Cambridge Univ. Press v. Becker (371 F. Supp. 3d 1218, 2016)

ORINDA D. EVANS, UNITED STATES DISTRICT JUDGE

Table of Contents

I. The Case on Remand...1230

II. Preliminary Matters...1236

III. FAIR USE ANALYSIS FOR INDIVIDUAL INFRINGEMENT CLAIMS...1239

A. Professor Kaufmann...1239

Maymester 2009: EPRS 8500

1. The Craft of Inquiry (Oxford)...1239

2. Handbook of Feminist Research (Sage)...1241

3. Handbook of Social Theory (Sage)...1241

4. The Sage Handbook of Qualitative Research (Third) (Sage)...1246

5. Handbook of Critical & Indigenous Methodologies (Sage)...1248

6. Handbook of Narrative Inquiry (Sage)...1250

Summer 2009: EPRS 8510

7. The Sage Handbook of Qualitative Research (Second) (Sage)...1252

Fall 2009: EPRS 8500

8. The Craft of Inquiry (Oxford)...1255

9. Approaches to Qualitative Research (Sage)...1255

10. Handbook of Feminist Research (Sage)...1257

11. Handbook of Narrative Inquiry (Sage)...1259

12. The Sage Handbook of Qualitative Research (Third) (Sage)...1261

13. Handbook of Social Theory (Sage)...1263

B. Professor Esposito...1263

Summer 2009: EPSF 8280

14. Handbook of Feminist Research (Sage)...1264

15. The Sage Handbook of Qualitative Research (Second) (Sage)...1266

16. The Sage Handbook of Qualitative Research (First) (Sage)...1269

Fall 2009: EPRS 8520

17. Theoretical Frameworks in Qualitative Research (Sage)...1271

C. Professor Kruger...1273

Summer & Fall 2009: EPY 7090

18. Awakening Children's Minds (Oxford)...1273

Fall 2009: EPY 8220

19. Understanding Trauma (Cambridge)...1275

D. Professor Orr...1277

Summer 2009: MUS 8860

20. Liszt: Sonata in B Minor (Cambridge)...1277

21. The Cambridge Companion to Mendelssohn (Cambridge)...1278

22. The Cambridge Companion to Schumann (Cambridge)...1280

23. The Music of Berlioz (Oxford)...1281

Fall 2009: MUS 8840

24. The Organ as a Mirror of Its Time (Oxford)...1282

E. Professor Dixon...1283

Fall 2009: AAS 3000

25. The Slave Community (Oxford)...1284

26. African American Single Mothers (Sage)...1286

27. Black Children (Sage)...1289 28. Black Families (Third) (Sage)...1291

F. Professor Hartwig...1295

Fall 2009: AH 4900

29. Ancient Egyptian Materials & Technology (Cambridge)...1295

G. Professor Kim...1296

Fall 2009: AL 8550

30. Fundamental Considerations in Language Testing (Oxford)...1296

31. Assessing Speaking (Cambridge)...1298

32. Learning Vocabulary in Another Language (Cambridge)...1300

H. Professor McCombie...1301

Fall 2009: ANTH 4440

33. International Health Organisations (Cambridge)...1301

34. Evolution of Infectious Disease (Oxford)...1303

I. Professor Anggoro...1304

Fall 2009: EPY 8960

35. Language Acquisition & Conceptual Development (Cambridge)...1304

J. Professor Davis...1306

Fall 2009: HIST 7010

36. Region, Race & Reconstruction (Oxford)...1307

37. The Unpredictable Past (Oxford)...1309

K. Professor Freeman...1310

Fall 2009: JOUR 4800

38. Living Ethics (Oxford)...1310

L. Professor Moloney...1312

Fall 2009: NURS 8035

39. Handbook of Mixed Methods (Sage)...1312

M. Professor Lasner...1314

Fall 2009: PERS 2001

40. Crabgrass Frontier (Oxford)...1315

41. The Politics of Public Housing (Oxford)...1317

N. Professor Hankla...1318

Fall 2009: POLS 3450

42. Contemporary Cases in U.S. Foreign Policy (Sage)...1319

43. U.S. Foreign Policy (Sage)...1321

O. Professor McCoy...1323

Fall 2009: POLS 8250

44. Regimes & Democracy in Latin America (Oxford)...1323

P. Professor Whitten...1325

Fall 2009: PSYC 4030

45. A World of Babies (Cambridge)...1325

Q. Professor Harvey...1327

Fall 2009: SOCI 8030

46. The Power Elite (Oxford)...1327

R. Professor Ohmer...1330

Fall 2009: SW 8200

47. The Sage Handbook of Qualitative Research (Second) (Sage)...1330

48. Utilization-Focused Evaluation (Sage)...1332

IV. Summary...1336

V. Relief To Be Granted...1336

VI. Costs and Attorneys' Fees...1336

ATTACHMENT: Permissions and Book Sales Revenue for Books Involved on Remand

I. The Case on Remand

This copyright infringement case is before the Court on remand from the United States Court of Appeals for the Eleventh Circuit. The case was previously tried to the undersigned sitting without a jury in May 2011. An Order containing findings of fact and conclusions of law and final judgment was entered on May 11, 2012 [Doc. 423]. A final judgment was entered on September 30, 2012 [Doc. 463]. On appeal, Defendants Mark P. Becker, Risa Palm, J.L. Albert, Nancy Seamans, Robert F. Hatcher, Kenneth R. Bernard, Jr., Larry R. Ellis, W. Mansfield Jennings, Jr., James R. Jolly, Donald M. Leebern, Jr., William Nesmith, Jr., Doreen Stiles Poitevint, Willis J. Potts, Jr., C. Dean Alford, Kessel Stelling, Jr., Benjamin J. Tarbutton, III, Richard L. Tucker, Larry Walker, Rutledge A. Griffin, Jr., C. Thomas Hopkins, Jr., and Philip A. Wilheit, Sr. (collectively, "Defendants") prevailed on most of the claims, either because Plaintiffs Cambridge University Press, Oxford University Press, Inc., and Sage Publications, Inc. (collectively, "Plaintiffs") did not establish a prima facie case or because Defendants succeeded on their fair use defense. Plaintiffs did not appeal this Court's rulings that no prima facie case had been established for 26 of the claims. The Court of Appeals affirmed in part and reversed in part this Court's overall fair use analysis; it announced some additional holdings governing fair use and the case was remanded with direction. Op. at 3, 112; Patton at 1284. As a result this Court must revisit the fair use analysis for 48 infringement claims.

