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Georgia State Prevails

On Friday, August 10, 2012, Judge Orinda Evans issued her order for declarative and injunctive relief in the Georgia State copyright infringement case. This order followed her May 11, 2012 opinion (See EDUCAUSE Policy Brief for background information.).  The ruling was on the remedy for the plaintiffs’ claims of infringement for the 5 out of 99 violations resulting from the library’s e-reserve policies.  The plaintiffs included Cambridge University Press, Oxford University Press, and SAGE Publishers.  The order denies the plaintiffs’ request.  She ordered the defendants to make sure that the University’s copyright policies are “not inconsistent” with her May opinion and to disseminate to faculty and relevant staff at Georgia State the essential points of both rulings.

Throughout the declarative portion of the order the judge carefully delineates her reasoning on each of the five violations and specifies three principles to clarify points in her original opinion.  Duke’s Kevin Smith writes clearly on these principles:

  1. “The holding that excerpts must be “decidedly small” in order for the third fair use factor to favor the use applies to all excerpts assigned from a book for a particular course in the aggregate.  This merely tells us that “an excerpt” means the total amount assigned from a single book; it presumably rules out the possibility of putting one chapter on reserve for a while, then replacing it with a second chapter later on and asserting that only one chapter ( at a time) is being used.  I doubt that many universities would be willing to resort to this trick, but the Judge has explicitly disapproved of it.
  2. The analysis of fair use by Judge Evans does not apply to books that are intended solely for classroom instruction.  The Judge seems to be telling us that there is a more restrictive standard for fair use of textbooks than the one she applied in this case, but she also uses a pretty narrow definition of a textbook.  None of the works that were at issue in this case fall into that category, she says.
  3. Fair use in the context of e-reserves and course management systems is conditioned, she tells us, on strict controls over who can access the excerpts — only students registered for a class — and on notice telling those students that they may not further distribute the excerpts.  I hope this is already our practice in higher ed.”  

Judge Evans also rejected a proposed injunction that would have imposed exacting guidelines on professors who wish to make available portions of assigned copyrighted course readings.  She cited four reasons for denying the injunction:

  • She rejected the idea of a single standard that could apply to all possible cases. The Judge wrote, “ … the fair use analysis is quite intensive and specific to each individual case.”
  • She took the small fact number of violations as evidence that Georgia State tried in good faith to comply with the law after revising its e-reserve policies in 2008 under the original threat of litigation.  The “defendants prevailed on all but 5 of the 99 copyright claims which were at issue when the trial of the case began,” she wrote.  The publishers knew the court would only rule on alleged infringements that occurred under Georgia State’s revised policies and chose to pursue those claims anyway
  • She suggested that the defendants in the case should not be held responsible for dictating “individual fair use choices.”
  • She said it was unreasonable to task public employees with policing the issue with the degree of rigor sought by the publishers.  “Georgia State’s officers and employees work at taxpayer expense to carry out their duties,” she wrote. “There is insufficient reason to impose a burdensome and expensive regimen of record-keeping and report-making based on the totality of the circumstances.”

The court also ordered the plaintiffs, who were backed by the Association for American Publishers and the Copyright Clearance Center, to pay Georgia State’s attorneys’ fees.  “On balance,” she wrote, “the court finds that the defendants are the prevailing party in this case.”  “Although the court does not doubt plaintiffs’ good faith in bringing this suit, and there was no controlling authority governing fair use in a nonprofit educational setting, plaintiffs’ failure to narrow their individual infringement claims significantly increased the cost of defending the suit," the Judge wrote.

It is not known at this time whether or not the case will be appealed.  EDUCAUSE will continue to monitor and report on this issue.