After 12 years of litigation, the Georgia State University e-reserves case has taken a step closer to its conclusion. On March 2, Judge Orinda Evans delivered her third ruling in the long-running copyright suit, following two reversals by the 11th Circuit Court of Appeals. And while a third appeal remains a possibility, the parties have been noticeably quiet following Evans' most recent decision, a sign perhaps that after 12 years—and millions in legal fees—a return trip to the 11th Circuit may not be forthcoming.
In a 241-page written opinion, Evans found 10 infringements this time around, while finding 38 of the 48 claims before the court to be fair use. The 10 findings of infringement is double the number Evans found in her first ruling in the case, back in 2012, but far from the victory the publishers had envisioned when they first filed the suit.
The court is now considering injunctive relief for the 10 infringement findings. In a March 23 filing, the publisher plaintiffs asked the court to enter a declaratory judgment as well a permanent injunction that would, among its provisions, require GSU to “maintain records of unlicensed copying from the plaintiffs' works” and would grant the plaintiffs the right to audit GSU's e-reserves no more than once per semester. The publishers are not seeking monetary damages in the case.
GSU is due to file its reply brief in early April—and, after prevailing on nearly 80% of the claims at trial, GSU lawyers (and the wider academic world) are expected to oppose any bid by the publishers that would require onerous recordkeeping or that gives the plaintiff publishers the ability to “audit” GSU faculty’s assigned course readings for copyright compliance.
After her first ruling in 2012, Evans rejected a sweeping proposed injunction from the publishers that included similar "audit" provisions, and instead ordered that GSU “maintain copyright policies…not inconsistent with the Court's Order.”
Meanwhile, in what is likely the biggest remaining question, Evans will again decide whether to award legal fees in the case. In a separate March 23 brief, the publishers indicated they are not seeking to have their legal fees reimbursed—however, GSU is seeking an award.
In 2012, Evans surprised observers by designating GSU the prevailing party in the case and ordered the publishers to pay nearly $3 million in legal fees and costs to GSU. In 2016, following Evans' second decision, GSU attorneys upped their request to more than $3.3 million.
That award, however, was vacated by the 11th Circuit in 2018 following new Supreme Court guidance in Kirtsaeng v. John Wiley & Sons, which held that fees should not be awarded to the 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 grant fees.
In their March 23 brief, the publishers argue they should be named the prevailing party, contending that they "prevailed on a significant number of their infringement claims," even under what they believe to be Evans' "erroneous implementation of the Eleventh Circuit’s remand instructions." And, citing Kirtsaeng, the publishers argue their suit was eminently reasonable.
"Given the vigorously disputed nature of the copyright issues that were raised in this case for the first time in the context of digital course readings—issues that were the subject of two case appellate reviews and reversals—it would be inappropriate to characterize either of the parties’ litigating positions as other than 'objectively reasonable,'” the publishers argue.
The case was first filed against four administrators at Georgia State University on April 15, 2008, by three academic publishers (Cambridge University Press, Oxford University Press, and Sage, with financial support from the Association of American Publishers and the Copyright Clearance Center). The suit alleged that GSU administrators systematically encouraged faculty to offer students unlicensed digitized course readings, known as e-reserves, as a no-cost alternative to traditionally licensed coursepacks.
The AAP has called the litigation a “test case” to “inform the application of fair use in the academic setting.” But the case has been an uphill legal battle for the publishers from the start. And after two verdicts against the publishers and two reversals on appeal, observers in recent years have come to question how much a final verdict in the case even matters at this point, as an evolving digital market continues to address the issue at the heart of the suit.
“The world has moved on in a lot of ways,” Brandon Butler, director of information policy at the University of Virginia Library, told PW last April, after a final round of briefs were filed ahead of Evans' latest remand decision. “We’re now looking to university presses as partners in an open access world, which of course includes access by students. I think more and more libraries are also looking at e-book licenses that allow unlimited simultaneous users as an attractive way to support affordable education for our students—a model that would facilitate assigning a chapter here and there. We are also supporting open educational resources that in some cases can replace expensive textbooks and, perhaps, render e-reserves less important."