Briefly, the fair use defense in this case centers on a program at Georgia State University ("Georgia State") which allows a professor to make small excerpts of copyrighted books available to students enrolled in his or her class without paying royalties or other fees to the publisher. A fair use checklist is provided to assist in selecting the excerpts. The excerpts typically supplement an assigned textbook which students must purchase. Georgia State librarians scan the designated excerpts and upload them to a server. Class members then may download the excerpts to their computers and print them. The students must acknowledge and agree to respect the copyrighted nature of the materials. Some students bring the printed excerpts to class; others may read them in class on their computers. At the end of the course students' access to the electronic excerpts ends.

Plaintiffs argue that students' unpaid use of the excerpts infringes their copyrights, cutting into their revenues and diminishing the value of their copyrights. Defendants argue that Georgia State's program is sanctioned by the fair use section of the Copyright Act, 17 U.S.C. § 107. They argue that all of Plaintiffs' infringement claims are barred by the defense of fair use. Plaintiffs disagree.

The trial evidence showed that Defendants could have purchased licenses (also called permissions) to make digital copies of some of the excerpts from either the Copyright Clearance Center or Plaintiffs directly. The fair use analysis, as determined by the Court of Appeals, makes it harder, but by no means impossible, for Defendants to establish fair use where such licenses were available but were not purchased.

The fair use doctrine is codified at 17 U.S.C. § 107, as follows:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

17 U.S.C. § 107.

In reversing this Court's Order, the Court of Appeals held as follows:

(1) This Court erred in giving each of the four factors equal weight, and in evaluating the four § 107 factors in a segmented add- up-the-factors analysis, rather than conducting a holistic analysis. Op. at 56-57; Patton at 1260.

(2) Fair use factor one favors fair use in this case despite the nontransformative nature of Georgia State's use (the excerpts are nontransformative because they are mirror-image copies of a part of the book); Georgia State is a nonprofit educational institution and the excerpts were used for the purpose of teaching students. Op. at 60-75; Patton at 1267-68.

(3) "Where the excerpts of Plaintiffs' works contained evaluative, analytical, or subjectively descriptive material that surpasses the bare facts necessary to communicate information, or derives from the author's experiences or opinions, the District Court should have held that the second factor was neutral, or even weighed against fair use in cases of excerpts that were dominated by such material. That being said, the second fair use factor is of relatively little importance in this case." Op. at 80-81; Patton at 1270.

(4) This Court erred in holding that factor two favored fair use in every case. Op. at 79; Patton at 1269-71.

(5) The third factor addresses whether Defendants have " 'helped themselves overmuch' of the copyrighted work in light of the purpose and character of the use," citing Peter Letterese & Assocs. v. World Inst. of Scientology Enter., Int'l., 533 F.3d 1287, 1314 (11th Cir. 2008). Thus, factor three is intertwined with factor one and also with factor four in that it "partly functions as a heuristic to determine the impact on the market for the original." Op. at 82; Patton at 1271.

(6) in determining the permissible quantity of materials which may be copied under factor three, the Court must consider "not only ... the quantity of the materials used, but ... their quality and importance, too." Op. at 83; Patton at 1271 (quotation omitted).

(7) This Court erred in holding that factor three always favored fair use when the excerpt was no more than ten percent of the copyrighted book, or one chapter in the case of a book with ten or more chapters. Op. at 83; Patton at 1271-72.

(8) Because Defendants' use is wholly nontransformative, the threat of market substitution under factor four is severe, strengthening the importance of factor four in the overall analysis. Op. at 92-93; Patton at 1275-76.

(9) This Court erred in not assigning more weight to factor four than to the other factors because "... Defendants' unpaid copying was nontransformative and they used Plaintiffs' works for one of the purposes for which they were marketed." Op. at 111; Patton at 1283.

(10) Under factor four, the Court must consider "(1) the extent of the market harm caused by the particular actions of the alleged infringer," and "(2) whether unrestricted and widespread conduct of the sort engaged in by the defendant[ ] would result in a substantially adverse impact on the potential market." Op. at 92; Patton at 1275 (quotation omitted). The adverse impact is primarily that of market substitution; i.e., "use that supplants any part of the normal market for a copyrighted work." Id."... the importance of [the fourth] factor will vary, not only with the amount of harm, but also with the relative strength of the showing on the other factors." Id.

(11) "... the District Court did not err in finding that 'Defendants' use of small excerpts did not affect Plaintiffs' actual or potential sales of books.' " Op. at 94; Patton at 1276 (quoting Order at 74; Becker at 1236 ).

(12) "[Therefore] this case [now] concerns not the market for Plaintiffs' original works themselves or for derivative works based upon those works, but rather a market for licenses to use Plaintiffs' works in a particular way." Op. at 98; Patton at 1277-78.

(13) "Cognizant that fair use is an affirmative defense, the District Court kept the overall burden on Defendants to show that 'no substantial damage was caused to the potential market for or the value of Plaintiffs' works' in order to prevail on the question of whether the fourth factor should favor fair use." Op. at 101; Patton at 1279 (quoting Order at 76; Becker at 1237, ).

(14) "The central question under the fourth factor is not whether Defendants' use of Plaintiffs' works caused Plaintiffs to lose some potential revenue. Rather, it is whether Defendants' use-taking into account the damage that might occur if 'everybody did it'-would cause substantial economic harm such that allowing it would frustrate the purposes of copyright by materially impairing [Plaintiff's] incentive to publish the work." Op. at 93; Patton at 1276 (citing Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 566-67, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985) ) (emphasis in original).

(15) "... keeping in mind the purposes animating copyright law-the fostering of learning and the creation of new works-we must determine how much of that value [the value of the work to its author and the potential buyers] the implied licensee-fair users can capture before the value of the remaining market is so diminished that it no longer makes economic sense for the author-or a subsequent holder of the copyright-to propagate the work in the first place." Op. at 51; Patton at 1258.

(16) Copyright Clearance Center's ("CCC") licensing program and Plaintiffs' own permissions programs constitute workable markets through which universities like Georgia State may purchase licenses to copy excerpts of Plaintiffs' works. Op. at 94; Patton at 1276.

