Cambridge University Press v. Patton

Three publishing houses, Cambridge University Press, Oxford University Press, and Sage Publications, Inc. (collectively, “Plaintiffs”) allege that members of the Board of Regents of the University System of Georgia and officials at Georgia State University (“GSU”) (collectively, “Defendants”) infringed Plaintiffs’ copyrights by maintaining a policy which allows GSU professors to make digital copies of excerpts of Plaintiffs’ books available to students without paying Plaintiffs. Plaintiffs alleged seventy-four individual instances of infringement, which took place during three academic terms in 2009. The District Court issued an order finding that Plaintiffs failed to establish a prima facie case of infringement in twenty-six instances, that the fair use defense applied in forty-three instances, and that Defendants had infringed Plaintiffs’ copyrights in the remaining five instances.

Finding that GSU’s policy caused the five instances of infringement, the District Court granted declaratory and injunctive relief to Plaintiffs. Nevertheless, the District Court found that Defendants were the prevailing party and awarded them costs and attorneys’ fees. Because we find that the District Court’s fair use analysis was in part erroneous, we reverse the District Court’s judgment; vacate the injunction, declaratory relief, and award of costs and fees; and remand for further proceedings consistent with this opinion.

I.

A.

Like many recent issues in copyright law, this is a case in which technological advances have created a new, more efficient means of delivery for copyrighted works, causing copyright owners and consumers to struggle to define the appropriate boundaries of copyright protection in the new digital marketplace. These boundaries must be drawn carefully in order to assure that copyright law serves its intended purpose, which is to promote the creation of new works for the public good by providing authors and other creators with an economic incentive to create. See Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156, 95 S.Ct. 2040, 2044, 45 *1238L.Ed.2d 84 (1975). If copyright’s utilitarian goal is to be met, we must be careful not to place overbroad restrictions on the use of copyrighted works, because to do so would prevent would-be authors from effectively building on the ideas of others. Some unpaid use of copyrighted materials must be allowed in order to prevent copyright from functioning as a straightjacket that stifles the very creative activity it seeks to foster. If we allow too much unpaid copying, however, we risk extinguishing the economic incentive to create that copyright is intended to provide.

The fair use doctrine provides a means by which a court may ascertain the appropriate balance in a given case if the market actors cannot do so on their own. Fair use is a defense that can excuse what would otherwise be an infringing use of copyrighted material. See 17 U.S.C. § 107 (“[T]he fair use of a copyrighted work ... is not an infringement of copyright.”). To prevail on a claim of fair use, a defendant must convince the court that allowing his or her unpaid use of copyrighted material would be equitable and consonant with the purposes of copyright. In order to make this determination, the court must carefully evaluate the facts of the case at hand in light of four considerations, which are codified in the Copyright Act of 1976: (1) the purpose of the allegedly infringing use, (2) the nature of the original work, (3) the size and significance of the portion of the original work that was copied, and (4) the effect of the allegedly infringing use on the potential market for or value of the original. Id. These factors establish the contours within which a court may investigate whether, in a given case, a finding of fair use would serve the objectives of copyright. Here, we are called upon to determine whether the unpaid copying of scholarly works by a university for use by students — facilitated by the development of systems for digital delivery over the Internet — should be excused under the doctrine of fair use.

Plaintiffs are three publishing houses that specialize in academic works. Plaintiff Cambridge University Press (“Cambridge”) is the not-for-profit publishing house of the University of Cambridge in England, having an American branch headquartered in New York City. Plaintiff Oxford University Press, Inc. (“Oxford”) is a not-for-profit United States corporation associated with Oxford University in England and headquartered in New York City. Plaintiff Sage Publications, Inc. (“Sage”) is a for-profit Delaware corporation, headquartered in Sherman Oaks, California.

