Although denying fair use, these content owners were acknowledging a larger truth about copyright, the Internet, and even the law in general: It works largely due to toleration. Not every case is clear; not every outcome can be enforced; and not every potential legal outcome can be endured. Instead, “grey area” conduct must be impliedly licensed, or at least tolerated.

Veteran copyright lawyer (and band leader) Bob Schwartz, from The Demise Of Copyright Toleration.

Universities are very, very well-acquainted with the necessity for wiggle room and gray areas in copyright, and with the capacity for rightsholders to overreach and attempt to monetize behavior that should be “tolerated” (or, IMO, recognized as fair use), discrediting the entire copyright system in the process. One need look no further than the efforts of collecting agencies like the Copyright Clearance Center in the US or Access Copyright in Canada, both of whom build their business model entirely on the notion that campuses should not only spend billions annually licensing and buying content, but they should also pay a kind of blanket protection fee to cover every time a student or faculty-member sends a PDF to a colleague or posts a book excerpt to a course website.

This kind of greed has turned generations of librarians and other campus-dwellers into copyright skeptics who see the law as intrusive and overreaching, if not absurd. It didn’t have to be that way; it’s not necessarily the law, but rather the copyright holders, who have overreached. The Georgia State University course reserves lawsuit, the HathiTrust lawsuit, and the proliferation of copyFUD “guidelines” suggesting that every student or academic is constantly at risk of massive infringement penalties—these gambits may “work” in some cases by scaring a few people into buying a few more licenses (or, as in HathiTrust, backfire massively by setting strong fair use precedent, another issue Bob addresses in his piece), but the long-term effect is to call the whole copyright system into question, and to convert a collegial relationship into an extortionate one. A little humility and tolerance could go a long way in mending that breach.