(17) Plaintiffs bear the burden of showing that CCC provided in 2009 "reasonably efficient, reasonably priced, convenient access" to users who wanted to copy the excerpt in question. Op. at 101; Patton at 1279.

(18) Where a license to make digital copies of an excerpt was not available in 2009, there is a presumption that Defendants' use of the excerpt did not harm the plaintiff-publisher. Plaintiffs can overcome the presumption of no market by going forward with evidence of license availability and also with evidence of a potential, future market. See Op. at 102-03; Patton at 1279-80.

(19) Defendants bear the ultimate burden of persuasion to show that their use did not materially impair the existing or potential market in order to prevail. Op. at 103; Patton at 1280.

(20) "Where the evidence showed that there was a ready market for digital excerpts of a work in 2009, the time of the purported infringements, the District Court found that there was small-due to the amount of money involved-but actual damage to the value of Plaintiffs' copyright. The District Court also properly took into account that widespread use of similar unlicensed excerpts could cause substantial harm to the potential market. Thus, where there was a license for digital excerpts available, the District Court generally held that the fourth factor weighed against a finding of fair use. In close cases, the District Court went further and examined the amount of permissions income a work had generated in order to determine how much this particular revenue source contributed to the value of the copyright in the work, noting that where there is no significant demand for excerpts, the likelihood of repetitive unpaid use is diminished." Op. at 99-100; Patton at 1278-79 (footnote omitted).

(21) Where the evidence shows there is no significant demand for an excerpt, the likelihood of repetitive unpaid use is diminished. Id.

(22) The fact that programs exist through which universities may license excerpts of Plaintiffs' works does not automatically mean that the Plaintiffs are entitled to payment for use of the excerpts. Op. at 95; Patton at 1276. "The goal of copyright is to stimulate the creation of new works, not to furnish copyright holders with control over all markets." Id. Nonetheless, availability of licenses means that an unauthorized use should be considered less fair when there is a means to pay for the use. On the other hand, where licenses are not available, this makes factor four generally weigh in favor of fair use. Op. at 95-96; Patton at 1276-77.

(23) Plaintiffs may not "head off a defense of fair use by complaining that every potential licensing opportunity represents a potential market for purposes of the fourth fair use factor." Op. at 98; Patton at 1278.

(24) This Court erred in considering as a supplemental factor that Defendants' use promotes the dissemination of knowledge;

this should have been considered as a part of factor one, which holds that educational uses are more apt to be fair. Op. at 107-08; Patton at 1282.

(25) This Court erred in considering as a supplemental factor that limited unpaid copying will not deter academic authors from creating new academic works; this should have been considered as part of the factor one analysis. Op. at 107-08; Patton at 1282.

(26) This Court erred in considering as a supplemental factor that "[t]he slight limitation of permissions income caused by the fair use authorized by this Order will not appreciably diminish Plaintiffs' ability to publish scholarly works and will promote the spread of knowledge"; this should have been considered as part of the factor four analysis. Op. at 107; Patton at 1282.

* * *

In its original Order, this Court used a general model to analyze fair use which was not specific to nontransformative nonprofit educational uses. Factor one was held to strongly favor fair use in all cases because of the nonprofit educational nature of the use. After examination of the nature of the work in question, factor two was found to favor (but not strongly favor) fair use in all instances. With respect to factor three, the Court set a cutoff of 10% of the pages of the book or one chapter for a book of ten chapters or more as the limit of fair use. In instances where the use fell within the limit, this Court held that Defendants' use favored (but did not strongly favor) fair use. Finally, the Court held that in all instances where permissions were available and were not paid, factor four strongly disfavored fair use. In those cases where factors one and two favored Defendants (factor one weighing heavily in Defendants' favor and factor two weighing in Defendants' favor) and both factors three and four weighed in favor of Plaintiffs (factor three weighing in Plaintiffs' favor and factor four weighing heavily in Plaintiffs' favor), a tie was created which the Court went on to resolve by considering the evidence concerning damage to the potential permissions market.

In light of the Court of Appeals' direction, that approach must be modified. First, in the fair use analysis for each infringement claim this Court will use the same fair use model as the Court of Appeals. It will be specific to the nonprofit educational purpose of teaching and the nontransformative nature of the use (mirror image copying). The method which will be used is to first evaluate each factor. The evaluation of factor one ("purpose and character of the use") will reflect the nontransformative nature of Defendants' use. Factor one will favor fair use in all cases. It will not "strongly favor" fair use. Op. at 74; Patton at 1267. The evaluation of factor two ("nature of the copyrighted work") will apply the standard set by the Court of Appeals. The evaluation of factor three ("amount and substantiality of the portion used") will take into account the effect of the favored nonprofit educational purpose of the use under factor one, plus the impact of market substitution as recognized under factor four, in determining whether the quantity and substantiality (value) of Defendants' unlicensed copying was excessive. All relevant record evidence will be considered; the factor three outcomes will vary.

The evaluation of factor four ("effect of the use upon the potential market for or value of the copyrighted work") will first look to see whether permissions were available to make digital copies of the excerpt in 2009, the year in which the claimed infringements occurred. If so, it follows that widespread copying of unpaid copyrighted excerpts at colleges and universities ("if everybody did it") could have caused substantial damage to the potential digital permissions market for excerpts of the copyrighted work at issue. It also could have caused substantial damage to the value of the copyrighted work. Factor four will initially favor Plaintiffs when digital permissions were available in 2009.

However, the Court of Appeals held that Defendants may seek to prove that in fact, the demand for excerpts of a particular copyrighted work was so limited that repetitive unpaid copying of excerpts from that work would have been unlikely even if unpaid copying of excerpts was a widespread practice in colleges and universities. In such a case the actions of Defendants in using unpaid excerpts would not have caused substantial damage to the potential market for the copyrighted work to such a degree that Plaintiffs would lose the incentive to publish the work. Defendants may also seek to prove that their actions (even assuming widespread availability of unpaid excerpts) did not substantially affect the value of the copyrighted work in 2009. Defendants can do this by pointing to the records of permissions sales for excerpts from the book, as well as any other evidence which bears on harm to the potential market for the copyrighted work or harm to the value of the copyrighted work. Defendants may also seek to prove that the portion of the market captured by unpaid use is so slight that it would have had no effect on the author's or the Plaintiffs' decision to propagate the work in the first place. The outcome on factor four will vary according to the evidence. Whether factor four "strongly" favors fair use will depend on the evidence. Defendants have the final, overall burden of proof on factor four.

