November 17, 2017

GSU Ereserves Plaintiffs Propose Injunction

The plaintiffs in the Georgia State University (GSU) ereserves case—Oxford University Press, Cambridge University Press, and Sage Publications—made one last attempt at getting the broader injunction they originally proposed before the trial but, realistically, offered as an alternative “a more narrowly tailored injunction” that more or less hews to the reasoning the court displayed in its May 11 finding, while reserving the right to appeal.

The proposed injunction prohibits using the plaintiffs’ works unless permission is obtained or the use meets the fair-use criteria embodied in Judge Orinda Evans’s findings. (That is, a “decidedly small” amount, defined by the court as one chapter in a longer work or 10 percent or less in a shorter one, especially when electronic excerpt rights are available.)

Kevin Smith, of Duke University’s Scholarly Communications office, observed, “These requirements are taken very closely from the analysis Judge Evans used, but they are shaped into a less flexible test than the Judge actually employed [… ] she never actually asserted, as the proposed injunction would have her do […] that an excerpted could be infringing if it was the heart of the work even if it was sufficiently short to meet her basic third-prong test.”

The plaintiffs also asked the court to require GSU to check whether digital permissions are available if they’re using more than the “decidedly small” amount and to document that it has done so; to disseminate the order to its staff, and to impose sanctions on those who fail to comply.

Smith further called attention to the plaintiff’s proposed enforcement mechanism, which involves monitoring the GSU’s Ulearn software. “If the publishers are given the right to poke around in GSU’s course management system, faculty will be outraged, at GSU and elsewhere,” said Smith, who speculated that such outrage might lead faculty to abandon the Ulearn system, as well as to quit providing free content and labor to the three publisher plaintiffs.

The plaintiffs extrapolated from the judge’s reasoning to suggest she limit the order to non-fiction, since the fair use calculus for fiction, poetry, and textbooks, would be different, but within those limits, to include the plaintiff’s future works in all formats.

They further seek to have GSU prevented from charging students a library or computer fee for accessing unlicensed excerpts, since this, in their view, would be profit, undermining the non-profit educational use aspect of the court’s fair use calculus. The argument is surprising, given that non-profit organizations routinely charge fees to cover their expenses, whether in the form of tuition for colleges or medical bills for hospitals, without jeopardizing their nonprofit status. Furthermore, academic library and computer fees generally apply to a wide universe of student uses, of which access to the unpermissioned portions of electronic reserves would likely be only a small part.

The plaintiffs further ask the court to “clarify” that takings of works for which digital licenses are not available “shall not substantially exceed” the limits the judge set for when they are available. Depending on the definition of “substantially”, such a clarification might amount almost to a reversal, since the judge found several larger uses to be fair when such a license was not offered.

GSU now has 15 days to file a response. GSU spokesperson Andrea Jones declined to comment on the proposed injunction.

Meredith Schwartz About Meredith Schwartz

Meredith Schwartz (mschwartz@mediasourceinc.com) is Executive Editor of Library Journal.

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