Both Sides Angle for Victory In Key E-Reserve Copyright Case

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Georgia State University says infringement not proven; publishers criticize "checklist"

Andrew Albanese, Publishers Weekly -- Library Journal, 03/11/2010

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GSU claims sovereign immunity
Is checklist skewed toward fair use?
Settlement may be possible

In a significant development—or perhaps a last gasp—both sides in a contentious legal battle over electronic course reserves used in an academic library at George State University (GSU), Atlanta, have asked the court for summary judgment in their favor. (See past coverage from July 2009.)

In a filing with the U.S. District Court in Atlanta, publishers’ attorneys argue they should win without trial because a “checklist” now in use at GSU to determine whether an e-reserve copy is fair use is inappropriate, and is skewed toward a fair use finding.

The defendants meanwhile argue the publishers’ case runs afoul of state sovereign immunity, which protects state institutions from federal prosecutions, and that the plaintiffs fail to prove their infringement case.

Legal battle
"The new policy delegates the responsibility for ensuring copyright compliance entirely to faculty unschooled in copyright law, requiring them to complete an inherently biased fair use checklist for each of the course readings they propose to make available to students electronically," the publishers' brief argues. "The combination of this built-in bias and profound faculty confusion over–and ignorance of–basic precepts of fair use has resulted in overwhelmingly one-sided checklist determinations in favor of fair use."

In response, GSU attorneys claim that the plaintiffs "have not and cannot" establish direct, indirect or vicarious infringement, and that plaintiffs request for injunctive relief "is not sufficiently specific to justify injunctive relief against the administrators of Georgia State University."

Case background
The case began in April, 2008, when Oxford University Press, Cambridge University Press, and SAGE Publications sued four individuals at GSU over the library’s e-reserve system, which they claim was far too liberal, making over 6,700 total works available and “inviting students to download, view, and print such materials without permission of the copyright holder.”

But in a major development last June, the court granted a protective order to the GSU defendants, limiting publishers discovery to GSU’s “ongoing and continuous conduct,” in light of new, more conservative copyright policy, adopted the Georgia State Regents—and reflected in the checklist.

Settlement possible?
With the lawsuit narrowed, both parties seemed to be perhaps angling in on a settlement in which both sides could claim some victory. The plaintiffs, for example, could claim the suit has succeeded in changing the liberal policies governing electronic course content at GSU.

The defense, meanwhile, avoided an injunction.

In the past, publishers have been satisfied by a university’s public endorsement of what they consider “reasonable guidelines” for electronic course content. In 2006, Cornell University and the Association of American Publishers (AAP) released joint guidelines for electronic content. And in January, 2009, AAP voiced its approval of policies announced at Syracuse, Marquette, and Hofstra universities regarding the use of electronic content.

Raising the stakes
But as Duke University scholarly communication officer Kevin Smith observed last year, the protective order in the GSU case also raised the stakes for libraries because it focused the case on GSU’s policy and checklist, which reflect guidelines and policies at most other institutions.

More recently, Smith observed that several arguments in the publishers’ motion for summary judgment “should cause great concern” for the higher education community. “[The motion] is worrying because so many institutions have adopted a form of the checklist, believing it to be appropriate in part because the Association of American Publishers seemed to endorse it when they approved revised copyright policies that include the checklist in their negotiations with Cornell and several other institutions,” Smith wrote.

In fact, he noted, the Copyright Clearance Center, even suggests a version of the checklist, while "the plaintiffs’ brief suggests that almost nothing would be permitted without paying for permission each semester.”