An initial determination will be made as to whether each of the four factors favors or disfavors fair use. The factors then will be weighed together. Factor four will be given additional weight and factor two will be given comparatively little weight for this purpose, as directed by the Court of Appeals. If a particular factor has noteworthy strength or weakness, the weight of that factor will be adjusted for purposes of the final weighing process.

Regarding the relative importance of the factors in a case involving nonprofit educational use of a mirror image of an excerpt, generally speaking factors one and three will rank close together, but a good bit behind factor four. Factors one and three, though of lesser importance than factor four, are still important-factor one for obvious reasons and factor three because the amount and substantiality of the copyrighted material taken is a critical consideration in determining whether Defendants' unpaid use was fair. Indeed, factor three is at the vortex of the holistic evaluation required by the Court of Appeals' Opinion. The Court of Appeals held that factor two is of "comparatively little importance," putting it in a distant last position. Op. at 81; Patton at 1270. This Court estimates the initial, approximate respective weights of the four factors as follows: 25% for factor one, 5% for factor two, 30% for factor three, and 40% for factor four.

II. Preliminary Matters

This Court has previously held that CCC was a ready market for excerpts of copyrighted works in 2009. It implicitly decided that where the Plaintiffs had decided to use CCC to market digital permissions for specific works, those permissions were available at a reasonable price and in a convenient and reasonably efficient manner. The Court also pointed out that Defendants had not complained that CCC's permissions prices are unreasonable. Order at 76; Becker at 1237. Defendants now ask the Court to reconsider the question whether Plaintiffs' fees for permissions to make digital copies of excerpts are reasonable [Defs. Remand Brief, Doc. 501 at 16]. They point to the example of Professor Dixon's class in which only 21 of 59 students downloaded an assigned excerpt [Id. at 53-55]. They point out that CCC's policy would have required a payment calculated by multiplying the per-page rate times the number of pages copied times the number of students in the class (plus a $ 3.00 service fee) [Id. at 17]. Defendants state that in this particular example the payment required by CCC would have been $ 250.80 whereas basing the charge on the 21 students would have yielded a total charge of $ 88.20 [Id. ].

Plaintiffs oppose Defendants' request [Pls. Remand Reply Br., Doc. 503 at 11], characterizing it as arbitrary. The Court does not agree that it is arbitrary. However, the record shows that CCC's fee is set in advance, when permission is granted and payment is made based on a presumed number of users (students in the class) [Testimony of Carol Richman, Doc. 401 at 16-17]. While it is possible that a different arrangement could be established, the workability of such an arrangement is unclear; it is too late to make this request.

* * *

The infringement claims in this case arise from the use of unlicensed excerpts in 24 classes at Georgia State in 2009. Two- thirds of these classes (16 classes) had fewer than 20 students; four classes had 20-30 students; and the four remaining classes had between 42 and 114 students. The Court does believe there is merit in an argument that, for very large classes, basing the price charged (in part) on the number of students in the class could result in an excessive fee and that this reality should be taken into account in the fair use analysis. It is potentially applicable to Professor Dixon's class of 59 students, Professor Lasner's class of 114 students, Professor Hankla's class of 48 students, and Professor Ohmer's class of 42 students. If applicable, it could affect the factor three analysis ("the amount and substantiality of the amount used in relation to the copyrighted work as a whole") in an instance where the amount of material used by the professor borders on an excessive amount. It is considered in the analyses for Professor Dixon's use of an excerpt from African American Single Mothers , see infra at p. 1287, and Professor Lasner's use of an excerpt from The Politics of Public Housing , see infra p. 1316.

* * *

On February 24, 2015 Plaintiffs filed a motion to reopen the record on remand [Doc. 489]. The motion sought to reopen the record to add evidence that permissions to make digital copies of certain of Plaintiffs' works were available in 2009. Defendants opposed the motion. Plaintiffs asked that the Court admit new evidence and re-evaluate 17 infringement claims of Oxford and Cambridge (9 from Oxford, 8 from Cambridge), asserting that this would be helpful in fashioning injunctive relief. An order entered April 22, 2015 [Doc. 494] commented "Plaintiffs have the cart before the horse" and stated that the Court would first make rulings on the infringement claims which were already before it; it would then determine what future course of action might be appropriate. Plaintiffs' motion was dismissed without prejudice.

Undeterred by the Court's April ruling, on June 1, 2015 Plaintiffs unilaterally filed a document titled Notice of Filing [Doc. 499]; a Declaration of Debra J. Mariniello, an officer of Copyright Clearance Center, was attached. The declaration states that 17 of Oxford's and Cambridge's excerpts involved in this case were available for digital copying through CCC in 2009. These excerpts save one had not been identified by the trial evidence as being available for digital copying. On the same date Plaintiffs filed Plaintiffs' Remand Brief [Doc. 500] which contains fair use analysis for 39 of the 48 infringement claims which are presented for fair use analysis. This includes 16 claims for which Plaintiffs rely exclusively on the Mariniello declaration to establish availability of digital permissions in 2009.

Defendants object to the filing and move that Plaintiffs' Remand Brief and the Mariniello declaration be stricken [Doc. 502]. The Court grants Defendants' motion. Plaintiffs' reliance on the Mariniello declaration in the Remand Brief is obviously improper. It is offered years after the close of the trial and entry of the judgment and after review by the Court of Appeals. The declaration is not in evidence. Defendants have had no opportunity to question Mariniello about the opinions referenced in her declaration. Also, Mariniello's stated opinions are conclusory. She does not explain how the information in CCC's computer led her to the conclusion that digital permissions for the various works were available in 2009. Allowing consideration of her declaration would fly in the face of precedent and logic. The Mariniello declaration [Doc. 499] is stricken from the record. All references in Plaintiffs' Remand Brief [Doc. 500] to the Mariniello declaration are stricken; all arguments in the remand brief based on the Mariniello declaration are stricken.

* * *

In the fair use analyses for the various claims which follow, factor one ("the purpose and character of the use") will uniformly favor fair use because all uses were strictly of a nonprofit educational character for the sole purpose of teaching students in classes at a nonprofit educational institution, notwithstanding the nontransformative nature of the use. This outcome will be stated summarily in each fair use analysis to avoid repetition.