Plaintiffs do not publish the large, general textbooks commonly used in entry-level university courses. Rather, Plaintiffs publish advanced scholarly works, which might be used in upper-level undergraduate and graduate courses. Cambridge and Oxford publish scholarly books and journals on niche subject areas. Their works involved in this case include research-based monographs, which aré “small, single author books which give in-depth analysis of a narrow topic,” Cambridge Univ. Press v. Becker, 863 F.Supp.2d 1190, 1212 (N.D.Ga.2012) (footnote omitted), instructional books, trade books, and other works on academic topics. Sage primarily publishes books on the social sciences. AH' three plaintiffs publish, in addition to works by a single author, “edited books” which feature the contributions of multiple authors. Id.

Plaintiffs market their books to professors who teach at universities and colleges. Cambridge and Oxford regularly send complimentary copies of their publications to professors. Sage provides trial copies upon request. Plaintiffs intend that professors use Plaintiffs’ publications in their *1239work ánd assign them as required reading so that students will purchase them.

Rather than assigning whole books, some professors assign or suggest excerpts from Plaintiffs’ books as part of the curriculum for their courses. Professors might do this by putting the work on reserve at the university library so that students can visit the library to read an assigned excerpt. Or, professors might prepare a bound, photocopied, paper “coursepack” containing excerpts from several works for a particular course. Often, a third-party copy shop assembles these coursepacks, performing the copying and binding, obtaining the necessary licenses from publishers, and charging students a fee for the finished coursepack. In recent years, however, universities— following the trend with regard to distribution of many forms of media the world over — have increasingly abandoned paper coursepacks in favor of digital distribution of excerpts over the Internet.1

GSU is a public university in Atlanta, Georgia. It is part of the University System of Georgia, and is overseen by the Board of Regents of the University System of Georgia. GSU maintains two on-campus systems known as “ERes” and “uLearn” for digital distribution of course materials to students.

ERes (short for “E-Reserves”) is an “electronic reserve system” hosted on servers maintained by GSU and managed by GSU’s library staff. Since 2004, GSU has used ERes to allow GSU students to access course materials — including course syllabi, class notes, sample exams, and excerpts from books and journals — on the Internet via a web browser. In order to place an excerpt from a book or journal on ERes, a professor must either provide a personal copy of the work to the GSU library staff or indicate that the GSU library owns a copy. A member of the library staff then scans the excerpt to convert it to a digital format and posts the scanned copy to ERes. GSU students are given access to an ERes website specific to the courses in which they are enrolled. On each course-specific ERes website, students find their reading assignments listed by title. The scanned excerpts are accessible via hyperlink. When a student clicks a link for a particular assignment, the student receives a digital copy of a scanned excerpt that the student may view, print, save to his or her computer, and potentially keep indefinitely. ERes course websites are password-protected in order to limit access to the students in the particular course. Once a course ends, students no longer have access to the ERes website for that course.

uLearn is a “course management system” hosted on servers maintained by the Board of Regents. Like ERes, uLearn provides course-specific webpages through which professors may make course material available, including digital copies of excerpts from books, which students in the course may view, print, or save. The most significant difference between the ERes and uLearn systems is that uLearn allows professors to upload digital copies of reading material directly to their course websites while ERes forces professors to rely *1240on GSU library personnel to upload reading material for them.

ERes and uLearn have been popular at GSU.2 For example, during the Spring 2009 term, paper coursepacks were offered for only about fifteen courses, while instructors in hundreds of courses made readings available on ERes. Thus, the excerpts from larger works that make up some portion of course readings at GSU, and which were once distributed to students via a paper coursepack purchased at the university bookstore, are now largely distributed to students via digital download on the Internet, that the students pay for only indirectly via tuition and fees.

