The Association of American Publishers has released the following statement on Friday's ruling in Cambridge University Press et al v. Patton et al, the e-reserves case at Georgia State University:
In 2008, three publishers brought this lawsuit to halt Georgia State University’s systematic massive infringements of published works, enabled by the institution’s copyright policies and practices. For years, GSU allowed all manner of copyrighted course reading materials to be converted into digital format and supplied to entire classes of students, representing tens of thousands of users. GSU did not seek publishers’ authorization or permissions for use of these materials and, since 2003, has not compensated copyright holders with a single dollar.
In response to the suit, The University System of Georgia scrapped its existing copyright policies and instituted a new one purportedly correcting the practices that gave rise to the complaint. The new policy did not achieve this objective and we are pleased that the District Court recognized that fact.
In its opinion, the Court held GSU's new policy accountable for specific infringements. The Court also criticized the GSU policy for failing to limit unauthorized copying to "decidedly small excerpts," failing to proscribe unauthorized use of multiple chapters from a single work and failing to provide sufficient guidance to faculty concerning the potentially adverse effect of such mass copying behavior on the financial viability of academic publishing.
The Court also properly declined to accept GSU’s argument that the named individual defendants were immune from suit for injunctive relief and affirmed the importance that public as well as private institutions must equally respect copyright.
At the same time, we are disappointed with aspects of the Court's decision. Most importantly, the court failed to examine the copying activities at GSU in their full context. Many faculty members have provided students with electronic anthologies of copyrighted course materials which are not different in kind from copyrighted print materials.
In addition, the court's analysis of fair use principles was legally incorrect in some places and its application of those principles mistaken. As a result, instances of infringing activity were incorrectly held to constitute fair use. Publishers recognize that certain academic uses of copyrighted materials are fair use that should not require permission but we believe the court misapplied that doctrine in certain situations.
The Court’s ruling has important implications for the ongoing vitality of academic publishing as well as the educational mission of colleges and universities. Contrary to the findings of the Court, if institutions such as GSU are allowed to offer substantial amounts of copyrighted content for free, publishers cannot sustain the creation of works of scholarship. The resources available to educators will be fundamentally impaired.
We are continuing to study the decision and will respond to the District Court with a proposed injunction consistent with the ruling. We will make further decisions as to our options after the next stage of the proceeding is concluded.