* * *

Factor two is "the nature of the copyrighted work." 17 U.S.C. 107(2). To undertake this analysis the Court has focused on the particular chapter(s) used by the professor, rather than on the entire copyrighted work. While the Court has not examined all of the chapters in the books with the same scrutiny as the particular chapter at issue, it is satisfied that the nature of all chapters in these books (and thus the books as a whole), with two exceptions, would be classified as either neutral to fair use or as disfavoring fair use. The two exceptions are Ancient Egyptian Materials and Technology [Pls. Ex. 6] and International Health Organisations [Pls. Ex. 108]. Those two books and the excepts from them are properly classified as favoring fair use or neutral on fair use. Op. at 81; Patton at 1270.

* * *

The Court now turns to fair use analysis for individual infringement claims. They will be considered in the same sequence as in this Court's original Order, but omitting the claims already finally adjudicated by the Court of Appeals.

FAIR USE EVALUATION

A. Professor Kaufmann

Professor Kaufmann is an assistant professor at Georgia State in the College of Education [Tr. Vol. 5, Doc. 403 at 35-36]. Professor Kaufmann's courses teach students methods for conducting qualitative research, and consist predominantly of Ph.D. students [Id. ].

EPRS 8500 Qualitative/Interpretive Research in Education I, Maymester 2009

EPRS 8500 was taught by Professor Jodie Kaufmann during Maymester and fall of 2009. The course syllabus required that students buy three texts, and that they complete several required readings which had been posted on Georgia State's electronic reserves system ("ERES") [Tr. Vol. 5, Doc. 403 at 68-76, 143-45; Pls. Exs. 516, 518].

1. The Craft of Inquiry: Theories, Methods, Evidence (Robert R. Alford, Oxford 1998)

One of the posted readings was an excerpt from The Craft of Inquiry: Theories, Methods, Evidence ("The Craft of Inquiry "), by Robert R. Alford [Pls. Ex. 372]. Pages 21-31 (11 pages) of The Craft of Inquiry , the entirety of chapter two and 6.25% of the book, were uploaded to ERES for distribution to the students in Professor Kaufmann's EPRS 8500 Maymester 2009 course. This was required reading [Doc. 403 at 120-21].

Fair Use Analysis

Factor one ("the purpose and character of the use") favors fair use.

As to factor two ("the nature of the copyrighted work"), The Craft of Inquiry is an academic non-fiction work concerning the process of constructing a research project. The author's thesis is that three major paradigms of inquiry-multivariate, interpretive and historical-should be considered in this process. Various chapters of the book discuss the three major paradigms. Professor Kaufmann assigned the reading (via ERES) of chapter two, pages 21-31, "Designing a Research Project." This chapter advises that the writer should focus on the cognitive, not the emotional, choices that are presented. The writer should start the project by identifying a problem of interest and identifying theoretical and empirical entry points to the discussion. Then, the writer should move back and forth between those "tracks of analysis" to formulate one or more research questions. Once one or more research questions have been identified, the writer should turn to "a set of choices you will make in your project," namely the three paradigms of inquiry.

The writer's style in this chapter is modestly conversational but still rather formal. He addresses the reader as "you" and occasionally refers to himself as "I." The chapter is objectively descriptive of the various steps in developing a research question and the theoretical and empirical "tracks of analysis." Chapter two has no humorous or fanciful aspects. It is didactic and prescriptive in a conventionally academic manner. It does contain some elements of author opinion, though they are not identified as such. Author opinion does not dominate. Under the standard set by the Court of Appeals, factor two neither favors nor disfavors fair use. It is neutral.

As to factor three ("the amount and substantiality of the portion used in relation to the copyrighted work as a whole"), Professor Kaufmann uploaded one full chapter, 6.25% of the book (11 pages) [Pls. Ex. 372]. This selection was narrowly tailored to fit the pedagogical aim of the course and was not excessive for this purpose. The percentage of the book used (6.25%) is small. This chapter is not the heart of the work. While chapter two has no greater value than any other chapter of the book, the Court does consider that a whole chapter of the book has greater value (quality) than part of a chapter, because it covers a complete, cohesive topic. The favored educational use of factor one-rather than a commercial use-tends to support more copying rather than less; on the other hand, the threat of market substitution pulls toward favoring less copying, rather than more. Taking into account the small number of pages (11 pages) in the excerpt and the small percentage of the book, the Court finds the impact of market substitution to be well within acceptable limits. Taking all of the foregoing into account, factor three favors fair use.

As to factor four ("the effect of the use upon the potential market for or value of the copyrighted work"), the Court of Appeals held that the small excerpts involved in this case did not substitute for the books. Op. at 94; Patton at 1276. However, permissions to make digital copies of excerpts from The Craft of Inquiry were available from CCC in 2009 [Pls. Ex. 375]. Defendants' unpaid use cost Oxford $ 14.89, thereby causing small but actual damage to the value of Oxford's copyrighted work and depriving Oxford of $ 14.89 in permissions revenue. Order at 110, 110 n.56; Becker at 1254, 1254 n.56. If "everybody" (colleges and universities) had programs like Georgia State's allowing unpaid copying of excerpts, Oxford could lose substantial revenues from digital permissions sales for this work, possibly causing substantial damage to the market for the copyrighted work. There also could be substantial damage to the value of the copyrighted work. Viewed alone, these considerations initially cause factor four to weigh in Oxford's favor.

Nonetheless, Defendants claim there was no substantial actual or potential damage to Oxford stemming from widespread use of excerpts of The Craft of Inquiry , much less the sort of damage which could impact Oxford's desire to publish the work. Defendants point to the evidence which shows that Oxford has gotten little to no permissions income from sales of excerpts of the book since its publication in 1998. Specifically, Oxford only received $ 12.36 in electronic course content service ("ECCS") permissions from CCC in 2006 and $ 188.62 in Academic Permissions Service ("APS") revenue in 2008 [Pls. Ex. 375]. Oxford sold no in-house permissions for copying excerpts of The Craft of Inquiry between publication in 1998 and November 7, 2010. It is hard to see how (as of 2009) there was potential substantial damage to Oxford's expectation of permissions income where there is so little likelihood of repetitive use of unpaid excerpts from this book. Potential book sales were not affected at all. Oxford had book sales of The Craft of Inquiry of $ 86,325 between publication and November 7, 2010 [Pls. Ex. 357]. The evidence thus clearly shows the potential market for sales of the copyrighted work was barely affected. The Court also finds that, while Defendants' unpaid use did cost Oxford $ 14.89, the negative effect on the value of the copyrighted work was tiny even if one assumes that other colleges and universities have policies similar to Georgia State's, because of the low chance of repetitive use of this excerpt. Accordingly, in the end factor four favors fair use, even though Defendants have the burden of proof.

