
writings from multidisciplinary research- effects of those symptoms and related
ers and scholars. It seeks to provide an psychiatric illnesses. For example, he de-
interdisciplinary model on the impact of scribes how early onset chronic trauma
trauma from the perspectives of neurobiol- can interfere with a child’s abilities to in-
ogy, clinical science, and anthropology. Us- tegrate his or her cognitive, emotional,
ing ‘‘post-traumatic stress disorder’’ and sensory experiences, which in turn
(‘‘PTSD’’) as a baseline, Understanding leads to problems regulating internal dis-
Trauma seeks to present an integrated tress. When children cannot achieve con-
framework on the effects and the scope of trol or stability, exposure to reminders of
individual trauma and large-scale collective a trauma can cause them to reenact the
trauma. Understanding Trauma is divided trauma. Compounding the problem is the
into three sections which provide perspec- fact that adults--such as therapists or
tives from each of the three fields. teachers--who are unaware of a child’s
trauma may misperceive the child’s reac-
Chapter 11 is located in Understanding tive behavior as rebellious or oppositional.
Trauma’s second section, which examines With this background, the author advo-
trauma from a clinical science perspective. cates for the inclusion of ‘‘Developmental
In general, the chapter examines the de- Trauma Disorder,’’ in the DSM, which
velopmental consequences of pervasive in- would encompass the predictable conse-
terpersonal childhood trauma, including quences experienced by children who suf-
physical, sexual, or emotional abuse and fer from interpersonal trauma. The chap-
neglect, typically perpetrated by a caregiv- ter concludes with a discussion of the
er. The author begins by explaining that limitations of the typical PTSD treatment
the effects of childhood trauma are often when applied to childhood trauma, and by
described under the rubric of PTSD be- suggesting treatment adjustments and al-
cause it is the only trauma-related diagno- ternatives.
sis in the Diagnostic and Statistical Manu- The writing in this chapter is formal,
al (‘‘DSM’’) IV, even though PTSD does clinical, and precise. The chapter is devoid
1204 446 FEDERAL SUPPLEMENT, 3d SERIES

of any anecdotal information or fanciful that Professor Kruger uploaded easily

elements. The author frequently cites the qualifies as favoring fair use. Thus, factor
work of others, but he also cites a great three weighs in favor of fair use.
deal of his own research. Portions of the With respect to factor four (‘‘the effect
chapter are strictly informational, but of the use upon the potential market for or
much of the chapter conveys the author’s value of the copyrighted work’’), the record
own analysis regarding the limitations of before the Court contains no evidence that
the PTSD diagnostic criterion, how the permissions licensing was available for Un-
experience of childhood trauma impacts derstanding Trauma in 2009. Cambridge
development, and how a more precise diag- earned £33,639.00 in revenue from book
nostic criterion would benefit treatment sales between the book’s publication in
options. All of these ideas, however, are 2007 and November 2010 [Pls. Ex. 146]. As
grounded in an established body of re- no market for licensed excerpts of the
search and knowledge. Here, chapter 11 is work existed in 2009, Defendants’ use
fairly split between objectively descriptive caused no harm to the value of the copy-
writing and the author’s own analysis. Ac- righted work. Factor four weighs in favor
cordingly, factor two is neutral, and it of fair use.
weighs neither for nor against fair use.
Here, factors one, three, and four all
Turning to factor three (‘‘the amount weigh in favor of fair use, and factor two is
and substantiality of the portion used in neutral. Weighting the factors as directed,
relation to the copyrighted work as a and placing the burden of proof on Defen-
whole’’), Professor Kruger uploaded one dants, Georgia State has succeeded in car-
full chapter. This was 3.29%, or 18 of the rying its burden. The use of Understand-
547 pages in Understanding Trauma [Pls. ing Trauma was a fair use. This copyright
Ex. 142]. As a percentage of the copyright- infringement claim fails.
ed work, the excerpt was very small. The
number of pages was also very small. Fur- D. Professor Orr
ther, no evidence exists to demonstrate a Professor Orr is a tenured professor in
digital permissions market for excerpts of the Music History and Literature Depart-
Understanding Trauma in 2009 or there- ment at Georgia State [Tr. Vol. 7, Doc. 405
after, making the likelihood that the un- at 55].
paid excerpt would substitute for the paid MUS 8860 Romantic Period 1800-1900,
market nonexistent. The work also served Summer 2009
the pedagogical purpose of the course.
Professor Orr taught MUS 8860, a grad-
With respect to the value of the excerpt,
uate course, in the summer session of 2009
chapter 11 was not the heart of the work,
[Id. at 56]. Ten students enrolled in the
although it was a complete chapter. The
course [Id. at 59]. Professor Orr’s syllabus
overall work embraces a broad, interdisci-
listed two required texts, and he posted
plinary approach to individual and wide-
several additional required readings on
scale trauma, while chapter 11 narrows in
ERES [Id. at 56-57, Pls. Ex. 523]
on trauma and childhood development.
Considering the very small percentage of 20. Liszt: Sonata in B Minor (Kenneth
the work uploaded, the important edu- Hamilton, Cambridge 1996)
cational purpose served, and the relative Liszt: Sonata in B Minor was first pub-
lack of market substitution, the portion lished by Cambridge in 1996 as part of the
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1205
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

Cambridge Music Handbooks series, cusses Liszt’s personal situation at the

which provides introductions to major mu- time he wrote the work, as well as how
sical works for students knowledgeable some of Liszt’s earlier works influenced
about music [Pls. Ex. 130]. The book was the Sonata. The first few chapters, along
written by Kenneth Hamilton [Pls. Ex. with the historical interpretations of the
130]. It has five chapters and a total of 101 Sonata included with the author’s personal
pages. It retails for $80.00 in hardback or views, provide multiple perspectives from
$28.99 in paperback [Jt. Ex. 5 at D-29]. which the reader can understand the mu-
The book has earned £19,322 in net sales sic. The book also includes a section on
revenue from the date of first publication performance practices and performance
through October 31, 2010 [Pls. Ex. 133]. histories of the Sonata for those who may
There is no evidence in the record reflect- be interested in performing the piece.
ing that the work was available for li-
Chapter three, ‘‘Understanding the So-
censed excerpts of any kind in 2009.
nata in B minor,’’ consists of two sections
Professor Orr assigned chapter three of interpreting the Sonata. The first section
Liszt: Sonata in B Minor (‘‘Liszt’’), by is a short analysis of various programmatic
Kenneth Hamilton, for his summer 2009 interpretations, or interpretations of music
class, ‘‘Paris from 1830 to 1848’’ [Tr. Vol. 7, where the analysis determines what im-
Doc. 405 at 66-67; Pls. Ex. 523]. That ages or impressions the listener is sup-
chapter (pages 28-48), titled ‘‘Understand- posed to receive from hearing the music.
ing the Sonata in B minor,’’ is 21 pages in After claiming that the Sonata does not
length and 20.79% of the book [Pls. Ex. have a programme, the author shifts into a
130]. It was required reading [Doc. 405 at musical analysis. In order to analyze the
67; Pls. Ex. 523]. piece on its musical merits, the author
compares his interpretation of the Sonata
Fair Use Analysis
to three historical interpretations. The re-
[18] As to the first element of fair use mainder of chapter three is spent discuss-
(‘‘the purpose and character of the use’’), ing the actual score of the piece, with the
Defendants’ use of the excerpt is nontrans- analysis contrasting how the four interpre-
formative (in this case, mirror image copy- tations of the piece disagree on the loca-
ing). The excerpt serves the same purpose tion of the movements 30 within the Sonata.
as the original work. The excerpt was used
Chapter three is dominated by analysis,
for a nonprofit educational purpose by a
either from the author himself or from the
nonprofit educational institution. Thus, fac-
three other historical analyses used in the
tor one favors fair use.
excerpt. The objective music of the Sonata
As to factor two (‘‘the nature of the guides the entire chapter, with the author
copyrighted work’’), Liszt is an academic complementing the music with observa-
work which analyzes musician and compos- tions and descriptions clearly derived from
er Franz Liszt’s ‘‘Sonata in B Minor.’’ In his own experience playing the piece.
addition to an in-depth discussion on the Chapter three maintains a formal tone,
musical composition itself, the book dis- and is somewhat didactic in its attempt to

30. A movement is ‘‘a principal division of a distinctive character of its own.’’ Movement,
longer musical work, usually differing in tem- Oxford English Dictionary (3d ed. 2011).
po from the other divisions and having a
1206 446 FEDERAL SUPPLEMENT, 3d SERIES

teach the reader about the Sonata beyond actual effect on the value of Cambridge’s
the notes on the sheets of music. Factor copyrighted work or on the potential fu-
two disfavors a finding of fair use. ture market for the work. Factor four
favors fair use.
As to factor three (the ‘‘amount and
substantiality of the portion used in rela- The Court’s analysis of Liszt has factors
tion to the copyrighted work as a whole’’), one and four favoring fair use; factor two
Professor Orr assigned 21 pages of Liszt disfavors fair use; and factor three very
as required reading for his class [Pls. Ex. strongly disfavors fair use. Weighing the
523]. These pages represent 20.79% of the factors (as adjusted) together, giving fac-
work, which is a very large amount of the tor two little weight and factor four extra
work, even in light of the educational na- weight, and placing the burden of proof on
ture of Professor Orr’s use. [Pls. Ex. 130]. Defendants, the combined weight of the
Chapter three also constitutes the heart of fair use factors favors fair use slightly.
the work, as it provides the in-depth analy- Professor Orr’s use was protected. Cam-
sis and interpretation of the piece for bridge cannot sustain a copyright infringe-
which the book is named. No evidence ment claim for this work.
exists to demonstrate a permissions mar- 21. Cambridge Companion to
ket for excerpts of Liszt in 2009 or there- Mendelssohn (Peter Mercer-
after making the likelihood that the unpaid Taylor ed., Cambridge 2004)
excerpt will substitute for the paid market
nonexistent. Also, the excerpt did fit Pro- The Cambridge Companion to Mendels-
fessor Orr’s pedagogical purpose. Howev- sohn was first published by Cambridge on
er, the percentage of the book which was October 21, 2004 in the United Kingdom
used and the fact that the chapter is the and on November 29, 2004 in the United
heart of the work disfavor Defendants’ States [Pls. Exs. 65, 68]. It is part of the
position. On balance, factor three weighs Cambridge Companions to Music series,
very strongly against a finding of fair use. which provides information on composers,
instruments, or musical topics. The Cam-
As to factor four (‘‘the effect of the use bridge Companion to Mendelssohn has
upon the potential market for or value of fourteen chapters and a total of 331 pages
the copyrighted work’’), Cambridge pre- [Pls. Ex. 65]. The book was edited by
sented no evidence of digital license avail- Peter Mercer-Taylor and provides analysis
ability for Liszt in 2009. Cambridge does of the composer’s life and music [Tr. Vol. 7
present evidence that, since its publication, at 77; Jt. Ex. 5 at D-30]. It retails for
Liszt has generated £19,322 in book sales $90.00 for hardcover or $32.99 for paper-
from its date of publication to the end of back [Jt. Ex. 5 at D-30]. It earned £24,826
October 2010 [Pls. Ex. 133]. But in this in net sales revenue from date of first
case, the unpaid use of excerpts by Profes- publication through October 31, 2010 [Pls.
sor Orr did not actually harm Cambridge, Ex. 69]. There is no evidence in the record
as licenses for excerpts of the book were reflecting that the work was available for
not available and while the portion of the licensed digital excerpts between July 1,
book copied was quite large, it was not so 2004 and December 1, 2010. The book
large as to substitute for the copyrighted earned $20.66 in APS revenue between
book. Defendants therefore demonstrate July 1, 2004 and December 1, 2010 [Pls.
that their unlicensed use likely had no Ex. 70].
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1207
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

Professor Orr also required his students analyzes each piece of music, explaining
to read an uploaded excerpt of chapter six what Mendelssohn was doing at that stage
of The Cambridge Companion to Mendels- of his life and how those outside life expe-
sohn (‘‘Mendelssohn’’), which was edited riences influenced and manifested them-
by Peter Mercer-Taylor [Tr. Vol. 7, Doc. selves in his works. The analysis includes
405 at 77; Pls. Ex. 523]. The excerpt the actual sheet music from each of the
(pages 96-111), taken from a chapter titled pieces, such that the analysis of the
‘‘Symphony and overture,’’ by Douglass themes and images created by the music
Seaton, was 16 pages, or 4.83% of the 331- are intertwined with the musical notes
page book [Pls. Ex. 65]. themselves.
Fair Use Analysis The excerpt of chapter six objectively
describes the latter half of Mendelssohn’s
[19] As to the first element of fair use
life in order to map the development of his
(‘‘the purpose and character of the use’’),
music. The excerpt also relies heavily on
Defendants’ use of the excerpt is nontrans-
two subjectively descriptive techniques to
formative (in this case, mirror image copy-
fully develop its discussion about Mendels-
ing). The excerpt serves the same purpose
sohn. First, the excerpt ties the musical
as the original work. The excerpt was used
work to the external details of Mendels-
for a nonprofit educational purpose by a
sohn’s life. Second, the chapter attempts to
nonprofit educational institution. Thus, fac-
capture the effect Mendelssohn desired his
tor one favors fair use.
listeners to experience when they heard
Turning to factor two (‘‘the nature of the his music. Both of these subjective compo-
copyrighted work’’), Mendelssohn is an ac- nents appear to come from the author’s
ademic work which surveys the life and personal experience with the works of
works of composer Felix Mendelssohn. Mendelssohn, but they do not dominate
The book devotes the majority of its pages the excerpt. Factor two, therefore, is neu-
to his music, with the majority of chapters tral, neither favoring nor disfavoring fair
discussing the various styles of music Men- use.
delssohn composed during his life. The
Factor three (the ‘‘amount and substan-
other parts of the book look to the sur-
tiality of the portion used in relation to the
rounding details of the composer’s life, in-
copyrighted work as a whole’’) assesses the
cluding his personal story, the environ-
amount and importance of the excerpt in
ment in which he wrote his works, and the
light of the purpose of the use and the
reception his works received both during
harm of market substitution. The excerpt
his life and after his death.
used by Professor Orr totaled 16 pages,
The excerpt used by Professor Orr in making up 4.83% of the overall book [Pls.
his course was a section of chapter six, Ex. 65]. This is a very small part of the
titled ‘‘Symphony and overture.’’ The ex- overall book, especially in the more favor-
cerpt tracks the development of Mendels- able viewing created by Professor Orr’s
sohn’s music over the later half of his life. educational nature of the use. The excerpt
Eight different works by the composer are also takes from a chapter which is not the
included in the excerpt: two musical inter- heart of the work, as chapter six is one of
pretations of literary works, three over- multiple chapters which analyzes various
tures, and three symphonies. The author works produced by Mendelssohn over his
1208 446 FEDERAL SUPPLEMENT, 3d SERIES

life. Professor Orr’s use of this excerpt is mann’s life and music [Pls. Ex. 75]. It has
validated by his purpose in using the pas- thirteen chapters, a total of 324 pages [Pls.
sage: the excerpt fit his pedagogical pur- Ex. 75], and retails for $94.99 for hardcov-
pose. Finally, the very small number of er or $31.99 for paperback [Jt. Ex. 5 at D-
pages used mitigates the potential impact 31]. It earned £27,866 in net sales revenue
of market substitution. Factor three favors from date of first publication through Oc-
fair use. tober 31, 2010 [Pls. Ex. 78]. There is no
evidence in the record reflecting that the
Factor four (‘‘the effect of the use upon work was available for licensed excerpts in
the potential market for or value of the 2009, digital or otherwise.
copyrighted work’’) measures the effect of
Defendants’ use on the value of the copy- One of the excerpts used in Professor
righted work and on the potential market Orr’s summer 2009 Romantic Music course
for the copyrighted work. Cambridge did came from The Cambridge Companion to
not present evidence of digital license Schumann (‘‘Schumann’’), which was edit-
availability for Mendelssohn in or before ed by Beate Perrey [Tr. Vol. 7, Doc. 405 at
2009. Cambridge does provide evidence 80; Pls. Ex. 523]. The excerpt (pages 105-
119), taken from a chapter titled ‘‘Why
demonstrating that Mendelssohn had gen-
sing? Lieder and song cycles,’’ is 15 pages,
erated £24,826 in book sales from its date
or 4.63% of the 324-page book [Pls. Ex.
of publication to the end of October 2010
75].
[Pls. Ex. 69]. But because Professor Orr’s
use of a small excerpt also had no impact Fair Use Analysis
on book sales, it did not affect the potential
[20] As to the first element of fair use
market for the copyrighted work. It also
(‘‘the purpose and character of the use’’),
did not affect the value of the copyrighted
Defendants’ use of the excerpt is nontrans-
work. Thus, factor four favors fair use.
formative (in this case, mirror image copy-
In summary, factors one, three, and four ing). The excerpt serves the same purpose
favor fair use, while factor two is neutral. as the original work. The excerpt was used
Weighing these factors together and giving for a nonprofit educational purpose by a
factor four extra weight, the Court finds nonprofit educational institution. Thus, fac-
that Professor Orr’s use qualifies as fair tor one favors fair use.
use. This claim of copyright infringement Factor two requires assessment of the
fails. nature of the work. Schumann is an aca-
22. Cambridge Companion to Schumann demic work that aims to introduce the
(Beate Perrey ed., Cambridge 2007) reader to various aspects of composer
Robert Schumann’s life and works. The
The Cambridge Companion to Schu- book begins with a discussion of Schu-
mann was first published by Cambridge mann’s nature, personality, and the influ-
on June 28, 2007 in the United Kingdom ences that affected the composer. The
and on August 13, 2007 in the United book then moves to discuss Schumann’s
States [Pls. Ex. 77]. It is part of the Cam- works, analyzing the various forms of mu-
bridge Companions to Music series, which sic Schumann produced during his career.
provides information on composers, instru- The later chapters provide multiple ac-
ments, or musical topics. The book was counts of the influence of Schumann’s
edited by Beate Perrey and surveys Schu- work on composers following his death.
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1209
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

The excerpt in question was taken from Factor four considers what effect Defen-
chapter six, which is titled ‘‘Why sing? dants’ use had on the value of the copy-
Lieder and song cycles.’’ The excerpt criti- righted work and on the potential market
cally analyzes various works by Schumann, for the copyrighted work. Here, Cam-
who is best known for his composition of bridge presented no evidence of license
lieder, which are a form of German folk availability, digital or otherwise, in or be-
songs. The excerpt focuses on song cycles, fore 2009. The only evidence that Cam-
which are a group of songs based on the bridge presented for any sales of Schu-
same general subject or having some uni- mann were of £27,866 in book sales from
fying feature. The two song cycles dis- publication through October 2010 [Pls. Ex.
cussed in this excerpt, Dichterliebe and 78]. Given that lack of evidence, plus the
Frauenliebe und-leben, are each based on fact that Defendants’ actions had no im-
a different German poem. The excerpt dis- pact on book sales, Defendants demon-
cusses both the poems that the song cycles strate that harm to Cambridge in 2009
are based on and the methods used by stemming from unpaid use of excerpts of
Schumann to capture the poems in musical the book was unlikely. Factor four favors
form. fair use.

This excerpt shifts between objective de- Reviewing the above analysis, factors
scriptions of previous scholarship on Schu- one, three, and four all favor fair use, while
mann’s works and personal observations factor two is neutral. Weighing all of these
by the authors about the music. The tone factors together, giving factor four extra
of the chapter remains formal between weight, and placing the burden of proof on
both the objective descriptions and the Defendants, the combined factors deter-
personal observations. Because the chapter mine that Professor Orr’s use of Schu-
relies more on the objective scholarship mann was fair. In light of this finding of
and the descriptions of Schumann’s work fair use, Cambridge’s copyright infringe-
instead of the author’s personal observa- ment claim necessarily fails.
tions, factor two is neutral for this excerpt. 23. The Music of Berlioz (Julian
Turning to factor three (the ‘‘amount Rushton, Oxford 2001)
and substantiality of the portion used in The Music of Berlioz was first published
relation to the copyrighted work as a by Oxford on August 2, 2001 in the United
whole’’), Professor Orr used 15 pages, or Kingdom and on September 27, 2001 in the
4.63% of the 324-page book [Pls. Ex. 75]. United States [Pls. Exs. 427, 993]. It is a
This is a small percentage, and a very ten chapter, 379 page book authored by
small number of pages even without ac- Julian Rushton that provides analysis of
counting for the favored educational pur- Berlioz’s musical style [Pls. Ex. 427; Jt.
pose served by Professor Orr’s use of the Ex. 5 at D-33]. The book retails for $65.95
excerpt. It is sufficiently tailored to serve [Jt. Ex. 5 at D-33]. It earned $9,580 in net
the pedagogical aims of Professor Orr’s sales revenue from date of first publication
course. Additionally, it is acceptably small through November 7, 2010 [Pls. Ex. 78].
taking into account the potential impact of There is no evidence in the record reflect-
market substitution. Further, the excerpt ing that the work was available for li-
does not constitute the heart of the work. censed excerpts, digital or otherwise, in
Factor three easily favors fair use. 2009.
1210 446 FEDERAL SUPPLEMENT, 3d SERIES

Professor Orr uploaded an excerpt from thoven, who had been a mentor to Berlioz.
The Music of Berlioz (‘‘Berlioz’’), by Julian chapter nine dives into the music of the
Rushton, to ERES for the students in his Symphonie, analyzing the piece section by
summer 2009 Romantic Music course [Tr. section and noting the various musical
Vol. 7, Doc. 405 at 83-84; Pls. Ex. 523]. The techniques utilized by Berlioz. The excerpt
18-page excerpt (pages 250-267), comes ends with a brief discussion of Harold en
from chapter nine of the book, and consti- Italie, another symphony written by Ber-
tuted 4.75% of the overall book [Pls. Ex. lioz.
427].
The excerpt used by Professor Orr is
Fair Use Analysis evaluative, providing both a thematic and
musical analysis of Berlioz’s Symphonie
[21] As to the first element of fair use
Fantastique. The chapter relies on the
(‘‘the purpose and character of the use’’),
sheet music of the piece, allowing the read-
Defendants’ use of the excerpt is nontrans-
er to see the notes of the music as the
formative (in this case, mirror image copy-
author explains his analysis. The analysis
ing). The excerpt serves the same purpose
moves between a restatement of previous
as the original work. The excerpt was used
scholarship on Berlioz and the author’s
for a nonprofit educational purpose by a
own opinion of the music, with the author’s
nonprofit educational institution. Thus, fac-
opinion taking up slightly more of the ex-
tor one favors fair use.
cerpt. The excerpt is written in a formal
Turning to factor two (‘‘the nature of the tone, with any fanciful language strictly
copyrighted work’’), Berlioz is an academic used to describe the nature of the music.
discussion of various works by the compos- Even though the author’s analysis is fea-
er Hector Berlioz. The book begins with a tured more prominently than the other
biography of Berlioz’s music, which at- scholarship, his opinion and analysis do not
tempts to set forth a chronological narra- dominate the excerpt. Because of that, fac-
tive of his works. The book goes on to tor two neither favors nor disfavors a find-
interpret Berlioz’s ‘‘musical data,’’ discuss- ing of fair use for this excerpt.
ing and dissecting the artist’s technique.
Factor three looks to the quantity and
The final chapters of the book focus on
the quality of the excerpt, assessing
Berlioz’s works, offering new arguments
whether these elements of the excerpt are
for the meanings of Berlioz’s various musi-
fair in light of the purpose and character
cal pieces.
of the use and the threat of market substi-
The excerpt used in Professor Orr’s tution. Here, Professor Orr used 18 pages
class was taken from chapter nine, which of the book, which totals 4.75% of the
is titled ‘‘A Fantastic Symphony.’’ The ex- overall book [Pls. Ex. 427]. This is a small
cerpt analyzes Berlioz’s Symphonie Fan- percentage of the work and a small num-
tastique, a piece considered to be one of ber of pages, particularly taking Professor
Berlioz’s finest works. The excerpt first Orr’s educational use into account. More-
assesses the programme of the work, or over, the excerpted portion was tailored to
the images and pictures Berlioz wanted fit the pedagogical aims of Professor Orr’s
the listener to see and experience upon course. The excerpt does not constitute the
hearing the music. The excerpt notes how heart of the work and is less than a whole
the symphony builds on the work of Bee- chapter. The number of pages is also small
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1211
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

