The parties in the closely-watched trial over e-reserves at Georgia State University last week filed what are likely to their final documents before federal judge Orinda Evans issues a verdict. The case, Cambridge University Press et al v. Patton et al, filed in 2008 by three academic publishers, alleges that GSU administrators systematically encouraged faculty members to commit copyright infringement via GSU’s electronic reserve and course content systems, primarily through the use of a “flawed” fair use checklist. Publishers are not seeking monetary damages, but are asking for an injunction that has drawn intense criticism from the academic community.

In the latest filings, the parties issued responses to each others proposed conclusions of law, for the most part reiterating the cases they presented at trial. Publishers insist that the inevitability of “favors fair use” determinations via a flawed checklist, coupled with GSU’s failure to pay, budget for, or establish any procedures for obtaining permissions, 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 printed coursepacks. In addition, the publishers argue that the court retains jurisdiction to hear the case, despite claims of state sovereign immunity by the defendants.

As a state institution, GSU, generally speaking, is constitutionally exempt from being sued in federal court. To get around this, publishers sued four individuals at GSU under an exemption known as ex parte Young. The Defendants have previously argued that the application of ex parte Young is misplaced, but the court declined to summarily dismiss the case, and ordered the parties to present evidence at trial that would allow the court to rule on the question.

In its conclusion brief for judge Evans, attorneys for the defendants argued again that the court does not have jurisdiction under ex parte Young, because, among other things, the publishers case “relies solely on a theory of supervisory liability for the acts of GSU employees,” and that, because the defendants are not personally involved in the alleged infringements, ex parte Young does not apply. If Evans agrees, it is possible the case could be dismissed without a significant ruling on the fair use question.

If the case proceeds to the fair use question, however, the defendants have argued that the educational purpose qualifies as fair use, and, among their arguments, they strike at the heart of publishers' contention that e-reserves are tantamount to digital "coursepacks," and that coursepack rules are clear in the wake of landmark copyshop litigations, such as Basic Books, Inc. v. Kinkos Graphics Corp. The copyshop cases, they assert, were “largely evaluated from the position of the copyshops benefitting financially,” the defendants note. This case, on the other hand, is about fair use “wholly within the nonprofit educational environment.” The defense brief also slams the proposed injunction as overly broad, overreaching, and asks for the publishers to pay the defendants' legal fees.

In their response, publishers inisist that "nothing on the face of the injunction should be unduly onerous in terms of compliance," and argue that GSU has the funds to pay permissions. At one point, the brief states the essence of the publishers' case plainly: "GSU has been paying permissions fees in connection with coursepacks for years and spent almost $4 million on electronic materials, including journal packages, in 2009. It also levies a number of student fees. There is no principled basis for the proposition that GSU should be permitted to take book excerpts for free in connection with [its e-reserve and course content systems] while paying for electronic journals and e-books as well as for book excerpts when copied in paper form. Nor is there any record support for the claim that adequate funding could not be secured."

In a recent editorial in PW, AAP executive director Tom Allen noted that a Copyright Clearance Center annual license covering GSU's classroom use would cost the university about $114,000 annually, suggesting that, with $4 million spent annually on electronic materials, another "$3.75 per student," as AAP estimated, isn't signifcant. Those numbers, however, raise another question: did publishers really sue a $4 million annual customer for an extra $114,000?

If Evans does not dismiss the case on jurisdictional issues, the case, regardless of how the verdict falls, will likely offer a new understanding of how fair use applies in the educational environment, notes the Association of Research Libraries’ Brandon Butler. “Even if the remedy is modest, Judge Evans’ decision is likely to include an analysis of fair use,” Butler blogged last month. “Such an analysis would be the first of its kind in any federal court opinion, and will therefore be of great interest to libraries and rights holders alike.”