Weighing the four factors together, giving factor four extra weight and factor two insubstantial weight as directed by the Court of Appeals, Defendants prevail on the fair use defense.

2. Handbook of Feminist Research: Theory and Praxis (Sharlene Nagy Hesse-Biber ed., Sage 2006)

Professor Kaufmann distributed unpaid digital copies of chapter 26 from the Handbook of Feminist Research: Theory and Praxis ("Handbook of Feminist Research ") for her Maymester 2009 Qualitative/Interpretive Research in Education course. The excerpt is titled "Feminist Research Ethics," by Judith Preissle [Tr. Vol. 5, Doc. 403 at 112; Pls. Ex. 243], The excerpt (pages 515-534) is 20 pages long and constitutes 2.61% of the book's 767 total pages [Pls. Ex. 243]. It was required reading [Doc. 403 at 112; Pls. Ex. 516].

Fair Use Analysis

Factor one favors fair use.

Moving to factor two, the Handbook of Feminist Research is an academic book that aims to enhance the reader's understanding of feminist research. Through the introduction of different feminist theories and methods, the book teaches the reader how feminist schools of thought impact both feminist research and scholarship in women's studies. The book contains four sections which (1) detail the rise of feminist research; (2) debate the existence of a unique feminist method; (3) investigate theoretical and practical issues for feminist researchers; and (4) present a combination of various views within the field to foster the creation of new research paradigms.

Chapter 26, "Feminist Research Ethics," begins by framing a concept of feminist ethics that focuses on relationships between the researcher and their subjects. The chapter then addresses how feminist ethics has affected three areas of traditional research: ethics of research purpose, ethics of research roles and conduct, and ethics of representation. The conclusion of the chapter focuses on how conducting feminist research amplifies certain ethical challenges, including the disadvantages a researcher faces by remaining detached from their subjects and the potential power wielded by participants.

Chapter 26 is written in a formal tone, with use of the first person only to indicate the structure and direction of the work. The majority of the chapter is spent summarizing and detailing various ethical studies performed by other feminist researchers. The author complements these summaries with her own opinions on the ethics of feminist research. The additional observations provided by the author appear to come from her own analysis. Thus, the author's contribution is twofold: she synthesizes ethical conundrums within her field while describing other unresolved ethical issues. However, author opinion and analysis do not dominate. This excerpt, therefore, neither favors nor disfavors fair use under factor two.

Moving to factor three, Professor Kaufmann uploaded 20 pages of the Handbook of Feminist Research to ERES. These pages make up 2.61% of the total book, which is a very small (not merely small) amount [Pls. Ex. 243]. This excerpt was narrowly tailored to fit the pedagogical aim of the course. Additionally, chapter 26 does not constitute the heart of the book. Factor three also considers the purpose of the use and the impact of substitution on the market for the work. Op. at 82; Patton at 1271. Because the book was being used for a nonprofit, educational purpose, the very small percentage of the book easily tilts in favor of fair use. The page count adequately limits the substitution effect of the use; it results in a smaller loss of permissions payments. Even though a full chapter of the book was used, taking all of the foregoing into account, factor three easily favors fair use.

Factor four looks to the effect of Defendants' use on the value of the copyrighted work and the potential market for the work. Digital permissions were available for excerpts of the Handbook of Feminist Research in 2009 [Pls. Ex. 248]. By providing the excerpts free to her class, Professor Kaufmann deprived Sage of $ 31.30, less royalties payable to the external editor, in net revenue from permissions. Order at 111; Becker at 1255. This caused actual, but tiny, damage to the value of the copyrighted work. In addition, if other colleges and universities allowed unpaid use of copyrighted excerpts, it could cause substantial harm to the potential market for and the value of the copyrighted work. Factor four initially disfavors fair use.

Defendants can still prevail on factor four by proving that widespread unpaid copying practices would not "cause substantial economic harm such that allowing it would frustrate the purposes of copyright by materially impairing [the publisher's] incentive to publish the work." Op. at 93; Patton at 1276. The Handbook of Feminist Research was first published in 2006 [Pls. Ex. 247]. The following table shows book sales for the Handbook of Feminist Research since its publication:

Year Book Sales Net Revenue 2006 $17,241.00 2007 $4,153.45 2008 $15,015.80 2009 $12,052.65 2010 $5,623.08 Total $94,085.88

[Pls. Ex. 248].

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

Year Permissions Sales 2006 $0.00 2007 $0.00 2008 $116.29 2009 $96.45 2010 $770.72 Total $983.46

[Pls. Ex. 248].

The question here is twofold. It pertains to harm to the potential market for the copyrighted work beginning in 2009, the time that the alleged infringement occurred. It also pertains to damage to the value of the copyrighted work in 2009. For both, the Court assumes that "everybody" (all colleges and universities) had programs similar to Georgia State's (allowing unpaid copying of small excerpts of copyrighted works) in 2009 and thereafter.

Based on the data listed above, the Court finds that the value of the copyrighted work in 2009 was almost exclusively in book sales, not permissions. Defendants' actions had no impact on book sales. Op. at 94; Patton at 1276. Defendants' actions could have had some very small impact on the actual or potential market for digital permissions sales. But it is unlikely that Defendants' use of unpaid excerpts (even assuming the widespread availability of programs like Georgia State's) substantially damaged the value of the copyrighted work. It is also unlikely that Defendants' use of unpaid excerpts caused substantial damage to the potential market for the copyrighted work (book sales and digital permissions sales), such that Sage would lose its incentive to publish the Handbook of Feminist Research. Factor four, therefore, favors a finding of fair use.

In summary, factors one, three, and four favor fair use, while factor two is neutral. Weighting these factors as directed by the Court of Appeals, the Court finds that the overall weight of the four factors favors fair use. Defendants accordingly prevail on their fair use defense as to the Handbook of Feminist Research.