enough to mitigate the potential impact of 441, 444]. It is a 25 chapter, 392 page work
market substitution. Given these consider- edited by Kerala J. Snyder. The book pro-
ations, factor three easily favors fair use. vides analysis of the organ’s historical and
As to factor four (‘‘the effect of the use cultural significance in Northern Europe
upon the potential market for or value of [Pls. Ex. 441; Jt. Ex. 5 at D-77]. The book
the copyrighted work’’), Oxford presented retails for $65.00 [Jt. Ex. 5 at D-77]. From
no evidence of license availability for ex- date of first publication through November
cerpts in 2009. The only evidence provided 7, 2010, the book earned $55,831 in net
by Oxford on sales of Berlioz demonstrate sales revenue [Pls. Ex. 357]. There is no
that, as of November 2010, book sales from evidence in the record reflecting that the
Berlioz have generated $9,580 in revenue work was available for licensed excerpts,
[Pls. Ex. 357]. Defendants have the ulti- digital or otherwise, in 2009.
mate burden to prove, under factor four,
For this course, Professor Orr assigned
that their use did not substantially impact
an excerpt from The Organ as a Mirror of
the potential market for or value of the
Its Time, edited by Kerala J. Snyder [Id.
copyrighted work. With no record of any
at 86-87; Pls. Ex. 524]. The excerpt in
permissions sales, the Court finds there is
little reason to believe that repetitive sales question (pages 78-91), titled ‘‘The Organ
of excerpts of Berlioz were likely in 2009. in Seventeenth Century Cosmology,’’ was
Defendants’ actions had no effect on poten- written by Hans Davidson [Pls. Exs. 524,
tial book sales. The Court finds that De- 441]. The excerpt spans 14 pages, or 3.57%
fendants’ unlicensed use of this excerpt of the book, and was required reading
likely did not affect either the value of [Doc. 405 at 87; Pls. Ex. 441].
Oxford’s copyrighted work or the potential Fair Use Analysis
market for the copyrighted work. Factor
four favors fair use. [22] As to the first element of fair use
(‘‘the purpose and character of the use’’),
Summarizing, fair use factors one, three,
Defendants’ use of the excerpt is nontrans-
and four favor fair use, while factor two is
formative (in this case, mirror image copy-
neutral. Placing the burden of proof on
ing). The excerpt serves the same purpose
Defendants, weighting these factors as di-
rected and considering them together, as the original work. The excerpt was used
Professor Orr’s use of an excerpt of Ber- for a nonprofit educational purpose by a
lioz qualifies as a fair use, thereby defeat- nonprofit educational institution. Thus, fac-
ing Oxford’s claim of copyright infringe- tor one favors fair use.
ment. Factor two requires assessment of the
MUS 8840 Baroque Music, Fall 2009 nature of the work. The Organ as a Mir-
ror of Its Time is an academic work that
Professor Orr also taught a course on
examines six organs located throughout
Baroque music in the fall of 2009 [Tr. Vol.
7, Doc. 405 at 85]. northern Europe. The discussion of each
organ follows a similar structure. The book
24. The Organ as a Mirror of Its Time: first discusses the historical and economic
North European Reflections 1610-2000 circumstances leading to the creation of
(Kerala J. Snyder ed., Oxford 2002)
the organ. The historical discussion is then
The Organ as a Mirror of Its Time was followed by a more technical discussion in
first published by Oxford in 2002 [Pls. Exs. which the authors explain the aspects
1212 446 FEDERAL SUPPLEMENT, 3d SERIES

which make the organ unique. Finally, the formal tone, with little to no fanciful lan-
discussion of the organ resumes its histori- guage. Because the chapter is dominated
cal bent as the later chapters detail the life by the objective descriptions of both previ-
of the organ after its creation. The book ous scholarship and the organs themselves,
also comes with a compact disc containing factor two is neutral.
music played on each of the six organs
Factor three determines whether the
discussed in the book.
quantity and quality of the book used is
Chapter six, titled ‘‘The Organ in Seven- fair in light of the purpose of the use and
teenth Century Cosmology,’’ builds on a the harm that could occur based on market
connection between organs and the heav- substitution. Here, Professor Orr used 14
enly bodies. The chapter starts with a pages, or 3.57%, of the 392 page book [Pls.
discussion about astrologer Johannes Ke- Ex. 441]. That is a very small percentage
pler, who noted that planets moved at of the book and a very small number of
different speeds depending on how close pages. Moreover, the portion was tailored
they are to the sun. Expressing these to serve the pedagogical aims of Professor
speeds as a ratio, Kepler realized that the Orr’s course. The excerpt is not the heart
range of movement of each planet could be of the work: while the book addresses six
expressed as musical tones over an inter- different organs from northern Europe,
val of a major third. This idea, known as the chapter in question addresses only
cosmic harmony, was then applied to the two, and focuses more on the theory of
study of music, and the chapter provides cosmic harmony than on the organs them-
examples of cosmic harmony scholarship. selves. Because Professor Orr used the
The link between the cosmos and organs is excerpt for an educational purpose, the
then discussed, as the organ is often used quantity of pages provided to students is
as a symbol of the universe with the organ well within the range which could be con-
player representing God. sidered fair. Finally, the very small num-
This symbolism is then further devel- ber of pages reduces the potential impact
oped in the context of two organs: the of market substitution. Factor three,
organ in St. Jacobi, Hamburg and the therefore, favors fair use.
Compenius organ in Fredericksborg Cas- Factor four requires this Court to deter-
tle. The chapter concludes with a compar- mine whether Professor Orr’s use likely
ison of the organs, which details the cre- substantially diminished the value of Ox-
ation and physical descriptions of each
ford’s copyright in The Organ as a Mirror
organ.
of Its Time or the potential market for the
Chapter six is an objective chapter work. Oxford has not produced any evi-
which primarily relays both the concept of dence that licensed excerpts of The Organ
cosmic harmony and the physical descrip- as a Mirror of Its Time were available in
tion of two organs to the reader. Each of 2009. The evidence of sales that Oxford
these topics of discussion are based heavily does provide only demonstrates that, as of
on the work of other scholars, with the November 2010, The Organ as a Mirror of
author of the chapter distilling the infor- its Time had generated $55,682 in book
mation into his own words. The opinion of sales [Pls. Ex. 357]. In the absence of
the author briefly emerges in comparing permissions sales evidence, and given that
the two organs. The chapter is written in a Defendants’ actions had no effect on actual
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1213
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

or potential book sales, the Court accepts Dixon posted readings on ERES that were
Defendants’ argument that their use of required for the students making the pres-
unlicensed excerpts likely did no harm to entation; other students in the course were
the potential market for the copyrighted not required to read these excerpts [Doc.
work or the value of the copyrighted work. 405 at 61-62].
Factor four thus favors fair use.
25. The Slave Community: Plantation Life
In summary, factors one, three, and four in the Antebellum South, Revised and
all favor a finding of fair use for Professor Enlarged Edition (John W. Blassin-
Orr’s use of The Organ, while factor two is game, Oxford 1979)
neutral. Adjusting the weight of the fac-
The Slave Community: Plantation Life
tors in accordance with the Court of Ap-
in the Antebellum South (‘‘The Slave Com-
peals’ direction and weighing them togeth-
munity’’) was first published by Oxford in
er, and placing the burden of proof on
1972 [Pls. Ex. 460]; the edition used by
Defendants, Professor Orr’s use qualifies
Professor Dixon was published in 1979. It
as a fair use, and defeats the claim of
is a paperback book. The book is a 430
copyright infringement by Oxford.
page, eight chapter book authored by John
W. Blassingame that presents a heavily
E. Professor Dixon documented description of the life of the
Professor Dixon is a tenured professor black slave on Southern plantations before
in the African American Studies depart- the Civil War [Pls. Ex. 460; Jt. Ex. 5 at D-
ment at Georgia State [Tr. Vol. 9, Doc. 407 37]. It is a research-based monograph. The
at 55]. book won awards when it was first publish-
ed; it is currently in its thirty-second print-
AAS 3000 African American Family, Fall ing. It has been used extensively in college
2009 courses. The book retails for $42.95 [Jt. Ex
In the fall of 2009, Professor Dixon 5 at D-37].
taught AAS 3000, a course which was ti- The Slave Community had net sales
tled African American Family [Id. at 56]. revenue from date of first publication to
The course traces the historical and social November 7, 2010 of $1,602,935.00 [Pls.
transition of African American families Ex. 357]. Excerpts from the book were
from Africa to contemporary times [Pls. available for licensing through CCC in
Ex. 542]. Fifty nine undergraduate stu- 2009 [Pls. Ex. 463]. From July 1, 2004 until
dents were enrolled in Professor Dixon’s
December 1, 2010, The Slave Community
course during the fall 2009 semester [Doc.
earned $191.55 in ECCS permissions reve-
405 at 67]. As evidenced by the syllabus,
nue and $10,732.20 in APS revenue [Pls.
students were required to purchase three
Ex. 463].
texts for this course [Id. at 57, Pls. Ex.
542]. Some required reading excerpts were Professor Dixon requested that pages
placed on hard copy reserve in the library, 249-283, the entirety of chapter seven, of
while other required readings were posted The Slave Community be uploaded to
to ERES [Id.]. As part of the course, ERES for distribution to students in her
Professor Dixon required students to form AAS 3000 course [Jt. Ex. 5 at D-37; Tr.
groups of two to three students and pre- Vol. 9 at 59]. The excerpt was titled ‘‘Plan-
pare a presentation for the class. Professor tation Realities’’ and totaled 35 pages or
1214 446 FEDERAL SUPPLEMENT, 3d SERIES

8.14% of the work [Pls. Ex. 460]. Had occasionally compares accounts of planta-
permissions been paid via CCC for the tion life by non-slave authors, such as plan-
distribution of this excerpt, Oxford would tation owners, to the personal memoirs of
have earned less than $210.63 in net reve- slaves. These comparisons highlight both
nue from permissions.31 The cost to stu- areas of agreement, such as relations be-
dents in the course would have been tween white children and the slaves who
$250.80. Professor Dixon owned several cared for them, and areas of disagreement,
copies of this book [Tr. Vol. 9 at 59]. such as the benevolence or harshness of
plantation owners and overseers. The
Fair Use Analysis
chapter discusses the tension between the
[23] As to the first element of fair use effort to produce sufficient harvests with
(‘‘the purpose and character of the use’’), the need to control the slave population.
Defendants’ use of the excerpt is nontrans-
Chapter seven is objective, relying on
formative (in this case, mirror image copy-
primary sources in the form of personal
ing). The excerpt serves the same purpose
memoirs and records to paint a picture of
as the copyrighted original. It was used for the life of a plantation slave. The author’s
a nonprofit educational purpose by a non- opinion occasionally emerges in the pas-
profit educational institution. Thus, factor sages, but the stark facts usually stand on
one favors fair use. their own. The chapter is written in a
The second fair use factor is ‘‘the nature formal tone, and contains little to no analy-
of the copyrighted work.’’ The Court sis or subjective discussion. With this in
makes the following findings in that re- mind, the Court finds factor two is neutral.
gard: The Slave Community is an aca- Factor three asks whether the quantity
demic work that describes the lives of and quality of the work used is fair, given
black slaves in the southern United States the purpose and character of the use and
prior to the Civil War. It is heavily docu- the effect of market substitution. ‘‘Planta-
mented, drawing from personal records tion Realities’’ spans 35 pages, or 8.14% of
left by slaves. The author seeks to present the 430-page book [Pls. Ex. 460]. This is a
slavery from the viewpoint of the slaves fairly small percentage of the overall book,
themselves. Various chapters discuss the particularly given the nonprofit pedagogi-
manner in which Africans were enslaved, cal purpose served by the use of this chap-
the impact of slavery on the South, the ter in Professor Dixon’s class. The number
culture of slaves, and various personality of pages is not small but is acceptably
types exhibited by slaves. small to counter the impact of market
substitution. While a full chapter has more
Chapter seven, titled ‘‘Plantation Reali-
value than part of a chapter, chapter seven
ties,’’ provides an overview of a slave’s life
is not the heart of the work. Taking the
on the antebellum plantation. It details the
foregoing into account, factor three favors
various functions slaves performed on
fair use.
plantations, and discusses the power dy-
namics which existed between plantation As to the fourth fair use factor, effect on
owner, overseers, and slaves. The author the potential market for or value of the

31. The amount earned would have been by CCC to users, less $37.17 in fees charged
$250.80, the amount charged by CCC [Jt. Ex. by CCC to publishers, less royalties Oxford is
5 at D-37], less the $3.00 service fee charged obligated to pay the author.
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1215
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

copyrighted work, the Court first looks to In summary, factor one favors fair use;
whether Professor Dixon’s use of The factor two is neutral; factor three favors
Slave Community affected the market for fair use; and factor four strongly disfavors
purchasing the book as a whole. Students fair use. The Court will look further and
would not pay $42.95 for the entire book will conduct a holistic evaluation.
when only 35 pages were required reading First, the Court will look again at factor
for Professor Dixon’s course. Neither three. The percentage of the copyrighted
would a professor require students to pur- work used by Professor Dixon (8.14%) to-
chase the entire book in such an instance. gether with the number of pages in the
Therefore, the Court rejects any argument excerpt (35) borders on being excessive.
that the use of the excerpt from The Slave Some mitigation of factor three is in order.
Community had a negative effect on the The Court will slightly adjust factor three,
market for purchase of the book itself. in Plaintiffs’ favor.
Nonetheless, by providing the excerpts Second, the Court will look again at
free to her class, Professor Dixon deprived factor four. The record evidence shows
Oxford of approximately $210 in net reve- very high net book sales revenue and
nue. This caused actual though tiny dam- fairly steady APS permissions sales for
age to the value of the copyrighted work. The Slave Community. The book generat-
In addition, if ‘‘everyone’’ (other colleges ed $1,602,935 in net book sales revenue
and universities) used unpaid excerpts it between its publication in 1979 and No-
could cause substantial harm to the value vember 7, 2010 [Pls. Ex. 357].32 The per-
of the copyrighted work. Factor four missions sales figures for The Slave Com-
strongly disfavors fair use. munity are the following:

[Pls. Ex. 463]. nity in 2009, notwithstanding its age.33 The

The permissions sales data and trial tes- Court believes there was a market of sub-
timony demonstrate that there was still stance for permissions sales in 2009. In
substantial interest in The Slave Commu- 2011, the book was in its 36th printing.

32. The book sales revenue data is not broken ing viability of The Slave Community in his
into years. examination:
Pfund: I think [The Slave Community] was
33. Niko Pfund, Acting Present and Publisher published in 1952 or something. It was
for the Academic and Trade Division of Ox- published in 1972, and it’s the 36th print-
ford University Press, testified to the continu- ing.
1216 446 FEDERAL SUPPLEMENT, 3d SERIES

Digital permissions sales in 2009 were only house permissions program in 2009; the
$50.59, but 2009 APS permissions sales book has earned $2,841.57 through Sage’s
were $1,348.85. This calls for an adjust- permissions program [Pls. Ex. 206, 207].
ment of factor four, in Plaintiffs’ favor.
Professor Dixon requested that pages
Weighing the four factors (as adjusted) 117-145 of African American Single Moth-
together, placing the burden of proof on ers be uploaded to ERES [Jt. Ex. 5 at D-
Defendants, and recalling that factor four 38]. This 29 page excerpt was a chapter
‘‘looms large,’’ the Court finds that Profes- written by Suzanne M. Randolph entitled
sor Dixon’s use of The Slave Community ‘‘African American Children in Single-
in 2009 did not constitute a fair use. This Mother Families’’ [Pls. Ex. 202]. The chap-
copyright infringement claim succeeds. ter represents 12.50% of the book [Pls. Ex.
202; Jt. Ex. 5 at D-38]. The excerpt was
26. African American Single Mothers:
not required reading for the entire class;
Understanding Their Lives and Fam-
rather, it was used by two to three stu-
ilies (Bette Dickerson ed., Sage 1995)
dents to prepare for a class presentation
African American Single Mothers was [Tr. Vol. 9 at 62; Pls. Ex. 542]. Only those
first published by Sage in 1995 [Pls. Ex. students responsible for the presentation
202]. It is a 232 page, ten chapter volume of this work were required to read the
edited by Bette Dickerson. The book is excerpt from African American Single
part of the Sage Series on Race and Eth- Mothers [Tr. Vol. 9 at 62], but the excerpt
nic Relations, which is designed for aca- had a hit count of fifteen on the ERES
demic users studying and working in areas system [Jt. Ex. 3 at 75]. Had permissions
related to race and ethnic relations [Pls. fees been paid via CCC for the digital
Ex. 202]. The book gives an Afrocentric, distribution of this excerpt to the entire
feminist perspective on the African Ameri- class, Sage would have earned less than
can mother-centered family [Pls. Ex. 202]. $203.61 in net revenue from permissions.34
The book retails for $67.95 in paperback The cost to students in the course would
[Jt. Ex. 5 at D38]. The book has earned have been $242.54. Professor Dixon owned
$53,007.84 in net sales revenue [Pls. Ex. a copy of this book [Tr. Vol. 9 at 79].
206]. Excerpts from the book were avail-
Fair Use Analysis
able for digital licensing through CCC in
2009 [Pls. Ex. 206]. From July 1, 2004 [24] As to the first element of fair use
until December 1, 2010, African American (‘‘the purpose and character of the use’’),
Single Mothers earned $782.14 in ECCS Defendants’ use of the excerpt is nontrans-
permissions revenue [Pls. Ex. 206]. In ad- formative (in this case, mirror image copy-
dition, licensed digital excerpts were avail- ing). The excerpt serves the same purpose
able directly from Sage through its in- as the original work. The excerpt was used

Counsel: What does it mean when a work [Tr. Vol. 3, Doc. 401 at 47-48].
goes through numerous printings?
Pfund: It means a very happy publisher. It 34. The amount earned would have been
also means that it’s obviously found an $242.54, the amount charged by CCC, [Jt. Ex.
audience. I can see it’s been through 36 5 at D-38], less the $3.00 service fee charged
printings which is a rarity for us, and that by CCC to users, less $35.93 in fees charged
it means it’s a work that’s had an impact, by CCC to publishers, less royalties Sage is
and that it’s finding a continual audience obligated to pay the external editor.
and readership.
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1217
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

for a nonprofit educational purpose by a Chapter seven is primarily objective, us-

nonprofit educational institution. Thus, fac- ing previous studies on single mothers and
tor one favors fair use. African American communities. The author
occasionally provides her own opinion in
The second fair use factor is ‘‘the nature
the form of summary paragraphs following
of the copyrighted work.’’ The Court
the discussion of previous studies. The au-
makes the following findings in that re-
thor’s opinions appear to come from her
gard: African American Single Mothers is analysis of the studies mentioned earlier in
an academic work that aims to provide a the chapter. The chapter is written in a
broad picture of issues affecting the lives formal tone with no fanciful elements. Giv-
of African American single mothers. The en these details about chapter seven, fac-
book explores the ways in which modern tor two is neutral.
society evaluates motherhood, and con-
trasts these evaluations with the percep- Factor three asks whether the quantity
tion of single motherhood in the African and quality of the excerpt used is fair,
American culture. The book also explores given the purpose and character of the use
institutional issues faced by single African and the potential impact of market substi-
American mothers, such as the varying tution. ‘‘African American Children in Sin-
levels of support available in raising their gle-Mother Families’’ spans 29 pages, or
children, and proposes policies and strate- 12.5% of the 232-page book [Pls. Ex. 460].
gies to provide more equal opportunities to This is a relatively large percentage of the
all single mothers. overall book and a fairly large number of
pages. Even taking into account the edu-
Chapter seven, titled ‘‘African American cational purpose served by Professor Dix-
Children in Single-Mother Families,’’ col- on’s use of the excerpt, the amount used is
lects various studies and data about single excessive. The Court finds that factor
mothers and African American children to three weighs against fair use.
reach conclusions about the challenges fac-
ing single mother African American fami- As to the fourth fair use factor (‘‘the
lies. The chapter starts with general find- effect of the use upon the potential market
for or value of the copyrighted work’’), the
ings concerning the relative success of
Court first looks to whether Professor Dix-
children with one or two parents, the im-
on’s use of African American Single
pact of reduced income due to a single
Mothers affected the market for purchas-
parent household, and the role of a child in
ing the book as a whole. Students would
a single parent household. The chapter
not pay $67.95 for the entire book when
goes on to investigate other factors which
only 29 pages were required reading for
weigh on single mother families, including
Professor Dixon’s course. Neither would a
differences in male and female children of
professor require students to purchase the
single mothers, various potential family
entire book in such an instance. Therefore,
structures (such as grandparents living
the Court rejects any argument that the
with the family) and the effect on children,
use of the excerpt from African American
and the effect of spirituality and communi-
Single Mothers had a negative effect on
ty on a child’s development. The chapter
the market for sale of the book itself.
concludes by identifying gaps in the re-
search surveyed by the chapter and rec- Plaintiffs produced evidence demon-
ommends future steps to fill those re- strating that there was a ready market for
search gaps. licensed digital excerpts of this work in
1218 446 FEDERAL SUPPLEMENT, 3d SERIES

2009 through CCC and through Sage’s in- fair use; and factor four strongly disfavors
house program. The unpaid use of the fair use. The Court will look further and
excerpt by Professor Dixon and her stu- will conduct a holistic evaluation to rule on
dents caused very small, but actual, dam- the fair use defense.
age to the value of Sage’s copyright. In
addition, widespread use of similar unli- African American Single Mothers had
censed excerpts could cause substantial sporadic book sales beginning about three
harm. Sage lost permissions income. Fac- years after its publication in 1995. The
tor four strongly disfavors fair use. book sales data for the work is listed be-
In summary, factor one favors fair use; low:
factor two is neutral; factor three disfavors

[Pls. Ex. 206]. Permissions sales for African American

Single Mothers since 1995 are shown in
the following table:
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1219
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

[Pls. Exs. 206, 208]. 27. Black Children: Social, Educational,

and Parental Environments (Second
A mitigating adjustment in Defendants’
Edition) (Harriette Pipes McAdoo ed.,
favor should be made to factor four on Sage 2001)
account of the fact that there was little
Black Children (Second Edition) was
prospect of repetitive use of excerpts of
first published by Sage in 2002 [Pls. Ex.
African American Single Mothers in 2009.
209]. It is a 256 page, twelve chapter vol-
This significantly decreases the likelihood
ume edited by Harriette Pipes McAdoo
that unlicensed use of excerpts would have
[Pls. Ex. 209]. The book provides analysis
appreciably damaged the value of the
of experiences unique to black children [Jt.
copyrighted work in 2009.
Ex. 5 at D-39; Pls. Ex. 209]. The book
Based on the foregoing reasoning, the retails for $114.00 in hardback and $58.95
Court weighs factors one, three and four in paperback [Jt. Ex. 5 at D-39]. The book
(as adjusted) together, placing the burden has earned $104,828.72 in net sales reve-
of proof on Defendants and keeping in nue [Pls. Ex. 214]. Digital excerpts from
mind that factor four ‘‘looms large’’; the the book were available for licensing
through CCC in 2009 [Pls. Ex. 215]. From
result is that Defendants have proven their
July 1, 2004 until December 1, 2010, Black
fair use defense. Therefore, this infringe-
Children (Second Edition) earned $116.03
ment claim fails.
in ECCS permissions revenue [Pls. Ex.
216]. In addition, licensed digital excerpts
of the book are available directly from
Sage through its in-house permissions pro-
1220 446 FEDERAL SUPPLEMENT, 3d SERIES

gram; the book has earned $1,237.63 nonprofit educational institution. Thus, fac-
through Sage’s permissions program [Pls. tor one favors fair use.
Exs. 214, 215]. The second fair use factor is ‘‘the nature
Professor Dixon requested that pages of the copyrighted work.’’ The Court
73-96, the entirety of chapter six, of Black makes the following findings in that re-
Children (Second Edition) be uploaded to gard: Black Children is an academic work
which explores the unique aspects of Afri-
ERES for distribution to students in her
can American child development. The book
AAS 3000 course [Pls. Ex. 209]. The ex-
works through four environments which
cerpted chapter was entitled ‘‘Racial Iden-
critically affect any child’s development:
tity Development in African American
(1) the socioeconomic environment; (2) the
Children: Cognitive and Experiential Ante-
parental environment; (3) the internal en-
cedents’’ by Carolyn Bennett Murray and
vironment as it relates to racial attitudes
Jelani Mandara. It totaled 24 pages or and socialization; and (4) the educational
9.38% of the work. The excerpt was not environment. These four environments are
required reading for the entire class; rath- examined throughout the book with a par-
er, it was used by two to three students to ticular focus on how the African American
prepare for a presentation to the class [Tr. child’s experience differs from that of oth-
Vol. 9 at 64; Pls. Ex. at 542]. Only those er non-African American children.
students responsible for the presentation
Chapter six, ‘‘Racial Identity Develop-
of this work were required to read the
ment in African American Children: Cogni-
excerpt from Black Children (Second Edi-
tive and Experimental Antecedents,’’ ad-
tion) [Tr. Vol. 9 at 64]. The excerpt had a dresses the cognitive growth of children,
hit count of thirteen on the ERES system with a specific focus on African American
[Jt. Ex. 3 at 174]. Had permissions been children’s understanding of race. Viewing
paid to CCC for the distribution of this the child’s development as a collection of
excerpt to the entire class, Sage would different processes, the chapter discusses
have earned less than $168.50 in net reve- cognitive readiness, racial awareness, and
nue from permissions.35 The cost to stu- the role of skin color, media, and public
dents in the course would have been school curriculum in shaping a child’s un-
$201.24 [Jt. Ex. 5 at D-39]. Professor Dix- derstanding of race. These influences sup-
on owned a copy of this book [Tr. Vol. 9 at port the chapter’s thesis that multiple as-
63]. pects of society lead African American
children to either identify as white or view
Fair Use Analysis
white skin as the optimal skin color. The
[25] As to the first element of fair use chapter concludes with methods parents
(‘‘the purpose and character of the use’’), can use to normalize and foster positive
Defendants’ use of the excerpt is nontrans- skin color associations in African American
formative (in this case, mirror image copy- children.
ing). The excerpt serves the same purpose Chapter six is objective, with the majori-
as the original work. The excerpt was used ty of the chapter spent citing previous
for a nonprofit educational purpose by a studies on child development. The authors

35. The amount earned would have been by CCC to users, less $29.74 in fees charged
$201.24, the amount charged by CCC, [Jt. Ex. by CCC to publishers, less royalties Sage is
5 at D-39], less the $3.00 service fee charged obligated to pay the external editor.
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1221
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

offer some opinions, as well as subjective students to purchase the entire book in
summaries, at the end of their restate- such an instance. Therefore, the Court re-
ments of previous studies. The chapter jects any argument that the use of the
maintains a formal tone throughout its excerpt from Black Children (Second Edi-
analysis, and does not contain any fanciful tion) had a negative effect on the market
language or aspects which appear to stem for the purchase of the book itself.
from the authors’ personal experience.
Factor two is neutral. Plaintiffs produced evidence demon-
strating that there was a ready market for
Factor three addresses whether the licensed digital excerpts of this work in
quantity and quality of the work used is 2009 through CCC and through Sage’s in-
fair, given the nature of the use and the house program. The unpaid use of the
impact of market substitution. Chapter six excerpt by Professor Dixon and her stu-
is 24 pages, or 9.38% of the total book [Pls. dents caused very small, but actual, dam-
Ex. 209]. This is a relatively small percent- age to the value of Sage’s copyright. In
age of the book, given the educational na- addition, widespread use of similar unli-
ture of Professor Dixon’s use. While a censed excerpts could cause substantial
whole chapter was used, it is not the heart
harm. Defendants’ unlicensed use cause
of the work. As Professor Dixon testified,
Sage to lose permissions income. Factor
chapter six is ‘‘just one component or as-
four strongly disfavors fair use.
pect of black children’’ [Doc. 407 at 65].
Professor Dixon adequately tailored the In summary, factor one favors fair use;
selection to fulfill the pedagogical purpose factor two is neutral; factor three favors
of her course. Potential substitution impact fair use; and factor four strongly disfavors
is adequately mitigated by the number of fair use. The Court will look further and
pages in the excerpt. Taking all of this into will conduct a holistic assessment to deter-
account, factor three favors fair use. mine the outcome of the fair use defense.
As to the fourth fair use factor, effect on Revisiting factor three, the Courts finds
the potential market for or value of the that the percentage of the copyrighted
copyrighted work, the Court first looks to work (9.38%) used by Professor Dixon bor-
whether Professor Dixon’s use of Black ders on the excessive. It is at the top end
Children (Second Edition) affected the of a ‘‘reasonable’’ range. Accordingly, some
market for purchasing the book as a mitigation of the factor three outcome, in
whole. Students would not pay $58.95 (or Plaintiffs’ favor, is appropriate.
$114.00 for the hardcover version) for the
entire book when only 24 pages were re- Since its publication in 2001, Black Chil-
quired reading for Professor Dixon’s dren has had net revenue from book sales
course. Neither would a professor require as follows:
1222 446 FEDERAL SUPPLEMENT, 3d SERIES

[Pls. Ex. 214].

