Is the Georgia State University e-reserves case about to get a do-over? With the case now back at the district court, the three publisher plaintiffs in the closely-watched copyright case have filed a motion to reopen the trial record, and have asked that new evidence be used to determine whether some of the university’s online e-reserve course readings are infringing copyright.
In a motion, docketed last week, the publishers propose that Judge Orinda Evans order GSU to turn over a list of online e-reserve readings from the "most recent academic terms," from which the publishers would then identify readings they believe to be infringing, as they did for the initial trial in 2010. Both sides would then submit briefs.
The move is yet another twist is the long-running copyright saga. First filed in 2008, the case (Cambridge University Press v. Patton) alleges that GSU administrators systematically encouraged faculty to use unlicensed digital readings as a no-cost alternative to licensed traditional course-packs. In 2012, Judge Evans ruled against the publishers, finding infringement on just five of 99 claims. But late last year, the Eleventh Circuit Court of Appeals reversed the decision, and remanded the case to Evans with instructions for her to re-balance her four factor fair use analysis.
"It definitely looks like the publishers are asking for a second bite at the apple," says Brandon Butler, practitioner in residence at the American University Washington College of Law, and author of a forthcoming law review article about the case. If Evans grants the motion, Butler told PW, it would in essence mark the beginning a of "a whole new trial," although, he explains, one that would not touch the ancillary issues tried the first time around and left alone by the appeals court (such as state sovereign immunity, ex parte Young, and secondary liability).
"The 2009 record on which this Court’s decision was based is now more than five years old,” the publishers note in their brief, arguing that in order to ensure that any "post-remand injunction comports with Ex Parte Young," (a controlling precedent that compels state entities to remedy continuous, ongoing violations of federal law) "the Court must take account of the relevant facts as they currently exist...rather than conduct that occurred several years ago.”
The question, of course, is whether the court will agree to essentially re-litigate a case that has already taken five years, millions of dollars, and yielded a 350-page written decision. And even though the Eleventh Circuit reversed Evans’ ruling and remanded the case, it upheld much of her analyses and handling of the evidence. In fact, though the publishers technically prevailed in their appeal, they were so troubled by the details of the decision that they petitioned for a full “en banc” hearing of the Eleventh Circuit, (which was denied in January.)
"As to whether Judge Evans would do it, there is certainly a logic to it," Butler says, adding that this is actually the kind of request he would normally expect GSU to make. "If [GSU] had any reason to think things might have improved in the intervening years, then [GSU] would demand a fresh record," he explains. "2009 is a long time ago, and punishing the state based on data from 2009 seems inconsistent with the spirit of Young."
So why then are the publishers the one making this request?
Because refreshing the evidence could also refresh the publishers chances of winning the case. Although 99 counts of alleged infringement were presented for the first trial in 2010, only 48 got to a fair use analysis, as many were knocked out by technicalities, such as record-keeping issues. And for 33 of the works in question, digital licenses were not available at the time, a fact that weighed heavily against infringement in Evans’ fair use analysis, but would almost certainly not be the case today.
"I imagine [the publishers] have been moving aggressively to add more of their catalogs to electronic licensing systems like the CCC’s," Butler notes."If they’ve brought licenses online for more of their works, they could do much better this time than last time." In addition, Butler also expects that if the record is re-opened, the publishers will be "much more diligent" about the mundane record-keeping issues that hurt them in the last trial.
It's unclear when Evans will rule on the motion, or if GSU will respond with a motion of their own.