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Publishers will appeal district court's decision in e-reserve copyright case

Publishers Double Down
September 11, 2012

Three academic publishers and their industry allies, who in May watched their four-year copyright lawsuit against Georgia State University stomped to bits by a district court judge, have doubled down on the case, declaring on Monday that they intend to appeal to a higher court.

Given the lack of clear precedent on the matter of educational “fair use” as it applies to electronic library reserves, few people expected the publishers to take the district court’s ruling lying down. By seeking an alternative outcome in the 11th Circuit Court of Appeals, the publishers are raising the stakes on an already high-profile case.

“There’s very little downside to appealing,” says James Grimmelmann, a professor at New York Law School. “Yes, they risk establishing a precedent at a higher level, but the district court opinion was heavy and careful enough that it would have been a persuasive precedent anyway.”

The lawsuit, brought in 2008, centered on allegations that Georgia State faculty were copying large portions of books from the publishers without permission and then making them available to students, for free, through the university’s e-reserve system. Georgia State adopted a less permissive e-reserve policy under threat of litigation, but the publishers nevertheless pushed for an injunction against the university in hope that a judge’s ruling might bring universities into line on what they consider a problem endemic to the digital age.

But after a lengthy legal battle, U.S. District Court Judge Orinda Evans called Cambridge v. Patton (named for the lead publisher and the Georgia State president at the time the suit was filed) largely in favor of Georgia State, striking down the publishers’ allegations of infringement in all but 5 percent of the claims under consideration. The outcome was cheered widely by academic librarians, who said the publishers were arguing for unreasonable standards.

The district court ruling “ignored this lengthy pattern and practice of widespread infringement and instead conducted a microscopic examination of a narrow selection of individual works,” said the Association of American Publishers (AAP) in a statement on Monday.

“It ignored the forest for the trees,” the publishers continued. “If left uncorrected, these and other errors will encourage educational institutions across the country to engage in massive infringement of copyright at a great cost to the entire academic community.”

The AAP, along with the Copyright Clearance Center, has bankrolled the lawsuit on behalf of SAGE Publications and the Oxford and Cambridge University Presses. According to Judge Evans’s most recent ruling in the case, those groups would also be on the hook for Georgia State’s legal expenditures.  

In a conference call with reports on Monday, executives at the AAP, Oxford and SAGE sought to preempt the recurring criticism that academic publishers suing a university over how its professors and librarians are use their products is needlessly combative, seeing as how they all technically play for the same team. Each expressed regret that the conflict had reached this point before arguing why they have, in the words of Tom Allen, the president of AAP, “no choice” but to continue with the lawsuit.    

“This is a case where the consequences of extending this ruling or allowing this ruling to define use of e-reserves in the academic community, is just too much,” Allen told reporters.

Niko Pfund, the president of Oxford University Press, said he and his fellow plaintiffs felt the “burden of representation” by standing for university presses against the librarians and professors who are also their clients. While the interests of university presses might not attract much sympathy in the context of litigating against Georgia State, those institutions face financial pressures that are exacerbated by libraries’ disinclination to pay to licensing fees for course readings, said Pfund.

Professors and librarians often seem to rally around university presses when financial straits push them to imminent closure, he said. “Our goal is to not let it get to that point,” said Pfund.

Blaise Simqu, the president of SAGE Publications, told reporters that he had consulted via e-mail with 50 or so of the company’s top textbook authors to try to get a sense of where they stood. An overwhelming majority encouraged him to continue with the litigation, he said. “Had that group of authors responded overwhelmingly advising SAGE not to participate or join the appeal, then it’s unlikely we would have,” said Simqu.

The publishers declined to say which parts of the district court ruling they plan to attack, deferring to their lawyers, who have yet to craft the formal appeal. In a best-case scenario for the publishers, according to Grimmelmann, an appellate judge might endorse a stricter cut-off for how much of a work a professor could lawfully copy before overstepping the boundaries of fair use. (Evans drew the line at 10 percent.)

Georgia State offered a mild reaction to news of the publishers’ appeal: “We believe Judge Evans' decision provides thoughtful and careful guidance concerning the application of fair use in higher education,” said Andrea Anne Jones, a spokeswoman for the university. “We will continue to defend the university’s right to make proper fair use of copyrighted material for educational purposes.”

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