Permissions income has been as fol-
lows:36

[Pls. Exs. 214, 216]. Weighing all factors (as adjusted) to-
The evidence shows that there was only gether, placing the burden of proof on
a small likelihood of repetitive use of ex- Defendants, and giving factor four extra
cerpts of Black Children in 2009. Thus, it weight, the Court finds that the factors
is unlikely that unlicensed excerpt use in weigh in favor of fair use; accordingly, the
2009 had a substantial impact on the value fair use defense prevails. This copyright
of the copyrighted work. This calls for infringement claim does not succeed.
some mitigation in the factor four outcome,
in Defendants’ favor.

36. These figures are lower than the totals Sage earned on APS and ECCS permissions
provided in Plaintiffs’ Exhibit 216, but that for the first edition of Black Children.
exhibit also includes permissions income
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1223
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

28. Black Families (Third Edition) two to three students to prepare for a
(Hariette Pipes McAdoo ed., presentation to the class [Tr. Vol. 9 at 67;
Sage 1996) Pls. Ex. 542]. Only those students respon-
sible for the presentation of the work were
Black Families (Third Edition) was
required to read the excerpt from Black
first published by Sage in 1997 [Defs. Ex.
Families (Third Edition) [Tr. Vol. 9 at
749].37 It is a 416 page, 21 chapter volume
67]. The excerpt had a hit count of nine on
edited by Harriette Pipes McAdoo. The
the ERES system [Jt. Ex. 3 at 174]. Had
chapters address the historical and mod-
permissions been paid via CCC for the
ern challenges experienced by black fami-
distribution of this excerpt to the entire
lies in the United States [Jt. Ex. 5 at D-
class, Sage would have earned less than
40]. The book retails for $114.00 in hard-
$140.42 in net revenue from permissions 39
back and $58.95 in paperback [Jt. Ex. 5 at
D-40]. The book has earned $144,388.03 in [Jt. Ex. 5 at D-40]. The cost to students
net sales revenue [Pls. Ex. 222]. Licensed would have been $168.20. Professor Dixon
digital excerpts from the book were avail- owned several copies of this book [Tr. Vol.
able through CCC in 2009 [Pls. Exs. 224, 9 at 79].
223]. From July 1, 2004 until December 1, Fair Use Analysis
2010, Black Families (Third Edition)
earned $931.60 in ECCS permissions reve- [26] As to the first element of fair use
nue [Pls. Ex. 224]. In addition, the work is (‘‘the purpose and character of the use’’),
available for licensed excerpts through Defendants’ use of the excerpt is nontrans-
Sage’s in-house permissions program; it formative (in this case, mirror image copy-
has earned $3,561 38 through Sage’s per- ing). The excerpt serves the same purpose
missions program [Pls. Ex. 222]. as the original work. The excerpt was used
for a nonprofit educational purpose by a
Professor Dixon requested that pages nonprofit educational institution. Thus, fac-
214-233, one full chapter, of Black Fami- tor one favors fair use.
lies (Third Edition) be uploaded to ERES
for distribution to students in her AAS The second fair use factor is ‘‘the nature
3000 course [Jt. Ex. 5 at D-40]. The ex- of the copyrighted work.’’ The Court
cerpt was entitled ‘‘Out There Stranded?: makes the following findings in that re-
Black Families in White Communities’’ by gard: Black Families is an academic work
Beverly Tatum. The chapter was twenty that collects various perspectives on black
pages or 4.80% of the total work [Defs. Ex. families. The purpose of the work is to
749]. The excerpt was not required reading highlight the pressures faced by black
for the entire class; rather, it was used by families in modern society. Sections of the

37. Plaintiffs’ Exhibit 217, the fourth edition of amount, but that number appears to aggre-
Black Families, was admitted at trial as well. gate the income from multiple editions of the
Although the syllabus for the course lists the work.
fourth edition of the work, the parties stipu-
lated in Joint Exhibit 5 that the third edition 39. The amount earned would have been
was the one at issue in this case. The Court $168.20, the amount charged by CCC, [Jt. Ex.
analyzes the infringement claim with respect 5 at D-40], less the $3.00 service fee charged
to the third edition of the work.
by CCC to users, less $24.78 in fees charged
38. This amount represents permissions in- by CCC to publishers, less royalties Sage is
come only for the edition of the work at issue obligated to pay the external editor.
in this case. Plaintiffs asserted a higher
1224 446 FEDERAL SUPPLEMENT, 3d SERIES

book cover historical conceptualizations of The small number of pages also adequate-
African American families; economics and ly mitigates the potential for market sub-
social mobility; socialization and gender re- stitution. Although the use of a whole
lations; and advocacy and family policies in chapter captures more value than a part of
society. a chapter, chapter 12 is not the heart of
the work. Taking all of this into account,
Chapter 12, ‘‘Out There Stranded?,’’ fo- factor three favors fair use.
cuses on the experience of black children
who have grown up in predominantly white As to the fourth fair use factor, effect on
communities. The chapter discusses par- the market, the Court first looks to wheth-
ents’ concerns about the lack of community er Professor Dixon’s use of Black Families
for their children as compared to during (Third Edition) affected the market for
their own upbringing, racism at public purchasing the book as a whole. Students
schools, and the children’s struggles in would not pay $58.95 for the entire book
coming to age in a primarily white commu- (or $114.00 for the hardcover version)
nity. when only twenty pages were required
reading for Professor Dixon’s course. Nei-
Chapter 12 has two subparts. The first ther would a professor require students to
half of the chapter, which reports the par- purchase the entire book in such an in-
ents’ concerns, is objective. The author stance. Therefore, the Court rejects any
relies on other studies to provide analysis argument that the use of the excerpt from
and insight on parents’ views of their chil- Black Families (Third Edition) had a neg-
dren’s experience. The other half of the ative effect on the market for the purchase
chapter, which focuses on the children’s of the book itself.
views, relies on a study performed by the
author herself. Both parts contain the au- Plaintiffs produced evidence demon-
strating that there was a ready market for
thor’s opinion: some come from her analy-
licensed digital excerpts of this work in
sis of the previous literature, while others
2009 through CCC and through Sage. The
involve opinions based on her experience
unpaid use of the excerpt by Professor
with black children raised in white commu-
Dixon and her students caused very small,
nities. The chapter maintains a formal tone
but actual, damage to the value of Sage’s
at all times. Because author opinion domi-
copyright. In addition, widespread use of
nates, factor two disfavors fair use.
similar unlicensed excerpts could cause
Factor three requires the Court to de- substantial harm. Sage lost permissions
termine whether the quantity and quality income. Factor four strongly disfavors fair
of the work used is fair, given the purpose use.
and character of the use and the impact of
In summary, factor one favors fair use;
market substitution. ‘‘Out There Strand-
factor two disfavors fair use; factor three
ed?’’ is a 20 page chapter, which is 4.81%
favors fair use; and factor four strongly
of the 416-page book [Defs. Ex. 749]. This
disfavors fair use. The Court will look fur-
is a small percentage of the book and a
ther and will conduct a holistic evaluation
small number of pages, easily within the
to determine the outcome of the fair use
allowable quantity given the nonprofit, ed-
defense.
ucational nature of the use. Similarly, the
excerpt is sufficiently tailored to serve The infringement alleged here involves
Professor Dixon’s pedagogical purpose. the third edition of Black Families. While
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1225
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

the record contains no evidence of when 1996; and a fourth edition was published in
the first edition was published, the second 2006 [Pls. Ex. 222]. The net book sales
edition was published in 1988; the third revenue for the third edition was as fol-
edition, at issue here, was published in lows:

[Pls. Ex. 222]. The decline in book sales in Regarding the market for permissions to
2006, 2007, 2008, 2009 and 2010 was likely make excerpts of the work, the record
brought about by the publication of the shows the following sales:
fourth edition in 2006.
1226 446 FEDERAL SUPPLEMENT, 3d SERIES

[Pls. Ex’s. 222, 224]. F. Professor Hartwig

Defendants’ use of unpaid small ex- Professor Melinda Hartwig is a profes-

cerpts in 2009 had no impact on the poten- sor in the Art History department at Geor-
tial market for the book. Assuming the gia State [Tr. Vol. 9, Doc. 407 at 26-27].
widespread acceptance of programs like
AH 4900 Materiality of Ancient Egyptian
Georgia State’s, the potential permissions
Painting, Fall 2009
market in 2009 may have been slightly im-
pacted. However, there was relatively little During the fall 2009 semester, Professor
demand for excerpts of the book in 2009. Hartwig taught a course titled ‘‘AH 4900:
Because repetitive use of excerpts was un- The Materiality of Ancient Egyptian
likely, the factor four outcome is mitigated Painting’’ [Id. at 29, Pls. Ex. 550]. AH 4900
in Defendants’ favor. is a seminar for undergraduate and gradu-
Weighing together factors one, two, ate students that examines historical and
three and four (as adjusted), giving factor material aspects of ancient Egyptian art
two little weight and factor four extra [Id.]. Thirteen students were enrolled in
weight, and placing the burden of proof on Professor Hartwig’s course during the fall
Defendants, the Court finds that Defen- 2009 semester [Jt. Ex. 5 at D-41]. There
dants have proved their fair use defense. were no required textbooks for the course,
Accordingly, this copyright infringement and all assigned readings were made avail-
claim fails. able through ERES [Pls. Ex. 550].
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1227
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

29. Ancient Egyptian Materials and discusses various stones used in ancient
Technology (Paul T. Nicholson & Egypt. The chapter follows an identical
Ian Shaw eds., Cambridge 2000) format for each stone identified: the sec-
tion provides the definition, Egyptian
Professor Hartwig made available two
source, description, uses, and examples.
excerpts from Ancient Egyptian Materials
Specific stones covered by this page range
and Technology (‘‘Egyptian Materials’’)
include marble, obsidian, and quartz.
[Tr. Vol. 9, Doc. 407 at 33-36; Pls. Ex. 550].
The excerpts were: (1) a portion of chapter The first excerpt is wholly objective, re-
two (pages 44-54), titled ‘‘Stone,’’ by Bar- stating facts and details about the stones
bara Aston, James Herrel, and Ian S. in question. It is written in a formal tone,
Shaw, and (2) the entirety of chapter four and is devoid of any fanciful language. At
(pages 104-120), titled ‘‘Painting Materi- no point does the excerpt move from the
als,’’ by Lorna Lee and Stephen Quirke dry facts about the stones to a subjective
[Doc. 407 at 33-36; Pls. Ex. 550]. The two discussion, and the information contained
excerpts span 28 pages and constitute in the excerpt does not come from the
3.87% of the 724-page copyrighted work author’s experience or opinion.
[Pls. Ex. 6].
The second excerpt (pages 104-120) is
Fair Use Analysis the entirety of chapter four of the book,
titled ‘‘Painting Materials.’’ The chapter
[27] As to the first element of fair use
provides information about different paint-
(‘‘the purpose and character of the use’’),
ing materials with a focus on pigments.
Defendants’ use of the excerpt is nontrans-
The chapter opens by discussing a pigment
formative (in this case, mirror image copy-
analysis the authors performed with the
ing). The excerpt fulfills the same purpose
British Museum. The authors explain how
as the copyrighted work. The excerpt was
their methods and results from the British
used for a nonprofit educational purpose
Museum study provide additional informa-
by a nonprofit educational institution.
tion to the already existing body of ancient
Thus, factor one favors fair use.
Egyptian pigment scholarship. The chap-
Turning to factor two, Egyptian Materi- ter then discusses various pigments, draw-
als is an academic reference work that ing on both the authors’ work and histori-
discusses the materials and methods used cal scholarship to explain where the color
by Egyptians to construct various aspects has been found and how the color was
of their society. The book covers organic, produced. The chapter ends with a brief
inorganic, and food materials, with each discussion of painting mediums, such as
chapter focusing on a single object (such stone, plaster, papyrus, and wood.
as woods, metals, or meats). The specific
Chapter four is wholly objective, relying
chapter structures vary depending on the
on previous color studies to discuss ancient
material discussed, but they generally re-
Egyptian pigments and mediums. The au-
view sources for the material, methods for
thors rely, in part, on a study they per-
its production, and common uses in ancient
formed, but this study was merely a factu-
Egypt.
al evaluation of various physical evidence.
The first excerpt used by Professor Other than their reliance on the objective
Hartwig (pages 44-54) was taken from results of their study, the authors’ opinion
chapter two, titled ‘‘Stone.’’ The chapter or analysis is absent from the chapter.
1228 446 FEDERAL SUPPLEMENT, 3d SERIES

With this in mind, both excerpts favor a guage (‘‘ESL’’) Department at Georgia
finding of fair use under factor two. State [Tr. Vol. 6, Doc. 404 at 96].

Factor three directs the Court to assess AL 8550 Second Language Evaluation and
the quantity and quality of the excerpt in Assessment, Fall 2009
light of the purpose of the use and the
In the fall semester of 2009, Professor
potential harm of market substitution.
Kim taught AL 8550, or ‘‘Second Lan-
Here, Professor Hartwig uploaded 28
guage Evaluation and Assessment’’ [Id.;
pages, totaling 3.87% of the 724-page book
Pls. Ex. 519]. The course was offered to
[Pls. Ex. 6], which is a very small percent-
in-service and pre-service 40 teachers who
age, especially in light of the nonprofit,
wanted to become second-language teach-
educational nature of Professor Hartwig’s
ers in English, French, and Spanish [Doc.
use. Use of these excerpts also fit Profes-
404 at 140]. The course sought to acquaint
sor Hartwig’s pedagogical purpose. The
students with existing testing items and to
excerpts in question include one whole
help them design and score effective
chapter plus part of another chapter, but
classroom-based tests [Id.]. There was a
neither is the heart of the work. Factor
required textbook in the course, and addi-
three favors fair use.
tional required and optional readings up-
Factor four looks to the effect of Defen- loaded to uLearn and ERES [Pls. Ex.
dants’ use on the value of the copyrighted 519; Doc. 404 at 101].
work and the potential market for the
30. Fundamental Considerations
work. Cambridge has provided no evidence
in Language Testing (Lyle
that digital permissions for Egyptian Ma-
Bachman, Oxford 1990)
terials were available in 2009. The only
evidence provided by Cambridge of any One optional reading that Professor Kim
sales is of £170,793 in book sales from the uploaded to uLearn was an excerpt from
date of publication through October 2010 Fundamental Considerations in Lan-
[Pls. Ex. 13] and $241.49 in APS permis- guage Testing (‘‘Fundamental Consider-
sions sales in 2005-2008 [Pls. Ex. 14]. Be- ations’’), by Lyle F. Bachman [Doc. 404 at
cause digital excerpts were unavailable in 101, 147; Pls. Ex. 519]. The excerpt con-
2009, factor four favors fair use. Cam- sisted of pages 81-110 (30 pages), or chap-
bridge II, 769 F.3d 1232, 1279. ter four: ‘‘Communicative language ability’’
Summarizing the analysis above, factors [Pls. Ex. 406]. The excerpt constituted
one, two, three, and four all favor fair use. 7.14% of the 420-page book [Id.].
The use of Egyptian Materials by Profes- Fair Use Analysis
sor Hartwig was a fair use. Cambridge’s
claim that Professor Hartwig’s use infring- [28] As to the first element of fair use
ed its copyright fails. (‘‘the purpose and character of the use’’),
Defendants’ use of the excerpt is nontrans-
formative (in this case, mirror image copy-
G. Professor Kim
ing). The excerpt fulfills the same purpose
YouJin Kim is a professor in the Applied as the copyrighted work. The excerpt was
Linguistics and English as a Second Lan- used for a nonprofit educational purpose

40. ‘‘In-service’’ refers to students already to students planning to become teachers [Doc.
working as teachers, and ‘‘pre-service’’ refers 404 at 140].
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1229
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

by a nonprofit educational institution. forward and explanatory. The author fre-

Thus, factor one favors fair use. quently uses large passages from others’
writings to describe the framework’s sub-
With respect to factor two, Fundamen-
components or to provide related models
tal Considerations is an academic book. It
that served as precursors to the communi-
is part of a series on teaching language
cative language ability framework. The au-
that contains 23 other books. The book
thor occasionally uses illustrative examples
seeks to provide a conceptual foundation
for answering practical questions related that are light and even humorous, some of
to the development and use of language which are based on his own personal expe-
tests. The book adopts a broad view of riences and some of which are borrowed
language ability, or a ‘‘communicative lan- from others’ experiences and writings. As
guage ability’’ approach, which assumes described in chapter four, the communica-
that language is more than a simple trans- tive language ability framework is largely
fer of information. Communicative lan- built from substantive research conducted
guage ability presumes that language is a by people other than the author; however,
dynamic interaction between the situation, the author appears to be responsible for
the user, and the discourse. With this view the precise composition described. The
in mind, each of the book’s eight chapters substance of the chapter is fairly split be-
discusses a related set of issues relevant to tween the author’s own analysis and de-
the development and use of language tests scriptions of others’ work. Accordingly,
and language testing research. factor two is neutral, and it weighs neither
for nor against fair use.
Chapter four, which Professor Kim up-
loaded to uLearn, describes in detail the Moving to factor three, Professor Kim
‘‘communicative language ability’’ concep- uploaded one full chapter of the work. The
tual framework. The chapter begins by excerpt consisted of 30 pages, or 7.14% of
describing the limitations of several alter- the entire work [Pls. Ex. 406]. Thus, the
native language ability models, and then percentage copied was relatively small, es-
provides an overview of the author’s pro- pecially considering the educational nature
posed framework for communicative lan- of the use. Further, the use served Geor-
guage ability. The author’s framework gia State’s important pedagogical aims.
contains three primary components: (1) With respect to the quality of the work
language competence, or specific knowl- copied, on the one hand, the chapter at
edge of a language, such as vocabulary issue is integral to the overall work; how-
and grammar; (2) strategic competence, ever, it is not the heart of the work. To be
which encompasses dynamic skills for as- sure, chapter four provides an overarching
sessing the context of a communication framework for understanding the compo-
and negotiating meaning; and (3) psycho- nents of language ability that language
physiological mechanisms, which include
testers are interested in testing, but it only
visual and auditory functions, and recep-
tangentially discusses language testing,
tive and productive channels of communi-
which is the focus of the overall work.
cation. The bulk of chapter four fleshes
Considering also that the quantity of cop-
out these three components and their sub-
ied material was small and that it did not
categories.
constitute the heart of the work, yet taking
Overall, the tone of chapter four is infor- into account the potential impact of market
mative, and the chapter is mostly straight- substitution, the excerpt uploaded by Pro-
1230 446 FEDERAL SUPPLEMENT, 3d SERIES

fessor Kim was not excessive. For these Defendants’ use of the excerpt is nontrans-
reasons, factor three favors fair use. formative (in this case, mirror image copy-
ing). The excerpt fulfills the same purpose
As for factor four, there is no evidence
in the record that digital licensing permis- as the copyrighted work. The excerpt was
sions were available for Fundamental used for a nonprofit educational purpose
Considerations in 2009. Defendants’ unli- by a nonprofit educational institution.
censed use of a small excerpt did not cause Thus, factor one favors fair use.
harm to the potential market for the copy- With respect to factor two, Assessing
righted book. Because digital licenses to
Speaking is one part of the eleven volume
copy excerpts were unavailable in 2009,
‘‘Cambridge Language Assessment Series’’
Defendants’ unpaid use of excerpts of
[Pls. Ex. 34]. The work discusses problems
Fundamental Considerations did not
with assessing speaking in the language
cause damage to the value of the copy-
learning context, and provides a readable
righted work. Cambridge II, 769 F.3d
overview of literature on the topic. Assess-
1232, 1279. Factor four tips in favor of fair
ing Speaking’s target audience includes
use.
teachers and researchers interested in re-
Accordingly, factors one, three, and four flecting on speaking assessment practices
favor fair use, and factor two is neutral. and developing new assessment methods.
Taking all factors into account and weight- A constant theme throughout the work is
ing them as directed by the Court of Ap- that speaking assessment in language
peals, and recalling that factor four ‘‘looms learning takes place in a cycle, wherein
large,’’ Defendants have carried their bur- each stage relates to and informs the fol-
den. Georgia State’s unpaid use of Funda-
lowing stages.
mental Considerations was a fair use.
31. Assessing Speaking (Sari Luoma, The first uploaded excerpt is pages 59-
Cambridge 2004) 95, or chapter four, which covers the na-
ture and development of speaking scales.
Among the required readings that Pro- ‘‘Speaking scales’’ refers to the ratings
fessor Kim uploaded to uLearn for her fall used in assessing a language learner’s abil-
2009 AL 8550 course were two excerpts ity to speak a target language. The author
from Assessing Speaking by Sari Luoma begins the chapter by describing six exam-
[Pls. Ex. 519]. The excerpts consisted of
ples of existing speaking scales. For each
two full chapters of the eight chapter work
example, she identifies and compares dif-
[see id.; Pls. Ex. 34; Tr. Vol. 6, Doc. 404 at
ferent features of the scales. The next
108]. Specifically, Professor Kim uploaded
portion of the chapter discusses concerns
chapter four, ‘‘Speaking scales,’’ which is
in developing speaking scales, such as the
pages 59-95 (37 pages), and chapter seven,
number of levels each scale should include
‘‘Developing speaking tasks,’’ which is
to distinguish between degrees of ability,
pages 139-169 (31 pages) [Pls. Exs. 34,
519]. Combined, the excerpts total 68 and the number and type of criteria that
pages, or 29.82% of the 228-page book [Pls. should be included to describe perform-
Ex. 34]. ance at each level. Chapter four moves on
to discuss intuitive, qualitative, and quanti-
Fair Use Analysis
tative methods for developing speaking as-
[29] As to the first element of fair use sessment scales. To conclude, chapter four
(‘‘the purpose and character of the use’’), summarizes research on the progression of
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1231
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

speaking ability in fluency, pragmatic cerpts are predominated by examples from

skills, and grammar. and reproductions of others’ works. Ac-
cordingly, factor two is neutral.
Most of chapter four describes existing
Turning to factor three, Professor Kim
speaking scales and previous research on
uploaded two full chapters, or 68 pages of
their development. Much of the page count
Assessing Speaking [Pls. Ex. 34]. The up-
in chapter four is devoted to tables where- loaded portion constitutes 29.82% of the
in the example scales are reproduced from entire work [Id.]. The unpaid use of full
other sources. However, the chapter also chapters comprising 29.82% of the work
contains the author’s own synthesis of the leans very strongly against fair use. Geor-
research and literature in a way that is gia State’s use promoted its pedagogical
instructive and analytical, in that it high- aim; however, the portion uploaded is
lights the advantages and disadvantages to much too large to support a finding of fair
the various scales, features, and develop- use. In light of these considerations, factor
ment methods. three weighs very strongly in favor of
Plaintiffs, and against fair use.
The second uploaded excerpt is chapter
As to factor four, there is no evidence
seven, which focuses on developing tasks that digital permissions were available for
for assessing speaking. In the chapter, the Assessing Speaking in 2009. The record
author provides eighteen examples of vari- demonstrates that Cambridge earned £58,-
ous speaking tasks, such as descriptive, 893.00 in revenue from book sales from the
narrative, or comparing/contrasting tasks. date of publication through the end of
For each example, the author explains the January 2011 [Pls. Ex. 37]. While the ex-
general task category, the advantages and cerpt used was very large, it was not so
disadvantages of the type of task or the large as to substitute for the book and did
particular example used, and the testing not affect the potential market for the
purposes that would likely require or bene- book. Because digital permissions were un-
fit from each type of task. In the second available, Defendants’ use likely did not
portion of the chapter, the author discuss- affect the value of Oxford’s copyrighted
es practical issues with task design, like work. Accordingly, factor four weighs in
writing ‘‘task specifications’’ or blueprints favor of fair use.
for the task, creating the actual materials In this instance, factors one and four
for the task, and crafting the instructions favor fair use, factor two is neutral, and
for the task. The task examples, which factor three strongly disfavors fair use.
dominate chapter seven, are taken or Weighing all factors (as adjusted) togeth-
adapted from other sources. The discus- er, giving factor four extra weight, and
sions for each example are more descrip- placing the burden of proof on Defendants,
and recalling that factor four ‘‘looms
tive than analytical; however, they contain
large,’’ the Court finds that Defendants
some analytical features. The smaller seg-
succeed in proving that the use of Assess-
ment of the chapter on practical consider-
ing Speaking was a fair use. This infringe-
ations in task design is partly objectively
ment claim fails.
descriptive, and partly based on the au-
32. Learning Vocabulary in Another
thor’s own experiences.
Language (I.S.P. Nation,
Overall, the excerpts at issue contain Cambridge 2001)
elements of the author’s own analysis and For her AL 8550 course, Professor Kim
subjective description; however, the ex- uploaded to uLearn an excerpt from
1232 446 FEDERAL SUPPLEMENT, 3d SERIES

