GSU Prevails (Again) in Key Copyright Case @ Fair Use Doctrin - Big and Important Win for Universities and Libraries
In
a long-awaited decision, a federal court has once again found that Georgia
State University’s use of digitized course readings known as e-reserves is
protected by fair use. In a 220-page decision in Cambridge University Press v. Patton
(known as the GSU e-reserves case) Judge Orinda Evans found that 41 of 48
alleged infringements considered at trial—and reconsidered on remand—were
protected by fair use, and declared GSU the prevailing party in the case.
"We
are extremely disappointed by the district court’s decision on remand, which
perpetuates its earlier fundamental misconceptions of the application of
copyright law and the fair use doctrine to the higher education setting,"
reads a statement, from the Association of American Publishers. "Together
with the publishers who have served as plaintiffs, we will be considering our
appellate options."
Indeed,
the ruling is yet another blow for the publisher plaintiffs. First filed in April, 2008, by three academic publishers (Oxford
University Press, Cambridge University Press and Sage Publications, with
support from the Copyright Clearance Center and the AAP) the suit alleges that
GSU administrators systematically encourage faculty to offer unlicensed digital
copies to students as a no-cost alternative to traditionally licensed
coursepacks.
In
2012, Judge Evans ruled against the publishers, finding GSU's copying was
protected by fair use in all but five of 48 instances presented at trial.
In October, 2014, however, the Court
of Appeals for the Eleventh Circuit reversed and sent the case back to
Evans with instructions for a new four-factor fair use analysis. But in her
remand decision, Evans found just seven cases of infringement this time around
(six of which come from Sage Publications, of which five infringements stem
from editions of the same title, The
Sage Handbook of Qualitative Research; One infringement is from an
Oxford title: C. Wright Mills' 1956 classic,
The Power Elite).
Making
matters worse for the publishers, by once again declaring GSU the prevailing
party, GSU is again entitled to collect costs and legal fees from the
publishers—in 2012, that was more than $3 million, a figure that is likely to
go up following the appeals process.
After
the 2014 reversal, publishers had high hopes of prevailing in the case, which
AAP president Tom Allen had called "a “test case” that would “inform
application of fair use in the academic setting."
In
their remand brief filed last July, the publishers had argued that the appeals
court decision directed Evans to be primarily concerned with the effect of
GSU’s copying on the publishers.
In
their reply brief, lawyers for GSU countered that any "slight
diminution" of the publishers' licensing income was "negligible"
when the publishers' entire market is considered, and the educational use of
the digitized excerpts was factored in.
Barring
a settlement, the case could still be far from over. Having prevailed on seven
counts, the publishers once again will have a chance to propose injunctive
relief, which they must file with the court within 20 days. They could also
appeal Evans' ruling again, and at the very least are likely to contest the
payment of GSU's legal fees and costs.
"Overall
it's a big and important win, again, for universities and libraries," said
Brandon Butler, Director of Information Policy, at the University of Virginia
Library, who has written extensively on the case for the Association of
Research Libraries. "The court told us, again, that there must be room for
educational fair use, even if it means publishers make a little less money on
licensing."
Source | http://www.publishersweekly.com/
Regards
Pralhad
Jadhav
Senior
Manager @ Library
Khaitan
& Co
Upcoming
Event | National Conference on Future
Librarianship: Innovation for Excellence (NCFL 2016) during April 22-23, 2016.
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