In a surprise move, the publisher plaintiffs in the closely-watched Georgia State University copyright case have asked for a full (en banc) hearing by the Eleventh Circuit Court of Appeals, despite the fact that a three-judge panel handed them a victory last month when it unanimously reversed a 2012 district court verdict against them.

In a statement issued over the weekend, Association of American Publishers officials at once praised the panel’s October 17 reversal and criticized its underlying analysis for alleged errors, noting that two of the three judges in the unanimous opinion “contradicted Supreme Court and Eleventh Circuit precedent.” The third justice on the panel, however, Judge Roger Vinson, issued a nonbinding concurring opinion that strongly backed the publishers. In petitioning for an en banc hearing, the publishers are clearly betting that there are more judges like Vinson on the full Eleventh Circuit.

Tom Allen, president and CEO of the AAP, explained the decision to ask for a full hearing of the Eleventh Circuit, calling the litigation a “test case” that will “inform application of fair use” in the academic setting. “The vibrant educational publishing market that develops and provides quality content for students and teachers is at stake.” Allen said.

The case, Cambridge University Press v. Patton (known by many as the Georgia State University (GSU) e-reserves case) involves what three academic publishers allege was a systematic effort by GSU administrators to encourage faculty to place unlicensed readings in the university’s digital content systems as a no-cost alternative to traditionally licensed course-packs. It was filed in 2008 and in 2012, Judge Orinda Evans found just five instances of infringement, and ruled against the publishers.

While the Eleventh Circuit’s reversal last month was on its face a legal victory for the publishers, observers were quick to note that the majority opinion in fact rejected the publishers’ core arguments, and surmised that despite offering new guidance on how to balance her four factor fair use test, the final outcome of the case was unlikely to significantly change on remand. By petitioning the full Eleventh Circuit, however, the publishers hope to tip the appeal in their favor.

On that score, Judge Vinson’s minority opinion may now loom large. In his strongly worded concurrence, he wrote that GSU had “not even come close” to establishing a fair use defense. “The use of a copyright-protected work that had previously required the payments of a permissions fee does not all of a sudden become fair use just because the work is distributed via a hyperlink instead of a printing press,” Vinson wrote.

Allan Adler, general counsel and v-p of government affairs for the AAP, praised Vinson’s read on the case. “Judge Vinson, by insisting on the need to look at the big picture clearly understands the nature of this case,” Adler told PW. “It’s about a university-wide practice of substituting unlicensed digital course packs for licensed paper course packs primarily to save money.”

Although Vinson grudgingly agreed that “educational use is an important factor to consider” in determining fair use, he disagreed with the majority’s interpretation of the “media neutrality” principle—that is, the degree to which a work issued in one format retains copyright protection when used in another.

“The digital format is merely another way of displaying the same paginated materials as in a paper format and for the same underlying use,” Vinson opined, rejecting the idea that GSU’s educational mission “weighs in favor of fair use just because the works are being used for educational purposes at a nonprofit university.”

Adler acknowledged that, if Vinson’s interpretation prevailed, it would support the AAP’s core argument in the case: that uses which required permission in print, also require permission in digital.

In its majority opinion, however, the majority disagreed, holding that “Congress devoted extensive effort to ensure that fair use would allow for educational copying,” and that “use for teaching by a nonprofit, educational institution such as [GSU] favors a finding of fair use” under the first factor of the four factor fair use test, despite the "non-transformative" nature of the copying.

AAP officials also asserted that the majority opinion misconstrued the test for determining market harm (the fourth factor of the fair use test), arguing that precedent dictates the standard is whether the copying at issue “may significantly harm the potential market for the rights holder’s work, whether or not the copyright holder is currently exploiting that market.”

The majority also rejected that argument, however, holding that copyright holders cannot “head off a defense of fair use by complaining that every potential licensing opportunity represents a potential market.” In its decision, the appeals court ruled that the district court properly evaluated market harm, although it did not properly weigh those market harm determinations into its overall fair use calculus.

PW contributing editor Michael Kelley contributed reporting to this story.