Learning Vocabulary in Another Lan- relatively thorough discussion of existing

guage, by I.S.P. Nation [Pls. Ex. 519; Tr. research regarding vocabulary testing
Vol. 6, Doc. 404 at 105]. She specifically items. The author provides practical ad-
uploaded pages 344-379 (36 pages), or vice about which test items are most ef-
chapter ten: ‘‘Testing vocabulary knowl- fective in various settings, and for adjust-
edge and use’’ [see Pls. Exs. 519, 125]. The ments that test-makers might make in
uploaded excerpt was 7.33% of the 491- order to isolate an examinee’s specific
page work. When she designed the sylla- knowledge or to vary the level of difficul-
bus, Professor Kim initially marked the ty. The chapter moves on to examine tar-
excerpt as required reading, but she later geted areas of vocabulary testing, such as
pinpointed a few required examples from how to measure words the learners do
the chapter [Doc. 404 at 144]. not know well and learners’ total vocabu-
lary size. In its final section, chapter ten
Fair Use Analysis
discusses purposes for which vocabulary
[30] As to the first element of fair use tests may be given--to diagnose weak-
(‘‘the purpose and character of the use’’), nesses, to test short-or long-term
Defendants’ use of the excerpt is nontrans- achievement, or to evaluate proficiency—
formative (in this case, mirror image copy- and the features of tests given for each
ing). The excerpt fulfills the same purpose specific purpose.
as the copyrighted work. The excerpt was
Overall, the tone of the chapter is infor-
used for a nonprofit educational purpose
mative, and the writing is straightforward.
by a nonprofit educational institution.
The chapter contains an in-depth discus-
Thus, factor one favors fair use.
sion of research--both the author’s own
Factor two directs the Court to examine research and others’ research--on vocabu-
the nature of the work. Learning Vocabu- lary testing. Chapter ten contains several
lary in Another Language is part of the large tables, which were presumably creat-
‘‘Cambridge Applied Linguistics Series’’ ed by the author. The chapter’s unique
[Pls. Ex. 125]. The total work consists of organizational format of ordering the dis-
eleven chapters, with each chapter focus- cussion and research around teachers’ typ-
ing on a different aspect of learning vocab- ical questions seems to be the result of the
ulary. The work was designed for second author’s own analysis. In sum, the chapter
and foreign language teachers. is fairly split between the author’s analysis
and objective descriptions of others’ re-
Chapter ten, the specific excerpt at is-
search. Thus, factor two is neutral, and it
sue, covers testing vocabulary. It is
weighs neither for nor against fair use.
structured around questions that second
language teachers typically ask about vo- With respect to factor three, Professor
cabulary testing. For example, the chap- Kim uploaded an entire chapter. The 36-
ter starts with the question, ‘‘What kind page excerpt was 7.33% of the 491 pages in
of vocabulary test is best?’’ After provid- Learning Vocabulary in Another Lan-
ing several vocabulary test item exam- guage. Quantity wise, the overall percent-
ples, the author explains that the test- age of the work used is relatively small.
maker must first determine what he or The excerpt furthered the course’s peda-
she wants to test and the target degree gogical purpose, and no evidence exists to
of difficulty. The chapter then gives a demonstrate a digital permissions market,
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1233
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

or any market substitution, for excerpts of ANTH 4440/6550 Epidemiology and An-
Learning Vocabulary in Another Lan- thropology, Fall 2009
guage in 2009. Quality wise, a whole chap-
Professor McCombie taught a course
ter has more value than part of a chapter.
called ‘‘Epidemiology and Anthropology,’’
However, chapter ten is not any more or
less important than any other chapter and or ANTH 4440/6440, at Georgia State in
is not the heart of the work. In particular, the fall semester of 2009 [Id.]. The course
the book as a whole covers the broad covered the basic principles of epidemiolo-
subject of learning vocabulary, while chap- gy, including disease outbreak investiga-
ter ten focuses on the narrow facet of tion, disease control, and analysis of risk
vocabulary testing as a tool for learning factors [Id.]. For the course, Professor
vocabulary. Because Georgia State used a McCombie required one textbook, and rec-
small portion of Learning Vocabulary in ommended a second textbook. The remain-
Another Language, which was not the der of the course readings were uploaded
heart of the work, and the copied portion onto ERES, or provided through other
does not indicate harm from market sub- means.
stitution, factor three tips in favor of fair 33. International Health Organisations
use. and Movements 1918-1939 (Paul
As for factor four, the record contains Weindling ed., Cambridge 1995)
no evidence that digital permissions were One such reading uploaded to ERES
available for Learning Vocabulary in An- was an excerpt from International Health
other Language in 2009. Cambridge
Organisations [Id.]. Professor McCombie
earned £151,583.00 in revenue from book
assigned and caused to be uploaded to
sales between May 20, 2002 and January
ERES, chapter 11, or pages 222-243 (22
31, 2011 [Pls. Ex. 128]. As no digital mar-
pages) [Id.]. Chapter 11 is titled: ‘‘The
ket for excerpts of the work existed in
cycles of eradication: the Rockefeller
2009, Defendants’ use likely caused no
Foundation and Latin American public
damage to the value of the copyrighted
health (1918-1940),’’ by Marcos Cueto [Pls.
work. Factor four thus weighs in favor of
Ex. 108]. The uploaded excerpt accounts
fair use.
for 6.20% of the 355-page total work [Id.].
Here, factors one, three, and four favor
Fair Use Analysis
fair use, and factor two is neutral. Mindful
of the factors’ relative weight, placing the [31] As to the first element of fair use
burden of proof on Defendants, and weigh- (‘‘the purpose and character of the use’’),
ing the factors together, the Court is per- Defendants’ use of the excerpt is nontrans-
suaded that Georgia State has discharged formative (in this case, mirror image copy-
its burden of demonstrating that its use of ing). The excerpt fulfills the same purpose
Learning Vocabulary in Another Lan- as the copyrighted work. The excerpt was
guage was a fair use. used for a nonprofit educational purpose
by a nonprofit educational institution.
H. Professor McCombie Thus, factor one favors fair use.

Dr. Susan McCombie is a professor at As to factor two, International Health

Georgia State who teaches in the Depart- Organisations is part of the ‘‘Cambridge
ment of Anthropology [Pls. Ex. 536]. History of Medicine’’ series, and it is an
1234 446 FEDERAL SUPPLEMENT, 3d SERIES

academic work. It contains 15 total chap- Turning to factor three, Professor

ters, each of which is comprised of a differ- McCombie uploaded a full chapter of In-
ent study or examination on international ternational Health Organisations, or
health and welfare organizations between 6.20% of the total work (22 pages) [Pls. Ex.
the First and Second World Wars. The 108]. The percentage and number of pages
work seeks to provide a cohesive and inte- that Professor McCombie uploaded was
grated view on what the authors and edi- small, taking into account that the excerpt
tors believe to be a previously neglected was used to support Georgia State’s peda-
area of study: the role of international gogical aims and the negligible market
organizations in promoting welfare. substitution effect given the lack of evi-
Chapter 11 looks at the Rockefeller dence of digital permission availability for
Foundation’s (‘‘RF’’) early twentieth-centu- International Health Organisations in
ry disease eradication efforts in Latin 2009. As for the quality of the excerpt in
America. The chapter begins with a brief relation to the overall work, the essay at
introduction regarding the political and hand was not any more or less important
economic factors that precipitated the than the other chapters in International
United States’ interest in disease eradi- Health Organisations. ‘‘The cycles of erad-
cation campaigns in the region, which led ication’’ certainly embodies the work’s un-
to the RF’s involvement. The author ex- derlying theme; however, it provides only
plains that three diseases in particular-- one of the many perspectives included in
hookworm, yellow fever, and malaria-- the work. Therefore, it is not the heart of
caught the RF’s attention because they the work. For these reasons, the excerpt
were perceived to be susceptible to termi- uploaded for Professor McCombie’s class
nation through short-term efforts. The au- was not excessive, and factor three tips in
thor then provides a detailed, chronological favor of fair use.
discussion of the RF’s campaigns for each
With respect to factor four, there is no
disease. Although the results of the sepa-
evidence in the record that permissions
rate campaigns were mixed, enthusiasm
licensing in any form--digital or other-
for the goal of disease eradication was
cyclical, or characterized by periods of wise--was available for International
‘‘boom’’ and ‘‘bust.’’ To conclude, the au- Health Organisations in 2009. Cambridge
thor identifies several byproducts of the earned £16,284.00 in revenue from book
RF’s disease eradication campaigns, in- sales between the date of publication and
cluding increased U.S. influence in Latin November 7, 2010 [Pls. Ex. 112], Defen-
America. dants’ use did not harm Cambridge’s book
sales. Thus, Georgia State’s unpaid use of
‘‘The cycles of eradication’’ is a straight- the excerpt caused no actual harm in 2009
forward and informative historical account to either the potential market for or the
of the RF’s Latin American involvement. value of the copyrighted work. According-
The chapter is an historical examination ly, factor four favors fair use.
and is objectively descriptive. It is not
evaluative or overtly analytical. While it Factors one, two, three, and four each
draws on the author’s historical research, favor fair use in this instance. Weighting
it is not based on his own experiences. the factors as directed, considering them
Accordingly, factor two weighs in favor of together, and placing the burden of proof
fair use. on Defendants, the Court finds Georgia
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1235
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

State has carried its burden, and its un- thor disagrees with the admonition that
paid use of this excerpt from International one should not merely treat the symptoms
Health Organisations was a fair use. of a disease because that assumes that
34. Evolution of Infectious Disease symptoms are merely side effects of the
(Paul W. Ewald, Oxford 1994) disease. The author argues that symptoms
are better described as adaptations of a
Professor McCombie also assigned her
disease that benefit either the host (and
ANTH 4440/6440 class an excerpt from
serve as ‘‘defenses’’ of the host) or the
Evolution of Infectious Disease by Paul
parasite (which serve as ‘‘manipulations’’ of
W. Ewald, which was uploaded to ERES
the host). For instance, the author explains
[Pls. Ex. 536]. The excerpt consisted of
how a fever is a defensive symptom in
pages 15-34 (20 pages), or the whole of
instances where a pathogen cannot survive
chapter two: ‘‘Symptomatic Treatment (Or
at the fever’s higher temperatures. In six
How to Bind The Origin of Species to The
Physician’s Desk Reference)’’ [see id.; Pls. separate sections, the author discusses ex-
Ex. 388]. It constitutes 6.56% of the 305- amples of symptoms that can be described
page work [Pls. Ex. 388]. as defensive, manipulative, or both. Addi-
tionally, the author discusses theoretical
Fair Use Analysis
and practical treatment and policy implica-
[32] As to the first element of fair use tions for each classification. In conclusion,
(‘‘the purpose and character of the use’’), the author restates his point that symp-
Defendants’ use of the excerpt is nontrans- toms are not merely side effects of disease.
formative (in this case, mirror image copy-
ing). The excerpt fulfills the same purpose Chapter two is primarily scientific and
as the copyrighted work. The excerpt was informational; however, it is colored by the
used for a nonprofit educational purpose author’s own broad hypothesis that the
by a nonprofit educational institution. study of diseases and treatment can bene-
Thus, factor one favors fair use. fit from an evolutionary perspective. De-
spite the scientific subject matter, the tone
Factor two looks to the nature of the is light, as the author includes several
work. Evolution of Infectious Disease is
comical metaphors and asides. Overall,
an academic work aimed primarily at stu-
while chapter two contains objectively de-
dents and professionals in the health sci-
scriptive elements, it is fairly dominated
ences. The author seeks to integrate epide-
by the author’s subjective analysis and
miology and evolutionary studies for the
evolutionary framework, which surpass the
benefit of modern science. The author spe-
bare facts. Consequently, factor two
cifically purports to break with the tradi-
weighs against fair use.
tional view that parasites theoretically
should evolve towards benign coexistence Turning to factor three, Professor
with their hosts. This view, according to McCombie uploaded all of chapter two of
the author, contradicts both the evidence Evolution of Infectious Disease, or 6.56%
and natural selection. The work is divided of the total work [Pls. Ex. 388]. The per-
into 11 chapters, each of which focuses on centage of the overall work uploaded--
a different aspect of the evolution of dis- 6.56%--was small and the number of pages,
ease and its modern applications.
20, is small in light of the favored edu-
Chapter two applies the evolutionary cational use. Additionally, no evidence ex-
perspective to disease symptoms. The au- ists to demonstrate a digital permissions
1236 446 FEDERAL SUPPLEMENT, 3d SERIES

market for excerpts of Evolution of Infec- I. Professor Anggoro

tious Disease in 2009 or thereafter making
At the time of trial Professor Anggoro
the likelihood that the unpaid excerpt will
was no longer employed at Georgia State.
substitute for the paid market nonexistent.
During the fall 2009 semester, she taught
As for the quality of the excerpt uploaded,
a course in the College of Education at
chapter two is valuable in that it is a
Georgia State [Defs. Ex. 610].
discrete section that covers an entire topic.
However, chapter two, which covers EPY 8690 Seminar in Educational Psy-
‘‘symptomatic treatment,’’ is not the heart chology, Fall 2009
of Evolution of Infectious Disease, which
as a whole presents a broad and multifac- EPY 8690 is a course that examines the
eted hypothesis. The excerpt also furthers empirical and theoretical approaches to
the pedagogical purpose of the course. Giv- understanding human thinking across lan-
en all of these considerations, the portion guages and cultures [Defs. Ex. 610]. Nine
of the work that Georgia State uploaded students enrolled in this seminar in the
was not excessive, and factor three tips in fall semester of 2009 [Jt. Ex. 5 at D-67].
favor of fair use. According to the syllabus, there was no re-
quired textbook for the course; all as-
Factor four looks to the effect of the signed readings were made available on-
use by Georgia State and others on the line through ERES [Defs. Ex. 610].
potential market for and value of the
copyrighted work. There is no evidence 35. Language Acquisition and Conceptual
that permissions were available for ex- Development (Melissa Bowerman &
cerpts of Evolution of Infectious Disease Stephen C. Levinson eds., Cambridge
digitally in 2009 or otherwise. Oxford 2001)
earned £222,038.50 in revenue from book Language Acquisition and Conceptual
sales between the date of publication and Development was first published by Cam-
November 7, 2010 [Pls. Ex. 357]; however, bridge in 2001 [Pls. Ex. 119]. It is a nine-
Defendants’ use of the small excerpt had teen chapter, 614 page volume edited by
no impact on book sales. Therefore, Geor-
Melissa Bowerman and Stephen C. Levin-
gia State’s unpaid use did not cause any
son [Pls. Ex. 119]. The book is part of the
harm to the potential market for the copy-
Cambridge Language, Culture, and Cogni-
righted work and had no impact on the
tion series, which focuses on the role that
value of the copyrighted work. According-
various aspects of language play in human
ly, Georgia State has carried its burden
cognition. The book grew out of a confer-
and factor four favors fair use.
ence in which papers by various authors
In sum, factors one, three, and four were presented; the papers were revised
weigh in favor of fair use, and factor two by the authors and are reprinted as chap-
weighs against fair use. As the three most ters in the book. The book is probably a
substantial factors weigh in Georgia collective work. Language Acquisition and
State’s favor, and only the most insubstan- Conceptual Development analyzes the in-
tial weighs against fair use, Georgia State teraction between language acquisition and
has satisfied its burden with respect to this early cognition [Pls. Ex. 119]. It is aimed
instance of infringement. Georgia State’s at linguistics scholars. The book retails for
use of Evolution of Infectious Disease was $140.00 in hardback and $53.00 in paper-
a fair use. This infringement claim fails. back [Jt. Ex. 5 at D-67]. The net sales
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1237
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

revenue from January 26, 2010, through areas of early cognition and language. The
October 31, 2010 was £456.00 [Pls. Ex. book starts with the proposition that the
123]. Digital excerpts from the book were fields of cognition and language acquisition
available for licensing through CCC in had previously taken divergent paths, and
2009 [Pls. Ex. 124]. From July 1, 2004 until suggests taking a unified approach in or-
December 1, 2010, Language Acquisition der to more closely examine human devel-
earned $669.39 in ECCS permissions reve- opment in both capacities. The book seeks
nue [Pls. Ex. 124]. to identify which cognitive processes chil-
dren are biologically endowed with, which
Professor Anggoro requested that pages
develop as a result of the child’s environ-
566-588, or one full chapter totaling 3.75%
ment and thus are susceptible to culture
of the book, be posted on the ERES sys-
and language biases, and how the process-
tem [Defs. Ex. 610; Jt. Ex. 5 at D-67]. The
es coalesce. Its 19 total chapters are divid-
excerpt was the entirety of chapter nine-
ed into four parts: (1) foundational issues;
teen, which is entitled ‘‘Covariation be-
(2) constraints on word learning; (3) enti-
tween spatial language and cognition, and
its implications for language learning’’ by ties, individuation, and quantification; and
Stephen C. Levinson [Pls. Ex. 119]. Had (4) relational concepts in form-function
permissions been paid via CCC for the mapping.
distribution of this excerpt, Cambridge The excerpt at issue, chapter 19, is au-
would have earned less than $26.39 in net thored by Steven C. Levinson, who coedit-
revenue from permissions.41 The cost to ed the volume, and it is the final chapter in
students would have been $34.05. the work. As the title suggests, the chap-
Fair Use Analysis ter proposes that cognition ‘‘covaries,’’ or
has a correlated variation with linguistic
[33] As to the first element of fair use systems. It starts by describing three lev-
(‘‘the purpose and character of the use’’), els, or ‘‘degrees,’’ of increasing complexity
Defendants’ use of the excerpt is nontrans- for ‘‘the mapping problem,’’ or how chil-
formative (in this case, mirror image copy- dren attach meaning to words. The author
ing). The excerpt serves the same purpose
suggests that some of children’s language
as the original work. The excerpt was used
acquisition occurs at the most complex
for a nonprofit educational purpose by a
third-degree level, which presumes that
nonprofit educational institution. Thus, fac-
children match language-specific words
tor one favors fair use.
onto language-specific word meanings,
The second fair use factor is ‘‘the nature which are in turn composed of non-univer-
of the copyrighted work.’’ The Court sal concepts. In support, the author dis-
makes the following findings in that re- cusses his own research findings that
gard: Language Acquisition is one volume adults perform nonlinguistic cognitive
of a three-volume series called ‘‘Language, tasks in line with the spatial frame of
Culture and Cognition.’’ Language Acqui- reference (i.e., relative, or ‘‘to the right of,’’
sition is an academic collection of scholarly or absolute, or ‘‘north of’’) employed in
papers that synthesizes research in the their native language. The author then

41. The amount earned would have been by CCC to users, less $4.66 in fees charged by
$34.05, the amount charged by CCC, [Jt. Ex. CCC to publishers, less royalties Cambridge is
5 at D-67], less the $3.00 service fee charged obligated to pay the external editors.
1238 446 FEDERAL SUPPLEMENT, 3d SERIES

uses these findings to support his overall greater ‘‘quality’’ copied than would a par-
thesis that the problem facing a child ac- tial chapter. However, chapter 19 cannot
quiring language is vast because she must be described as the heart of the work. In
construct not only the language-specific light of these considerations, Georgia
words and meanings, but the underlying State’s use was not excessive. Accordingly,
concepts that are not shared across cul- factor three favors fair use.
tures. The chapter concludes with several
As to the fourth fair use factor, effect on
heuristics that may explain how children
the potential market for or value of the
succeed in the seemingly insurmountable
copyrighted work, the Court first looks to
task of acquiring language.
whether Professor Anggoro’s use of Lan-
The tone of chapter 19 is mostly formal guage Acquisition affected the market for
yet somewhat colloquial. It contains occa- purchasing the book as a whole. Students
sional parenthetical asides and footnotes would not pay $53.00 for the entire book
that lighten the tone; but the chapter is (or $140.00 for the hardcover version)
not humorous or fanciful. The author uses when only 23 pages were assigned for
objective data to support his propositions, Professor Anggoro’s course. Neither would
yet he also includes illustrative examples a professor require students to purchase
based on his own personal research experi- the entire book in such an instance. There-
ences. Portions of the text summarize pre- fore, the Court rejects any argument that
vious chapters in order to situate the au- the use of the excerpt from Language
thor’s own observations into the larger Acquisition had a negative effect on the
context of the volume; however, the thrust potential market for purchase of the book
of the chapter is the author’s analysis of itself.
his own research proposals and findings.
Plaintiffs produced evidence demon-
Even though the chapter introduces the
strating that there was a ready market for
author’s own research and analysis, it is
licensed digital excerpts of this work in
grounded in an established preexisting
2009 through CCC. The unpaid use of the
body of research and knowledge. Because
excerpt by Professor Anggoro and her stu-
the chapter contains an even balance of
dents caused very small, but actual, dam-
objective description and analysis, factor
age to the value of Cambridge’s copyright.
two is neutral, and weighs neither for nor
In addition, widespread use of similar unli-
against fair use.
censed excerpts could cause substantial
As for factor three, Professor Anggoro harm. Cambridge lost permissions income.
uploaded all 23 pages of chapter 19, which Factor four strongly disfavors fair use.
is 3.75% of the entire work [Pls. Ex. 119].
In summary, factor one favors fair use;
Thus, Georgia State used a small percent-
factor two is neutral; factor three favors
age of the overall work for a favored edu-
fair use; and factor four strongly disfavors
cational purpose. To the extent that the
fair use. The Court will look further and
number of pages copied suggests the po-
will conduct a holistic assessment of the
tential impact of market substitution, the
factors.
impact here is small. The use of this ex-
cerpt also served the course’s pedagogical The evidence at trial showed that Lan-
purpose. Georgia State uploaded the en- guage Acquisition was published in 2001
tirety of chapter 19, which represents a [Pls. Ex. 119]. According to the record
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1239
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

evidence, sales of the actual book resulted sions sales between July 1, 2004 and De-
in £456.00 in revenue in 2010 42 [Pls. Ex. cember 1, 2010 is represented by the fol-
123]. Cambridge’s revenue from permis- lowing table:

