Remand briefs have now been filed in the Georgia State University (GSU) e-reserves case (Cambridge University Press v. Patton) setting the stage for a new decision in the closely watched copyright infringement action. The question is, will the outcome be significantly different the second time around?
First filed in 2008 by three academic publishers (Oxford University Press, Cambridge University Press and Sage Publications with support from the Copyright Clearance Center and the Association of American Publishers) the case alleges that GSU administrators systematically encouraged faculty members to offer unlicensed digital copies to students as a no-cost alternative to traditional coursepacks. In 2012, Judge Orinda Evans ruled against the publishers, finding GSU's copying was protected by fair use. But last October, the Court of Appeals for the Eleventh Circuit reversed and remanded the case to Evans with instructions for a new four factor fair use analysis. And in their remand briefs, the two sides offer Evans their own, strikingly different interpretations of the Eleventh Circuit's ruling.
Filed in June, the publishers' brief argues that the appeals court articulated “a materially different understanding of fair use” than Judge Evans had initially employed. This time around, the publishers claim, the appeals court directs Evans to be "primarily concerned" with the effect of GSU’s copying on the publishers.
"The Court of Appeals...directed this Court to ascribe greater weight to the market harm caused by Defendants’ copying (factor four), and, by clear implication, less weight to its nonprofit educational purpose," the publishers contend, adding that "such unlicensed use" threatens the publishers' "incentive to publish leading works of scholarship."
In a work-by-work analysis, the publishers argue that Evans should find all of GSU's copies to be infringing. That would be a stunning reversal, however. In her 2012 decision, Evans’ found fair use in all but five works that made it to a four factor analysis.
In their responding brief, filed last week, lawyers for GSU claim that the publishers brief "misrepresents" the appeals court decision. "The Court’s overall fair use analysis should be guided by the fact that teaching fulfills copyright’s core purpose: the spread of knowledge and ideas," GSU attorneys argue. "In a holistic fair use analysis, nonprofit educational use is at least on an equal footing with transformative use: Both strongly favor fair use."
GSU attorneys claim that any "slight diminution" of the publishers' licensing income is "negligible" when the publishers' entire market is considered: that is, book sales as well as any secondary permissions income. And in a somewhat novel argument, GSU attorneys contend that the publishers’ licensing model is inherently unreasonable, because it is based not "on the actual number of GSU students that used (i.e., downloaded) the excerpt," GSU argues, but rather on the number of students in the class that "potentially had access" to the excerpt.
“The purpose of fair use is not to provide teachers access to copyrighted materials at a price, even if publishers consider it to be a fair and reasonable one,” GSU attorneys conclude. "Rather, the purpose is to provide teachers the materials necessary to teach. Fair use ensures that copyright does not become an obstacle to such teaching and learning.”
In their own work-by-work analysis, GSU attorneys believe all the uses in question are fair. But notably, they concede that under the appeals court's guidance some of the uses in question may not be fair.
In a contested point, meanwhile, the publishers also sought to add new evidence to the record: a deposition from a Copyright Clearance Center employee stating that digital licenses were in fact available in 2009 for 17 works for which Evans had found “no evidence” of availability. The lack of digital licenses played a key role in Evans' fair use analysis, cutting against a determination of market harm.
That move, however, brought a separate motion by GSU attorneys to block the deposition. and to strike the portions of the publishers’ brief referring to the deposition. GSU attorneys noted the publishers’ had already attempted to add new evidence to the trial record, a move that Judge Evans refused in April of this year.
With the remand briefs now filed, the case may be a step closer to a new ruling, although there is no timetable. But even with a new ruling, the case could still be years from resolution, as there could be yet another appeal of Evans' new decision, as well as further disputes over any potential injunctive relief that might come from the case.