April 24, 2018

Plaintiffs Must Pay Almost $3 Million in GSU Legal Fees

On September 30 Judge Evans, who had already said the publisher plaintiffs in the Georgia State University (GSU) ereserves case would have to pay the university’s court costs, has now put a number on that obligation: just shy of $3 million. That’s $2,861,348.71 in attorney’s fees and $85,746.39 in costs.

Although the plaintiffs—Cambridge University Press, Oxford University Press USA and SAGE—had already decided to appeal, Evans denied their request for a delayed ruling on court costs. The plaintiffs filed a notice of appeal on October 2.

GSU’s original requested amount was adjusted downward for several things, though not nearly as much as the plaintiffs had asked. They’d requested that it be denied outright or, failing that, reduced by $333,519.09, on the grounds that only work done after GSU adopted its new copyright policy in February 2009 should count.

Judge Evans rejected that reasoning, on the grounds that much of the work done before then had carry-over value. However, she did reduce the award by $62,145 for time spent formulating the 2009 copyright policy, and $30,000 for work which had no value once the claims under the old policy dropped out of the case. (The original claim was also reduced by $16,577.25 by consent of the parties, because it was spent developing GSU’s sovereign immunity defense.) Judge Evans also rejected the plaintiff’s objections to paying for the costs of expert witness Kenneth Crews and for GSU’s consultation with its attorneys on how to comply with previous court orders.

The Association of American Publishers, which, along with the Copyright Clearance Center, is bankrolling the litigation, told LJ, “We don’t expect it to stand up on appeal.”

What remains to be seen, however, is whether the plaintiffs can wait and see if it stands, or whether they’ll have to pay the award upfront and be reimbursed if they prevail on appeal. “The court was silent on this point, so it still needs to be resolved,” Andrea Jones, GSU’s assistant vice president for communications, told LJ.

Kevin Smith, scholarly communications officer of Duke University, commented on the costs on his blog. “The result of all this expenditure, thus far, has been a judgment that gives us what the publishers originally said they wanted. The Judge has articulated a reasonable fair use standard…We can no longer preserve the illusion that all this was about was to provide some certainty about fair use for digital course content. The publishers spent 6 million and now could walk away with a workable, if unpopular, standard. Instead the battle against universities and higher education will continue.”

Meredith Schwartz About Meredith Schwartz

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

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