Buried beneath the news of the Google Settlement’s rejection last week, a federal judge in Georgia has paved the way for publishers to go to trial in a contentious copyright case involving e-reserve practices at Georgia State University. On March 17, Judge Orinda Evans denied a GSU motion to dismiss the final count in the suit, setting May 16th as a trial date. The order comes after Evans denied all three of the publishers’ motions for summary judgment, while granting two of three GSU motions to dismiss, in October, 2010. She allowed the action to proceed on a single, more narrowly drawn charge of contributory infringement.

In the latest ruling, attorneys for the defendants had argued that the final count should be dismissed because of “state sovereign immunity,” which generally limits state entities from being sued in federal courts. Publishers, however, are suing four individuals at GSU in an attempt to get around state immunity. Evans held that dismissal at this juncture would be “improper” because “based on the pleadings alone, the court cannot say that it lacks subject matter jurisdiction to hear the case.” Evans suggested, however, that state sovereign immunity could still factor in to a decision, ruling that the parties will need to present evidence at trial “that will allow the court to rule on the question.”

The case, known as Cambridge University Press, et al v. Patton et al, was filed in 2008, alleging that as of February 19, 2008, GSU’s e-reserve system was far too liberal, making over 6,700 total works available for some 600-plus courses, and “inviting students to download, view, and print such materials without permission of the copyright holder.” In June of 2009, however, the court granted a protective order to the GSU defendants, limiting the case to practices after February 17, 2009, when a new copyright policy at GSU was adopted, a ruling that seriously undercut the publishers’ case. Surprisingly, however, the parties have not settled, and observers say that publishers now face a very high bar in order to prevail on the last count of contributory infringement.

Specifically, publishers must show that the implementation of GSU’s 2009 Copyright Policy “resulted in ongoing and continuous misuse of the fair use defense,” Evans’ notes. “To do so, Plaintiffs must put forth evidence of a sufficient number of instances of infringement of Plaintiffs’ copyrights to show such ongoing and continuous misuse.” A blog post on the Association of Research Libraries’ web site elaborates on what that means in practice: “Publishers...will now have to get down in the weeds and show infringement in enough particular cases to show that the GSU policy going forward will cause continuous and ongoing infringement.” Attorneys for the GSU defendants, the post notes, would then have to “establish fair use in enough cases to prevent GSU from crossing the ‘ongoing and continuous’ threshold.”

While the high-profile, visionary Google settlement has captured the attention of the publishing industry at large, e-reserves is popular, common practice that has long vexed publishers. The practice takes its name from the traditional library “reserve” model, where a professor might make a limited number of physical copies of articles or a book chapter available for students, generally subject to permission, and, in theory, with reproduction fees paid to publishers. In the digital world, however, educators can now scan or download chapters or articles, create a single copy, place it on secure, password-protected server, and allow students to access the copy. Educators insist the practice is fair use, while publishers claim the practice is sapping revenue.

However it goes, the Georgia State case is now on track to deliver something the Google litigation did not: a decision that could impact the scope of fair use.