Publishers may have succeeded in winning just five of 99 infringement charges in the Georgia State e-reserve case, but according to their proposed order for relief those five wins are sufficient to justify a sweeping injunction, including the abililty to monitor e-reserve practices at the school. In fact, those five wins should entitle publishers to the controversial injunction they proposed before trial, the publishers argue in a brief supporting their proposal for injunctive relief, filed late last week. Given the limits of the court’s findings, however, the publishers go on to submit a more “narrowly-tailored” proposal.
GSU now has 15 days from the date of the publishers' filing to respond, after which the court will issue its final order for relief. Publishers reserve the right to challenge the final order on appeal.
While the library and higher education communities have called Judge Orinda Evans’ verdict a “high profile loss” for the publisher plaintiffs, the publishers' proposed order actually casts the verdict as a win. Despite having its evidence “confined” to just three semesters, the publishers claim the “limited” trial record still proves their core claim: that GSU’s e-reserve policy, notably its flawed checklist, “caused faculty to infringe plaintiffs’ copyrights.” That finding, publishers argue, even in just five instances of 99, warrants the proposed injunction “to prevent future infringement of Plaintiffs’ works.”
Among the publishers’ proposals for relief is that GSU be enjoined from using the plaintiff’s works (Cambridge Univ. Press, Oxford Univ. Press, and Sage Publication) unless the works are either licensed, or, meet the interpretation of fair use put forth by Evans in her opinion. As expected, the publishers write into the order the bright lines put forth by Evans into their proposed injunction—“decidedly small excerpts” that make up either a single chapter from works of more than 10 chapters, or no more than 10% of the pages in a work less than 10 chapters.
But, citing Evans’ own fair use assessment, the proposed order puts special emphasis on the “market impact” factor of assessing fair use, mandating that GSU personnel conduct a “reasonable investigation” that must “at a minimum,” include consulting “both the copyright owner and its authorized agent—such as the Copyright Clearance Center.
“As a practical matter,” the brief states, GSU faculty “must be required to investigate the availability of digital permissions before it may determine that a proposed use of an excerpt of a Work is protected by the fair use doctrine.” The publishers add that such a mandate would not be “burdensome,” because CCC provides an “easy-to-use” web site. Compliance, meanwhile, is where it gets really tough for GSU. The proposed order would require:
- That designated GSU personnel confirm unlicensed readings meet the criteria set forth in the order.
- That GSU keep records of unlicensed readings for three years after the usage, including details of the “reasonable investigation” of license options mandated above.
- GSU must ensure faculty are complying with the order and make clear that those faculty who do not face “disciplinary sanctions” as well as “possible legal action.”
- No GSU personnel would be allowed to upload anything onto GSU systems without first seeing “on the screen” provisions of the court order.
- GSU would have to certify to the Court that its e-reserve policy is in compliance within 45 days of the order’s approval; and once per semester thereafter.
- And the most audacious request—publishers have asked the Court to grant them “modest oversight,” of GSU’s e-reserve system. If approved, once per semester, GSU must allow publishers access to its e-reserve system. “Left unmonitored,” the brief explains, “[GSU's e-reserve system] presents an opportunity for GSU’s instructors to evade compliance with the proposed injunction.”
Publishers have long voiced a desire to “monitor” e-reserve systems,and if Evans grants that oversight at GSU, it would be a significant precedent for publishers, but also a source of tension for academics. “One thing I can say with confidence,” blogged Duke Scholarly Communications officer Kevin Smith, “if the publishers are given the right to poke around in GSU’s course management system, faculty will be outraged, at GSU and elsewhere.”
The publishers’ characterization of the issues at GSU and their sweeping proposal for relief is not unexpected. In fact, in order to assure any kind of meaningful relief, the publishers had to argue that GSU’s conduct, even in just the five instances they were able to prove, represents a much wider pattern of infringement.
“The exception to sovereign immunity on which this case is founded allows a court to issue an injunction only to prevent such ‘ongoing and continuous’ violation,” Smith explained. “So it is possible that the Judge could decline to issue an injunction at all by ruling that the few infringements she found amongst the many excerpts she examined do not suggest a pattern of ongoing and continuous violation. Or, she could simply order small tweaks to the GSU policy.”
Smith, however, pulled no punches in his overall assessment of the publisher proposal. "The proposed order is clearly intended to humiliate GSU,” he observed, and “to make fair use as difficult as possible.”