There exists a well-established system for the licensing of excerpts of copyrighted works. Copyright Clearance Center (“CCC”) is ' a not-for-profit corporation with headquarters in Danvers, Massachusetts. CCC licenses excerpts from copyrighted works for a fee, acting on behalf of publishers who choose to make their works available through CCC. These licenses are called “permissions.” All three Plaintiffs offer excerpt-specific permissions to photocopy or digitally reproduce portions of their works, which may be obtained directly from Plaintiffs or through CCC. Permissions are not, however, available for licensed copying of excerpts from all of Plaintiffs’ works.3

CCC offers a variety of permissions services to various categories of users, including corporate, educational, and institutional users. One such service, the Academic Permissions Service (“APS”), licenses educational users to make print copies on a per-use basis. CCC also offers an electronic course content service (“ECCS”) for licensing of digital excerpts by educational users on a per-use basis, that — in 2008, the year for which evidence on the question was presented — offered only a small percentage of the works that were available through APS. ECCS is designed for electronic reserve systems such as ERes and uLearn. Software is available that would allow GSU library personnel to place an order with CCC for a permission to provide students with a digital copy of an excerpt via ERes. CCC also offers an Academic Repertory License Service (“ARLS”) which affords subscribers access to excerpts from a set group of about nine million titles, approximately 17 percent of which are available in digital format. Sage *1241participates in ARLS and did so in 2009, Oxford participated in 2009 with regard to journals but not books, and Cambridge does not participate. GSU did not and does not subscribe to this program.

When the GSU bookstore assembles and sells a paper coursepack containing excerpts from copyrighted works, GSU pays permissions fees for use of the excerpts.4 The central issue in this case is under what circumstances GSU must pay permissions fees to post a digital copy of an excerpt of Plaintiffs’ works to ERes or uLearn.

B.

On April 15, 2008, Plaintiffs filed their original complaint in the United States District Court for the Northern District of Georgia. Plaintiffs alleged that hundreds of GSU professors have made thousands of copyrighted works — including works owned or controlled by Plaintiffs— available on GSU’s electronic reserve systems without obtaining permissions from copyright holders, and- that GSU’s administration facilitated, encouraged, and induced this practice.' Plaintiffs sued Defendants in their official capacities as GSU officials, claiming (1) direct copyright infringement 5 caused by the officials “scanning,- copying, displaying, and distributing Plaintiffs’ copyrighted material;” (2) contributory copyright infringement6 caused by the officials’ “facilitating, encouraging, and inducing librarians and professors to *1242scan, copy, display, and distribute Plaintiffs’ copyrighted material” and “students to view, download, copy and further distribute [Plaintiffs’] copyrighted material;” and (8) vicarious copyright infringement7 caused by the officials’ inducing GSU employees and students to copy Plaintiffs’ copyrighted material, profiting from this practice, and failing to stop it despite having the right and ability to do so. Doc. 1, at 25-28. Plaintiffs sought declaratory and injunctive relief. ’ Plaintiffs supported their allegations with numerous examples of GSU professors posting excerpts of Plaintiffs’ works on GSU’s electronic reserve systems. Defendants filed an Answer, denying Plaintiffs’ allegations of infringement; claiming sovereign immunity and Eleventh Amendment immunity based on Defendants’ status as state officials; and asserting a defense of fair use because “any alleged use of copyrighted materials was for the purpose of teaching, scholarship or research and for nonprofit educational purposes.” Doc. 14, at 2.

On December 15, 2008, Plaintiffs filed their First Amended Complaint. The First Amended Complaint added several members of the Board of Regents as Defendants, alleging that they were ultimately responsible for the alleged acts of infringement at GSU because of their supervisory authority over the University System of Georgia. Defendants’ Answer to the First Amended Complaint again denied infringement, asserted fair use, and claimed sovereign immunity and Eleventh Amendment immunity for all Defendants.

In late December 2008, the University System of Georgia convened a Select Committee on Copyright to review GSU’s then-existing copyright policy, which was called the “Regents’ Guide to Understanding Copyright & Educational Fair Use.”8 On February 17, 2009, the Select Committee announced a new copyright policy for GSU (the “2009 Policy”), which went into effect the same day. Under the 2009 Policy, a revised version of which remains in effect today, GSU professors who wish to post an excerpt of a copyrighted work on ERes or uLearn for distribution to their students must first determine whether they believe that doing so would be fair use. In order to make this determination, professors must fill out a “Fair Use Checklist” for each excerpt.9

