Two interesting lawsuits came to my attention recently, one decided in February by the federal district court in Los Angeles and the other just filed in the district court in Atlanta. The new case involves a challenge by three publishers to the electronic reserves practices at Georgia State University, so it has direct relevance for many of the readers of this blog. But taken together with the LA case, there is a fascinating question raised about whether it should be possible to sue state institutions for violations of federal law.

The case out of California, Marketing Information Masters v. the Board of Trustees of California State University reaches a rather predictable result in dismissing an allegation of copyright infringement on the grounds that states and state institutions are immune from lawsuits by private individuals and corporations. Congress has tried to change this doctrine in regard to copyright by adopting section 511 of the Copyright Act in 1994, but the courts keep brushing that provision aside. William Patry comments negatively on this trend here, while Georgia Harper partially defends it here. But what is really interesting is that the district court in Marketing Information Masters allowed the suit to go forward after dropping Cal State as a defendant by leaving intact the claim against the specific university employee named in his individual capacity. Pretty frightening stuff for state university faculty.

If we now flip forward to the suit filed yesterday against Georgia State University, we have to wonder if the same sovereign immunity problem will lead to dismissal. The four university officials are named only in their official capacity; no one claims they actually infringed copyright themselves. So how will this case avoid being dismissed? The answer seems to be in one of the few exceptions to sovereign immunity, the doctrine that one can sue state officials in their official capacity if one is seeking only injunctive relief — an order to stop the infringing activity — rather than money damages (the Ex parte Young doctrine). The complaint filed against GSU takes exactly this tack, seeking only an injunction to stop the activity going forward, not damages for alleged infringement in the past. On that basis, we might actually get a decision about the meat of the claim, that electronic reserves are almost always infringing if the universities do not pay for permission.

This claim, if successful, would increase student costs for educational materials dramatically as schools would have to pass on the costs for permissions in addition to the money already spent when they financed the original research, purchased the resultant articles and then, often, purchased them again in digital format. If publishers get their way a fourth payment would be required, and it would come straight out of students’ pockets.

The complaint against Georgia State acknowledges fair use, as it must, but it relegates it to a tiny fraction of situations, none of which can realistically be expected to occur on a modern college campus. In effect, this is an attempt to enforce judicially a “pay-per-use” model of content distribution. The real irony is that it is justified as an attempt to remedy a “free-rider” problem — the claim that universities are appropriating the work of publishers and authors without just compensation. This claim is patently absurd, given the amount of money university libraries invest in published resources, but it is downright offensive when the real issue is clarified. Publishers here are themselves the free-riders, obtaining a huge amount of academic content from the universities and their faculty without compensation. The GSU complaint cites as an irony the fact that one of the professors who is cited as infringing the copyright of Sage Publishing has himself published three articles in Sage journals. The gall of the man! Nowhere is it mentioned that he was required to give up those articles without payment for the privilege of publishing with a company that is now suing his employer to recover even more money for those freely donated articles.

A little bit of attention to the economics of scholarly publishing quickly undermines the claim in this complaint that, without permission fees for electronic reserves, the incentive system of copyright will be undermined. No monetary incentive currently exists for the vast majority of academic publishing, from the point of view of faculty, yet academics keep writing. There is no evidence at all that this well of free content will suddenly go dry if publishers are not able to collect an additional income stream from that well. If this suit goes forward in spite of sovereign immunity, that should be the issue on which the court focuses its attention.

 

10 Responses to Trying to sue State U

  1. aisha says:

    WOW…and we all wait.

  2. [...] The AJC writes a really confusing headline but adds some information about the library angle; Inside Higher Ed gets writes journalistic circles around the Gray Lady. The complaint is here. The Chron comments on [...]

  3. Kathleen Wallace says:

    Academic authors need to become much more savvy about the publishing agreements that they sign. These agreements currently allow publishers to charge universities many times over to use material in digital form that the university already owns, and that the university may already have paid to produce in the first place if the author was an employee of the university! I wrote a short piece about this called “Marketing Ideas: Reshaping Academic Publishing in a Digital World”, see it at http://www.scienceprogress.org/2004/04/marketing-ideas/

  4. Monica McCormick says:

    Kevin, thanks for this lucid post about a complex situation. For further clarity, it may be worth distinguishing between journal and book publishing in this discussion. While journals generally do not pay authors for their content, scholarly book publishers often pay royalties, generally modest ones (5-7% of net sales), but for some books quite substantial. Royalties (and advances on future expected royalties) tend to rise in competitive situations, when publishers are vying over a manuscript. I can only guess at what proportion of book authors receive royalties (which in most cases probably amount to only a few thousand dollars over the life of the book) but it’s certainly not zero, as you imply in your post.