3. Handbook of Social Theory (George Ritzer & Barry Smart eds., Sage 2001)

Professor Kaufmann assigned chapter 17 of the Handbook of Social Theory for her May 20, 2009 class session in EPRS 8500 [Tr. Vol. 5, Doc. 403 at 113; Pls. Ex. 516]. The chapter is titled "Symbolic Interactionism at the End of the Century" ("Symbolic Interactionism"), and it was written by Kent L. Sandstrom, Daniel D. Martin, and Gary Alan Fine. The chapter (pages 217-228), is 12 pages long and 2.12% of the 564-page total book [Pls. Ex. 288]. It was required reading [Doc. 403 at 113; Pls. Ex. 516].

Fair Use Analysis

Factor one favors fair use.

Factor two looks to the nature of the copyrighted work. The Handbook of Social Theory is an academic book that seeks to survey and define the field of social theory in three steps. The book first discusses the classic social theorists, such as Karl Marx and Max Weber. The second step builds on the work of the classic theorists to present how the field has changed in light of current developments in postmodernism, rational choice theory, and contemporary feminism. The conclusion of the book highlights the current debates within the field as a springboard towards further development of social theory.

Chapter 17, "Symbolic Interactionism," provides an overview of the developments within symbolic interactionism, which is a subset of social theory. The chapter begins by providing six guiding premises of symbolic interactionism: (1) people are unique creatures because of their ability to use symbols; (2) people become distinctively human through their interaction; (3) people are conscious and self-reflexive beings who actively shape their own behavior; (4) people are purposive creatures who act in and towards situations; (5) human society consists of people engaging in symbolic interaction; and (6) to understand people's social acts, we need to use methods that enable us to discern the meanings they attribute to these acts.

With these premises in mind, the bulk of the chapter surveys the contributions made by various lines of social interactionism research. These lines include work on the concept of self, emotional contributions, and the construction of social problems. The authors close by discussing how issues relating to developments in feminism, critical interactionism, and postmodernism will shape the discussion of symbolic interactionism in the future.

Chapter 17 is written in a formal tone, with no use of the first person or conversational techniques. The majority of the excerpt is spent summarizing and comparing other scholarly research in the field. Chapter 17 presents little to no direct opinion of the authors beyond the summaries of their previous works and is devoid of discussion of the authors' personal experiences. The chapter is both objectively and subjectively descriptive. Because the authors' opinion and subjective description do not dominate the discussion, factor two neither favors nor disfavors fair use.

Factor three requires an analysis of the quantity and quality of the excerpt in light of factors one and four. "Social Interactionism" is a 12-page chapter, making up 2.12% of the total pages in the Handbook of Social Theory [Pls. Ex. 288]. The amount taken is tiny, even without the leavening effect of the nonprofit educational purpose and character of the use. Professor Kaufmann assigned the entire chapter, which gives the excerpt greater value than if only part of the chapter had been assigned. However, this chapter does not have any greater value than the other chapters in the work, and does not constitute the heart of the work. The excerpt fit Professor Kaufmann's pedagogical purpose, and the very small number of pages portends a small impact on the permissions market. Taking all of the foregoing into account, factor three easily favors fair use.

Factor four measures the effect of the unpaid use on the value of the copyrighted work and on the potential market for the copyrighted work. Permissions to make digital copies of the Handbook of Social Theory were available in 2009 from Sage [Pls. Ex. 291]. Because Defendants used Sage's copyrighted material without paying for available permissions, Sage lost $ 18.72 in net revenue as a result of Professor Kaufmann's use. Order at 116, 116 n.57; Becker at 1257, 1257 n.57. This caused small but actual damage to the value of Sage's copyrighted work. Moreover, if all colleges and universities were to encourage unpaid use of small excerpts of copyrighted works, this could cause substantial harm to the potential market for this particular copyrighted work. It could also cause substantial harm to the value of the copyrighted work. These considerations cause factor four to initially incline in Sage's favor.

Sage presents evidence that it made £63,483.74 in net revenue from book sales of the Handbook of Social Theory from the date of publication in 2001 to the end of the calendar year in 2010 [Pls. Ex. 291]. The following table shows net book revenues for the Handbook of Social Theory from 2001 to 2010:

Year Net Salem Revenue (Books) 2001 £32,922.61 2002 £5,978.00 2003 £10,066.04 2004 £3,484.36 2005 £1,639.93 2006 £2,136.26 2007 £1,680.54 2008 £3,109.30 2009 £1,028.64 2010 £1,438.06 Total £63,483.74

[Id. ]

The following table shows all permissions revenues from the Handbook of Social Theory since 2004:

Year APS16 ECCS In-House 2005 $47.12 No Evidence £0.00 2006 $0.00 No Evidence £0.00 2007 $127.50 No Evidence £25.74 2008 $298.86 No Evidence £12.48 2009 $18.32 No Evidence £116.48 2010 $13.10 No Evidence £2,309.26 Total $504.90 £2,470.01

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

[Id.; Pls. Ex. 292].

The question here is twofold. It pertains to harm to the potential market for the copyrighted work beginning in 2009, the time that the alleged infringement occurred. It also pertains to the damage to the value of the copyrighted work in 2009. For both, the Court assumes that "everybody" (all colleges and universities) had programs similar to Georgia State's (allowing unpaid copying of small excerpts of copyrighted works) in 2009 and thereafter.

Defendants' use of an unpaid excerpt of the Handbook of Social Theory had no impact on the potential market for or value of the copyrighted book because the unpaid excerpts did not substitute for the books. That has already been decided. Op. at 94; Patton at 1276. Defendants' use had some small impact on the potential market for digital permissions for excerpts of the book, but in combination with no loss of book sales the potential market was barely impacted. Put another way, the Court is persuaded that Defendants' use likely did not have a substantial impact on the potential market for the copyrighted work. Finally, the Court finds that Defendants' use did not disincentivize Sage's continued publication of the work, because Sage can seek permissions fees through CCC's ECCS program and its own in-house program at virtually no marginal cost to itself. As long as there is any possibility of gaining permissions fees, it is in Sage's interest to continue making permissions available. While permissions are available, it follows that the copyrighted work still is in publication. Therefore, the Court finds that Defendants have proven that their unpaid excerpt use, even assuming the widespread use of programs like Georgia State's, did not cause substantial harm to the potential market for or the value of the copyrighted work, such that Sage would be disincentivized from continuing publication of the work. Factor four, therefore, favors fair use.

