Rather, as the Georgia State decisions exemplify, educators and educational institutions are treated like every other unlicensed user of copyrighted materials; they are expected to prove that each use is a fair use firmly within the confines of existing fair use jurisprudence. Jaszi further asserts that endeavoring to change the copy-right statute is a lost cause and offers, as the least bad alternative, the possibility of educators articulating their uses as transformative and, therefore, well within the recognized parameters of the fair use doctrine. This piece responds to Professor Jaszi’s article. Part II briefly analyzes the Georgia State decisions out of the Northern District of Georgia and the Eleventh Circuit. The analysis is intended to demonstrate the uphill battle educational institutions are likely to face in following Professor Jaszi’s recommendation. In Part III this article considers the pragmatic issues fair use presents for educational institutions accused of copyright infringement; specifically institutional risk-aversion and potential costs of and exposure to liability. In Part IV, we suggest an alternative to Jaszi’s approach; we call for educators to organize and strategize around a legislative solution that recognizes the importance of education to the purpose of copyright, as articulated in the Constitution. Part V concludes.
Deidre Keller, Centering Education in the Next Great Copyright Act: A Response to Professor Jaszi, 54 Duguesne L. Rev. 173 (2016).