For a second time, publishers have won an appeal in the long-running Georgia State University (GSU) e-reserves lawsuit. However, the case was once again remanded to the district court, giving district court judge Orinda Evans yet another crack at deciding the case.

In a concise 25-page decision filed on October 19, a three-judge panel of the 11th Circuit Court of Appeals unanimously vacated Evans' latest decision in part, and upheld it in part, and once again sent the case back to her with instructions for weighing what would be her third verdict. The appeals court also threw out the award of attorneys fees against the publishers.

The appeals court decision is the latest twist in the now decade-old copyright case. First filed in April of 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 students unlicensed digital copies of course readings (known as e-reserves) as a no-cost alternative to traditionally licensed course-packs.

In 2012, Evans first ruled against the publishers, finding that GSU's copying was fair use in all but five of 48 instances presented at trial. In October, 2014, however, the 11th Circuit reversed for the first time, and sent the case back to Evans with instructions to re-balance her four-factor fair use analysis in more “holistic” manner and to give the fourth fair use factor (market effect) “additional” weight in her overall analysis.

The law, Pryor wrote for the panel, precludes Evans from revisiting issues already decided and affirmed.

In her March, 2016, remand decision Evans did give the fourth factor more weight—but she also went back and re-did parts of her fair use analysis for each claim in the suit, including a closer look at the pricing and actual permissions revenue at stake for each claim in prior years. In Friday’s opinion, the appeals court held that Evans erred in doing so.

“The district court interpreted our earlier decision to instruct it to change its fourth-factor analysis for the 31 excerpts for which digital permissions were available, but the district court misinterpreted our mandate,” the decision, written by Judge William Pryor, reads. “The only error we identified in the district court’s treatment of the fourth factor was that, in weighing and balancing the relative importance of the factors, it undervalued the ‘severe’ threat of market harm posed by the University’s ‘non-transformative’ copying. We did not instruct the district court to revisit its earlier findings that factor four favored infringement when we instructed it to reweigh the factors on remand.” The law, Pryor wrote for the panel, precludes Evans from revisiting issues already decided and affirmed.

The decision did not come as a surprise, as Pryor raised this very issue during the appeal hearing in July of 2017.

In addition, the Appeals court also held that Evans once again employed an inappropriate, mechanistic approach to weighing the four factors of her fair use test. “Although the district court heeded our instructions in Cambridge II when it recognized that some factors are more important than others,” the opinion states, “it failed to break free of its erroneous ‘arithmetic approach’ and to give each excerpt the holistic review the Act demands.”

The court did, however, uphold Evans’ decision not to reopen the record in the case after the last appeal, as the publishers had requested. After the first appeal decision, the publisher plaintiffs sought to introduce new evidence that digital permissions were in fact available for a number of works considered at trial, which, the Appeals court held, Evans was within her rights to reject.

The case now heads back to Evans with instructions that will almost guarantee she returns with more infringement findings in her third opinion.

"The district court must reinstate its earlier findings that factor four strongly disfavors fair use for 31 of the 48 excerpts," the opinion states. "The district court must eschew a quantitative approach to the weighing and balancing of the fair-use factors and give each excerpt the holistic, qualitative, and individual analysis that the Act demands. And the district court must omit any consideration of price from its analysis of the third factor."

Barring a settlement, the decade-old case could still be far from a resolution.

In a statement, The Association of American Publishers (AAP) said it was "gratified" by the decision. "In reversing the district court’s erroneous findings and vacating the award of attorney’s fees," the statement reads, "the appellate panel for the second time rejected what it called a ‘mathematical formula’ of fair use in favor of a ‘qualitative consideration of each instance of copying in the light of its particular facts.’"

In a post on the blog In the Open, Kevin Smith, Dean of Libraries at the University of Kansas, who has followed the case closely from the beginning, says the latest decision seems mostly to point out out how "trivial" the case has become.

"After working on it for one year, two months, and three weeks, the court produced a decision in only 25 pages, which sends the case back, yet again, for new proceedings in the district court," Smith writes. "The saddest thing about this case is that, after ten years, it continues to chew over issues that seem less and less relevant. Library practices have evolved during that time, and publishing models have changed. Open access and the movement toward OERs have had a profound impact on the way course materials are provided to students. So the impact of this case, and of any final decision, if one ever comes, will be negligible. The plaintiff publishers actually lost a long time ago, they simply lack the wisdom to recognize that fact."

We will update this story with more reactions as they come in.