While the high-profile Google settlement has captured the attention of the publishing industry at large, a contentious copyright infringement lawsuit filed in Atlanta in 2008 by academic publishers against four individuals at Georgia State University has quietly progressed. And while a New York court now considers whether to approve the sweeping Google deal, a court in Atlanta could yet deliver something that publishers expressly chose to avoid in their settlement with Google: a fair use ruling.

The case, known as Cambridge University Press, et al. v. Patton et al., involves a popular practice known as e-reserves, or electronic reserves, on college campuses and the murky contours of copyright and fair use in the digital age. But perhaps the most notable aspect of the suit is that publishers are in essence suing their very partners in the scholarly publishing enterprise (including a university librarian), something critics say represents something of a waterloo for publishing.

Georgia on Their Minds

For those unfamiliar with the practice, e-reserves takes its name from the traditional library "reserve" model, where a professor makes a limited number of physical copies of articles or a book chapter available for students. Those copies were generally subject to permission, and proper reproduction fees were paid to the publishers.

In the digital world, that's all changed. Rather than make multiple physical copies, faculty now scan or download chapters or articles, create a single copy, and place that copy on a server where students can access it (and in some cases print, download, or share). Since the practice relies on fair use (creating a single digital copy, usually from a resource already paid for, for educational purposes), permission generally isn't sought, and thus permission fees aren't paid, making the price right for students strapped by the high cost of tuition and textbooks, as well as for libraries with budgets stretched thinner every year.

Not surprisingly, e-reserves are widely used and are immensely popular. Students and instructors love the convenience, ease of use, and accessibility. They are efficient and fit with the way teachers teach and students learn in the digital age. In addition, e-reserves facilitate innovations, like distance learning and collaboration.

The problem, publishers say, is that e-reserves are unmonitored, and the practice is so varied that the system is routinely abused. In reality, the term e-reserve today represents pretty much any kind of digital course content, whether managed by the library, placed in a course management system (CMS) like Blackboard, or hosted on a personal or faculty Web site. And e-reserves also encompass the full range of course reading, from a fraction of supplemental reading to 100% of assigned works, denying publishers the reproduction fees (or sales) they'd come to rely on.

"It is a significant enough revenue stream for publishers to be concerned about," says Sandy Thatcher, executive editor for social sciences and humanities at Penn State University Press. "The paperback and the permissions markets have eroded over time because of e-reserves and course management systems, and if you can't substitute the lost revenue, you can't publish new books."

Indeed, there has been mounting concern over e-reserve practices since the early 1990s, when publishers predicted that e-reserves could erode revenue from printed coursepacks. In 1994 publishers sought to deal with e-reserves at the Conference on Fair Use (CONFU), but the issue proved so contentious that the participants could not agree on a recommendation for the final report. Since then, the threat of litigation has loomed over a number of universities concerning their e-reserves, as publishers' reproduction revenues dipped.

Allan Adler, AAP's v-p for legal and governmental affairs, has flatly denied that AAP ever threatened litigation against uni-versities over e-reserves, though he acknowledged there is a perception of "arm-twisting" out there. In 2003, AAP lawyers targeted the University of California, San Diego. In 2006, Cornell University and AAP released joint guidelines for electronic content, which Cornell officials say were in fact drafted under an implicit threat of litigation. And in January of 2008, AAP praised new accords with Syracuse, Marquette, and Hofstra universities regarding new guidelines for the use of electronic content, also, reportedly, with the stick of litigation.

These guidelines, or "best practices," have mostly satisfied publishers so far. They generally instruct those who wish to post e-reserves of some basic conditions so they can determine whether their use is fair use. For example, e-reserve readings can make up only a small portion of the total assigned readings for any one course; access is limited to students enrolled in the class; and the readings should be hosted on a secure, password-protected server and not left up from semester to semester.

Adler admits that AAP did set out to "get the attention of these institutions in a serious way" when engaging these universities to adopt e-reserve guidelines. But he insists a lawsuit was never the goal, pointing out that publishers have not been, and would not be, active in litigating copyright issues "like the music, movie, or software industries." AAP's goal, Adler said, was to bring stakeholders to simple consensus: that practices and uses that required permission in print require permission in the electronic realm as well. "We see that as black letter law in the United States," Adler says.

