The copyright infringement lawsuit brought against Georgia State University by three major publishers has been in a relatively quiet phase recently. Discovery, the process of gathering evidence and deposing witnesses, can be very dramatic, in fact, and decisions made during that phase of a trial can do much to determine who wins and who loses. But it largely takes place outside of public view. Nevertheless, there was a development in Cambridge University Press, et al. v. Georgia State University last week that could significantly change the stakes for the rest of the academic world as it watches this case unfold (thanks to Jeff Graveline at UAB for pointing this ruling out to me).
This gets a little technical, so bear with me.
When the lawsuit was first filed, lots of librarians and other academics read the complaint and thought, if that is what GSU has been doing, they have really been pushing the envelope. The copyright policy under which the University System of Georgia operated was the work of a brilliant scholar, but it represented a very liberal interpretation of the law. The complaint outlined objections to the policy, as pushing the interpretation of fair use too far, as well as citing practices that seemed outside even the broad scope of the Georgia policy.
Earlier this year, the Georgia Regents adopted a new copyright policy after a select committee reviewed and entirely rewrote the older one. The new policy is shorter, more easily comprehended and more pragmatic. In fact, it comes a lot closer than its predecessor to reflecting policies around electronic course content that are common on many campuses.
After this new policy was adopted, attorneys for GSU filed a motion for a “protective order” which would state that only information about electronic course content going forward, under the new policy, could be “discovered” by the plaintiffs. GSU argued that since they were a state institution, and therefore entitled to immunity from damages, the plaintiffs could only get prospective relief (an injunction) and therefore should be limited to information about practices related to the policy under which GSU would go forward. After some legal maneuvering, the Judge granted this request last week.
As I read the Judge’s decision on this motion, the only reason the Plaintiffs now need to know anything about prior practices at GSU would be to argue that the new policy has not really changed anything. And Judge Evans has now held that enough has already been revealed about past practices to support or refute that argument.
For the rest of us, this means that the decision about fair use, if the case gets that far, will be a lot more relevant to e-reserve and course management systems use around the country. That, of course, could be a good thing or a bad thing, depending on how the decision goes. But it seems the decision will be based on policy and practice a lot closer to what many schools use (assuming, of course, that the new policy really does indicate changes in practice). Presumably a ruling in favor of fair use is a little more likely now that it will be decided on the basis of this more pragmatic policy. And such a ruling would more clearly support wide-spread practices in higher education. On the other hand, a ruling against Georgia State, if it happens, would be much harder for the rest of us to explain away and distinguish from our own practices.
Policy on Electronic Course Content
For help deciding whether course content in Blackboard or some other digital form is fair use or requires copyright permission, consult this policy document adopted by the Academic Council in February 2008.
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- Dave Fernig on Going all in on GSU
- Gretchen McCord on Going all in on GSU
- In Georgia State University E-Reserves Case, Eleventh Circuit Endorses Flexible Approach to Fair Use | ARL Policy Notes on GSU appeal ruling — the more I read, the better it seems
- Paul Callister on Swimming in muddy waters
- Jim Neal on Free speech, fair use, and affirmative defenses