In a significant development—and perhaps a last gasp—both sides in a contentious legal battle over electronic course reserves used in an academic library have asked the court for summary judgment in their favor. In a filing with the U.S. District Court in Atlanta, publishers' attorneys argue they should win without a trial because a “checklist” now in use at Georgia State University to determine whether an e-reserve copy is fair use is inappropriate because it is skewed toward a fair use determination. The defendants, meanwhile, argue the publishers' case runs afoul of state sovereign immunity, which protects state institutions from federal prosecutions, and that the plaintiffs fail to prove their infringement case.
“The new [Georgia State] policy delegates the responsibility for ensuring copyright compliance entirely to faculty unschooled in copyright law, requiring them to complete an inherently biased fair use checklist for each of the course readings they propose to make available to students electronically,” the plaintiff brief argues. “The combination of this built-in bias and profound faculty confusion over—and ignorance of—basic precepts of fair use has resulted in overwhelmingly one-sided checklist determinations in favor of fair use.” In its brief, GSU attorneys claim that the plaintiffs “have not and cannot” establish infringement, and that plaintiffs' request for injunctive relief “is not sufficiently specific to justify injunctive relief against the administrators of Georgia State University.”
The case began in April 2008, when Oxford University Press, Cambridge University Press, and SAGE Publications sued four individuals at Georgia State University over the library's e-reserve system, which they claim was far too lenient, making over 6,700 total works available and “inviting students to download, view, and print such materials without permission of the copyright holder.” Last June, the court granted a protective order to the GSU defendants, limiting publishers discovery to GSU's “ongoing and continuous conduct” in light of the new, strict copyright policy adopted by the Georgia State Regents—and reflected in the checklist.
With the lawsuit narrowed, both parties seemed to be angling in on a settlement in which both sides could claim some victory. The plaintiffs, for example, could claim the suit has succeeded in changing the looser policies governing electronic course content at GSU. The defense, meanwhile, avoided an injunction. In the past, publishers have been satisfied by a university's public endorsement of what they consider “reasonable guidelines” for electronic course content. As recently as January 2009, AAP voiced its approval of policies announced at Syracuse, Marquette, and Hofstra universities regarding the use of electronic content.
But as Duke University's scholarly communications officer Kevin Smith observed last year, the protective order in the GSU case also raised the stakes for libraries because it focused the case on GSU's policy and checklist, which reflect guidelines and policies at most other institutions. On his blog, Smith observed that several arguments in the publishers' motion for summary judgment “should cause great concern” for the higher education community. “[The motion] is worrying because so many institutions have adopted a form of the checklist, believing it to be appropriate in part because the Association of American Publishers seemed to endorse it when they approved revised copyright policies that include the checklist in their negotiations with Cornell and several other institutions,” Smith writes. In fact, he notes, the Copyright Clearance Center even recommends a version of the checklist. “The plaintiffs' brief suggests that almost nothing would be permitted without paying for permission each semester.”