Thatcher, meanwhile, says that Georgia State University was among the universities AAP tried to engage in a discussion about guidelines, but that university officials "rebuffed every attempt."

Show Time

Out of patience, in April 2008, publishers sued four individuals at Georgia State University in their "official capacities." Niko Pfund, publisher of Oxford University Press, one of the named plaintiffs in the case, along with Cambridge University Press and SAGE Publications, said the plaintiffs were reticent to sue, but had little choice. "I consider this a failure of dialogue," Pfund says of the suit. "It's a shame. We've successfully come to agreements with others over the years. But Georgia State just wouldn't talk with us."

The allegations in the complaint offer some sense of just how much material is being accessed through electronic course content systems on college campuses: publishers claim that at Georgia State, more than 6,700 works were "made available through a variety of online systems and outlets" without permission, representing "systematic, widespread, and unauthorized copying and distribution of a vast amount of copyrighted works" for students in more than 600 courses.

On one hand, the lawsuit has certainly served as a shot across the bow of the university library community and faculties who use course management systems, and has prompted many schools to revisit their policies and procedures. But the legal case against Georgia State itself has been a complex, uphill battle for publishers from the start.

For one, as a state institution, Georgia State is immune under "state sovereign immunity," a constitutional doctrine that protects states from prosecution in federal courts—and copyright is federal law. That's why, under a specific legal exception, publishers sued individual defendants at Georgia State—including president Carl Patton, provost Ron Henry, librarian Charlene Hurt (who has since retired)—and also why the case is limited to seeking an injunction to stop Georgia State's e-reserve practices only, no damages.

It is unclear how serious settlement talks have been between the two sides. But Georgia State has fought the case strongly and appears to have put itself in position to defeat the suit. University officials have all but admitted that some of its e-reserves were not password protected in the past, but they attribute that to a vendor glitch, since repaired. And in a remarkable coincidence, just when the suit was filed, Georgia State revised—and greatly tightened—its e-reserve policy. In a court filing, Georgia State attorneys then argued that the new, conservative e-reserve policy rendered any claims about Georgia State's past conduct moot. After all, since only injunctive relief was available to the plaintiffs, why should the defendants have to fight against an injunction that to bar practices no longer in effect?

The court agreed and on June 22, 2009, in a major blow to the publishers' case, issued a protective order, limiting discovery in the case to Georgia State's "ongoing and continuous conduct." In other words, the strongest evidence—the 6,700 infringing copies cited in the complaint—were gone.

To observers, that should have paved the way for a graceful exit via a settlement. After all, both sides could now claim victory. Publishers could claim the suit succeeded in changing the liberal policies governing electronic course content at Georgia State. And Georgia State had avoided an injunction. But the case continues. In March, both sides petitioned the court for summary judgment, and a ruling could come soon. But if summary judgment isn't granted, it could very well be off to trial.

Can't We All Just Get Along?

While publishers hope for an injunction—and perhaps dream about a landmark fair use ruling in their favor—critics of the suit say victory would be hollow, only exacerbating the dysfunction that now pervades scholarly publishing and the business of higher education, especially in such difficult economic times.

"If publishers win an injunction, they would hope to get universities to pay for permissions more often," says Duke University scholarly communication officer Kevin Smith, who has blogged extensively about the case. "But the money simply isn't there. So either our choices for student readings will get narrower, or the money that previously went to collections will go to permissions. Neither of those things are good outcomes for publishing."

Barbara Fister, a librarian at Gustavus Adolphus College in Minnesota and a popular columnist for Library Journal, agrees. "Increasing students' costs by replacing e-reserves with coursepacks, print or electronic, is, frankly, a nonstarter," she wrote in a recent column about the suit. With Congress already keeping an eye on the cost of textbooks and tuition, she notes, a ruling against Georgia State that in turn makes students pay for virtually every assigned reading would be "a politically toxic" outcome. "But it's equally unlikely that cash-strapped institutions would be willing or able to subsidize the costs on behalf of students."

Thatcher, who has also written extensively on the case, says most libraries probably don't have to be so concerned with a judgment against Georgia State because the university's behavior was so "extreme." But he concedes that a judgment could force some institutions to reconsider "how aggressive" they want to be about fair use.