[Pls. Ex. 124]. gia State [Tr. Vol. 7 at 95]. Her focus is on
Again, the relevant inquiry pertains to American history and ethnic and immigra-
both harm to the potential market for the tion history in the United States, specifi-
copyrighted work as of 2009, and harm to cally Jewish history [Tr. Vol. 7 at 96; Doc.
the value of the copyrighted work in 2009, 405 at 96]. She has taught at Georgia State
assuming that ‘‘everybody’’ had programs since 2008.
similar to Georgia State’s. Here, the evi-
Professor Davis regularly uses Georgia
dence shows that permissions sales for
Language Acquisition declined beginning State’s ERES system for distributing
in 2006, ultimately reaching zero in 2009. readings to students enrolled in her
Therefore, it is obvious that there likely classes; she prefers the ERES system to
was no repetitive use of excerpts in 2009, using coursepacks, which sell the assigned
such that the value of the copyrighted readings to students in hard copy, because
work would have been affected. This calls she prefers to distribute the material elec-
for mitigation of the factor four outcome, tronically [Tr. Vol. 7 at 116]. When Profes-
in Defendants’ favor. sor Davis came to Georgia State in 2008,
In summary, weighing factors one, she talked to her department head and
three, and four (as adjusted) together, giv- came to the understanding that it was
ing factor four extra weight, and placing permissible to post excerpts of readings on
the burden of proof on Defendants, the the ERES system if the amount copied
Court finds that Georgia State has met its was less than twelve percent and was used
burden to prove that its use of Language for a noncommercial purpose [Tr. Vol. 7 at
Acquisition was a fair use. This copyright 96-97]. She learned about Georgia State’s
infringement claim fails. new Copyright Policy in February 2009
[Tr. Vol. 7 at 97-98]. At that time, she read
J. Professor Davis the policy and paid attention to the check-
Professor Davis is an Assistant Profes- list provided. However, she did not attend
sor in the Department of History at Geor- any of the training sessions because she

42. Although the book was first published in about Cambridge’s revenue from book sales
2001, the record only contains information for the year 2010.
1240 446 FEDERAL SUPPLEMENT, 3d SERIES

thought they were voluntary [Tr. Vol. 7 at Region, Race, and Reconstruction, be up-
98-99]. Professor Davis discussed fair use loaded to ERES for distribution to stu-
issues with her department head [Tr. Vol. dents in her fall 2009 HIST 7010 course
7 at 99]. [Tr. Vol. 7 at 143-144]. The chapter is
HIST 7010 Issues and Interpretations in authored by Barbara J. Fields and entitled
American History, Fall 2009 ‘‘Ideology and Race in American History.’’
It represents 35 pages or 7.00% of the
HIST 7010 is a graduate seminar that
total work. This chapter was assigned as
examines a selection of scholarly works
required reading [Tr. Vol. 7 at 113; Pls.
about the social, cultural, political and eco-
Ex. 512]. Had permissions been paid via
nomic history of the United States from
CCC for the distribution of this excerpt,
colonization to the present [Tr. Vol. 7 at
Oxford would have earned less than $60.69
104]. Seventeen graduate students were
enrolled in Professor Davis’s HIST 7010 in net revenue from permissions.43 The
course during fall semester 2009 [Jt. Ex. 5 cost to students would have been $74.40.
at D-73]. As evidenced by the syllabus and Fair Use Analysis
Professor Davis’s testimony, students were
required to purchase fourteen texts for the [34] As to the first element of fair use
course, as well as complete several read- (‘‘the purpose and character of the use’’),
ings posted on ERES [Tr. Vol. 7 at 161; Defendants’ use of the excerpt is nontrans-
Pls. Ex. 512]. formative (in this case, mirror image copy-
ing). The excerpt fulfills the same purpose
36. Region, Race and Reconstruction
as the copyrighted work. The excerpt was
(J. Morgan Kousser and James M.
McPherson eds., Oxford 1982) used for a nonprofit educational purpose
by a nonprofit educational institution.
Region, Race, and Reconstruction was Thus, factor one favors fair use.
first published by Oxford in 1982 [Defs.
Ex. 769; Pls. Ex. 456]. It is a 500 page, The second fair use factor is ‘‘the nature
fifteen chapter volume edited by J. Mor- of the copyrighted work.’’ The Court
gan Kousser and James M. McPherson. makes the following findings in that re-
The book provides historical analysis of gard: Region, Race and Reconstruction is
the American South [Jt. Ex. 5 at D-73]. Its an historical work dedicated to C. Vann
retail price is $29.95 [Jt. Ex. 5 at D-73], Woodward, an acclaimed historian of the
and net sales revenue from the date of American South. The book is comprised of
first publication through November 7, 2010 essays written by Woodward’s former
was $2,199 [Pls. Ex. 357]. Licensed digital Ph.D. students on topics that informed his
excerpts were available through CCC in work such as the American South, race
2009 [Pls. Ex. 457]. From July 1, 2004 until relations, and Reconstruction after the
December 1, 2010, Region, Race, and Re- Civil War. The book consists of 15 chap-
construction earned $622.80 in permissions ters organized around these three sub-
revenue from ECCS [Pls. Ex. 457].
jects. ‘‘Ideology and Race in American
Professor Davis requested that pages History’’ by Barbara J. Fields is the first
143-177, which was one full chapter of essay in the section on ‘‘Race.’’ The author

43. The amount earned would have been by CCC to users, less $10.71 in fees charged
$74.40, the amount charged by CCC, [Jt. Ex. by CCC to publishers, less royalties Oxford is
5 at D-73], less the $3.00 service fee charged obligated to pay the external editors.
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1241
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

discusses how the concept of race in Amer- less important to the overall work than
ican history is an ideology shaped by his- any other essay in the collection. Georgia
torical context, which is constantly chang- State did upload an entire essay or chap-
ing with new experiences. For instance, ter--as opposed to a portion of an essay--
the author discusses how ‘‘white suprema- which in this case, represents one particu-
cy’’ could not have meant the same thing lar author’s complete discussion on a topic.
to all white people across the country, or However, the essay at issue is not the
even across the South. Along these lines, heart of the work. Taking all consider-
the author discusses how the American ations into account, the size of the excerpt
concept of race was shaped by slavery, the was not excessive given the purpose for
destruction of slavery and the subsequent which it was used and the potential impact
‘‘racial’’ question, and the subsequent of market substitution. Factor three favors
struggles facing freedmen in Reconstruc- fair use.
tion-era American society. The author con-
As to the fourth fair use factor, effect on
cludes by noting that history does not
the potential market for or value of the
provide us with ‘‘central themes,’’ but rath- copyrighted work, the Court first looks to
er with decisions and outcomes. whether Professor Davis’s use of the ex-
The tone of ‘‘Ideology and Race in cerpt affected the market for purchasing
American History’’ is formal and academic. the book as a whole. Students would not
The chapter covers historical subject mat- pay $29.95 for the entire book when only
ter, but throughout the essay, the author’s 35 pages were required reading for Profes-
perspective, particularly her opinion that sor Davis’s course, particularly in light of
Americans and historians tend to treat the fact that there were already fourteen
race as if it transcends history, is salient. required texts for the course. Neither
Despite the factual nature of historical would a professor require students to pur-
works, the essay at hand contains equal chase the entire book in such an instance.
parts factual description and analysis. Ac- Therefore, the Court rejects any argument
cordingly, factor two weighs neither for that the use of the excerpt from Region,
nor against fair use. It is neutral. Race and Reconstruction had a negative
effect on the market for purchase of the
With respect to factor three, 35 pages or book itself.
one full essay from Region, Race, and
Reconstruction was uploaded to ERES for Plaintiffs produced evidence demon-
strating that there was a ready market for
use by graduate students in Professor
licensed digital excerpts of this work in
Davis’s course [Defs. Ex. 769]. The upload-
2009 through CCC. The unpaid use of the
ed excerpt (7.00% of the book) was small in
excerpt by Professor Davis and her stu-
light of Georgia State’s pedagogical pur-
dents caused very small, but actual, dam-
pose and the nonprofit educational nature
age to the value of Oxford’s copyright. In
of the use. The excerpt also advanced the
addition, widespread use of similar unli-
pedagogical aim of the course. To the ex-
censed excerpts could cause substantial
tent that the amount copied is a heuristic
harm. Oxford lost permissions income.
for potential market substitution, here,
Factor four strongly disfavors fair use.
that quantity is within acceptable limits.
As for the substantiality (value) of the In summary, factor one favors fair use;
excerpt, the essay itself was no more or factor two is neutral; factor three favors
1242 446 FEDERAL SUPPLEMENT, 3d SERIES

fair use; and factor four strongly disfavors actual book netted $2,199 [Pls. Ex. 357].44
fair use. The Court will look further and The record evidence of permissions sales
will conduct a holistic evaluation of the of Region, Race, and Reconstruction from
combined four factors. July 1, 2004 through December 1, 2010 is
From the date of publication in 1982 represented by the following chart:
through November 7, 2010, sales of the

[Pls. Ex. 457]. There is no evidence of any 37. The Unpredictable Past: Explorations
in-house permissions sales. in American Cultural History (Lawrence
W. Levine, Oxford 1993)
The evidence here shows overall small
Among the readings that Professor
book sales and very small permissions
Davis posted to ERES for her HIST 7010
sales as of 2009. Defendants’ use did not seminar was an excerpt from The Unpre-
impact book sales at all. There was fairly dictable Past by Lawrence W. Levine [Tr.
low interest in excerpts. Even assuming Vol. 7, Doc. 405 at 110; Pls. Ex. 512]. In
widespread availability of programs like particular, Professor Davis uploaded chap-
Georgia State’s, it is unlikely that there ter three, which is titled ‘‘Slave Songs and
would have been much repetitive use of Slave Consciousness: An Exploration in
excerpts of the book in 2009 so as to affect Neglected Sources’’ [Pls. Exs. 477, 512].
the value of the copyrighted work. This The uploaded excerpt consisted of pages
calls for a mitigating adjustment of factor 35-58 (24 pages), or 6.09% of the 394-page
work [Pls. Ex. 477].
four, in Defendants’ favor.
Fair Use Analysis
Weighing factors one, two, three, and [35] As to the first element of fair use
four (as adjusted) together, giving factor (‘‘the purpose and character of the use’’),
four extra weight, and placing the burden Defendants’ use of the excerpt is nontrans-
of proof on Defendants, the scale tips in formative (in this case, mirror image copy-
favor of fair use. Georgia State’s use of ing). The excerpt fulfills the same purpose
Region, Race and Reconstruction was a as the copyrighted work. The excerpt was
fair use, and this copyright infringement used for a nonprofit educational purpose
claim fails. by a nonprofit educational institution.
Thus, factor one favors fair use.

44. The record evidence for book sales is not broken down by year.
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1243
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

As for factor two, The Unpredictable the essay contains factual elements along
Past is a collection of Levine’s previously with analytical elements, the analytical
published essays on various topics in components dominate. Accordingly, factor
American history. The book centers two falls in favor of Oxford, and against
around the idea that perceptions about the fair use.
past change and develop over time in un-
Factor three looks to the portion of the
predictable ways. Each essay contains a
work copied. Professor Davis uploaded all
brief introduction written by the author.
of chapter three of The Unpredictable
The book is divided into three sections: (1)
Past. Use of the excerpt narrowly served
Thinking About History; (2) Patterns of
Georgia State’s pedagogical goals. The ex-
African-American Culture; and (3) To-
cerpt consisted of 24 pages and was 6.09%
wards an Understanding of Popular Cul-
of the total work. Thus, the quantity up-
ture.
loaded was small when viewed in light of
The excerpt at issue, chapter three, is Professor Davis’s educational use. Insofar
the first essay in the ‘‘Patterns of African- as the quantity of uploaded pages reflects
American Culture’’ section. In ‘‘Slave the impact of market substitution, no evi-
Songs and Slave Consciousness,’’ Levine dence exists to demonstrate a digital per-
challenges the notion that slavery eroded missions market for excerpts of The Un-
African-Americans’ linguistic and institu- predictable Past in 2009 or thereafter
tional lives. Levine does so by examining making the likelihood that the unpaid ex-
the oral tradition of slave songs and the cerpt will substitute for the paid market
songs’ insight into slaves’ reality. He cri- nonexistent. As for the quality of the ex-
tiques other historians’ works on the topic cerpt in relation to the overall work, in this
of slave songs by identifying assumptions instance, Georgia State uploaded an entire
and conclusions that are colored by past essay or chapter of the work, which has
historians’ particular perspectives. Overall, more value than would a portion of an
the essay addresses historical and modern essay. But the essay at issue was not the
debates regarding various aspects of slave heart of the work. Taking all consider-
songs. Topics covered include slave songs’ ations into account, the portion of The
origins, or whether they were derived from Unpredictable Past that Georgia State up-
African cultures or were adapted from An- loaded to ERES was not excessive. Ac-
glo-European songs; their spontaneous cordingly, factor three favors fair use.
creation and transmission, which served as
Factor four examines the effect of De-
a community dialogue, a way to deliver
fendants’ unpaid use on the potential mar-
secret messages, and a means by which to
ket for or value of the copyrighted work.
preserve oral tradition; and their subject-
There is no evidence in the record that
matter, which was often spiritual, but
digital excerpts were available for The Un-
sometimes secular.
predictable Past in 2009 or otherwise. Ox-
The tone of the essay is formal. The ford earned $79,367.92 in revenue from
essay contains large portions of quoted book sales between the book’s publication
material from actual slave songs and from in 1993 and November 7, 2010 [Pls. Ex.
others’ writings regarding the songs; how- 357]; however, Defendants’ use of small
ever, these pieces of material are connect- excerpts had no impact on the potential
ed by Levine’s critical analysis. Although market for the book. Licensed digital ex-
1244 446 FEDERAL SUPPLEMENT, 3d SERIES

cerpts were unavailable; thus, Georgia Fair Use Analysis

State’s unpaid use caused no harm to the
[36] As to the first element of fair use
value of the copyrighted work. Id. at 1278.
Factor four, therefore, favors Defendants. (‘‘the purpose and character of the use’’),
Defendants’ use of the excerpt is nontrans-
In this case, factors one, three, and four formative (in this case, mirror image copy-
weigh in Georgia State’s favor, and factor ing). The excerpt fulfills the same purpose
two weighs in Plaintiffs’ favor. Weighting as the copyrighted work. The excerpt was
the factors as directed, and placing the used for a nonprofit educational purpose
burden of proof on Defendants, the scale by a nonprofit educational institution.
clearly tips in favor of Georgia State. Ac-
Thus, factor one favors fair use.
cordingly, its use of The Unpredictable
Past was a fair use. With respect to factor two, Living Eth-
ics is an academic non-fiction work that
K. Professor Freeman seeks to provide media students a practical
and readable guide to personal and profes-
Dr. Carrie Packman Freeman was an
sional ethical standards. It is divided into
Assistant Professor of Communication at
three sections: (1) Building Your Ethical
Georgia State in 2009 [Pls. Ex. 535].
Base; (2) Testing Your Ethical Base; and
JOUR 4800 Media Ethics & Society, Fall (3) Enhancing Your Ethical Base. A cen-
2009 tral theme of the book is the idea that
In the fall semester of 2009, Professor ethics codes are ‘‘living’’ because they must
Freeman taught a course called ‘‘Media adjust to different workplace environments
Ethics and Society,’’ or J4800 [Id.]. Profes- and should be revised and renewed, regu-
sor Freeman required students to pur- larly. To illustrate realistic situations that
chase one textbook for the course, and require difficult judgment calls, the work
occasionally posted additional required incorporates discussions from dozens of
readings to uLearn and ERES. media professionals regarding various ethi-
cal dilemmas.
38. Living Ethics: Across Media
Platforms (Michael Bugeja, The first excerpt that Professor Free-
Oxford 2007) man uploaded to ERES, pages 116-121 (6
Included among those required readings pages), was copied from Part I, chapter
posted to ERES 45 were two excerpts from three, titled ‘‘Truth.’’ This portion, of the
Living Ethics: Across Media Platforms chapter discussed ‘‘visual judgment calls’’
(‘‘Living Ethics’’), by Michael Bugeja [see [Pls. Ex. 423]. The author explains that
id.; Jt. Ex. 5, Doc. 266-4 at D-76]. The total media professionals are often called upon
posting was 13 pages, or pages 116-121 to use professional judgment in determin-
from chapter three and pages 299-305 ing whether to publish visual depictions
from chapter 10 [Doc. 266-4 at D-76]. Liv- that may be newsworthy but are also
ing Ethics contains 365 total pages [Pls. graphic, offensive, or insensitive. The au-
Ex. 423]. The posted excerpts represent thor includes comments from a student
3.56% of the total book [Id.]. photojournalist who covered a teenager’s

45. Professor Freeman’s syllabus indicates that was in error, and the excerpt was actually
the reading was posted to uLearn; however, posted to ERES.
this Court previously found that the syllabus
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1245
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

drowning for a newspaper, accompanied by was educational in nature, further support-

the picture that the photojournalist select- ing a finding of fair use. Insofar as the
ed for publication. The remainder of the quantity uploaded serves as a heuristic for
section consists of an experienced photoj- market substitution, no evidence exists to
ournalist’s commentary about several pho- demonstrate a digital permissions market
tographs he took in sensitive situations, for excerpts of Living Ethics in 2009 or
and later chose to publish, along with re- thereafter making the likelihood that the
productions of the subject photographs. unpaid excerpt will substitute for the paid
market nonexistent. With respect to the
The second excerpt--pages 299-305 (sev- quality (value) of the work uploaded, the
en pages)--was taken from Part III, chap- partial excerpts of chapters uploaded here
ter 10 titled ‘‘Value Systems.’’ This excerpt have less value than would complete chap-
discusses ‘‘creating codes,’’ referring to ters because a complete chapter repre-
personal ethics codes. In this segment, the sents a work’s full discussion of a topic.
author discusses the importance of value Additionally, neither excerpt can be de-
statements to job-seekers, suggests how scribed as the heart of the work. In light
readers may use their value systems to of these considerations, the portions of
their advantage when interviewing, and in- Living Ethics that Georgia State uploaded
to ERES were not excessive in relation to
cludes comments from a well-established
the copyrighted work. Thus, factor three
professional in the field. The section con-
weighs in favor of Georgia State’s fair use.
cludes with a code-drafting exercise.
Factor four looks to the effect of Geor-
The first excerpt contains some material gia State’s unpaid use on the potential
that comes directly from the author, how- market for or value of the copyrighted
ever it is dominated by others’ photo- work. While Oxford earned $37,875.00 in
graphs and commentary. In contrast, the revenue from book sales between publica-
second excerpt mainly consists of the au- tion and November 7, 2010 [Pls. Ex. 357],
thor’s own material about ethics codes, there is no evidence that digital licensing
although the advice contained therein is permissions were available for Living Eth-
grounded in an existing body of knowledge ics in 2009. Georgia State’s unlicensed use
about ethics in the media. Neither excerpt of the small excerpt had no impact on the
is humorous or fanciful. To the extent that potential market for Living Ethics. Be-
the excerpts contain material written by cause digital excerpts of the work were
the author, the material is objectively de- unavailable, Georgia State’s unpaid use did
scriptive. Moreover, while the tone of the not affect the value of the copyrighted
work. Id. at 1277. Factor four weighs in
excerpted material is informational and
favor of fair use.
practical, it is not analytical. Accordingly,
factor two is neutral. To summarize, factors one, three, and
four all favor fair use. Factor two is neu-
Turning to factor three, Professor Free- tral. Georgia State has carried its burden
man uploaded 3.56% of the overall work, of demonstrating that its use of Living
or 13 pages [Pls. Ex. 423]. The uploaded Ethics was a fair use. This copyright in-
material consisted of two portions of two fringement claim fails.
separate chapters. The quantity of the
overall work uploaded was very small, es- L. Professor Moloney
pecially in light of Georgia State’s peda- Professor Margaret Moloney is an Asso-
gogical purpose. The use of Living Ethics ciate Professor at Georgia State’s School
1246 446 FEDERAL SUPPLEMENT, 3d SERIES

of Nursing, where she also coordinates the of first publication through 2010 for this
doctoral program [Tr. Vol. 9 at 132]. In edition of the book was $391,077.68 [Pls.
addition to teaching, Professor Moloney is Ex. 255]. Licensed digital excerpts of the
a practicing nurse practitioner [Tr. Vol. 9 book were available through CCC in 2009.
at 132-133]. She has also authored several From July 1, 2004 until December 1, 2010,
publications, including research articles Handbook of Mixed Methods earned
that have been published in research jour- $51.41 in ECCS permissions revenue [Pls.
nals [Tr. Vol. 9 at 133]. Professor Moloney Ex. 257]. In addition, licensed digital ex-
learned about Georgia State’s new Copy- cerpts of the book were available through
right Policy in 2009 but does not recall Sage’s in-house permissions program in
whether she attended a training session at 2009, and Sage has earned $2,825.86 in
that time [Tr. Vol. 9 at 146]. revenue from in-house licensing of ex-
cerpts of the book [Pls. Ex. 255].
NURS 8035 Theoretical and Philosophical
Foundations of Nursing, Fall 2009 Professor Moloney requested that pages
541-556, or one full chapter totaling 2.04%
NURS 8035 is a graduate course that of the book, be posted on the ERES sys-
provides a foundation in philosophy to tem [Defs. Ex. 773; Jt. Ex. 5 at D-81]. The
nursing doctoral students [Tr. Vol. 9 at excerpt was written by Sheila Twinn and
134]. Fourteen students enrolled in this entitled ‘‘Status of Mixed Methods Re-
course in the fall semester of 2009 [Jt. Ex. search in Nursing’’ [Defs. Ex. 773]. Had
5 at D-81; Tr. Vol. 9 at 134]. According to permissions been paid to CCC for the dis-
the syllabus, there were three required tribution of this excerpt, Sage would have
textbooks for the course; additional re- earned less than $26.66 in net revenue
quired readings were made available on- from permissions.47 The cost to students
line through ERES without seeking per- would have been $34.36. Professor Molo-
mission [Pls. Ex. 545; Tr. Vol. 9 at 151]. ney owns a personal copy of Handbook of
Mixed Methods [Tr. Vol. 9 at 148].
39. Handbook of Mixed Methods in Social
& Behavioral Research (Abbas Ta- Fair Use Analysis
shakkori & Charles Teddlie eds., Sage [37] As to the first element of fair use
2002 46) (‘‘the purpose and character of the use’’),
Handbook of Mixed Methods was first Defendants’ use of the excerpt is nontrans-
published by Sage in 2002 [Pls. Ex. 254]. It formative (in this case, mirror image copy-
is a 26 chapter, 784 page volume edited by ing). The excerpt serves the same purpose
Abbas Tashakkori and Charles Teddlie as the original work. The excerpt was used
for a nonprofit educational purpose by a
that addresses combining quantitative and
nonprofit educational institution. Thus, fac-
qualitative research approaches for the so-
tor one favors fair use.
cial and behavioral sciences [Defs. Ex.
773]. The book retails for $151.00 [Jt. Ex. 5 The second fair use factor is ‘‘the nature
at D-81]. The net sales revenue from date of the copyrighted work.’’ The Court

46. A second edition of the Handbook of Mixed 5 at D-81], less the $3.00 service fee charged
Methods was published in 2010, but only the by CCC to users, less $4.70 in fees charged by
first edition is at issue here. CCC to publishers, less royalties Sage is obli-
gated to pay the external editors.
47. The amount earned would have been
$34.36, the amount charged by CCC, [Jt. Ex.
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1247
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

makes the following findings in that re- discussion about the introduction and
gard: the Handbook of Mixed Methods is eventual acceptance of the mixed method
an academic work. It presents social and in nursing research. Chapter 20 is neither
behavioral science applications of the humorous nor fanciful. Chapter 20 does
‘‘mixed method’’ research design, which in- implicitly endorse subjective qualitative re-
corporates techniques from both quantita- search methods and thus does contain au-
tive and qualitative research traditions. thor opinion. As such, factor two is neutral.
The book is organized into four sections: As is relevant to factor three, Professor
(1) philosophical and theoretical issues; (2) Moloney uploaded 2.04% (16 pages) of the
methodological issues; (3) application is- Handbook of Mixed Methods to ERES
sues; and (4) conclusions and future di- [Defs. Ex. 773]. This is a very small
rections. amount. Additionally, to the extent that
the portion copied serves as a heuristic for
The excerpt at issue, chapter 20, is locat-
market impact, the impact is very small.
ed in the book’s third section. As its title,
And the use of this excerpt served the
‘‘Status of Mixed Method Research in
pedagogical purpose of the course. Quality
Nursing,’’ suggests, the author examines
wise, Georgia State uploaded one complete
the status of the mixed method design in
chapter of the work, which has more value
nursing research. The author begins by than would a portion of a chapter. Never-
discussing traditions in nursing research, theless, chapter 20 has no more or less
and how those traditions contributed to the value than any of the other 25 chapters in
development of nursing knowledge and the book, and it cannot be described as the
clinical interventions. The author explains heart of the work. Accordingly, Georgia
that in the late 1990s, nursing research State did not use an excessive portion of
shifted from an overly scientific focus on the Handbook of Mixed Methods. Factor
the research paradigm to a focus on the three easily weighs in favor of Georgia
research question, including the context State’s fair use.
for the research question. This shift, she
As to the fourth fair use factor, effect on
suggests, contributed to the implementa-
the potential market for or value of the
tion of mixed methods research in nursing.
copyrighted work, the Court first looks to
With this observation, the author segues
whether Professor Moloney’s use of Hand-
into a literature review of mixed method
book of Mixed Methods affected the mar-
nursing research, which she sorts into
ket for purchasing the book as a whole.
three categories: (1) theoretical discourse;
Students would not pay $151.00 for the
(2) critiques; and (3) empirical studies. entire book when only sixteen pages were
Chapter 20 then assesses the quality of assigned for Professor Moloney’s course.
existing research produced via the mixed Neither would a professor require stu-
method approach and its contribution to dents to purchase the entire book in such
nursing. To conclude, the author identifies an instance. Therefore, the Court rejects
several substantive and practical issues any argument that the use of the excerpt
emerging from application of the mixed from Handbook of Mixed Methods had a
method to nursing. negative effect on the market for purchase
of the book itself.
Overall, the tone of the chapter is infor-
mational and academic, and the style is Plaintiffs produced evidence demon-
formal. Overall, the chapter is an objective strating that there was a ready market for
1248 446 FEDERAL SUPPLEMENT, 3d SERIES

licensed digital excerpts of this work in fair use; and factor four strongly disfavors
2009 through CCC and through Sage’s in- fair use. The Court will look further and
house program. The unpaid use of the will conduct a holistic evaluation of the
excerpt by Professor Moloney and her stu- four factors to determine the viability of
dents caused very small, but actual, dam- the fair use defense.
age to the value of Sage’s copyright. In
addition, widespread use of similar unli- First, in light of the fact that Professor
censed excerpts could cause substantial Moloney used only a tiny portion of the
harm. Sage lost permissions income. Fac- copyrighted work (2.04%), factor three is
tor four strongly disfavors fair use. adjusted slightly, in Defendants’ favor.

