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Mending Fences

June 21, 2012

CHICAGO — “Oh, jeez,” said one university press director, as Linda Steinman, lawyer for the Association of American University Presses, delivered a blistering summary-cum-critique of a district court judge’s ruling last month in Cambridge v. Patton here at the trade association’s annual meeting on Wednesday. “Wow,” said another. “Oh my God,” whispered a third.

University presses are still unhappy with the outcome of the landmark copyright case, which centered on Georgia State University's practice of duplicating book material and making it available to certain students free through the universities' electronic reserve database. That much was clear at Wednesday’s session, during which Steinman repeatedly slammed Judge Orinda Evans’s legal reasoning in the decision to a chorus of exasperated groans from a packed room of university press workers and executives.

“This is a terrible decision, it’s poorly reasoned, the result is a poor one, it’s a terrible precedent to have on the books,” said Steinman, doubling down on the AAUP’s much milder statement last month, which merely asserted that Evans’s 347-page ruling “appears to make a number of assertions of fact that are not supported by the trial record.”

But collective disdain for the judge’s reasoning in her decision eventually gave way to a general agreement among the attendees that, in order to make the outcome workable, university presses need to mend fences with another key player on their campuses -- librarians.

Librarians, along with their own trade associations, rallied around Georgia State when the plaintiffs -- Cambridge University Press, Oxford University Press, and Sage Publications -- brought the suit in 2008 with financial backing from the Copyright Clearance Center, which handles digital permissions requests on behalf of many academic publishers, and the Association of American Publishers. The tension between the two university factions was part of the narrative throughout the four-year trial.

“That two university presses and an academic publisher would take such an aggressive position against a university really is troubling,” Jonathan Band, a copyright lawyer who frequently represents libraries, told Inside Higher Ed last year. “[It] really makes you think what these presses really see as their missions: to serve the community, or to maximize profit?”

Frank Smith, a former executive director and head of digital publishing at the Cambridge press, said he and his colleagues agonized about how the suit would be perceived. “That was a very hard decision for each plaintiff because we were certainly very conscious that this was essentially an aggressive act against what we considered to be our community,” said Smith at Wednesday’s session.

But “the scale and nature of the infringement was so egregious” at Georgia State that Cambridge and its fellow plaintiffs were willing to grit their teeth and litigate, he said. (As it turned out, the judge found no copyright violation in all but a handful of Georgia State's alleged infringements, and backed the university -- though the presses have countered that Evans only considered instances that occurred during a brief period in 2009, after Georgia State had revamped its practices in anticipation of a court trial.) (This paragraph has been updated since publication.)

The judge in the Georgia State case deduced that the plaintiffs’ income from digital permissions fees composed a mere 1 percent of their total revenue in 2009 — a fact that Steinman argued should be taken as a symptom of liberal copying, not a justification. In any case, about half of the attendees at Wednesday’s meeting said, by a show of hands, that permissions fees are now an “important” source of cash.

“If I lost my permissions income, two people would lose their jobs,” said one press director.

“If we lost our permissions income, that would be two fewer monographs per year we’d be publishing,” chimed in another.

“We buy our equipment with our permissions income, like computers and upgrades and stuff like that,” said a third. “And we don’t have a budget line for that otherwise.”

While the room was dominated by university press reps, one librarian did speak up in an attempt to debunk any notion of the library as a bastion of freeloaders, and to offer some insight into the frustrations of his colleagues about being sued by their “siblings” at the academic presses.

“I just wanted to point out that we pay six figures each year to [Copyright Clearance Center], and that money is reallocated from our collections budget,” he said. “So that’s new content we’re not buying” -- as in, monographs published by academic presses. “It’s worth having a real discussion at your campus across these boundaries,” he said.

Referring to the Copyright Clearance Center’s co-financing of the plaintiff’s case, he added: “A lot of us were quite shocked and irritated to find that we were bankrolling a lot of the lawsuit.”

This entreaty seemed to strike a chord with many of the press people, and the tone of the room quickly shifted from anger about the judge’s decision to agreement that a more diplomatic, out-of-court approach to shaping library policy would be the most constructive way forward.

One press representative suggested that presses could take a more active role in educating library denizens about why they consider limitations on fair use to be important to sustaining the overall scholarly enterprise. “There’s a lot of room to change the culture at the graduate level and faculty level,” she said.

Steinman, the AAUP’s lawyer, concurred that the most effective appeals to unduly permissive fair use policies are likely to happen not in courts, but on campuses.

“I think that court battles are very important,” she said. “But also another very important thing is capturing the hearts and the minds of the university administration and the library administration and working with them to come up with a policy that allows some reasonable fair use of materials for the classroom … and yet simultaneously recognizes that, if there’s excessive use, then you’re going to affect the ability of the press to survive.”

 

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