A three-judge panel of the 11th Circuit Court of Appeals heard oral arguments on Tuesday, November 19, in its review of a key fair use verdict in the Georgia State University e-reserve case. And by most accounts, it was tough day for the GSU defendants.

According to Duke University Scholarly Communication Officer Kevin Smith, who has a detailed write-up of the arguments on the Scholarly Communication @ Duke blog, “the tenor of the arguments was mostly hostile to Georgia State,” although, he adds, lawyers for both sides “seemed bewildered” by the judges’ questions.

“Bizarre,” is how Smith characterized the oral arguments. “But that has to be qualified; they were bizarre in a very discouraging direction for GSU, and fair use in the academy.”

Brandon Butler, practitioner-in-residence at the American University, Washington College of Law and a contributor to the Association of Research Libraries' Policy Notes blog agreed. "I just didn't hear much sympathy for GSU on the panel," he told PW, "while I heard a lot of sympathy for the publishers."

The appeal comes after Judge Orinda Evans delivered a roughly 350-page ruling in May, 2012, brimming with some of the most substantial fair use findings in the educational realm to be handed down in decades. She later rejected a sweeping injunction proposed by publishers that would have, among other things, mandated extensive recordkeeping at GSU, and allowed publishers to monitor e-reserve practices on GSU’s systems.

The case at the heart of the appeal, 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). It alleged that a handful of GSU administrators systematically encouraged faculty members to commit copyright infringement via GSU’s electronic reserve and course content systems as a no-cost alternative to coursepacks. Ultimately, however, Evans found infringement on just five of 99 counts.

The publishers, however, appealed the decision on several key points, claiming that Evans “misunderstood and misapplied” the law. “For years, GSU permitted faculty to assemble multiple assigned readings into digital coursepacks without securing the customary permissions from authors and publishers,” an AAP statement noted at the time of the appeal. “The Court, however, ignored this lengthy pattern and practice of widespread infringement and instead conducted a microscopic examination of a narrow selection of individual works. It ignored the forest for the trees.”

Publishers have chafed over the practice of e-reserves since the early 1990s before "reluctantly" suing four individuals at GSU. In 2003, AAP lawyers engaged the University of California, San Diego over their e-reserve practices; In 2006, Cornell University and AAP released joint guidelines for electronic content, which Cornell officials say were drafted under an implicit threat of litigation. And in January of 2008, AAP praised accords reached with Syracuse, Marquette, and Hofstra universities, also, reportedly, with the stick of litigation looming over them.

In his recap of the appeal arguments, Smith said the publishers pushed the analogy of e-reserves to printed coursepacks—and the judges seemed to accept it. “This may be the worst sign for GSU,” Smith wrote. “Even when Judge Tjoflat acknowledged that he was using the language of coursepacks as a mere convenience, he seemed unable to get out of the way of its implications.”

Butler agreed. "The judges just seemed hypnotized by the coursepack analogy," he said. "They repeatedly referred to the excerpts on a course site as 'digital coursepacks' and didn't buy GSU's argument that printing, binding, and a table of contents makes a principled difference for copyright purposes."

The judges could still affirm Evans’ ruling, although Smith said that seemed “quite unlikely” after the hearing. They could remand the case to Evans, with new instructions, he noted. Or, the court could toss Evans’ ruling, and issue a new injunction of their own.