The Checklist allows GSU professors to perform a version of the analysis a court *1243might perform should the professor claim fair use in a subsequent copyright infringement suit. As described above, see supra part I.A, the fair use analysis involves a consideration of whether allowing the unpaid use in a given case would be equitable and serve the objectives of copyright in light of four statutory factors, see 17 U.S.C. § 107. For each factor, the Checklist provides several criteria that purportedly weigh either for or against a finding of fair use, each with a corresponding checkbox.10 The Checklist instructs professors to check each criterion that applies, and then add up the checks to determine whether the factor weighs in favor of or against a finding of fair use. After making this tally, the Checklist explains that “[wjhere the factors favoring fair use outnumber those against it, reliance on fair use is justified. Where fewer than half the factors favor fair use, instructors should seek permission from the rights holder.” Doc. 235-2, at 7. Thus, under the 2009 Policy, a GSU professor may post an excerpt of a copyrighted work on ERes or uLearn without obtaining a permission from the copyright holder if the professor first decides that doing so would be protected by the doctrine of fair use, according to the criteria set forth in the Checklist.

After completing an initial round of discovery, both parties moved for summary judgment on February 26, 2010. Plaintiffs alleged that the 2009 Policy had failed to curb the alleged infringement of their copyrighted works, and argued that they were entitled to summary judgment on all claims. Plaintiffs argued that they were entitled to an injunction based on the alleged infringements listed in their First Amended Complaint, that had occurred prior to enactment of the 2009 Policy, and added allegations regarding new instances of infringement, which also occurred prior to enactment of the 2009 Policy. Plaintiffs also argued that injunctive relief was appropriate as to Defendants under Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), which permits prospective injunctive relief against state officers in their official capacities.

Defendants argued that they were entitled to summary judgment on all claims. Defendants also contended that Plaintiffs were only entitled to prospective declaratory and injunctive relief as to ongoing and continuous conduct, and so the District Court should only consider alleged infringements that occurred since GSU enacted the 2009 Policy. Thus, Defendants contended, any claims based on GSU’s superseded pre-2009 policy were moot.. Defendants also claimed that GSU’s adoption of the 2009 Policy had substantially reduced the amount of Plaintiffs’ works used by GSU professors.

On August 11, 2010, and August 12, 2010, the District Court ordered Plaintiffs to produce a list of all claimed infringements of their works that had occurred at GSU during the period following enactment of the 2009 Policy, which included the 2009 “Maymester” (a three-week *1244term), the 2009 summer semester, and the 2009 fall semester. The District Court also required that Plaintiffs provide certain information about the alleged infringements, including the name of the course in which the excerpt of the work was used, the instructor’s name, a title and description of the copied work, the name of the owner of the work’s copyright, the number of pages and chapters in the work, the number of pages and chapters copied, the retail price to purchase the entire work, and the potential cost to license each excerpt at issue. On August 20, 2010, Plaintiffs filed a list showing 126 claimed infringements.

On September 30, 2010, the District Court denied Plaintiffs’ motion for summary judgment. The District Court granted in part and denied in part Defendants’ motion for summary judgment, granting summary judgment to Defendants on the claims of direct and vicarious infringement, and denying summary judgment to Defendants on the claim of contributory infringement.

In its summary judgment order, the District Court construed the First Amended Complaint as claiming that the 2009 Policy as applied to Plaintiffs’ works “has led to continuing abuse of the fair use privilege.” Doc. 235, at 5. Accordingly, the District Court agreed that only alleged acts of infringement that took place after GSU enacted the 2009 Policy were relevant to Plaintiffs’ claims, and held that it would only consider those acts. However, the District Court declined to consider at that time the list of alleged post-2009 Policy infringements that Plaintiffs had provided because the parties had not yet conducted discovery as to these allegations.

