Kevin Smith, a scholarly-communications officer at Duke University, argued in a blog post that even though the publishers had revived their case, the appeals court had ruled against them on several important points:
The court agreed that potential copyright violations should be addressed on an “item by item” basis, rather than a “big picture” approach that would probably require Georgia State to purchase a “blanket license” to post e-reserve materials.
The court agreed that when evaluating whether e-reserve copying counts as fair use, it should be relevant that university libraries are nonprofit, educational institutions.
The court rejected the lower court’s “10 percent rule,” which drew a bright line on how much of a copyrighted work the university could make available free. The appellate judges instead advocated for “a more flexible approach that takes into account the amount appropriate for the pedagogical purpose.”
The court agreed that if a publisher had not made it possible for libraries to license excerpts of a copyrighted work, then libraries do not harm the market for the publisher’s products by copying the desired excerpts and making them freely available.
“These losses, which constitute the heart of what the publishers were hoping to achieve when they brought the lawsuit, are probably final,” wrote Mr. Smith.”