    Moreover, even with only modest royalties at stake, it is not the case that “no monetary incentive currently exists for the vast majority of academic writing.” Faculty’s tenure and promotion—hence salaries—rely heavily on their publishing. They have a lot at stake in the stability of the publishing system. Despite the possibility of starting new journals with open-source software, and to post work freely on the internet, the vast majority of faculty authors continue to turn to established publishers because their own careers depend, at least in part, upon those publishers’ reputations for quality. (In addition, of course, most faculty members prefer to do their work and not the work of publishers.)

    I am not interested in defending the current business models of any particular publisher. My point is that existing publishers do have a stake in protecting their business models, and that faculty members rely on those in ways that are not necessarily helpful for their own libraries and universities. If we don’t understand their business models we’re unlikely to respond effectively to their challenges.

    I respectfully suggest that “a little bit of attention to the economics of scholarly publishing” is not enough. As the recent study from the University of California points out, it is not fair to expect individual faculty members to buck this system by making adventurous publishing choices. We as a university community (of librarians, publishers, and administrators, as well as faculty) must find a better way. I agree that authors need to become savvier about their publishing agreements (even to read them, which many authors admit they do not do.) But it’s a big, complex problem that will require a complex solution.

  5. Kathleen Wallace says:

    I entirely agree with Monica McCormick that individual authors acting alone will not be sufficient to rectify the problem, and argue in my essay, “Marketing Ideas,” that it will have to involve the coordinated effort of universities, who are the primary customers for these works, and who therefore, collectively have considerable leverage if they were to use it in a coordinated fashion. However, there are also things that individual authors can do. I agree with Kevin that they need to become part of the discussion and active participants in the solution. For the most party, hitherto, they have not been part of the conversations going on about the problem. Those conversations are taking place largely among institutions — universities, libraries, and publishers.

  6. Kathleen Wallace says:

    I would also add that while Monica is right that there is some distinction between books and journals (the former involving royalties, perhaps, and the latter not), that distinction may not be worth much in the new digital landscape, which allows for marketing opportunities hitherto unavailable to publishers.

    Entire books, as well as individual book chapters, journal articles, and so on are all being marketed online by publishers. An academic publishing contract which stipulates that an author collects no share of the sales in each form (e.g., print or digital) until at least 300 copies of that form are sold annually does not give the author a fair share of the profit. There is no extra cost to the publisher annually; once produced, the sale of a digital product is almost entirely profit; similarly for print copies if print on demand is well-established.

    Second, for purposes of dissemination, authors may be poorly served by a standard restrictive publishing agreement which grants publication and distribution rights exclusively to the publisher. If a publisher decides to not distribute or “print” the work, the author may have little or no avenue for having her or his work distributed.

    Third, the digital world creates new issues for universities and libraries as far as reuse fees are concerned, and none of the existing contracts — nearly all of which assign to the publisher exclusively licensing rights carte blanche — really address different ways of doing this. This issue also affects authors who may want to use their own work in particular contexts (e.g., teaching) and who may have to pay, or their university may have to pay to do so.

    Not to beat a dead horse (since I’ve mentioned the piece in previous posts), but for the interested reader, I discuss these issues in my essay, “Marketing Ideas: Reshaping Academic Publishing in a Digital World” at http://www.scienceprogress.org/2008/04/marketing-ideas/

  7. [...] exchange in the comments on my own post discusses this point in some depth. Monica McCormick argues that there is still an incentive system [...]

  8. [...] versus fair use issue obscures the present imbalance in the world of scholarly publication. The Duke Scholarly Communications blog puts this issue bluntly: “The real irony is that [the lawsuit] is justified as an attempt to [...]

  9. [...] limited as a legal fact, even if Georgia State did not have to pay anything in response. In the words of Duke’s Kevin Smith, “this is an attempt to enforce judicially a “pay-per-use” [...]

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