The District Court granted summary judgment for Defendants on the direct infringement claim because it found that GSU as an entity is not itself capable of copying or making fair use determinations, and that Defendants cannot be held liable under a respondeat superior theory because “respondeat superior applies in the copyright context as a basis for finding vicarious liability, not direct liability.” Id. at 19. With regard to the vicarious infringement claim, the District Court held that summary judgment for Defendants was appropriate because it found that there was no evidence to support the conclusion that GSU had profited from the allegedly infringing use of Plaintiffs’ works by GSU personnel, or that GSU’s shift to digital distribution of excerpts via its electronic reserve system served as a “direct draw for students or that Defendants have a direct financial interest in copyright infringement.” Id. at 21. With regard to the contributory infringement claim, the District Court denied both Plaintiffs’ and Defendants’ motions for summary judgment, finding that the record was silent as to whether the 2009 Policy “encourage[s] improper application of the fair use defense.” Id. at 30.

The District Court further held:

Going forward, in order to show that Defendants are responsible for the copyright infringements alleged in this case, Plaintiffs must show that the 2009 Copyright Policy resulted in ongoing and continuous misuse of the fair use defense. To do so, Plaintiffs must put forth evidence of a sufficient number of instances of infringement of Plaintiffs’ copyrights to show such ongoing and continuous misuse. Defendants will have the burden of showing that each specified instance of 2009 Copyright Policy infringement was a fair use.

Both sides will be limited to the list of claimed infringements produced in response to the Court’s August 11, 2010 and August 12, 2010 orders.

Id. at 30.

On October 20, 2010, Plaintiffs filed a motion for partial reconsideration of the *1245District Court’s grant of summary judgment for Defendants. Plaintiffs argued, in relevant part, that the District Court erred in dismissing the direct infringement claim because courts routinely hold employers responsible for acts of copyright infringement committed by their employees through the doctrine of respondeat superior without recourse to secondary infringement doctrines. The District Court granted Plaintiffs’ motion, reviving Plaintiffs’ claim of direct infringement, striking Plaintiffs’ label of the claim as “direct infringement,” and construing the claim as an “indirect infringement” claim.11

On November 4, 2010, Defendants moved to dismiss Plaintiffs’ First Amended Complaint for lack of subject matter jurisdiction. Defendants argued that Plaintiffs’ claims were barred by the Eleventh Amendment, and that Plaintiffs could not make use of the Ex parte Young exception to Eleventh Amendment immunity because Defendants were not personally violating — or threatening to violate — copyright law. Defendants contended that their supervisory role over GSU’s policies and personnel did not create a sufficient causal nexus to the infringing activity, and thus Ex parte Young did not apply. The District Court denied Defendants’ motion to dismiss, holding that it would not presently address Defendants’ argument that Ex parte Young did not apply because “Plaintiffs’ First Amended Complaint currently alleges that Defendants’ own copying, scanning, displaying, and distributing of Plaintiffs’ materials violated Plaintiffs’ copyrights.” Doc. 267, at 12.

On November 5, 2010, the District Court ordered discovery regarding GSU’s use of Plaintiffs’ copyrighted material during the 2009 Maymester, the 2009 summer term, and the 2009 fall term. In response, on March 15, 2011, the parties filed a'joint document detailing ninety-nine alleged acts of infringement that occurred during that period. This filing included the name of each allegedly infringed work, the circumstances of the alleged infringement, and Defendants’ objections to each claimed infringement. For all ninety-nine, Defendants claimed fair use. In some instances, Defendants also argued that Plaintiffs had not provided evidence of a copyright registration for the work in question. Defendants also objected to the method by which Plaintiffs had calculated the ratio between the number of pages in an excerpt and the total number of pages in the work. Plaintiffs had made these calculations based on the total number of pages in the textual body of the work, excluding parts such as tables of contents, indexes, and prefaces. Defendants argued that these non-body parts of a work should be included in the total page count of a work.

On May 11, 2011, in response to the District Court’s Consolidated Pretrial Order dated May 2, 2011, Plaintiffs filed a proposed order for injunctive relief. Plaintiffs’ proposed injunction would essentially limit GSU to copying that fell within the parameters set forth in the Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with Respect to Books and Periodicals (the “Classroom Guidelines”).12 See Doc. 300-1, at 3-4.