In summary, factor one favors fair use; Sage’s permissions revenue from the
factor two is neutral; factor three favors work is shown as follows:

[Pls. Exs. 255; 257]. Sage’s net revenue from book sales of
the Handbook of Mixed Methods is re-
flected in the following table:
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1249
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

[Pls. Ex. 255]. were made available through ERES [Pls.

Ex. 537].
In 2009 there was a likelihood of small
40. Crabgrass Frontier: The Suburbani-
repetitive use of excerpts which could have
zation of the United States (Kenneth
had a small negative impact on the market
T. Jackson, Oxford 1985)
for permissions sales of Handbook of
Mixed Methods. However, Sage’s permis- Crabgrass Frontier: The Suburbaniza-
sions revenue represents only a small slice tion of the United States (‘‘Crabgrass
Frontier’’) was first published by Oxford in
of the overall value of the copyrighted
1985 [Pls. Ex. 368]. It is a 405 page, six-
work. Georgia State’s use of unpaid ex-
teen chapter work written by Kenneth T.
cerpts had no impact at all on the potential
Jackson. It is a commentary on the emer-
market for the book. It is unlikely that the
gence of the American suburb, its estab-
use of unpaid excerpts in 2009 (even as-
lishment, and its negative cultural impact
suming the widespread availability of pro-
[Pls. Ex. 368]. While the book is frequently
grams like Georgia State’s) would have
used in sociology courses, it is inferred
substantially damaged the value of the that it was written for general audiences.
copyrighted work. Accordingly, a slight It retails for $19.95 [Jt. Ex. 5 at D-82], and
mitigating adjustment of factor four in De- net sales revenue from the date of first
fendants’ favor is appropriate. publication through November 7, 2010 was
Weighing all factors (as adjusted) to- $740,414.00 [Pls. Ex. 357]. Licensed digital
gether, placing the burden of proof on excerpts of the book were available
Defendants, and giving factor four extra through CCC in 2009. From July 1, 2004
until December 1, 2010, Crabgrass Fron-
weight, the Court finds that Defendants
tier earned $94.25 in ECCS permissions
have proven their fair use defense. This
revenue [Pls. Ex. 371]. It also earned
copyright infringement claim fails.
$2,876.08 in APS revenue during the same
period [Pls. Ex. 371].
M. Professor Lasner
Professor Lasner requested that pages
During the fall 2009 semester, Professor 246-271 of Crabgrass Frontier be uploaded
Lasner taught PERS 2001 Comparative to ERES for distribution to students in his
Culture at Georgia State [Pls. Ex. 537]. PERS 2001 course [Pls. Ex. 368]. The
excerpt, entitled ‘‘The Drive-in Culture of
PERS 2001 Comparative Culture, Fall Contemporary America,’’ was one chapter
2009 of the book, totaling 26 pages or 6.42% of
PERS 2001 is an undergraduate course the total work [Pls. Ex. 368]. Had permis-
that introduces key themes and issues in sions been paid via CCC for the distribu-
the growth of modern industrial cities [Pls. tion of this excerpt, Oxford would have
Ex. 537]. One hundred fourteen students earned less than $302.33 in net revenue
were enrolled in Professor Lasner’s course from permissions.48 The cost to students
during the fall 2009 semester [Jt. Ex. 5 at would have been $358.68.
D-82]. As evidenced by the syllabus for Fair Use Analysis
this course, there were no required text- [38] As to the first element of fair use
books for the course; all assigned readings (‘‘the purpose and character of the use’’),

48. The amount earned would have been 5 at D-82], less the $3.00 service fee charged
$358.68, the amount charged by CCC, [Jt. Ex. by CCC to users, less $53.35 in fees charged
1250 446 FEDERAL SUPPLEMENT, 3d SERIES

Defendants’ use of the excerpt is nontrans- dated America’s automobile obsession, like
formative (in this case, mirror image copy- garages, motels, gasoline service stations,
ing). The excerpt serves the same purpose shopping centers, mobile homes, and drive-
as the original work. The excerpt was used in theaters and churches. The author de-
for a nonprofit educational purpose by a votes a brief section to each structure,
nonprofit educational institution. Thus, fac- wherein he explains the structure’s general
tor one favors fair use. stages of historical development and in-
cludes vignettes illustrating its cultural
The second fair use factor is ‘‘the nature
role. The chapter then moves on to discuss
of the copyrighted work.’’ The Court
how suburbanization created ‘‘centerless’’
makes the following findings in that re-
cities, or collections of suburbs that lacked
gard: Crabgrass Frontier is a quasi-aca-
an urban center. The final section in the
demic book which appears to have been
chapter describes the decentralization of
written for both general audiences and the
factories and offices in line with the subur-
academic community. In it, the author ex-
ban trend. The author concludes by noting
plores the suburbanization of America and
that the country failed to fully contemplate
its causes and effects through many
the forward-reaching effects of its invest-
themes including intellectual, architectural,
ment in automobiles as opposed to mass
urban, transportational, and public policy
transit, and the ephemeral quality of the
perspectives. Crabgrass Frontier portrays
structures that accompanied that shift.
American suburbs as unique from an inter-
national standpoint based on the following The tone of chapter 14 is academic, but
four characteristics: (1) population density; also conversational. While the chapter is
(2) home-ownership; (3) residential status; not humorous or fanciful, there are occa-
and (4) journey-to-work. Each of the chap- sional references to popular culture and
ters focuses on a different aspect of subur- primary sources that lighten the author’s
ban life, such as the house and the yard or otherwise matter-of-fact style of writing.
the age of automobility. The author’s own perspective is obvious;
however, the chapter is primarily informa-
Chapter 14, which is the excerpt that
tional and historical. All things considered,
Professor Lasner uploaded to ERES, dis-
the chapter is a mix of factual information
cusses contemporary America’s ‘‘drive-in
and subjective commentary and analysis.
culture.’’ By ‘‘drive-in culture,’’ the author
However, author opinion dominates in the
refers to the way American life became
book as a whole. Accordingly, factor two
restructured around the suburbs and the
leans against fair use.
automobile. After a brief introduction
about cars’ increased popularity between Turning to factor three, Georgia State
the 1950s and 1980s, the author discusses uploaded a small part of Crabgrass Fron-
factors that precipitated America’s invest- tier to ERES. Specifically, the excerpt
ments in interstate highway development, consisted of 26 pages, or 6.42% of the total
including lobbyists’ efforts and the Cold work [Pls. Ex. 368]; this is a small amount,
War-era idea that Americans should de- within the parameters contemplated for a
centralize away from cities to avoid atomic favored educational use. The market im-
attacks. The chapter then discusses devel- pact of Georgia State’s unpaid use is miti-
opment of other structures that accommo- gated sufficiently by the small number of

by CCC to publishers, less royalties Oxford is obligated to pay the author.

 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1251
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

pages in the excerpt. The excerpt also licensed digital excerpts of this work in
furthers the pedagogical aims of the 2007 through CCC. The Court infers that
course. Regarding the value of the amount if digital permissions were available in
used, the uploaded excerpt was a full chap- 2007, they would have been available in
ter rather than a partial chapter. But 2009. The unpaid use of the excerpt by
chapter 14 is not the heart of the work; it Professor Lasner and his students caused
addresses only one suburbanization fea- very small, but actual, damage to the value
ture of the many discussed in the book.
of Oxford’s copyright. In addition, wide-
Taking all of the foregoing into account,
spread use of similar unlicensed excerpts
the portion uploaded is not excessive. Fac-
could cause substantial harm. Oxford lost
tor three weighs in favor of fair use.
permissions income. Factor four strongly
As to the fourth fair use factor, effect on disfavors fair use.
the potential market for or value of the
copyrighted work, the Court first looks to In summary, factor one favors fair use;
whether Professor Lasner’s use of Crab- factor two disfavors fair use; factor three
grass Frontier affected the market for favors fair use; and factor four strongly
purchasing the book as a whole. Students disfavors fair use. The Court will look fur-
would not pay $19.95 for the entire book ther and will conduct a holistic evaluation
when only 26 pages were required reading to determine the viability of the fair use
for Professor Lasner’s course. Neither defense.
would a professor require students to pur-
chase the entire book in such an instance. According to the record, Oxford earned
Therefore, the Court rejects any argument $740,414 from book sales between the date
that the use of the excerpt from Crabgrass of Crabgrass Frontier’s publication in 1985
Frontier had a negative effect on the mar- through November 7, 2010 [Pls. Ex. 357].49
ket for purchase of the book itself. The following chart demonstrates the per-
Plaintiffs produced evidence demon- missions gained by Oxford via CCC for
strating that there was a ready market for Crabgrass Frontier:

[Pls. Ex. 371]. was only slight interest in excerpts of

The evidence shows that in 2009 there Crabgrass Frontier. There was relatively

49. There is no evidence of APS, ECCS, or in- from 1985 to 2003.

house permissions sales of Crabgrass Frontier
1252 446 FEDERAL SUPPLEMENT, 3d SERIES

little risk of repetitive use of these ex- it, the author tells the stories of low in-
cerpts. Accordingly, the Court finds that a come black women who strived to provide
slight mitigating adjustment of factor four decent lives for their families while living
in Defendants’ favor is appropriate. in public housing and engaging in commu-
nity and political activism in Baltimore,
Weighing all factor’s (as adjusted) to-
Maryland after 1930. The author seeks to
gether, placing the burden of proof on
explore public housing and other public
Defendants, and giving factor four extra
assistance programs, and to recast those
weight and factor two insubstantial weight,
programs’ legacies by looking at individual
the Court finds that Defendants have prov-
women’s experiences. The book is split into
en their fair use defense. This copyright
three sections--(1) Beginnings; (2) Shifting
infringement claim fails.
Landscapes; and (3) Respect, Rights, and
41. The Politics of Public Housing: Black Power--each of which has two chapters.
Women’s Struggles Against Urban
Inequality (Rhonda Y. Williams, Ox- The excerpt at issue, chapter one, is
ford 2004) located in the book’s first section. The
chapter begins by introducing Clara Perry
Another required reading posted to Gordon, who moved to Baltimore as a
ERES for Professor Lasner’s ‘‘Global Cit- child around 1925, and was a resident of
ies’’ course was an excerpt from The Poli- the city’s first public-housing efforts. The
tics of Public Housing: Black Women’s author describes the circumstances that
Struggles Against Urban Inequality (‘‘The precipitated Baltimore’s public-housing de-
Politics of Public Housing’’), by Rhonda velopment in the early twentieth century,
Y. Williams [Pls. Ex. 537]. Professor Las- including squalid housing conditions for
ner specifically assigned pages 21-53 (33 working-class people, overcrowding, and
pages--all of chapter one), which is titled: social, political, and economic disadvan-
‘‘Creating ‘A Little Heaven for Poor Peo- tages facing African-Americans, all of
ple’: Decent Housing and Respectable which were compounded by the Great De-
Communities’’ [Id.; Pls. Ex. 445]. The 33- pression. The chapter then discusses how,
page excerpt accounts for 10.78% of the
despite hostile political conditions, social
306-page book [Pls. Ex. 445]. There were
reformers established a municipal housing
114 students in the class [Jt. Ex. 5, Doc.
program in Baltimore in 1937. The author
266-4 at D-83].
examines how public housing divided citi-
Fair Use Analysis zens by race, class, and gender, but ex-
plains how, in reality, those selected for
[39] As to the first element of fair use
the housing programs were elite, based on
(‘‘the purpose and character of the use’’),
income and prior living situation require-
Defendants’ use of the excerpt is nontrans-
ments, competition for homes, and lengthy
formative (in this case, mirror image copy-
personal interviews. As a result, she ex-
ing). The excerpt serves the same purpose
plains, the first tenants were enthusiastic
as the original work. The excerpt was used
and proud of their homes and communi-
for a nonprofit educational purpose by a
ties. Throughout the chapter, the author
nonprofit educational institution. Thus, fac-
includes quotes and stories from Gordon’s
tor one favors fair use.
experiences. The concluding section of the
As is relevant to factor two, The Politics chapter discusses how the circumstances
of Public Housing is a non-fiction work. In of the first housing programs shaped black
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1253
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

tenants’ political culture, and how they evidence does not reveal that permissions
soon formed organizations to maintain and for excerpts were available in 2009. It does
advance their communities. indicate that between the work’s 2004 pub-
lication and November 7, 2010, Oxford net-
The tone of chapter one is straightfor- ted $45,113 50 from sales of the book [Pls.
ward and informational. The text is pri- Ex. 366]. Defendants’ use of the 10.78%
marily historical, and is peppered with excerpt likely had no impact on book sales.
quotes from the author’s interviews and Because digital permissions were unavail-
research. The chapter is organized accord- able in 2009, factor four favors Defendants.
ing to the overall work’s focal points, which Cambridge II, 769 F.3d 1232, 1279. Thus,
are African-American women and political Georgia State has carried its burden with
organization. All in all, the chapter is even- respect to fair use factor four.
ly divided between objective description Here, factors one and four favor fair
and the author’s own analytical composi- use, while factor three disfavors fair use
tion. Accordingly, factor two is neutral, and factor two is neutral. Weighting the
and it weighs neither for nor against fair factors as directed, and placing the burden
use. of proof on Defendants, the scale tips in
favor of fair use. Accordingly, Georgia
Factor three looks to the amount and State’s use of The Politics of Public Hous-
substantiality of the portion used. Georgia ing was a fair use.
State copied one full chapter consisting of
33 pages, or 10.78% of The Politics of N. Professor Hankla
Public Housing [Pls. Ex. 445]. This is not Professor Charles Hankla is an Associ-
an insubstantial number of pages or an ate Professor in the Department of Politi-
insubstantial percentage. Georgia State’s cal Science at Georgia State [Tr. Vol. 8 at
favored educational objective does permit 97]. He generally teaches courses in inter-
slightly more copying than would other- national relations, comparative politics,
wise be allowed. Also, the use of this ex- and research methods [Tr. Vol. 8 at 97].
cerpt served the pedagogical purpose of He has taught at Georgia State since 2004
the course. Turning to the value of the [Tr. Vol. 8 at 97]. Professor Hankla stated
portion copied, Georgia State’s use of one that the two strict rules he applies to his
fair use determinations are (1) that either
full chapter is less likely to be a fair use
he or the library must own a copy of the
than the use of a partial chapter. The
book before he will assign an excerpt of it
material taken is not the heart of the work.
to his class, and (2) that he never assigns
After weighing all of the foregoing consid-
more than twenty percent of a work [Tr.
erations, factor three weighs against fair
Vol. 8 at 134]. He learned about Georgia
use. State’s new Copyright Policy in the spring
Turning to factor four, the Court must of 2009 and began using the fair use check-
examine harm to the value of the copy- list at that time [Tr. Vol. 8 at 111].
righted work caused by Georgia State’s POLS 3450 U.S. Foreign Policy, Fall 2009
unpaid copying of an excerpt from The POLS 3450 is an undergraduate level
Politics of Public Housing. The record course that analyzes the history, develop-

50. This Court’s previous Order reflected this reflected on the first page of Plaintiffs’ Exhibit
amount as $45,085. However, that figure 366.
failed to take into account $28 in earnings
1254 446 FEDERAL SUPPLEMENT, 3d SERIES

ment, and current challenges of U.S. for- Professor Hankla requested that pages
eign policy [Tr. Vol. 8 at 100-101; Defs. Ex. 89-121 of Contemporary Cases in U.S.
623]. Forty eight students were enrolled in Foreign Policy be uploaded to ERES for
Professor Hankla’s POLS 3450 course dur- distribution to students in his fall 2009
ing fall semester 2009 [Jt. Ex. 5 at D-84]. POLS 3450 course [Tr. Vol. 8 at 107]. The
As evidenced by the syllabus and Profes- excerpt was a full chapter of the book and
sor Hankla’s testimony, students were re- totaled 33 pages, or 6.61% of the book
quired to purchase two texts for the [Defs. Ex. 776]. This chapter, entitled ‘‘The
course; additional required readings were Return of the Imperial Presidency? The
posted on ERES [Defs. Ex. 623; Tr. Vol. 8 Bush Doctrine and U.S. Intervention in
at 102]. Iraq,’’ was written by Jeffrey S. Lantis
42. Contemporary Cases in U.S. Foreign and Eric Moskowitz. It was assigned as
Policy: From Terrorism to Trade, background reading for the entire course
Second Edition (Ralph G. Carter, ed. and was not assigned to be completed for a
Sage 51 2005) particular class meeting [Tr. Vol. 8 at 107;
Defs. Exs. 623, 776]. Had permissions been
The second edition of Contemporary
paid through its in-house program for the
Cases in U.S. Foreign Policy was publish-
distribution of this excerpt, Sage would
ed by CQ Press, a division of Sage, in 2005
[Defs. Ex. 776; Tr. Vol. 2 at 59]. It is a 499 have earned $190.08, less royalties payable
page, fifteen chapter volume edited by to the external editor. The cost to students
Ralph G. Carter that addresses various would have been $190.08. Professor Hank-
aspects of contemporary U.S. foreign poli- la owns a copy of Contemporary Cases in
cy through recent case examples [Defs. U.S. Foreign Policy [Tr. Vol. 8 at 122].
Ex. 776]. The Court infers that it is a Fair Use Analysis
textbook intended for use in college level
classes. Its retail price is $38.95 [Jt. Ex. 5 [40] As to the first element of fair use
at D-84]. The book has earned $365,751.22 (‘‘the purpose and character of the use’’),
in sales revenue, but the record does not Defendants’ use of the excerpt is nontrans-
indicate whether this amount is for all of formative (in this case, mirror image copy-
the editions of the book or only the second ing). The excerpt serves the same purpose
edition, a paperback book, at issue here as the original work. The excerpt was used
[Pls. Ex. 229]. There is no evidence in the for a nonprofit educational purpose by a
record reflecting that the work was avail- nonprofit educational institution. Thus, fac-
able for licensed digital excerpts through tor one favors fair use.
CCC in 2009, but licensed digital excerpts
of the book were available through Sage’s The second fair use factor is ‘‘the nature
in-house permissions program in 2009. The of the copyrighted work.’’ The Court
book has earned $333.81 through Sage’s makes the following findings in that re-
permissions program, though the record gard: Contemporary Cases in U.S. For-
does not reflect the year(s) in which indi- eign Policy is essentially an academic
vidual permissions payments were made to work. It is a collection of 15 original case
Sage [Pls. Ex. 314]. studies--each of which comprises a sepa-

51. The work was published by ‘‘CQ Press,’’ Doc. 400 at 59].
which is a division of Sage [Defs. Ex. 776;
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1255
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

rate chapter--on contemporary foreign pol- clear and direct. The authors’ opinions ani-
icy issues. The chapters are organized into mate the case study to some extent; how-
four parts: (1) Intervention Policy; (2) Na- ever, it is first and foremost a balanced
tional Defense and Security Policy; (3) historical account of the circumstances and
Trade Policy; and (4) Multilateral Policy. executive decisions leading up to the inter-
The book is designed for classroom use, as vention. Put another way, although the
each chapter begins with discussion ques- authors convey their perspective, it is sec-
tions, and the topics were chosen to illus- ondary to the facts conveyed. Accordingly,
trate the range and diversity of issues and factor two is neutral.
the variety of participants in the policy-
Turning to factor three, the 33-page ex-
making process after the cold war.
cerpt at hand accounts for 6.61% of the
The excerpt at issue--chapter four--is a overall work [Defs. Ex. 776]. This is a
case study on the United States’ interven- small percentage. Thirty-three pages is not
tion in Iraq in 2003. The chapter begins an especially small number of pages but it
with an excerpt from a 2002 graduation is acceptable when considering the impact
speech given by then President George W. of market substitution in light of Georgia
Bush about his goals for promoting Ameri- State’s nonprofit educational purpose. The
can security. The chapter explains how the excerpt also furthers the pedagogical goals
September 11 attacks affected U.S. foreign of the course. Furthermore, although the
policy, and enabled the Bush administra- use of an entire chapter is less fair than
tion to accumulate an unusual amount of use of a partial chapter, chapter four is not
power with respect to foreign policy. Along any more qualitatively substantial than
these lines, the authors explain that ‘‘the any other chapter in the work. The excerpt
imperial presidency’’ refers to dominance at issue is not the heart of the work.
of the U.S. executive branch in foreign Accordingly, neither the quantity nor qual-
policymaking, which historically tends to ity of the copied excerpt is excessive in
occur in times of emergency or crisis. The light of Georgia State’s nonprofit edu-
subsequent sections zero in on the Bush cational purpose, and factor three favors
administration’s internal decision-making fair use.
concerning intervention in Iraq, and the
As to the fourth fair use factor, effect on
efforts to garner Congressional support.
the potential market for or value of the
The authors pay particular attention to the
copyrighted work, the Court first looks to
individual actors involved, such as Bush’s
whether Professor Hankla’s use of Con-
cabinet members, and members of Con-
temporary Cases in U.S. Foreign Policy
gress. The chapter briefly describes inter-
affected the market for purchasing the
national reactions to U.S. intervention and
book as a whole. The Court infers that
public support for the action. The chapter
students would not pay $38.95 for the en-
concludes with a brief note on the U.S.’s
tire book when only 33 pages were as-
prolonged involvement in Iraq, and the
signed for Professor Hankla’s course. Nei-
authors reiterate the characteristics of and
ther would a professor require students to
concerns about the presence of a very
purchase the entire book in such an in-
strong executive.
stance. Therefore, the Court rejects any
All in all, the tone of chapter four is argument that the use of the excerpt from
academic and conventional. The writing is Contemporary Cases in U.S. Foreign Poli-
1256 446 FEDERAL SUPPLEMENT, 3d SERIES

cy had a negative effect on the market for Defendants, the Court finds that Defen-
purchase of the book itself. dants prevail on their fair use defense.
This infringement claim fails.
Plaintiffs produced evidence demon-
strating that there was a ready market for 43. U.S. Foreign Policy: The Paradox
licensed digital excerpts of this work of World Power (Steven W.
through Sage’s in-house program in 2009. Hook, Sage 52 2005)
The unpaid use of the excerpt by Professor
U.S. Foreign Policy was published by
Hankla and his students caused very
CQ Press, a division of Sage, in 2004 [Pls.
small, but actual, damage to the value of
Ex. 313; Tr. Vol. 2 at 59]. It is a 519 page,
Sage’s copyright. In addition, widespread
twelve chapter book that discusses the var-
use of similar unlicensed excerpts could
ious forces that impact the making of con-
cause substantial harm. Sage lost permis-
sions income. Factor four strongly disfa- temporary U.S. foreign policy [Defs. Ex.
vors fair use. 777]. The Court infers from its content
that it is a textbook intended for use in
In summary, factor one favors fair use; college level classes. Its retail price in
factor two is neutral; factor three favors paperback is $84.95 [Jt. Ex. 5 at D-85].
fair use; and factor four strongly disfavors The book has earned $738,328.89 in sales
fair use. The Court will look further and revenue [Pls. Ex. 314]. There is no evi-
will conduct a holistic evaluation of the fair dence in the record reflecting that the
use defense. work was available for licensed digital ex-
The record reflects that between 2004 to cerpts through CCC in 2009, but licensed
mid 2010 APS permissions (licenses to digital excerpts of the book were available
make hard copies) were available from through Sage’s in-house permissions pro-
CCC; a total of $415.16 in royalties was gram in 2009. The book has earned $285.33
paid by CCC to Sage for excerpts of Con- through Sage’s permissions program [Pls.
temporary Cases in U.S. Foreign Policy. Ex. 314].
Also, $333.81 was earned by Sage for in- Professor Hankla requested that pages
house digital permissions. The small 153-188 of U.S. Foreign Policy be upload-
amount of permissions payments suggests ed to ERES for distribution to students in
that there was little demand for excerpts
his fall 2009 POLS 3450 course [Jt. Ex. 5
of the book; the Court therefore finds
at D-85]. The excerpt, entitled ‘‘The For-
there was little prospect of repetitive use
eign-Policy Bureaucracy,’’ was a full chap-
of excerpts in 2009. It is unlikely that
ter of the book and totaled 36 pages, or
Defendants’ use substantially harmed the
6.94% of the total work [Defs. Ex. 777].
value of the copyrighted book. This calls
Had permissions been paid through its in-
for a mitigating adjustment, in Defendants’
house permissions program for the distri-
favor, on factor four.
bution of this excerpt, Sage would have
In summary, weighing all factors (as earned $207.36 less any fees it is obligated
adjusted) together, giving factor four extra to pay the external editor. The cost to
weight, and placing the burden of proof on students would have been $207.36. Profes-

