No new trial. That's the response from lawyers for Georgia State University (GSU), who have asked judge Orinda Evans not to reopen the factual record in a key copyright case over the legality of digital course readings known as “e-reserves.” In a filing late last week, the GSU defendants argued that the previous trial record “was fully developed at trial and is complete,” and that reopening the record would “unduly burden" the court and defendants.
The opposition filing is the latest move in the ongoing GSU e-reserves case, and comes after the three publisher plaintiffs in the case (which was reversed and remanded by the Eleventh Circuit Court last fall), recently asked the court to use new evidence from the "most recent academic terms," to assess whether GSU’s e-reserve practices promote “continuous and ongoing” infringement.
In this week's filing, GSU attorneys counter that the appeals court in fact “confirmed much of [Judge Evans'] fair use analysis,” and argue that the purpose of the remand is for Evans to revise her "legal analysis of certain fair use issues; not to rectify a purportedly incomplete or inadequate factual record.”
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 case was remanded by the Eleventh Circuit with instructions for Evans to re-balance her four factor fair use analysis.
The publishers say new evidence is needed if Evans is to fashion an appropriate injunction following the remand. But the publishers also appear to be angling for “a second bite at the apple,” says Brandon Butler, practitioner in residence at the American University Washington College of Law, telling PW that re-opening the record would essentially mean "a whole new trial." And that matters because the publishers may have botched their first shot. Of the 99 counts of alleged infringement presented for the first trial in 2010, only 48 actually got to a fair use analysis, as many were knocked out by technicalities and 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 told PW. "If they’ve brought licenses online for more of their works, they could do much better this time than last time." In addition, Butler noted that the publishers would surely be "more diligent" about the mundane record-keeping issues that hurt them in the last trial.
GSU attorneys offered little sympathy for the publishers’ evidence issues in their opposition filing, however.
“Having elected to proceed, [the publishers] should not now be heard to complain of the record they insisted on presenting to this Court in the first place,” GSU attorneys argue. “The Eleventh Circuit’s and this Court’s thorough disposition of the legal and factual arguments advanced over years of litigation―including almost a month of trial testimony―simply cannot be a dry run for Plaintiffs’ 'second go' at whole new allegations of infringement."