Judge Orinda Evans of the U.S. District Court for the Northern District of Georgia ruled largely in GSU’s favor on May 11, holding only a handful of GSU’s usages to be infringement.
Plaintiffs Cambridge University Press, Oxford University Press USA, and SAGE Publications issued a joint statement which said, in part, that the rulings “shift radically from long-accepted fair use principles and introduce, among other errors, unsustainable policies regarding the proportion of a work not readily available for digital licensing that can be digitally copied without restriction.”
GSU spokesperson Andrea Anne Jones indicated that the university has every intention of vigorously defending the current verdict in its favor. She told LJ, “We believe Judge Evans’ decision provides thoughtful and careful guidance concerning the application of fair use in higher education. We will continue to defend the university’s right to make proper fair use of copyrighted material for educational purposes.”
Before deciding whether to participate in the appeal, Blaise R. Simqu, president and CEO of SAGE, personally consulted more than fifty current SAGE textbook authors. While noting that the group was not large enough to be a statistically significant sample of SAGE’s total author pool, Simqu said, “Had that group of authors responded overwhelmingly advising Sage not to participate or not join the appeal then it is unlikely that we would have.”
“At the outset I felt that the authors would be split 50-50 and the decision would still be left with us,” Simqu continued. As things turned out, however, “all but two of the authors not only were supportive but felt very strongly that it was critical that SAGE continue with this appeal.”
In addition to the plaintiffs of record, the suit was financially backed by the Copyright Clearance Center (CCC), which paid 50 percent of the costs, and the American Association of Publishers (AAP). Both will continue to lend support to the appeal. AAP said in a statement that the decision, if not “corrected,” would “encourage educational institutions across the country to engage in massive infringement of copyright.”
“We partially funded the lawsuit […] and will continue to do so,” a CCC spokesperson confirmed to LJ. “We are disappointed with aspects of the court’s decision and in particular the fair use analysis it employed.”
In addition to the costs of the initial case and appeal, right now the plaintiffs are on the hook for GSU’s legal fees as well: Evans ordered that in August, when she rejected the plaintiff’s proposed injunction.
It remains to be seen, however, whether that payment will materialize. “This was a long complicated case and I expect it would be a pretty big number,” Tom Allen, president and CEO of AAP, said. But he didn’t sound worried. “Of all the issues in this case, we are most confident that any attorney’s fees and cost award is likely to be overturned on appeal.”
Allen also said attorney Bruce Rich, who handled the case at the district court level, will continue to represent the plaintiffs on appeal. The next step is a scheduling order from the 11th Circuit
, which will determine when the plaintiff’s brief and GSU’s reply must be filed.
Duke University’s Director, Copyright and Scholarly Communication, Kevin L. Smith predicted (and decried) this appeal back in August. Today he took issue with the AAP’s statement, which reads in part, “There is no legal basis for according less copyright protection to printed books and articles when portions are made available in digital form rather than bound into hard-copy coursepacks.”
Smith told LJ, “The Court never said that a different level of protection applied to digital excerpts […] The fair use analysis is different because […] with Georgia State’s e-reserves there is no commercial intermediary. […] It is the AAP that misunderstands how fair use is applied. […] Fair use is precisely an examination of each tree, not a sweeping condemnation, or approval, of entire forests.”
Smith also blogged about the appeal.