Despite a flurry of last-minute briefs, as of today the most significant copyright trial for publishers since the Kinko’s cousepack litigation, Cambridge University Presse et al v. Patton et al, is still on track to begin on Monday, May 16. The case revolves around the practice known as electronic reserves, or "e-reserves" at Georgia State University. And while initial reports have characterized publishers as facing a difficult road, a pre-trial memorandum filed by publishers’ attorneys on April 29 outlines a case that could be stronger than previously reported.

That’s because, experts close to the case point out to PW, after a claim of direct liability was initially dismissed by judge Orinda Evans on September 30, 2010, it has since been restored for trial—although as an indirect infringement claim. In a December 28, 2010 order, Evans granted publishers’ motion to reconsider, acknowledging that Claim One of their complaint—a direct infringement claim—was rejected more or less because of a labeling issue. In its motion for summary judgment, publishers had alleged direct infringement via “respondeat superior,” a legal term that applies to situations where a subordinate undertakes tortious acts under terms of employment. But “respondeat superior,” the judge ruled, only applies as a basis for “indirect liability.” Therefore, the court rejected the claim of direct infringement. The court did not, however, mean to summarily reject the underlying merit of the publishers claim—that the defendants in the case might be liable for infringing acts of their subordinates, and has thus ordered Claim One restored for trial “to the extent that it is based on a theory of indirect infringement.”

Whether direct or indirect infringement matters for the purposes of the injunction publishers seek against GSU’s e-reserves program remains to be seen. The bottom line: the claim is back in the case, and the May 16 trial may now move forward not on a single claim of contributory infringement, but on two claims—contributory, and indirect infringement, putting publishers in a potentially stronger position.

In addition, an expert familiar with the publishers’ case rejected the notion that a protective order limiting evidence in the case to just three 2009 academic terms, including one full term (Fall 2009), weakened their case. In its brief, publishers say the evidence “more than suffices to demonstrate the ongoing nature of GSU’s infringing practices.”

This, of course, assumes publishers can clear a hurdle not addressed in their pre-trial memorandum: whether the court has jurisdiction to rule in the case. As a state institution, GSU, generally speaking, is constitutionally exempt from being sued in federal court, under state sovereign immunity. To get around this, publishers have sued four individuals at GSU under an exemption known as “ex parte Young.” Defendants have argued that the application of ex parte Young is misplaced, and that the suit should be dismissed. The court refused to summarily dismiss the case, but it has ordered the parties to present evidence at trial “that will allow the court to rule on the question.” Thus, the viability of publishers’ entire case hinges on a technicality—although, a technicality publishers were well aware of from the beginning, and confident they could overcome.

Should Evans find she has jurisdiction, the publisher’s pre-trial memorandum lays out an offense based on attacking GSU’s fair use claims. Under the direction of the defendants, the plaintiffs allege, GSU has enabled professors and students to essentially create their own digital coursepacks, using excerpts far in excess of what established law allows for print coursepacks, with “takings as extensive as eight chapters, 187 pages, and 35.6% of various works.” If allowed to continue, the memo states, “Plaintiffs cannot possibly stay in business.”

The publishers’ most aggressive attack in its pre-trial memorandum focuses on a “fair use checklist” created by GSU officials they claim all but assures a fair use conclusion. “The trial testimony will show how faculty members placed in the untenable position of being experts in copyright law struggled to make sense of the checklist,” the pre-trial memo states, noting that the “design of the checklist, coupled with demonstrably inadequate faculty training in fair use, leads copyright-novice professors almost without exception to affirmative fair use findings that are contrary to law.”

The evidence? Of the 174 "checklists produced to Plaintiffs," each one found for fair use, “no matter the size, content, or the excerpt at issue.” In addition, “not a single checklist contains more than four checks on the ‘weighs against fair use’ side, and most contain none or only one.” Of course, observers note, there may be a simple explanation: faculty are not required to submit checklists for materials they did not use.

To publishers, however, the inevitability of “favors fair use” determinations through a flawed checklist, coupled with GSU’s failure to pay, budget for, or “establish any procedures for obtaining permission to post electronic course materials,” suggests a systematic attempt to evade responsibility for copyright compliance, in essence an illegal plan to use e-reserves as a low-cost “market replacement” for traditional coursepacks. “

Further, the presence of a licensing alternative—the Copyright Clearance Center (which is underwriting half the costs of the publishers’ litigation costs)—makes GSU conduct even more questionable, the plaintiff’s argue. “The Court will hear that there is an established, widely used, user-friendly system for licensing excerpts from academic books for fees in the range of 12-15 cents per page through the CCC for the very type of educational use engaged in by GSU,” the memo states. “Defendants will be hard-pressed to argue that such a modest incremental fee would jeopardize GSU’s educational mission.” Putting that claim on trial (whether the CCC is cost-effective and user-friendly) could be interesting to say the least.

Fair use arguments aside, it remains to be seen whether plaintiff attorneys can also successfully pin the infringing conduct to the individual defendants sufficiently to win an injunction. Publishers assert that “the record will establish that each of the defendant officials of GSU and/or USG is responsible in part for the infringement of Plaintiffs’ works," and that "each has the authority to effect a change in the relevant practices,” and proving this will be key for publishers.

While a pre-trial memorandum was not filed by the defense, a key defense component will surely be a hoped-for knockout blow on the state sovereign immunity issue. Failing that, however, the publishing world may very well have what has been long anticipated—a verdict that could dramatically affect the contours of fair use in in the digital world of academic publishing.