After nearly a year of consideration, Judge Orinda Evans last week delivered the long awaited verdict in Cambridge University Press et. al. v. Patton, the Georgia State University e-reserve case, a roughly 350-page ruling brimming with some of the most substantial fair use findings in the educational realm to be handed down in decades. In short: libraries and the GSU defendants have largely prevailed, as most of the publishers’ major claims were rejected. But there is good and bad for both sides in the verdict, and a remedial phase is now on tap to decide what injunctive relief comes next. And, observers note, an appeal is also likely.
Cambridge University Press et al v. Patton et al, was filed in 2008 by three academic publishers, (Oxford University Press, Cambridge University Press, and Sage Publications) alleging 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.
In a statement on behalf of the plaintiffs, AAP spokesperson Andi Sporkin said publishers were still studying the lengthy verdict. Washington-based attorney Jonathan Band, a legal consultant for the library community told PW the ruling is "a great victory for libraries and the educational enterprise." He suggested that by continuing the litigation rather than settling after GSU changed its copyright policy in 2009, publishers were trying to shut down unlicensed e-reserves. "The court, however, has come up with some bright line rules that provide libraries with clear safe harbors. Additionally, the court provided a method for evaluating risk in situations that depart from the bright lines."
In the final analysis, 94 of the 99 excerpts challenged by publishers were rejected by the court, with publishers prevailing on just five counts of infringement. Further, Judge Evans found that the GSU copyright guidelines, at issue in the case, were in fact a good faith effort to help faculty interpret copyright law, despite some shortcomings, which Evans addressed in her ruling. Publishers had argued the guidelines were flawed and skewed toward fair use findings. In addition to their fair use defense, the defendants had argued that the case should be dismissed under the doctrine of state sovereign immunity. Evans, however, found that "the Court could issue injunctive relief without offending Eleventh Amendment or sovereign immunity."
At first read, with much more analysis of the ruling to come, the biggest impact of the case may be that Evans has endorsed a “bright line” reading of fair use, holding that 10%, or a single chapter of a work is permissible in e-reserve and digital content management systems. “This is a less flexible standard than many libraries would like,” observed Duke University's Kevin Smith, who has followed the case closely, “and it seems too rigid to be a good fit with the overall structure of fair use.” Still, publishers had argued for a standard that could have limited excerpts to as little as 1000 words.
In the next phase, Evans has asked the plaintiff publishers to craft a potential injunction to address the five winning counts of infringement, with GSU to have a chance to object to any drafts. The good news for libraries, however, is that any final injunction will almost certainly look nothing like the controversial injunction they proposed last year, given the findings in the case, and the scope of the ruling. Still, an injunction of some kind is most likely coming.
“In general, I expect librarians to be happy about the outcome of this case,” wrote Duke's Smith in his initial analysis of the verdict. “It suggests that suing libraries is an unprofitable adventure, when 95% of the challenged uses were upheld. But there will also be a good deal of hand-wringing about the uncertainties that the Judge has left us with, the places where we need information we cannot reasonably obtain, and the mechanical application of a strict percentage. We will spend considerable time, I think, debating whether and how to implement Judge Evans’ rules into our own copyright policies. In the meanwhile, of course, the ruling is nearly certain to be appealed.”
New York Law School's James Grimmelmann mostly agreed with Smith’s assessment. “My bottom line on the case is that it’s mostly a win for Georgia State and mostly a loss for the publishers,” Grimmelmann blogged. But, he added, the big winner, is the Copyright Clearance Center, which partly funded some of the publishers legal fees in hopes of a ruling that might help clarify a fair use standard. “CCC gains leverage against universities for coursepack and e-reserve copying with a bright-line rule,” Grimmelmann noted, “and it gains leverage against publishers who will be under much more pressure to participate in its full panoply of licenses.”
Brandon Butler, Director of Public Policy for the Association of Research Libraries had a different take, however. "It's tragic how much time and money was wasted over what turned out to be around $750 in provable lost licensing revenue," he told PW. "That these wasteful lawsuits were brought using money paid to CCC by libraries themselves shows the urgency of moving to open access and other alternative models to ensure that vital resources are spent on education and research rather than legal fees in copyright cases."
We will have a more detailed analysis of the ruling in the coming days, and more reactions to the verdict as they come in.