In summary, factors one, three and four favor fair use while factor two is neutral. Weighting all factors in the manner directed and considering them together, the Court finds that the use of the Handbook of Social Theory constitutes fair use. Sage's claim of infringement fails as to this work.

4. The Sage Handbook of Qualitative Research (Third Edition) (Norman K. Denzin & Yvonna S. Lincoln, eds., Sage 2005)

Professor Kaufmann caused pages 1-32, 357-375, 443-465, and 651-679 of The Sage Handbook of Qualitative Research (Third Edition) ("Handbook, Third Ed. ") , the entirety of four chapters (out of 44 chapters) to be uploaded to Georgia State's ERES system for distribution to the students in her EPRS 8500 Maymester 2009 course as required reading [Tr. Vol. 5, Doc. 403 at 80-81 and 106-11]. The excerpt totaled 102 pages, or 8.30% of the 1,229-page book [Pls. Ex. 267].

Fair Use Analysis

Factor one favors fair use.

Regarding factor two, the first excerpt was pages 1-32, the Introduction to the book. The Introduction, which was written by the external editors of the book, forecasts what will be in the book. It states: "[i]n this introductory chapter, we define the field of qualitative research, then navigate, chart, and review the history of qualitative research in the human disciplines" [Id. at 2]. In addition, "[w]e also present a conceptual framework for reading the qualitative research act as a multicultural, gendered process and then provide a brief introduction to the chapters that follow" [Id. ]. The introduction states, "This volume is intended to serve as a bridge connecting historical moments, politics, the decolonization project, research methods, paradigms, and communities of interpretive scholars" [Id. ]. Qualitative research is stated to be a field of inquiry which "crosscuts disciplines, fields, and subject matters" [Id. ]. Also, "[i]n North America, qualitative research operates in a complex historical field that crosscuts at least eight historical moments" [Id. at 2-3]. The editors identify those eight historical moments as the traditional, the modernist, blurred genres, the crisis of representation, the postmodern, postexperimental inquiry, the methodologically contested present, and the fractured future [Id. at 3]. The future is said to be "concerned with moral discourse, with the development of sacred textualities" [Id. ]. "The eighth moment [the fractured future] asks that the social sciences and the humanities become sites for critical conversations about democracy, race, gender, class, nation-states, globalization, freedom and community" [Id. ]. This excerpt is primarily subjectively descriptive and contains considerable opinion of the editors.

Pages 357-375: The second reading assignment was all of chapter 14, titled "Critical Humanism and Queer Theory-Living With the Tensions." The material addresses what the author sees as the need to deal with the tensions between critical humanism and gay/queer research. The author's presentation is straightforward. He recognizes the inherent conflicts in the two traditions, but concludes that "there are some commonalities" [Id. at 370]. Both, for instance, would ask researchers to adopt a critically self-aware stance. Both would seek out a political and ethical background "even though, in a quite major way, they may differ on this-queer theory has a prime focus on radical gender change, and humanism is broader" [Id. ]. The author's style is conventional; his approach is evaluative. This chapter contains author opinion.

Pages 443-465: This excerpt is the entirety of chapter 17, "Qualitative Case Studies." The author describes the nature of various types of case studies; the intrinsic case study; the instrumental case study; and the multiple case or collective case study. The chapter discusses case selection, the interactivity of the case study, the process of data gathering and the matter of triangulation. This chapter is objectively and subjectively descriptive. It contains author opinion.

Pages 651-679: This excerpt is chapter 25, titled "Narrative Inquiry-Multiple Lenses, Approaches, Voices." The chapter describes the diverse approaches to narrative inquiry, and various methodological issues in contemporary narrative inquiry. The author notes that "a major goal of this edition of the Handbook is exploring how qualitative research can 'advance a democratic project committed to social justice in an age of uncertainty' " [Id. at 667]. This chapter is both objectively and subjectively descriptive; it contains author opinion and evaluative description.

Under the standard set by the Court of Appeals, the foregoing excerpts as a whole disfavor fair use because author opinion, subjective description and evaluative expression dominate. Factor two disfavors fair use.

As to factor three, Professor Kaufmann's selected excerpts constitute 8.30% of the pages in the book (102 pages in total) and the entirety of four chapters, one of which is the Introduction. The selections fit the pedagogical aim of the course. None of the chapters constitutes the heart of the work. However, even taking into account the impact of the favored nature of the use under factor one, the quantity of material used is extremely large. The use of four full chapters of the book leans strongly against fair use. That the book contains 44 chapters does not alter the Court's thinking. Regarding the quality (value) of the material taken, a whole chapter of a book has greater value than part of a chapter because the whole chapter covers a complete, cohesive topic. Copying four chapters draws a very large amount of value. Also, the total page length of the excerpts (102 pages) is extremely large, causing considerable market substitution (lost permissions sales). Weighing all of these considerations together, factor three weighs strongly against fair use.

As to factor four, permissions to make digital copies of excerpts were available in 2009 from both Sage and CCC. Sage lost permissions income in the amount of $ 159.34 on account of Defendants' unpaid use. Order at 120; Becker at 1259. Moreover, if other universities and colleges allowed professors to use unpaid copies of excerpts of copyrighted books it could cause substantial damage to Sage's right to receive potential permissions income for digital excerpts of the Handbook, Third Ed. and it could cause substantial damage to the value of the copyrighted work. This initially disfavors fair use.

While the Court of Appeals' ruling leaves open to Defendants a possible argument to rebut Plaintiffs' showing, Defendants concede this argument for Professor Kaufmann's use in the Maymester 2009 course [see Defs. Remand Br., Doc. 501 at 39-40]. Factor four favors Plaintiffs.

In summary, factor one favors Defendants; factors two, three and four favor Sage. In addition, the Court gives factor three extra weight in the final analysis because of the strength of the evidence on factor three.

After considering all four factors together, giving factor three extra weight and factors four and two the weight directed by the Court of Appeals, the Court finds Defendants' use of excerpts from the Handbook, Third Ed. was not a fair use. Thus, this claim of copyright infringement succeeds.

5. Handbook of Critical and Indigenous Methodologies (Norman K. Denzin & Yvonna S. Lincoln eds., Sage 2008)

Professor Kaufmann assigned two chapters from the Handbook of Critical and Indigenous Methodologies for her EPRS 8500 course: chapter five (pages 85-99), titled "Critical Race Theory and