*1246A bench trial began on May 17, 2011. At the close of Plaintiffs’ case, the District Court granted Defendants’ motion for judgment on the contributory infringement claim, leaving only the claim that the 2009 Policy directly caused copyright infringement.

*1247On June 1, 2011, Plaintiffs voluntarily filed a revised list of seventy-five claimed infringements, relating to sixty-four separate works. This list dropped twenty-five of the claimed infringements from the joint list filed on March 15, 2011, and added one new claim. The District Court accepted Plaintiffs’ revised list, including the added claim, because it found that the added claim featured the same copied material as a previously identified claim, and that both sides had an adequate opportunity to address it at trial. Cambridge Univ. Press, 863 F.Supp.2d at 1204-05 n. 7. However, the District Court construed two claims of infringement involving the same copied material in two different semesters as one claim, because the evidence showed that the material was posted only once for the same multi-semester course, and that the material was accessed during only one semester. Id. at 1289 n. 89. Thus, in reaching its decision, the District Court considered a total of seventy-four individual claims of infringement.

On May 11, 2012, the District Court issued an order holding that Defendants had infringed Plaintiffs’ copyright in five of the seventy-four instances at issue. Id. at 1363. First, the District Court held that Plaintiffs were entitled to the benefit of the Ex parte Young exception to Eleventh Amendment immunity because the GSU Defendants were responsible for the creation and implementation of the 2009 policy, and the Board of Regents at least tacitly approved it. Id. at 1209.

After holding that it could appropriately enter injunctive relief pursuant to Ex parte Young, the District Court described how it would proceed. First, because “there is no precedent on all fours for how the factors should be applied where excerpts of copyrighted works are copied by a nonprofit college or university for a nonprofit educational purpose,” the District Court would determine how the fair use factors should be applied in this case, and whether any other factors merit consideration. Id. at 1210. Then, in order to assess the efficacy of GSU’s copyright policy in complying with the requirements of the law, the District Court would assess each of the seventy-four claimed instances of infringement individually and “compare the outqome of this process to the outcomes that were achieved under the [fair use] checklists prescribed under the 2009 Copyright Policy.” Id. at 1211.

First, the District Court made several findings of fact. Id. at 1211-21. In addition to’ findings — described above — regarding GSU’s copyright policy, Plaintiffs’ operations, and CCC’s services for licensing of excerpts of copyrighted works, the District Court made detailed findings regarding the market for excerpts of Plaintiffs’ works, based largely on the parties’ stipulations.

With regard to CCC’s APS and ECCS programs, the District Court noted that publishers determine the fee for licensing excerpts of their materials, which for academic users is currently between ten and twenty-five cents per page. Id. at 1215. Cambridge stipulated that it charges eleven cents per page for APS and fifteen cents per page for ECCS, Sage stipulated that it charges fourteen cents per page (unspecified whether for permissions via APS, ECCS, or both), and Oxford stipulated that it charges twelve cents per page (unspecified whether for APS, ECCS, or both). Id. CCC charges a $3.50 service charge per order, and keeps 15 percent of the permission fee. Id. All three Plaintiffs have in-house permissions departments, but 90 percent of Oxford’s permissions income and 95 percent of Cambridge’s comes from CCC. Id. Although it did not note a percentage, the District Court found that “many though not all of Sage’s works at *1248issue in this case generated permissions revenue from CCC during the period from July 1, 2004 to December 1, 2010.” Id. at 1214.

The District Court found that “Plaintiffs earn considerable annual rights and permissions income through CCC. CCC made rights and permissions payments to Cambridge, Oxford, and Sage totaling $4,722,686.24 in FY 2009 and $5,165,445.10 in FY 2010,” amounting to an average of $1,574,228.74 per-Plaintiff in FY 2009. Id. at 1216 (footnote omitted). However, these totals involve payments through services which have “no demonstrated relevance to this case.” Id.

