In a long-awaited decision, a federal court has once again found that Georgia State University’s use of digitized course readings known as e-reserves is protected by fair use. In a 220-page decision in Cambridge University Press v. Patton (known as the GSU e-reserves case) Judge Orinda Evans found that 41 of 48 alleged infringements considered at trial—and reconsidered on remand—were protected by fair use, and declared GSU the prevailing party in the case.
"We are extremely disappointed by the district court’s decision on remand, which perpetuates its earlier fundamental misconceptions of the application of copyright law and the fair use doctrine to the higher education setting," reads a statement, from the Association of American Publishers. "Together with the publishers who have served as plaintiffs, we will be considering our appellate options."
Indeed, the ruling is yet another blow for the publisher plaintiffs. First filed in April, 2008, by three academic publishers (Oxford University Press, Cambridge University Press and Sage Publications, with support from the Copyright Clearance Center and the AAP) the suit alleges that GSU administrators systematically encourage faculty to offer unlicensed digital copies to students as a no-cost alternative to traditionally licensed coursepacks.
In 2012, Judge Evans ruled against the publishers, finding GSU's copying was protected by fair use in all but five of 48 instances presented at trial. In October, 2014, however, the Court of Appeals for the Eleventh Circuit reversed and sent the case back to Evans with instructions for a new four-factor fair use analysis. But in her remand decision, Evans found just seven cases of infringement this time around (six of which come from Sage Publications, of which five infringements stem from editions of the same title, The Sage Handbook of Qualitative Research; One infringement is from an Oxford title: C. Wright Mills' 1956 classic, The Power Elite).
Making matters worse for the publishers, by once again declaring GSU the prevailing party, GSU is again entitled to collect costs and legal fees from the publishers—in 2012, that was more than $3 million, a figure that is likely to go up following the appeals process.
After the 2014 reversal, publishers had high hopes of prevailing in the case, which AAP president Tom Allen had called "a “test case” that would “inform application of fair use in the academic setting."
In their remand brief filed last July, the publishers had argued that the appeals court decision directed Evans to be primarily concerned with the effect of GSU’s copying on the publishers.
In their reply brief, lawyers for GSU countered that any "slight diminution" of the publishers' licensing income was "negligible" when the publishers' entire market is considered, and the educational use of the digitized excerpts was factored in.
Barring a settlement, the case could still be far from over. Having prevailed on seven counts, the publishers once again will have a chance to propose injunctive relief, which they must file with the court within 20 days. They could also appeal Evans' ruling again, and at the very least are likely to contest the payment of GSU's legal fees and costs.
"Overall it's a big and important win, again, for universities and libraries," said Brandon Butler, Director of Information Policy, at the University of Virginia Library, who has written extensively on the case for the Association of Research Libraries. "The court told us, again, that there must be room for educational fair use, even if it means publishers make a little less money on licensing."