"Clearly, what publishers are aiming at is not allowing universities to call everything fair use and drying up any possible revenue streams from the reproduction of articles and book chapters," he says, adding that the Georgia State suit is a sad example of the "systematic dysfunction" in higher education, where schools will pay for an assistant football coach but not adequately support their libraries, faculty, or their presses, leaving publishers no choice but to fight for their revenue streams. "We're often portrayed as the bad guys, but we're asked to do a job. And yet when we ask for a fee from the rest of the university, we're told ‘no.'"

Out of the Courts

Indeed, to the uninitiated, scholarly publishing is a curious enterprise. Simplified, it works something like this: universities or the government subsidize a professor's research. The professor, who is required to publish frequently for professional advancement, gives his research to a scholarly publisher, usually for little or no money. That publisher, who adds value through editing, peer review, and production, assumes the copyright, packages, and sells the research back to the university at a markup. And those mark-ups have proven significant over time, especially as the digital age has fostered an explosion of new databases and resources.

Even with a large chunk of the sector non-profit, make no mistake: scholarly publishing is big business. In the Scholarly Publishing Roundtable report commissioned by Congress and released in January 2010, the total worldwide revenue from the journal market alone was estimated at more than $8 billion in 2008 (about $3 billion from the U.S. market alone) and employed some 110,000 people worldwide. Indeed, while trade publishing has remained flat in recent years, commercial academic publishing has been able to post significant growth.

That's because on the academic side, the digital revolution is all but over—print has been dethroned (but not banished), and digital rules—although clearly not in peace.

Whatever happens in court in the coming months, observers say the battle over e-reserves and the lawsuit at Georgia State have shown that begging for crumbs at the table of fair use is not a viable way to run a higher education system—not for publishers, who need support to cover their costs, not for faculty, who need to publish for promotion and tenure, not for the public who need a vibrant economy of ideas, and certainly not for students, who simply can't afford the escalating prices of learning materials.

"We need to be looking for new business models, and some of the arguments in the Georgia State case about how adequate the current licensing regime is suggest to me that we haven't found that model yet," Smith told PW. "Right now, the licensing model for permissions is inefficient and expensive, from staff time to hunt down who owns which rights, whether our annual campus license covers the use, whether we have CCC permission, and we often have to make quick decisions. It is an extremely cumbersome process. Yes, we need more clarity about what's fair use and when it applies, but what we really need is a more efficient system."

Curious about how a verdict against Georgia State might play out, Smith recently asked Duke's e-reserves staff to give him random examples of recent permission fees. "For the 2007 book No Caption Needed, we paid $150 for permission to make just 17% of the work available to 12 students. This amounts to over $12 per student to gain access to less than a fifth of a work that sells for $35 retail. For an older work—Dealing with Terrorism: Stick or Carrot?—we paid about $10 per student to make 21% of this $30 book available." These are not extreme examples, Smith insists. In another example, fees exceeded $1,000, more than $25 per student. "As we are asked to pay ever-increasing costs for decreasing value," he observes, "it seems that an unsustainable system is being created."

Coming up with a "more efficient system" for scholarly communication has not been easy. A debate has raged for a decade over the viability of such regimes as peer-reviewed open access publishing, institutional repositories, "self-archiving," and other campus policies that urge faculty to retain their copyrights and harness technology to make scholarship more accessible, open, usable, and reusable by the very people who create it. However, publishers have raised serious questions about the sustainability and wisdom of open access, a system that would shift the costs of publishing to authors through publication fees, while making the scholarship freely accessible to the user. For most publishers, it really doesn't matter who pays, as long as somebody covers the costs of publishing, archiving, and maintaining scholarly communication. But are governments and universities, seemingly in constant budget flux, the best agents to control access to the scholarly record? Without some profit motive, can innovation thrive?

Tough questions loom for scholarly publishing, but observers doubt that a fair use verdict in the Georgia State case will raise anything but more questions about the lack of support for teaching, learning—and publishing—in higher education. "Something is badly broken when university presses sue universities for using their materials," Fister notes. "We need to stop playing a shell game that merely shifts the costs and benefits around. It's not sustainable."