52. U.S. Foreign Policy was published by CQ 777; Doc. 400 at 59].
Press, which is a division of Sage [Defs. Ex.
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1257
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

sor Hankla owns a copy of Contemporary response to changing global roles and re-
Cases in U.S. Foreign Policy [Tr. Vol. 8 at sponsibilities between World War II and
134]. the Cold War. The author explains how
bureaucracies should lend stability to the
Fair Use Analysis
constantly changing government, but that
[41] As to the first element of fair use they instead compete with one another,
(‘‘the purpose and character of the use’’), which frustrates their common national
Defendants’ use of the excerpt is nontrans- interests. In its following discussion of
formative (in this case, mirror image copy- each foreign-policy complex, the chapter
ing). The excerpt fulfills the same purpose covers the foreign policy bureaucracy’s
as the copyrighted work. The excerpt was structural features, relationships with the
used for a nonprofit educational purpose White House and Congress, and impact
by a nonprofit educational institution. on the foreign-policy process. The chapter
Thus, factor one favors fair use. in particular notes how structural defi-
ciencies in executive bureaucracies failed
The second fair use factor is ‘‘the nature
to comprehend foreign and domestic
of the copyrighted work.’’ The Court
warning signs regarding the September
makes the following findings in that re-
11, 2001 attacks. In concluding, the au-
gard: U.S. Foreign Policy is an academic
thor reflects on how the competing forces
book. In it, the author seeks to ‘‘explore
of centralization of power in the White
th[e] paradox of U.S. world power, to iden-
House, the fragmentation of control
tify its key sources and manifestations, and
across the bureaucracy, and the tensions
to consider its future implications’’ [Defs.
they create are likely to become more
Ex. 777]. He also hopes to present a con-
pronounced in upcoming years.
cise, yet comprehensive overview of the
U.S. foreign-policy process. The book is The tone of chapter six is formal and
organized into four parts: (1) The Setting academic. The style is straightforward and
of U.S. Foreign Policy; (2) Governmental conventional. The chapter contains a few
Sources of Foreign Policy; (3) External pictures, several large tables that depict
Sources of Foreign Policy; and (4) Policy and describe the structure of several large
Domains. and complex agencies, and a few text box-
es containing quotes from primary sources
Chapter six, the excerpt at issue, is lo-
and focused examples. The chapter con-
cated in the book’s second section, on
tains some but not much of the author’s
governmental sources of foreign policy.
own opinion or creative analysis. It is pri-
In it, the author discusses management
marily explanatory and factual. According-
of foreign policy through federal execu-
ly, factor two is neutral.
tive agencies. Chapter six includes basic
overviews of four bureaucratic clusters, Turning to factor three, which examines
or ‘‘complexes’’ of U.S. foreign policy, the quantity and quality of the excerpt,
that manage (1) diplomacy, (2) national here, Georgia State made unpaid copies of
security, (3) economic affairs, and (4) in- 36 pages, or 6.94% of the overall work
telligence. The chapter begins with a sec- [Defs. Ex. 777]. Accordingly, Georgia State
tion titled ‘‘Agency Functions and Dys- used a small percentage of the work. The
functions,’’ which explains how the U.S.’s number of pages copied is acceptable when
foreign policy bureaucracy developed in viewed in combination with the small per-
1258 446 FEDERAL SUPPLEMENT, 3d SERIES

centage and the nonprofit educational Plaintiffs produced evidence demon-

character of the use. Use of an entire strating that there was a ready market for
cohesive chapter is less fair than use of a licensed digital excerpts of this work
partial chapter; however, chapter six can- through Sage’s in-house program in 2009.
not be described as the heart of the work The unpaid use of the excerpt by Professor
because it covers only a snippet of the Hankla and his students caused very
book’s overall topic. The Court concludes small, but actual, damage to the value of
that neither the quantity nor the quality of Sage’s copyright. In addition, widespread
the work copied is excessive. Accordingly, use of similar unlicensed excerpts could
factor three favors fair use. cause substantial harm. Sage lost permis-
sions income. Factor four strongly disfa-
As to the fourth fair use factor, effect on
vors fair use.
the potential market for or the value of the
copyrighted work, the Court first looks to In summary, factor one favors fair use;
whether Professor Hankla’s use of U.S. factor two is neutral; factor three favors
Foreign Policy affected the market for fair use; and factor four strongly disfavors
purchasing the book as a whole. Students fair use. The Court will look further and
would not pay $84.95 for the entire book will conduct a holistic assessment of the
when only 36 pages were required reading four factors.
for Professor Hankla’s course. Neither The record reflects that Sage earned
would a professor require students to pur- $738,328.89 in ‘‘life to date’’ sales revenue
chase the entire book in such an instance. from book sales for U.S. Foreign Policy
Therefore, the Court rejects any argument [Pls. Ex. 314].53 In contrast, Sage’s permis-
that the use of the excerpt from U.S. sions revenue for excerpts of U.S. Foreign
Foreign Policy had a negative effect on Policy is represented in the following ta-
the market for purchase of the book itself. ble:

[Pls. Exs. 314, 315]. of excerpts in 2009. Thus, it is unlikely that

the value of the copyrighted work was
Georgia State has the burden of demon-
substantially damaged in 2009 by the use
strating that, assuming widespread unpaid
of unpaid excerpts. Accordingly, the Court
copying of excerpts generally in 2009, its
finds that a mitigating adjustment should
copying of this excerpt would not have
be made in Defendants’ favor as to factor
caused substantial damage to the potential
four.
market for or the value of the copyrighted
work. Here, the record evidence indicates Weighing together factors one, three,
that the permissions market for excerpts and four (as adjusted), giving factor four
of U.S. Foreign Policy was very small in extra weight and placing the burden of
2008 and probably nonexistent in 2009. proof on Defendants, leads to the conclu-
There was little likelihood of repetitive use sion that Georgia State’s use of an excerpt

53. The evidence of sales revenue from CQ Ex. 314]. The Court assumes this would be
Press reflects ‘‘life to date’’ revenue, but it from date of publication (2005) to near the
does not provide a specific date range [Pls. end of 2010.
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1259
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

from U.S. Foreign Policy was a fair use. Gerardo L. Munck [Pls. Exs. 452, 901].
Thus, this copyright infringement claim The total excerpt posted to ERES consist-
fails. ed of pages 1-38 (38 pages), which is
12.71% of the 299-page book [Pls. Ex. 452].
O. Professor McCoy Fair Use Analysis
Professor Jennifer McCoy is a tenured [42] As to the first element of fair use
professor in Georgia State’s Political Sci- (‘‘the purpose and character of the use’’),
ence department [Deposition of Jennifer Defendants’ use of the excerpt is nontrans-
McCoy (‘‘McCoy Dep.’’), Doc. 329 at 9-10]. formative (in this case, mirror image copy-
POS 8250 Latin American Politics, Fall ing). The excerpt serves the same purpose
2009 as the original work. The excerpt was used
for a nonprofit educational purpose by a
In the fall semester of 2009, Professor nonprofit educational institution. Thus, fac-
McCoy taught POS 8250, a graduate level tor one favors fair use.
course titled ‘‘Latin American Politics’’ [Id.
at 22; Pls. Ex. 901]. The course provided As to factor two, Regimes and Democra-
an overview of the history of contemporary cy is an academic work that evaluates and
politics of Latin American countries with a builds on the existing body of research
particular focus on democratization in Lat- about political processes in Latin America.
The book is part of a series on democrati-
in America [Pls. Ex. 901]. Professor
zation intended for students of compara-
McCoy assigned six required books for
tive politics and related fields. In addition
purchase in the course, and posted addi-
to the introduction, the book has nine total
tional required and suggested readings on
chapters that are organized into three
ERES [Id.].
parts: (1) Research Agendas; (2) Concepts,
44. Regimes and Democracy in Latin Data, and Description; and (3) Causal The-
America: Theories and Methods (Ger- orizing and Testing.
ardo L. Munck ed., Oxford 2007)
Professor McCoy assigned the introduc-
Among the required readings was an tion and chapter one as required readings.
excerpt from Regimes and Democracy in In the introduction, the author first pro-
Latin America: Theories and Methods vides an overview of research in Latin
(‘‘Regimes and Democracy’’) [Doc. 329 at American politics, and an assessment of
24-25; Pls. Ex. 901]. In relevant part,54 the research methodology employed. He
Professor McCoy required students to pays particular attention to two steps of
read the segment titled ‘‘Introduction: Re- the research process: (1) theory genera-
search Agendas and Strategies in the tion; and (2) empirical analysis. The intro-
Study of Latin American Politics,’’ and duction’s later section gives a chapter-by-
chapter one, ‘‘The Study of Politics and chapter description of the book and high-
Democracy: Touchstones of a Research lights the book’s contributions to the over-
Agenda,’’ both of which were written by all body of research on Latin American

54. Professor McCoy also assigned students failed to demonstrate that they owned all
chapter two of Regimes and Democracy in copyright interests in chapter two. As that
Latin America [see Pls. Ex. 901]; however, the conclusion was not disturbed on appeal, the
Court previously determined that Plaintiffs Court need not revisit it now.
1260 446 FEDERAL SUPPLEMENT, 3d SERIES

politics. The author describes how the content of the overall work. While the
book attempts to respond to some of the author’s analytical perspective animates
methodological shortcomings in the re- the introduction to some degree, the intro-
search. duction contains mostly objectively de-
scriptive material. The content in chapter
The author begins chapter one by noting
one is more inventive and evaluative, in
that democracy has been a ‘‘master con-
that the author analyzes the elements that
cept’’ in Latin American politics over the
are essential to a procedural definition of
past 25 years [Pls. Ex. 452]. He argues
democracy; however, the inventive materi-
that future progress on the research agen-
al builds on existing literature and re-
da hinges on two questions to be explored
search. Considering both excerpts togeth-
in the chapter, the first being ‘‘What is
er, the copied material is an even balance
democracy?’’ and the second being ‘‘What
of objectively descriptive material and the
are the implications of other political val-
author’s analysis. Neither type of material
ues beyond democracy for democracy?’’
dominates the total excerpt copied. Ac-
[Id.]. The majority of the chapter is orga-
cordingly, factor two is neutral.
nized into three sections. In the first sec-
tion, the author builds on scholar Robert With respect to factor three, Professor
Dahl’s conceptualization of democracy, McCoy posted 38 pages, or 12.71% of the
which is that democracy is about more overall work, to ERES [Pls. Ex. 452]. The
than forming a government. The author quantity of material used by Professor
then poses two more questions that he McCoy is excessive, even when taking into
attempts to answer in the second section: account the favored educational use recog-
(1) how far does the democratic political nized in factor one, that the excerpt was
process extend beyond the formation of tailored to meet Professor McCoy’s peda-
government?; and (2) are there rights oth- gogical purpose, and the lack of market
er than political rights that are constitutive substitution due to a lack of evidence of
of democracy? In the third and final sec- digital permissions for Regimes and De-
tion, the author presents related conceptu- mocracies in 2009. The quality (value) of
al issues and empirical questions, such as the excerpt taken is too great. Overall,
non-political rights that are integral to a factor three weighs against fair use.
democracy and the need to examine poten-
Factor four looks to the effect of Defen-
tial trade-offs between democracy and oth-
dants’ use on the potential market for and
er values. In the chapter’s concluding re-
value of the copyrighted work. See 17
marks, the author explains that clear and
U.S.C. § 107(4). Oxford earned $12,689.00
widely accepted answers to the original
in revenue from book sales for Regimes
two questions addressed in the chapter are
and Democracy in Latin America be-
essential for a unified research agenda for
tween the date of its publication and No-
democracy.
vember 7, 2010 [Pls. Ex. 357]. However,
The tone of both the introduction and there is no evidence before the Court that
the first chapter is formal and scholarly. digital permissions were available for Re-
The introduction is factual and objective, gimes and Democracy in Latin America
as it provides context for and describes the in 2009.55 As there was no digital market

55. Oxford presents evidence of $348.33 in APS sales. Those sales occurred in 2008 [Pls.
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1261
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

for permissions, Georgia State’s use of un- an eight chapter, 293 page volume edited
paid digital excerpts did not harm Oxford. by Judy DeLoache and Alma Gottlieb that
It follows that Georgia State’s use did not contains contributions discussing how vari-
cause substantial harm to the value of the ous societies care for babies [Pls. Ex. 147].
copyrighted work in 2009. Accordingly, From the contents of the book, the Court
factor four favors fair use. infers that it was intended for general
In sum, factors one and four favor fair readership, although it can be used in an
use, factor two is neutral, and factor three academic setting. The book retails for
disfavors fair use. Weighting these results $55.99 in hardback and $30.99 in paper-
as directed, and placing the burden of back [Jt. Ex. 5 at D-89]. The net sales
proof on Defendants, the scale clearly fa- revenue from August 3, 2000, through Oc-
vors fair use. tober 31, 2010 was £99,831 [Pls. Ex. 152].
Licensed digital excerpts of the book were
P. Professor Whitten available through CCC in 2009. From July
1, 2004 until December 1, 2010, A World of
Professor Kathleen Whitten taught a
Babies earned $62.99 in ECCS permissions
class in the Department of Psychology at
revenue and $1,382.01 in APS income [Pls.
Georgia State during the fall semester of
Ex. 153].
2009 [Pls. Ex. 557].
PSYC 4030 Introduction to Cross-Cultural Professor Whitten requested that page
Psychology,56 Fall 2009 27 and pages 91-112 be posted on the
ERES system for distribution to students
PSYC 4030 is a course that examines
in her PSYC 4030 course [Pls. Ex. 147; Jt.
the influence of culture on human cogni-
Ex. 5 at D-89]. Page 27 is a portion of
tion, emotion, and behavior with a focus on
chapter one, which was authored by Judy
psychology theory and research [Pls. Ex.
DeLoache and Alma Gottlieb. Pages 91-
557]. Thirteen students enrolled in this
112 are a portion of chapter four, which
course in the fall semester of 2009 [Jt. Ex.
was authored by Marissa Diener [Pls. Ex.
5 at D-89]. According to the syllabus, there
147]. Together, the pages represent 7.85%
was one required textbook for the course;
of the book. Had permissions been paid via
additional required readings were made
CCC for the distribution of this excerpt,
available online through uLearn or ERES
Cambridge would have earned less than
[Pls. Ex. 557].
$36.47 in net revenue from permissions.57
45. A World of Babies: Imagined Child- The cost to students would have been
care Guides for Seven Societies (Judy $45.90.
DeLoache & Alma Gottlieb, Cam-
bridge 2000) Fair Use Analysis

A World of Babies was first published [43] As to the first element of fair use
by Cambridge in 2000 [Pls. Ex. 147]. It is (‘‘the purpose and character of the use’’),

Ex. 454]. 57. The amount earned would have been

$45.90, the amount charged by CCC, [Jt. Ex.
56. Joint Exhibit 5 refers to the title of this 5 at D-89], less the $3.00 service fee charged
course as Cross-Cultural Psychology. This
by CCC to users, less $6.43 in fees charged by
Opinion will refer to the course using the title
CCC to publishers, less royalties Cambridge is
that appears on the syllabus, Introduction to
obligated to pay the external editors.
Cross-Cultural Psychology.
1262 446 FEDERAL SUPPLEMENT, 3d SERIES

Defendants’ use of the excerpt is nontrans- facets of Balinese culture as they relate to
formative (in this case, mirror image copy- pregnancy and childbearing, such as offer-
ing). The excerpt serves the same purpose ings and spiritual cleansing rituals. The
as the original work. The excerpt was used fictional author describes how children are
for a nonprofit educational purpose by a ‘‘divine,’’ or new gods, for the first 210
nonprofit educational institution. Thus, fac- days of their lives, which is one full year in
tor one favors fair use. the Balinese ritual calendar. The remain-
ing portion of the excerpt describes other
The second fair use factor is ‘‘the nature
aspects of raising an infant in Bali, like the
of the copyrighted work.’’ The Court
specific roles for male children, the signifi-
makes the following findings in that re-
cance of birth order, naming conventions,
gard: A World of Babies is partially fiction
and dressing, feeding, and bathing habits.
and partially non-fiction. It explores child-
rearing in seven different cultures--like The tone of the excerpt is straightfor-
Puritan New England and the Beng of the ward and informational, although some-
Ivory Coast--in the format of a Western what lighthearted. The excerpt contains
childcare manual. Each manual, or chap- fanciful elements, as the majority of the
ter, is written from the perspective of a chapter four excerpt is written from the
fictional member of each respective soci- perspective of a fictional Balinese healer.
ety, but the information in the manuals is Additionally, the organization and format
based on anthropological and historical re- are creative. On the other hand, the por-
search. The work confronts the notion that tion of the excerpt describing Balinese his-
the manner of caring for infants is natural, tory and culture is objectively descriptive,
obvious, or common-sense, by presenting a and even the ‘‘manual’’ portion is more
range of cultural beliefs and practices as- informational than fictional. Moreover, the
sociated with childcare. information conveyed about pregnancy and
infancy in Balinese culture is grounded in
The first page of the excerpt--page 27--
facts derived from an existing body of
is an excerpt from chapter one that ex-
anthropological research. All in all, the
plains the organization of the seven subse-
chapter is an even balance of creative and
quent chapters. The second portion of the
objective material. Indeed, the authors de-
excerpt--pages 91-112--is taken from chap-
scribe the work as ‘‘a mix of fact and
ter four, ‘‘Gift from the Gods: A Balinese
fiction – fictional authors presenting factu-
Guide to Early Child Rearing.’’ The first
al information’’ [Pls. Ex. 147]. Accordingly,
portion of the chapter is an introduction to
factor two falls neither for nor against fair
Balinese culture that summarizes its histo-
use; it is neutral.
ry, political structure, economy, and reli-
gion. The chapter then provides ‘‘bio- Factor three is concerned with the
graphical’’ information about the manual’s amount and substantiality of the portion
fictional author. The remaining portion of copied. With respect to the quantity of the
the excerpt is devoted to the fictional man- work copied, Georgia State used 23 pages,
ual. The manual describes the benefits of or 7.85% of A World of Babies, which is a
having a child in Balinese culture, includ- relatively small amount [Pls. Ex. 147]. The
ing heightened political status, marital se- amount is acceptable given the educational
curity, and having a caretaker through old nature of Professor Whitten’s use, and the
age. It goes on to explain several unique fact that the excerpt furthered the peda-
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1263
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

gogical purpose of the course. Further, to negative effect on the market for purchase
the extent that the portion copied serves of the book itself.
as a heuristic for potential market substi- Plaintiffs produced evidence demon-
tution, any impact here was also small. As strating that there was a ready market for
for the quality (value) of the work copied, licensed digital excerpts of this work in
the excerpted material contains one page 2009 through CCC. The unpaid use of the
from one chapter, and a portion of a sec- excerpt by Professor Whitten and her stu-
ond chapter. Copying less than a chapter dents caused very small, but actual, dam-
tends to be more fair than would the use of age to the value of Cambridge’s copyright.
an entire chapter. In addition, the excerpt In addition, widespread use of similar unli-
copied is not the heart of the work. In censed excerpts could cause substantial
sum, the quantity and quality of the work harm. Cambridge lost permissions income.
copied are within acceptable limits, espe- Factor four strongly disfavors fair use.
cially in light of Georgia State’s favored In summary, factor one favors fair use;
educational purpose. Thus, factor three fa- factor two is neutral; factor three favors
vors Georgia State’s fair use. fair use; and factor four strongly disfavors
As to the fourth fair use factor, effect on fair use. The Court will look further and
the market, the Court first looks to wheth- will conduct a holistic assessment to deter-
mine the outcome of the fair use defense.
er Professor Whitten’s use of A World of
Babies affected the market for purchasing First, the Court notes that the percent-
the book as a whole. Students would not age of the work which was used (7.85%) is
pay $30.99 for the entire book (or $55.99 at the upper range of what is a reasonable
for the hardcover version) when only 23 amount. Accordingly, Plaintiffs are entitled
pages were required reading for Professor to an adjustment of factor three, in their
Whitten’s course. Neither would a profes- favor.
sor require students to purchase the entire In addition, the record contains the fol-
book in such an instance. Therefore, the lowing evidence concerning permissions
Court rejects any argument that the use of earned by excerpts from A World of Ba-
the excerpt from A World of Babies had a bies:

[Pls. Ex. 153]. Meanwhile, the book earned The Court infers that if digital permis-
£99,831 from book sales of A World of sions were available in 2008, digital per-
Babies [Pls. Ex. 152]. missions would have been available in
2009. Nonetheless it is obvious that there
1264 446 FEDERAL SUPPLEMENT, 3d SERIES

was little demand for excerpts of A World [Pls. Ex. 450]. This book retails for $19.95
of Babies in 2009. Therefore, there was in paperback [Jt. Ex. 5 at D-93]. The net
little risk of repetitive use of excerpts in sales revenue from date of first publication
2009. For this reason, the outcome on fac- in 2000 through November 7, 2010 was
tor four is mitigated in Defendants’ favor. $232,467.00 [Pls. Ex. 357]. Licensed digital
excerpts of the book were available
In summary, weighing all factors (as
through CCC in 2009. From July 1, 2004
adjusted) together, giving factor four extra
until December 1, 2010, the new edition of
weight and placing the burden of proof on
The Power Elite earned $315.59 in ECCS
Defendants, Defendants prevail on their
permissions revenue [Pls. Ex. 451]. It also
fair use defense. This copyright infringe-
earned $4,645.89 in APS revenues.
ment claim fails.
Professor Harvey requested that pages
Q. Professor Harvey 269-297 and 298-324, or two full chapters
totaling 12.50% of the work, be posted on
Professor Harvey is a Professor in the ERES for distribution to students in her
Sociology Department at Georgia State SOCI 8030 course [Jt. Ex. 5 at D-93]. Had
[Pls. Ex. 530]. permissions been paid via CCC for the
SOCI 8030 Social Theory I, Fall 2009 distribution of this excerpt, Oxford would
have earned less than $91.39 in net reve-
SOCI 8030 is a graduate level course nue from permissions.58 The cost to stu-
focused on analysis of classical social theo- dents would have been $110.52.
ry [Pls. Ex. 530]. Sixteen students enrolled
in this course in the fall semester of 2009 Fair Use Analysis
[Jt. Ex. 5 at D-93]. According to the sylla- [44] As to the first element of fair use
bus, there were two required textbooks for (‘‘the purpose and character of the use’’),
the course; additional required readings Defendants’ use of the excerpt is nontrans-
were made available online through ERES formative (in this case, mirror image copy-
[Pls. Ex. 530]. ing). The excerpt serves the same purpose
46. The Power Elite (New Edition) (C. as the copyrighted original. The excerpt
Wright Mills, Oxford 2000) was used for a nonprofit educational pur-
pose by a nonprofit educational institution.
The Power Elite was first published by
Thus, factor one favors fair use.
Oxford in 1956 [Pls. Ex. 450]. It is a fifteen
chapter, 448 page work authored by C. The second fair use factor is ‘‘the nature
Wright Mills that critiques the organiza- of the copyrighted work.’’ The Court
tion of power in the United States [Pls. makes the following findings in that re-
Ex. 448]. It was written originally for gen- gard: The Power Elite is a quasi-academic
eral audiences, but has been used fre- work written for consumption by both so-
quently in college sociology courses. At ciologists and a wider audience. The book
issue here is the new edition of the work, examines the organization of power in the
which contains a new afterword by Alan United States, which the author argues is
Wolfe and was published by Oxford in 2000 concentrated in the military, corporate,

58. The amount earned would have been by CCC to users, less $16.13 in fees charged
$110.52, the amount charged by CCC, [Jt. Ex. by CCC to publishers, less royalties Oxford is
5 at D-93], less the $3.00 service fee charged obligated to pay the author.
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1265
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

and political elite. The book contains 15 identified in the previous chapter. To begin
total chapters and an afterword 59 [Pls. Ex. the chapter the author notes that, histori-
448]. cally, public opinion has an important role
The first excerpt posted to ERES for in American society because official deci-
Professor Harvey’s students was the sions and private decisions of consequence
twelfth chapter, which shares the title are almost always negotiated in terms of
‘‘The Power Elite.’’ The author begins with the public welfare. The chapter moves on
a proposition that post-Civil War changes to demonstrate how, in theory, opinion and
in the American structure of power were, discourse should be the tools of the public
and still are, characterized by shifts in the in a democracy. The author contrasts this
political, economic, and military orders. He ideal with his interpretation of reality,
elaborates by describing five periods in which he describes as ‘‘a society of
American history in terms of the relative masses’’ rather than a ‘‘community of pub-
weight of power among the three orders: lics’’ [Id.] According to the author, the
(1) from the Revolution through the John later version of the public exhibits the
Adams administration, during which the following four characteristics: (1) a higher
political order was supreme; (2) the early disparity in the ratio of opinion givers to
nineteenth century, when the orders loose- receivers; (2) fewer opportunities for lead-
ly shared power; (3) the Congressional ership in the public; (3) difficulty translat-
elections of 1866 through the First World ing ideas into social action; and (4) more
War, which experienced a power shift from control by institutional authority. Accord-
government to corporation; (4) the New ing to the author, although media and edu-
Deal, which exhibited a struggle between cation should counteract the mass society,
political and economic forces; and (5) the they often serve to reinforce it. The chap-
conclusion of the Second World War ter concludes with a review of the book’s
through the time of the author’s writing,
central idea--that American society has a
which involved a more pronounced coinci-
unified group--‘‘the power elite’’--at the
dence of all three orders. The next portion
top, a stalemated middle level, and an in-
of the chapter more closely examines social
creasingly powerless mass society at the
similarities in the ideals and associations of
bottom.
individuals who compose ‘‘the power elite.’’
The author discusses structural features The tone of these two chapters, when
that reinforce the unity of the power elite, considered together, is critical, and at
such as the interchangeability of top roles times provocative, but still intellectual.
in each of the three orders. The chapter’s They contain a great deal of the author’s
conclusion suggests that the author’s con- own opinion and subjective description of
temporary organization of power--consoli- the development of American society. Al-
dated power at the top and a ‘‘stalemated’’ though the author’s observations are
middle society --has had ramifications for grounded in research, the bulk of chapters
the ‘‘bottom’’ of society, or the American 12 and 13 are devoted to the author’s
public [Id.].
sociological analysis. As author opinion and
The next excerpt--chapter 13, ‘‘The evaluation dominate these chapters, factor
Mass Society’’--addresses the ramifications two disfavors fair use.