Considering only payments for permissions under the academic permissions services — the APS, ECCS, and Academic Annual Copyright License13 programs — in FY 2009 Cambridge earned $404,494.90, Oxford earned $480,622.47, and Sage earned $352,759.84. Id. APS income, which “is dominated by payments for printed coursepacks,” accounted for the majority of these totals. Id. Thus, in FY 2009, through ECCS — CCC’s academic permissions service for individual licensing of digital copies of excerpts — Cambridge earned $81,671.35, Oxford earned $70,485.81, and Sage earned $85,660.91. Id. The figures for FY 2010 are similar. Id.

The District Court calculated the percentage of Plaintiffs’ total revenues that these figures represent and determined that

on average, APS and ECCS permissions represent .0024 (one-quarter of one percent) of net revenue in FY 2009 for each of the Plaintiffs. If the calculation is limited to ECCS income [for licensing of digital excerpts] (an average of $79,272 per Plaintiff), the percentage would be .00046 (five one-hundredths of one percent) of average net revenues. Even if all of the types of permissions payments reflected in Plaintiffs’ referenced exhibits are included, this income would represent an average of .0093 (nine-tenths of one percent) of net revenues per Plaintiff for FY 2009.

Id.

The District Court noted that Plaintiffs offered no testimony or evidence demonstrating that they lost book sales on account of Defendants’ actions, and accordingly found that no book sales were lost. Id. at 1217. The District Court also found that if GSU students had been required to pay permissions fees for the use of excerpts of Plaintiffs’ works in 2009, “there would have been some small overall increase in the cost of education.” Id.

The District Court turned to its conclusions of law, first laying out the requirements for establishing a prima facie case of copyright infringement. To establish a prima facie case, Plaintiffs must establish that (1) they own valid copyrights in the allegedly infringed works and (2) that Defendants copied protected elements of the allegedly infringed works. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 1296, 113 L.Ed.2d 358 (1991). Plaintiffs must also establish that the copyright for the allegedly infringed work has been registered in the U.S. Copyright Office. 17 U.S.C. § 411(a).

The District Court found that there were valid copyright registrations in all but one of the instances of alleged infringement. Cambridge Univ. Press, 863 *1249F.Supp.2d at 1221. The District Court also found that Plaintiffs had established the element of copying protected material in all instances of alleged infringement. Id. With regard to the ownership prong, the District Court found that Plaintiffs are generally assignees of copyrights originally owned by authors, or hold exclusive licenses to publish the works in question pursuant to contracts with authors. Id. at 1222. Sage is deemed to be the author of some of its edited books by virtue of work-for-hire contracts. Id. However, the District Court found that several instances of alleged infringement involved works for which the Plaintiff-publisher offered no evidence of a contract with the contributing author. Id. The District Court held that, because such evidence is necessary in this case to establish ownership of the copyright to the works in question, in those instances lack of such evidence would be fatal to Plaintiffs’ prima facie case of infringement. Id. at 1223.

Then, the District Court set forth the parameters of its fair use analysis. The District Court held that the first fair use factor, “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes,” 17 U.S.C. § 107(1), “strongly favor[ed] Defendants” in all instances because “[t]his ease involves making copies of excerpts of copyrighted works for teaching students and for scholarship ... [and so] [t]he use is for strictly nonprofit educational purposes,” Cambridge Univ. Press, 863 F.Supp.2d at 1224-25.

The District Court held that the second fair use factor, “the nature of the copyrighted work,” 17 U.S.C. § 107(2), favored Defendants in all instances because it found — after undertaking an individualized review of all of the works at issue for which it found that Plaintiffs had made a prima facie case of infringement — that “the books involved in this case are properly classified as informational in nature, within the spectrum of factual materials and hence favoring fair use.” Cambridge Univ. Press, 863 F.Supp.2d at 1226.

The District Court held that the third fair use factor, “the amount and substan-tiality of the portion used in relation to the copyrighted work as a whole,” 17 U.S.C. § 107(3), “favor[ed] either Plaintiffs or Defendants, depending on the amount taken from each book,” Cambridge Univ. Press, 863 F.Supp.2d at 1235.

