After winning a key copyright decision, attorneys for Georgia State University want the publishers who brought the suit to pay more than $3.3 million dollars in fees and costs. But in the latest wrinkle, the publishers have renewed their call for new evidence in the case.
In a detailed filing last month, GSU attorneys asked for $3,236,235.02 for their attorneys’ fees, and an additional $85,746.39 in costs. The request comes after GSU in March defeated the publishers' lawsuit over the university’s use of digitized e-reserves for a second time, following a reversal and remand by the Eleventh Circuit, in 2014. GSU’s latest request marks an increase of $374,886.31 over the $2,861,348.71 in attorneys’ fees awarded in 2012, following their first court victory. And, the bill could rise yet again, GSU attorneys told the court, pending more legal action in the coming weeks.
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 encouraged faculty to offer unlicensed digital copies to students as a no-cost alternative to traditionally licensed coursepacks.
Notably, even though the publishers succeeded on a handful of infringement claims in the case, Judge Orinda Evans once again named GSU the prevailing party, which entitles them to recover attorney fees and costs. In her first order, in 2012, Evans explained that GSU was designated the winner (despite losing on some counts) based on the publishers’ “failure to narrow their individual infringement claims” which “significantly increased the cost of defending the suit.”
In another twist in the long-running case, however, the publisher plaintiffs have renewed their bid to "refresh" the evidentiary record. The move comes as the publishers filed with the court their proposed order for injunctive relief for the four infringements Evans did find in the case.
"Additional fact-finding is reasonable and appropriate because the evidence before the Court concerning copyright compliance practice at GSU and digital license availability is indisputably stale," the publishers argue, stressing that any injunction issued by the court must be "tailored to current conduct at GSU."
The motion echoes an unsuccessful bid by the publishers to renew the record in February of 2015. And in their latest filing, the publishers note that the new evidence they seek is the same as described in their 2015 motion to reopen the record: essentially, the publishers want GSU officials to furnish a list of all online e-reserve readings at GSU from the "most recent academic terms," from which the publishers would then identify readings they believe to be infringing. Although Evans denied that request last year, deeming it unnecessary and burdensome, she suggested it could be revisited once a new verdict was reached in the case, which has now happened.
It remains to be seen, however, whether Evans would order new evidence to be gathered (and argued over) to remedy just four infringements, three of which involve the same work.
Briefs from both parties are due in the coming days, and after Evans has dispatched with these motions, the case could then be ripe for a possible appeal.