The three publisher plaintiffs in the Georgia State University e-reserve case yesterday lodged an appeal with the EleventhCircuit Court of Appeals, seeking to overturn one of the most significant fair use rulings in decades. The appeal comes after Judge Orinda Evans filed her final order for relief in the case, on August 10, rejecting the plaintiff publishers’ sweeping proposal for relief and ordering the publishers to pay the defendants’ attorneys’ costs.
In a conference call, Tom Allen, president of the Association of American Publishers (which is supporting the case, along with the Copyright Clearance Center) said the appeal challenges a number of points in Evans’ decision, including rulings that limited the evidence in the case to a handful of specific cases, essentially, “ignoring the forest for the trees." Allen also expressed confidence that Evans’ awarding of legal fees to GSU would be overturned, estimating that the amount was likely “a pretty big number.”
The appeal is the latest move in a contentious four-year legal battle, Cambridge University Press et al v. Patton et al, in which three academic publishers, (Oxford University Press, Cambridge University Press, and Sage Publications, supported by the AAP and with costs partially underwritten by the Copyright Clearance Center) alleged that GSU administrators systematically encouraged faculty to commit copyright infringement via GSU’s e-reserve systems as a no-cost alternative to traditional coursepacks. The order follows Evans’ May 11 verdict in which she found GSU liable on just five of 99 counts.
In a statement, the plaintiff publishers (Cambridge University Press, Oxford University Press USA, and SAGE) said the decision to appeal was made after “considerable” discussion, eventually deciding there was “no alternative” but to appeal.
On the conference call, Sage CEO Blaise Simqu suggested that the decision to appeal was made with the consultation of a group of Sage’s “textbook” authors, asserting that the authors had overwhelmingly supported Sage's pursuit of the appeal. OUP president Niko Pfund, meanwhile, acknowledged that the litigation puts the press in a delicate spot, suing their customers, but said the decision was flawed, and if left to stand would threaten publishers who operate on “razor thin” margins.
Simqu’s invocation of his authors’ interests is notable, given that scholarly authors usually don’t write in anticipation of high royalties (although some textbook authors certainly do), and a number of scholarly authors have actually come out in opposition to the litigation, some very publicly. In a recent Chronicle of Higher Education piece , University of Virginia professor Siva Vaidhyanathan, who is published by the University of California Press, wrote that if the publishers prevailed, he would fear for his job. “I wouldn't fear that I would lose my job,” he said, “I would fear that I could not do my job,” noting that the publishers’ proposed injunction would among university professors “generate a panic not seen since the Red Scare.”
The optics are not great for OUP, meanwhile. While GSU and other public universities struggle with budget pressures and rising tuition costs for students, OUP again posted strong growth in its recently ended fiscal year, with sales up 10% overall and a not quite "razor thin" margin of around 18%. Those results “suggest that OUP isn’t hurting much from all that rampant fair use out there among university libraries,” observed ARL’s Brandon Butler, on the ARL Policy tumblr.
In a statement, the Copyright Clearance Center said it supported the appeal, and would continue to fund 50% of the litigation costs. “This case sought no monetary damages and has always centered around clarifying the balance embodied in fair use.” By all accounts, however, Evans’ ruling very much did clarify the application of fair use in e-reserves, offering some bright line rules going forward. The problem now, is that those lines are apparently not where publishers believe they should be drawn. “We are disappointed with aspects of the court’s decision," the CCC statement reads "in particular the fair use analysis it employed.”
In a separate statement, AAP officials said the District Court’s rulings were “inconsistent with prior judicial decisions,” noting there is no “legal basis for according less copyright protection to printed books and articles when portions are made available in digital form rather than bound into hard-copy coursepacks.” If left “uncorrected,” the AAP argues, the courts’ decision would “encourage educational institutions across the country to engage in massive infringement of copyright at a great cost to the entire academic community.”
In response, the Association of Research Libraries criticized the move. “It is extraordinarily disappointing that the publishers (and the funders of the lawsuit, the Copyright Clearance Center and the Association of American Publishers) have decided to double down on this wasteful and misguided lawsuit," an ARL statement read.
“The district court's framework created a comfortable safe harbor for Georgia State while preserving a very generous market for publishers willing to license their works for teaching use,” noted ARL’s Butler. “Every day that this litigation continues is further proof that the publishers have little understanding or respect for the fair use rights of teachers, students, and libraries.”