After hearing testimony from several GSU professors as to the reasoning behind their choice of a particular excerpt and how use of that excerpt furthered the professor’s goals for a particular class, the District Court found that all of the selections furthered the legitimate educational purposes of the courses in which they were used. Id. The District Court also found that some professors’ educational purposes were furthered by using whole chapters of books, because chapters typically contain a complete treatment of a topic. Id. at 1234

The District Court then determined that “[t]he right approach is to select a percentage of pages which reasonably limits copying and to couple that with a reasonable limit on the number of chapters which may be copied.” Id. at 1235. Accordingly, the District Court held that

[w]here a book is not divided into chapters or contains fewer than ten chapters, unpaid copying of no more than 10 percent of the pages in the book is permissible under factor three.... Where a book contains ten or more chapters, the unpaid copying of up to but no more than one chapter (or its equivalent) will be permissible under fair use factor three.... The chapter or other excerpt must fill a demonstrated, legitimate purpose in the course curriculum and must *1250be narrowly tailored to accomplish that purpose. Where the foregoing limitations are met factor three will favor fair use, i.e., will favor Defendants. Otherwise factor three will favor Plaintiffs.

Id. at 1243.

The District Court held that its factor three analysis would not be bound by the standards provided in the Classroom Guidelines. Id. at 1227-29. The District Court also chose to consider non-body material — such as dedications and introductions — as part of the work for purposes of calculating the work’s total page count, noting that such material constitutes copyrightable expression, and rejected Plaintiffs’ argument — raised late in the proceedings, that Defendants’ took 100 percent of a work when copying a whole chapter from a book of chapters by individual authors on individual subjects — on grounds of untimeliness and unfair surprise. Id. at 1230-31.

With regard to the fourth fair use factor, “the effect of the use upon the potential market for or value of the copyrighted work,” 17 U.S.C. § 107(4), the District Court found that “Defendants’ use of small excerpts did not affect Plaintiffs’ actual or potential sales of books” because they do not substitute for the books, Cambridge Univ. Press, 863 F.Supp.2d at 1236. However, the District Court found that Defendants’ use of excerpts may be at the cost of Plaintiffs’ licensing revenues, and so may affect the market for licensing of excerpts. Id. at 1237. Thus, the District Court concluded that, in reviewing the individual instances of alleged infringement, it would analyze fair use factor four as follows:

[Wjhere permissions are readily available from CCC or the publisher for a copy of a small excerpt of a copyrighted book, at a reasonable price, and in a convenient format (in this case, permissions for digital excerpts), and permissions are not paid, factor four weighs heavily in Plaintiffs’ favor. Factor four weighs in Defendants’ favor when such permissions are not readily available.

Id. at 1243.

However, “[bjecause Plaintiffs advocate that CCC has created an effective means through which Defendants could have obtained licensed copies of the excerpts in question here, the [District] Court place[d] the burden on Plaintiffs to show that CCC provided, in 2009, reasonably efficient access to the particular excerpts involved in this case.” Id. at 1237. Thus, in cases where no evidence showed whether digital permissions were readily available for excerpts of a particular work, the District Court found that the fourth fair use factor favored Defendants.

The District Court took into account two additional considerations. First, the District Court noted that, based on testimony that “royalties are not an important incentive for academic writers,” and on a presumption that that academic authors publish primarily to enhance their professional reputation and contribute to academic knowledge, “[tjhere is no reason to believe that allowing unpaid, nonprofit academic use of small excerpts in controlled circumstances would diminish creation of academic works.” Id. at 1240. Second, the District Court found that “it is consistent with the principles of copyright to apply the fair use doctrine in a way that promotes the dissemination of knowledge, and not simply its creation.” Id. at 1241. The District Court noted that the evidence demonstrates that academic permissions income does not represent a significant portion of Plaintiffs’ overall revenue. Id. Thus, the District Court found that a slight diminution of Plaintiffs’ permissions income caused by the District Court’s findings of fair use would not appreciably harm Plaintiffs’ ability to publish scholarly *1251works. Id. at 1243. On the other hand, the District Court found, “[mjaking small free excerpts available to students would further the spread of knowledge.”