The radical nature of the e-reserves policy that was once in place at Georgia State led to an inevitable lawsuit that will set the tone and nature of the fair use of e-reserves. Since the lawsuit was brought on, the e-reserves policy has changed. As argued by Kenneth Crews, Georgia State is using a “good faith” defense, which is really not applicable due to the sloppy nature of their policy. Still, it is an interesting tactic. Those in charge of the policy had a legal background and a consitutional view of fair use, which was to preserve very limited rights. According to this view, copyright was a marketing right and any personal use of copyrighted materials was acceptable. Therefore, the e-reserves policy did not require a password, or any authentication software or authorization requirements for that matter, to access the resources, which made the resources available to anyone, not just those enrolled in that particular course.
While I appreciate the boldness of this policy, I have to wonder what they were thinking. Did they really think they could get away with it? Just take a close look at copyright legislation and you will see that it is really geared towards the copyright holders, not geared to help the public (is it any wonder that I keep typing “copyfight”? Please ignore the placement of the keys on the keyboard.). Perhaps since the policy makers have a legal background, they thought they could help to change some of the details of the Copyright Act through a radical policy, but obviously they re-thought that quite early as after the case was brought, the policy was changed to require users to log-in, hence the materials on e-reserve are not available to everyone. This also changed the nature of the lawsuit, as the policy is now different. Another point to consider is that I believe the syllabii were also available to the general public, which enables the publishing community able to easily track how their goods may be being used. This is also why I am no longer including the list of readings with these blog postings.
Why is the former Georgia State policy such a big deal? The best counter argument comes from Sanford Thatcher when he argued that by having everything online and accessible to the students for free, that really cuts into the market for academic presses. The primary market for academic presses is, wait for it, academic institutions, such as Georgia State. However, as addressed by the ARL and Russell, this is only one of the four factors of fair use. Still, this is a valid point. However, by having a password enabled access to e-reserves limited to those enrolled in the class, the effect on the market is minimized. Furthermore, if the other three factors (character of use, nature of the work to be used, and the amount used) demonstrate fair use, then factor four is weighted less heavily.
E-reserves are an essential part of the modern academic setting and we need to find an acceptable way of using them, without too much attention from the publishing industry. A little attention is okay, as I am sure Ken Frazier would agree. However, we do not need to have the pants sued off of us, but we do need to provide the best educational experience as possible. Students generally like to have access to materials online, whether they want a hard copy or not.
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