59. The first edition of the book, published in out the afterword, which was first included in
1956, consisted of the same 15 chapters with- the ‘‘new edition’’ [see Pls. Ex. 450].
1266 446 FEDERAL SUPPLEMENT, 3d SERIES

Turning to factor three, here, Georgia excerpt by Professor Harvey and her stu-
State uploaded 56 pages or 12.5% of the dents caused very small, but actual, dam-
448-page book [Pls. Ex. 448]. While the age to the value of Oxford’s copyright. In
percentage copied is leavened somewhat addition, widespread use of similar unli-
by the educational purpose of Georgia censed excerpts could cause substantial
State’s use, the number of pages copied is harm. Oxford lost permissions income.
a heuristic for market substitution (it has a Factor four strongly disfavors fair use.
relationship to lost permissions) and the
A review of the fair use factors in this
potential market substitution here was
case shows that factor one favors fair use;
large. The quantity of the book copied
factor two disfavors fair use; factor three
weighs against a finding of fair use. As for
disfavors fair use; and factor four strongly
the quality of the work copied, in this
disfavors fair use. The Court will look no
instance Georgia State copied two com-
further. Defendants’ fair use defense fails;
plete chapters of the book, enhancing the
this infringement claim succeeds. The
taking of value. Even more damaging for
Court notes that Plaintiffs have conceded
Defendants is the fact that the chapters
this outcome in their remand brief.
used summarize the author’s thesis in The
Power Elite; they are where the ideas
explained in the other chapters coalesce. R. Professor Ohmer
Chapters 12 and 13 are the heart of the Professor Mary Ohmer is a professor in
work. Accordingly, Georgia State used an the School of Social Work at Georgia State
impermissible quantity and quality of The [Pls. Ex. 522].
Power Elite. Factor three disfavors fair
use. SW 8200 Evaluation and Technology, Fall
2009
As to the fourth fair use factor (‘‘the
effect of the use upon the potential market SW 8200 is a course that addresses the
for or value of the copyrighted work’’), the role of evaluation and technology in the
Court first looks to whether Professor modern social work practice environment
Harvey’s use of The Power Elite affected [Pls. Ex. 522]. Forty two students enrolled
the market for purchasing the book as a in this course in the fall semester of 2009
whole. Students probably would not pay [Jt. Ex. 5 at D-98]. According to the sylla-
bus, there were two required textbooks for
$19.95 for the entire book when only
the course; additional required readings
12.50% of it was required reading for Pro-
were made available online through ERES
fessor Harvey’s course. Neither would a
[Pls. Ex. 522].
professor require students to purchase the
entire book in such an instance. Therefore, 47. Sage Handbook of Qualitative Re-
the Court rejects any argument that the search (Second Edition) (Norman K.
use of the excerpt from The Power Elite Denzin & Yvonna S. Lincoln eds.,
had a negative effect on the market for Sage 2000)
purchase of the book itself.
The Sage Handbook of Qualitative Re-
Plaintiffs produced evidence demon- search (Second Edition) was first publish-
strating that there was a ready market for ed by Sage in 2000 [Pls. Ex. 265]. It is a
licensed digital excerpts of this work in 1,142 page, 36 chapter volume edited by
2009 through CCC. The unpaid use of the Norman K. Denzin and Yvonna S. Lincoln.
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1267
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

The chapters analyze the theory and prac- Eben A. Weitzman. Had permissions been
tice of qualitative research [Pls. Ex. 265]. paid via CCC for the distribution of this
There is conflicting evidence in the record excerpt, Sage would have earned less than
as to the retail price for The Sage Hand- $89.96 in net revenue from permissions
book of Qualitative Research (Second Edi- income.62 The cost to students would have
tion); the parties alternatively assert that been $108.84.
it retails for $156.00 and for $175.00 [Jt.
Fair Use Analysis
Ex. 5 at D-19, D-23, D-98]. There is also
conflicting evidence as to whether The [45] As to the first element of fair use
Sage Handbook of Qualitative Research (‘‘the purpose and character of the use’’),
(Second Edition) is out of print [Jt. Ex. 5 Defendants’ use of the excerpt is nontrans-
at D-19, D-23, D-98]. formative (in this case, mirror image copy-
ing). The excerpt was used for a nonprofit
In 2009, the book had $0.00 in net sales
educational purpose by a nonprofit edu-
revenue, but it has earned $1,300,053.54 in
cational institution. Thus, factor one favors
total net sales revenue [Pls. Ex. 283]. Li-
fair use.
censed digital excerpts of the book were
available through CCC in 2009 [Pls. Ex. The second fair use factor is ‘‘the nature
286]. From July 1, 2004 until December 1, of the copyrighted work.’’ The Court
2010, The Sage Handbook of Qualitative makes the following findings in that re-
Research (Second Edition) earned gard: The book’s 36 chapters are organized
$6,324.61 in ECCS permissions revenue into six parts: (1) Locating the Field; (2)
[Pls. Ex. 286].60 In addition, licensed ex- Paradigms and Perspectives in Transition;
cerpts of this work are available directly (3) Strategies of Inquiry; (4) Methods of
from Sage; the book has earned $58,- Collecting and Analyzing Empirical Mate-
904.47 61 through Sage’s in-house permis- rials; (5) The Art and Practices of Inter-
sions program from 2000 to 2010 [Pls. Ex. pretation, Evaluation, and Representation;
283]. This includes $3,814.52 in 2009 [Pls. and (6) The Future of Qualitative Re-
Ex. 283]. search.

Professor Ohmer requested that pages The excerpt at issue, chapter 30, is lo-
803-820 of The Sage Handbook of Qualita- cated in Part 4. In it, the author examines
tive Research (Second Edition) be upload- the role of software in qualitative re-
ed to ERES for distribution to students in search, including the history, critical de-
her SW 8200 course as required reading bates, guidelines for choosing software to
[Pls. Ex. 522]. The excerpt was one chap- match research needs, and a note on fu-
ter of the book totaling eighteen pages, or ture directions for scholarship and devel-
1.58% of the total work [Pls. Ex. 265]. The opment. The chapter begins with a suc-
excerpted chapter was entitled ‘‘Software cinct history of qualitative research and
and Qualitative Research’’ and authored by technology, and segues into a discussion

60. These amounts represent permissions in- 62. The amount earned would have been
come only for the second edition of this work. $108.84, the amount charged by CCC, [Jt. Ex.
5 at D-98], less the $3.00 service fee charged
61. The amount asserted by Plaintiffs for this by CCC to users, less $15.88 in fees charged
work is higher than the amount reported by CCC to publishers, less royalties Sage is
here. obligated to pay the external editors.
1268 446 FEDERAL SUPPLEMENT, 3d SERIES

about the benefits and limitations of rele- fessor Ohmer uploaded 18 pages, or 1.58%
vant software. Most notably, the author of the 1,142-page work, which is a small
explains that while software can provide number of pages and a tiny percentage of
tools to assist researchers in analyzing the copyrighted work. The number of
data it cannot actually conduct the analy- pages copied functions to some extent as a
ses. Next, the author gives an annotated heuristic for market substitution; the de-
list of types of software available. The gree of market substitution is acceptably
bulk of the chapter is devoted to explain- small when viewed in connection with the
ing how a researcher should choose a soft- tiny percentage of the copyrighted work.
ware program based on immediate and Quality wise, the use of one complete chap-
long-term research needs, data sources, ter is less fair than would be the use of a
research approach, research goals, and re- part of a chapter. However, chapter 30
sources. In the final substantive section, specifically is no more or less important
the author analyzes several ‘‘debates,’’ or than any other in the 36-chapter work.
points of contention concerning the use of Chapter 30 is not the heart of the work.
software in qualitative research including The chapter also fit the course’s pedagogi-
whether the use of software forces a re- cal purpose. Thus, neither the quantity nor
searcher to sacrifice familiarity with the
the quality of the excerpt uploaded to
data and whether new researchers should
ERES is excessive. Accordingly, factor
first learn to conduct analysis by hand. In
three favors fair use.
concluding, the author touches on topics in
need of further future scholarship, and As to the fourth fair use factor, effect on
areas of improvement for qualitative re- the market, the Court first looks to wheth-
search software development. er Professor Ohmer’s use of The Sage
Handbook of Qualitative Research (Sec-
The tone of chapter 30 is informational
ond Edition) affected the market for pur-
and academic. The material in the chapter
chasing the book as a whole. Students
is descriptive, rather than analytical. For
would not pay $156.00 or $175.00 for an
instance, even when the author seeks to
entire book when only eighteen pages
explain why certain software features are
more appropriate for specific circum- were required reading for Professor Ohm-
stances, the resulting discussion is not so er’s course. Neither would a professor re-
much an analysis as it is an evenhanded quire students to purchase the entire book
matching of research needs to software in such an instance. The sales revenue for
functions. While some of the chapter is The Sage Handbook of Qualitative Re-
likely colored by the author’s own opinions search (Second Edition) in 2009 was $0.00,
and experiences, chapter 30 is predomi- and the book may currently be out of
nantly an impartial explanation of the ad- print. Therefore, the Court rejects any
vances in research software and what argument that the use of the excerpt from
types of software are most amenable to The Sage Handbook of Qualitative Re-
various qualitative research circumstances. search (Second Edition) had a negative
As chapter 30 contains both factual pres- effect on the market for purchase of the
entations plus author opinion, factor two is book itself.
neutral.
Plaintiffs produced evidence demon-
Factor three examines the amount taken strating that there was a ready market for
in relationship to the original. Here, Pro- licensed digital excerpts of this work in
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1269
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

2009 through CCC and through Sage’s in- teen chapter work written by Michael
house program. The unpaid use of the Quinn Patton that advocates user-based
excerpt by Professor Ohmer and her stu- evaluation of government and institutional
dents caused very small, but actual, dam- programs. It prescribes standards and
age to the value of Sage’s copyright. In evaluation methods [Pls. Ex. 316]. The
addition, widespread use of similar unli- third edition of Utilization-Focused Eval-
censed excerpts could cause substantial uation retails for $115.00 in hardcover and
harm. Sage lost permissions income. Fac- $77.95 in paperback, but was out of print 63
tor four strongly disfavors fair use. in 2009 [Jt. Ex. 5 at D-99]. The net sales
revenue from the date of first publication
In summary, factor one favors fair use;
through 2010 for the hardback and paper-
factor two is neutral; factor three favors
back combined was $812,595.44 [Pls. Ex.
fair use; and factor four strongly disfavors
fair use. The Court will look further and 319]. By 2007, sales had virtually ceased.
will conduct a holistic evaluation in order However, permissions income continued to
to rule on the fair use defense. accrue from both CCC permissions and
Sage’s in-house program. Licensed digital
First, the Court revisits factor three. excerpts of the book were available
The unlicensed excerpt was 1.58% of the through CCC in 2009. From July 1, 2004
copyrighted work, a tiny (not merely until December 1, 2010, Utilization-Fo-
small) portion. This calls for an adjustment cused Evaluation earned $2,688.92 in
of factor three, in Defendants’ favor. ECCS permissions revenue 64 [Pls. Ex.
Second, the Court revisits factor four. 321]. In addition, licensed digital excerpts
The high demand for licensed excerpts in were available through Sage’s in-house
2009 calls for an upward adjustment of permissions program in 2009; the third
factor four, in Plaintiffs’ favor. edition of the book has earned $15,-
490.85 65 through in-house licensing per-
Weighing all factors together, giving fac- missions revenue [Pls. Ex. 319].
tor four extra weight, and placing the bur-
den of proof on Defendants, the Court Professor Ohmer requested that pages
finds that Defendants do not prevail on 2-38 of Utilization-Focused Evaluation be
their fair use defense. This copyright in- uploaded to ERES for distribution to stu-
fringement claim succeeds. dents in her fall 2009 SW 8200 course [Pls.
Ex. 522]. The excerpt included two full
48. Utilization-Focused Evaluation: The
chapters of the book and totaled 37 pages,
New Century Text (Third Edition)
or 8.28% of the total work [Pls. Ex. 316].
(Michael Quinn Patton, Sage 1996)
These chapters were assigned as required
Utilization-Focused Evaluation (Third reading [Pls. Ex. 522]. Had permissions
Edition) was first published by Sage in been paid via CCC for the distribution of
1996 [Pls. Ex. 318]. It is a 447 page, fif- this excerpt, Sage would have earned less

63. In 2008, the fourth edition of the book was 65. The amount asserted by Plaintiffs for this
published. work is higher than the amount reported
here. The Court was unable to verify the high-
64. This amount of ECCS revenue may include er amount due to insufficient documentation
permissions fees earned by earlier editions of and insufficient explanation of the documen-
the book. tary evidence provided at trial.
1270 446 FEDERAL SUPPLEMENT, 3d SERIES

than $189.92 in net revenue.66 The cost to cymakers in shaping new programs. Using
students would have been $226.44. these early failures as a teaching moment,
the chapter focuses on the key aspects of
Fair Use Analysis
effective program evaluation, such as accu-
[46] As to the first element of fair use racy, feasibility, and utility.
(‘‘the purpose and character of the use’’),
Chapter one is mostly factual in nature.
Defendants’ use of the excerpt is nontrans-
The chapter reviews the initial landscape
formative (in this case, mirror image copy-
of program evaluation and chronicles the
ing). The excerpt serves the same purpose
progression within the field. The chapter is
as the original work. The excerpt was used
written in a formal tone.
for a nonprofit educational purpose by a
nonprofit educational institution. Thus, fac- Chapter two, titled ‘‘What Is Utilization-
tor one favors fair use. Focused Evaluation? How Do You Get
Started?’’ explains the concept of utiliza-
The second fair use factor is ‘‘the nature
tion-focused evaluation, asserting that an
of the copyrighted work.’’ The Court
evaluation should consider the evaluation’s
makes the following findings in that re-
use throughout all steps of the analysis.
gard: Utilization-Focused Evaluation is a
The chapter closes with a discussion of
semi-academic work which explores the
how the hallmarks of a utilization-focused
field of program evaluation, which is a
approach, such as target questions and a
method by which projects, policies, and
continuous feedback loop, turn program
programs are evaluated for their effective-
evaluations into tangible results.
ness and efficiency.67 The author uses the
book to promote a version of program Chapter two is didactic. It relies on oth-
evaluation known as ‘‘utilization-focused er researchers’ studies to illustrate the
evaluation.’’ The book aims to inform the concepts presented. The author presents
reader about how to create and perform the chapter in a conversational tone and
utilization-focused evaluation by incorpo- focuses on some of his own experiences in
rating information the author has collected developing the concept of utilization-fo-
in the decades 68 since he first promoted cused evaluation. Factor two is neutral for
the practice. these excerpts.

Chapter one, titled ‘‘Evaluative Use: As to factor three, Professor Ohmer

Both Challenge and Mandate,’’ provides an used 37 pages of Utilization-Focused
introduction to the field of program evalua- Evaluation, which is 8.28% of the overall
tion. The chapter chronicles the early uses page count of the book [Pls. Ex. 316].
of program evaluation, which the author Standing alone, the percentage of pages
believes were defined by overly dense eval- used is a permissible amount in light of
uations which were underutilized by poli- Professor Ohmer’s educational purpose,

66. The amount earned would have been 67. Program evaluation is most commonly
$226.44, the amount charged by CCC, [Jt. Ex. used in the assessment of government pro-
5 at D-99], less the $3.00 service fee charged grams [Id.].
by CCC to users, less $33.52 in fees charged
68. The alleged infringement involves the third
by CCC to publishers, less royalties Sage is
edition of Utilization-Focused Evaluation. The
obligated to pay the author.
first edition of the book appears to have been
published in 1978 [Pls. Ex. 316 at xiv].
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1271
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

even considering the potential impact of [Doc. 319]. This does not call for mitigation
market substitution. Use of this excerpt of factor four.
also served Professor Ohmer’s pedagogical
Weighing the four factors (as adjusted)
purpose. However, when the fact that Pro-
together, giving factor four additional
fessor Ohmer used two complete chapters
weight, and placing the burden of proof on
is added, the amount used becomes dis-
Defendants, the Court finds that Defen-
qualifying, even though the two chapters
dants’ use of the excerpt of Utilization-
used are not the heart of the work. Factor
Focused Evaluation (Third Edition) was
three disfavors fair use.
not a fair use. This copyright infringement
As to the fourth fair use factor, effect on claim succeeds.
the market, the Court first looks to wheth-
er Professor Ohmer’s use of Utilization- III. SUMMARY
Focused Evaluation affected the market
This case is currently before the Court
for purchasing the book as a whole. The
for fair use analysis with respect to 48
parties state in their joint exhibit that the
infringement claims. Plaintiffs are entitled
book is currently out of print, so students
to prevail on the claims involving these
could not have purchased a copy. There-
works in these Georgia State classes:
fore, the Court rejects any argument that
the use of the excerpt from Utilization- Maymester 2009:
Focused Evaluation had a negative effect
1 The Sage Handbook of Qualitative
on the market for purchase of the book
Research (Third Edition)(Professor
itself.
Kaufmann, EPRS 8500 Qualita-
Plaintiffs produced evidence demon- tive/Interpretive Research in Edu-
strating that there was a ready market for cation I)
licensed digital excerpts of this work in 1 Handbook of Critical and Indige-
2009 through CCC and through Sage’s in- nous Methodologies (Professor Kauf-
house program. The unpaid use of the mann, EPRS 8500 Qualitative/Inter-
excerpt by Professor Ohmer and her stu- pretive Research in Education I)
dents caused very small, but actual, dam-
age to the value of Sage’s copyright. In Summer 2009:
addition, widespread use of similar unli- 1 The Sage Handbook of Qualitative
censed excerpts could cause substantial Research (Second Edition) (Profes-
harm. Sage lost permissions income. Fac- sor Kaufmann, EPRS 8510 Qualita-
tor four strongly disfavors fair use. tive Research in Education II – Data
Collection)
A review of the fair use factors in this
case shows that factor one favors fair use; 1 The Sage Handbook of Qualitative
factor two is neutral; factor three disfavors Research (Second Edition) (Profes-
fair use; and factor four strongly disfavors sor Esposito, EPSF 8280 Qualitative
fair use. The Court will look further and Research in Education II – Data
will conduct a holistic evaluation of the Collection)
four factors. Fall 2009:
In 2009 the third edition of the book had 1 The Sage Handbook of Qualitative
a total of $1,390.77 in permissions sales Research (Third Edition) (Professor
1272 446 FEDERAL SUPPLEMENT, 3d SERIES

Kaufmann, EPRS 8500 Qualita- shall not exceed thirty (30) pages, includ-
tive/Interpretive Research in Edu- ing any attachments.
cation II)
1 The Sage Handbook of Qualitative V. COSTS AND ATTORNEYS’ FEES
Research (Third Edition) (Professor Section 505 of the Copyright Act, 17
Kaufmann, EPRS 8500) U.S.C. § 505 provides:
1 Theoretical Frameworks in Qualita- In any civil action under this title, the
tive Research (Professor Esposito, court in its discretion may allow the
EPRS 8520) recovery of full costs by or against any
1 The Slave Community (Professor party other than the United States or an
Dixon, AAS 3000) officer thereofTTTT [T]he court may also
1 The Power Elite (Professor Harvey, award a reasonable attorney’s fee to the
SOCI 8030 Social Theory I) prevailing party as part of the costs.

1 The Sage Handbook of Qualitative The parties are directed to confer with a
Research (Second Edition) (Profes- view toward resolving disputed issues per-
sor Ohmer, SW 8200 Evaluation & taining to taxation of costs and an award of
Technology) attorneys’ fees. If agreement is not
achieved, the Court directs both sides to
1 Utilization-Focused Evaluation
file briefs addressing which party (or par-
(Third Edition) (Professor Ohmer,
ties) is (or are) the prevailing party (or
SW 8200 Evaluation & Technology)
parties) and whether the Court should ex-
With respect to all other infringement ercise its discretion to award costs. Legal
claims, Defendants are entitled to prevail. authority and analysis would be helpful.
Assertions alone will be unhelpful. Plain-
IV. RELIEF TO BE GRANTED tiffs’ brief is due twenty (20) days after
Plaintiffs are DIRECTED to file, within entry of this Order; Defendants may re-
twenty (20) days of entry of this Order, the spond within twenty (20) days after the
proposed text of any injunctive or declara- filing of Plaintiffs’ brief. Plaintiffs may re-
tory relief they seek, together with the ply no later than ten (10) days after the
rationale supporting their request. Alter- filing of Defendants’ brief.
native proposals are acceptable. Defen- The Clerk is DIRECTED to re-submit
dants may state their opposition, if any, the file upon expiration of the above-refer-
and may propose one or more alternative enced time period.
orders, within fifteen (15) days after Plain-
tiffs’ filing. If Defendants object to Plain- SO ORDERED, this 2nd day of March,
tiffs’ proposal(s) or if Defendants suggest 2020.
one or more alternative order(s), the ratio-
nale shall be stated. Each side’s filings Attachment
 CAMBRIDGE UNIVERSITY PRESS v. BECKER 1273
Cite as 446 F.Supp.3d 1145 (N.D.Ga. 2020)

Attachment—Continued
1274 446 FEDERAL SUPPLEMENT, 3d SERIES

Attachment—Continued
 HEARTLAND PAYMENT SYSTEMS, LLC v. STOCKWELL 1275
Cite as 446 F.Supp.3d 1275 (N.D.Ga. 2020)

Attachment—Continued

HEARTLAND PAYMENT SYSTEMS,

LLC, Plaintiff,

,
v.
Phillip Kord STOCKWELL, Defendant.
Case No. 1:19-CV-05327-SDG
United States District Court,
N.D. Georgia, Atlanta Division.