No do-over—at least not yet. In a ruling earlier this week, Judge Orinda Evans dismissed without prejudice the plaintiff publishers’ bid to gather new evidence in the Georgia State University e-reserves case, as the case is being considered on remand following last fall’s reversal by the Eleventh Circuit Court of Appeals.
The ruling comes after the publishers moved in late February to refresh the trial record in the closely-watched copyright case with a list of online e-reserve readings from the "most recent academic terms," from which the publishers would then identify readings they believed to be infringing. The publishers argued that fresh evidence was essential if the court was to fashion an injunction to address what they allege is “ongoing and continuous” infringement. GSU attorneys opposed the publishers' motion, however, arguing in March that the publishers should not be given a "second go" at "whole new allegations of infringement."
In her decision, Evans held that the publishers "have the cart before the horse" in demanding a new record. “The first order of business should be to determine, consistent with the Court of Appeals rulings, whether the Defendants’ use of the Plaintiffs’ works [which were the subject of the 2011 trial]…are protected by the fair use defense,” Evans explained. "Once rulings on individual infringement claims have been made the Court will then determine what future course of action is appropriate."
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 coursepacks. 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.
Evans' ruling is a minor setback for the publishers, who appeared to be looking to turn their October, 2014, appeal victory into “a second bite at the apple,” explained Brandon Butler, practitioner in residence at the American University Washington College of Law, and author of a law review article about the case. Had Evans granted the publishers’ motion, it would have essentially meant “a whole new trial" Butler told PW last month, which could have benefited the publishers, because, of the 99 counts of alleged infringement presented for the first trial in 2011, only 48 actually got to a fair use analysis, with many knocked out by technicalities and record-keeping issues. In addition, digital licenses were not available for a third of the works in question in 2011—a fact that weighed heavily against infringement in Evans’ fair use analysis, but which is not the case today.
In a separate order, Evans also ordered both sides to file briefs on the fair use questions remanded by the Court of Appeals, briefs which may include, the judge noted, “more general arguments with respect to the proper application of the Court of Appeals rulings.” The first round of briefs are due May 31, and are limited to 75 pages.