In a brief, nine-page final order, the judge in the long-running Georgia State University e-reserves case has rejected the publisher plaintiffs’ bid for injunctive relief, and affirmed that the publishers must pay GSU's legal fees and costs.
In the order, dated July 27, Judge Orinda Evans also denied the publishers’ motion to refresh the record in the case by gathering new evidence from the most recent academic term. And in a ruling that could cost the plaintiffs millions, she rejected the publishers’ motion to reconsider the awarding of legal fees, holding that new Supreme Court guidance issued last month in another high profile copyright case was not a factor.
The order effectively concludes the case, pending any appeals, and comes after Evans, in March, ruled for the publishers in just four of 48 infringement claims.
In June, the publisher plaintiffs argued that a recent Supreme Court decision in Kirtsaeng v. Wiley should get them off the hook for the defendants' legal fees in the GSU case. In Kirtsaeng, the Supreme Court held that fee awards in copyright cases should not be awarded to a prevailing party simply as a matter of course, and that the “reasonableness” of a losing party’s case should carry "substantial weight" in determining whether or not to award fees.
But while Evans agreed that the publishers’ had a “reasonable” interest in bringing their case against GSU, she suggested that the publishers’ failure to make their case efficiently warranted a fee award. Noting that the suit was a "test case" organized by the Copyright Clearance Center (CCC) and the Association of American Publishers (AAP), "who recruited the three Plaintiffs to serve,” Evans held it was "just" for CCC and AAP to pay the Defendants' litigation expenses as well, because of the initial 99 claims 25 had to be dropped, and in 26 other claims the publishers failed to establish a prima facie case.
Although the final fee amount is still to be determined, GSU attorneys in April asked the court to order the publishers to pay them roughly $3.25 million in attorney fees, and an additional $85,746 in costs.
Evans’ final order is her second attempt to close the case, and comes after the Eleventh Circuit reversed and remanded the case in October of 2014, with instructions for Evans to rebalance her four-factor fair use analysis. In March, however, Evans once again ruled for GSU, holding that GSU faculty's use of digitized course readings was largely protected by fair use.
Nevertheless, as they did after their loss in the first trial, the publishers asked the court for a sweeping injunction (based on the four successful infringement claims) that would have, among other things, given the publishers some ability to monitor how e-reserves are being used at GSU.
In the end, Evans' final remedy was simply to order GSU officials follow copyright policies “not inconsistent" with her decision in the case, and that the “essential points” of her decision be distributed to faculty and staff.
“There is some possibility of future violations because the fair use doctrine involves an extremely fact intensive inquiry,” Evans conceded, in her order. “However, the level of risk is not substantial.”
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.
Of course, Evans’ second final order still may not be the final word in the long-running case. The publishers must now decide whether or not to once again appeal Evans’ decision.