On June 7, when U.S. District Senior Judge Orinda D. Evans heard closing arguments in Atlanta on the major copyright suit against Georgia State University, she said “There is no road map out there.”
When Evans renders her eagerly awaited verdict in Cambridge University Press et al. v. Patton et al., it will likely provide that road map and set a new standard for the free, academic use of copyrighted works in the digital age. Her task is not an enviable one.
“There is not a single case in the United States at any level that spells out what the standards are for fair use at a university like Georgia State,” Evans said on June 7.
The 2008 suit brought against four GSU administrators by Oxford University Press, Cambridge University Press and Sage Publications Inc. (with support from the Association of American Publishers and the Copyright Clearance Center) pivots around the allegation that GSU, as part of its e-reserve practice, engaged in “systematic, institution-wide copying for entire classes of students as a substitute for either purchasing or licensing authorized copies.”
The parties could not be further apart as evidenced by the stark positions articulated by the defendants in their 78-page “proposed conclusions of law” submitted July 22 and by the plaintiffs in their 87-page reply on July 30. Other final briefs were filed as well.
R. Bruce Rich, an attorney at Weil, Gotshal & Manges in New York and lead counsel for the publishers, pulls no punches in the reply:
Defendants advance a highly selective and grossly distorted analysis of fair use law that pays mere lip service to the critical elements that weigh against fair use – such as nontransformativeness and effect on market – while erroneously relying on the non-profit educational purpose of the challenged conduct as if it were dispositive, which it is not.
Stephen M. Schaetzel, of McKeon, Meunier, Carlin & Curfman, LLC in Atlanta, who is counsel for GSU and the Board of Regents,asserted:
Plaintiffs have offered no evidence of any market harm on the asserted works as a whole. There was no evidence at trial that Plaintiffs’ sale of the books had diminished as a result of the uses made at GSU. Instead, the Plaintiffs rely on the loss of “permissions” revenue, pointing out that under licensing plans offered by the CCC, GSU professors could pay to use select pages from the work, including a chapter or even multiple chapters.
The Plaintiffs’ argument here is circular, facilitated by the development of a licensing scheme that can charge users for a single page or brief portions of a work.
Kevin Smith, the scholarly communications officer at Duke University and an influential commentator on the case, found the defendants’ brief particularly compelling. But both submissions have their own particular kind of legalistic cogency and make interesting reading. But it will be equally interesting to see whether Judge Evans will have the capacity to render a Solomonic decision.