Going forward with Georgia State lawsuit

Judge Orinda Evans of the Federal District Court in Atlanta issued her ruling yesterday on the cross motions for summary judgment in the copyright infringement lawsuit brought by three publishers against Georgia State University over course readings provided to students through e-reserves and the campus course management system.  The text of her decision is here.

When a party moves for summary judgment, the hope, of course, is to avoid trial altogether and win your case outright on the basis of the motions and evidence submitted.  I had already said that I thought neither side would succeed at that level, and I was right.  But I have to admit to being surprised at how favorable the ruling issued yesterday is to Georgia State; even though the Judge clearly expects to go to trial, there is a lot in her ruling to give hope and comfort to the academic community.

For those who are keeping score, the Judge has granted the defense motion for summary judgment on two of the three claims — direct and vicarious infringement — and denied it in regard to the third claim, which is contributory infringement.  The plaintiff’s motion for summary judgment has been denied in its entirety.  The net result is that the case will go forward on the single issue of contributory infringement.

There are lots of complicated legal issues at work in the judges order.  Many have to do with the specific way in which this case is structured to deal with the issue of sovereign immunity and the particular things that have to be proved to avoid dismissal on those grounds.  But putting all of that aside for a moment, there are three points that I think are very significant and indicate how the rest of the academic community should regard this case.

First, in her discussion of the type of “indirect” copyright infringement call vicarious infringement, Judge Evans includes a substantial discussion of the economics that underlie providing course materials to students.  She acknowledges statements from several faculty depositions that they would not ask students to buy the books excerpted in e-reserves if that option were not available and also that they would not use many of the readings if a licensing fee were necessary.  This testimony seems to confirm the fear that a ruling against fair use would dramatically limit the course materials available to students; the upshot seems to be that a ruling against fair use would have significant negative social consequences and little real benefit for the plaintiffs.  The fact that Judge Evans is engaging the issue on this pragmatic level bodes well for a decision about fair use that genuinely address the social value of the particular activity and does not simply apply a mechanical analysis.

Second, the judge seems to indicate that the plaintiff publishers have a pretty narrow window for proving infringement.  They may not argue either direct or vicarious infringement, but have to focus their claims on contributory infringement.  They cannot argue that contributory infringement is shown by the mere provision of systems that may be used for infringing activities; here the Judge is following the Supreme Court precedent that says that a technology does not show “culpable intent” if it is “capable of significant non-infringing uses.”  Since e-reserves and course management systems clearly are capable of such uses, the Judge declines to hold that merely making those systems available renders GSU liable for contributing to copyright infringement.  So the plaintiffs will have to prove “ongoing and continuous misuse of the fair use” by producing evidence of “a sufficient number of instances of infringement.”  The defendants — Georgia State — will then have the burden of proving fair use as to each alleged infringement.  It is worth noting that this standard of “ongoing and continuous” infringement is a specific requirement of the exception to sovereign immunity on which the plaintiff’s rely.

Finally, and this is what really caught my attention, is the ruling that the Georgia State copyright policy, which was adopted in 2009, after the case began, “on its face does not demonstrate an intent by defendants to encourage copyright infringement; in fact, it appears to be a positive step to stop copyright infringement.”  Since the policy looks quite a bit like those used on many other campuses, this is good news.  The case regarding contributory infringement will go forward, the Judge says, on the issue of whether the policy is implemented in a way that encourages improper application of fair use.  This emphasis on the local practices rather than the policy itself will certainly make it easier for other campuses to learn from an eventual ruling and, if necessary, adjust their own implementations to meet whatever standards arise, but it decreases the likelihood that large and dramatic changes will be needed.

It is possible, of course, that this ruling on the summary judgment motions will inspire the parties, especially on the publishers’ side, to seek a settlement.  I have a hard time envisioning what the grounds for such a settlement would look like, but motivated parties can often find a way forward.  If, however, a trial and verdict is in the future, this order increases my confidence that the focus will be on a realistic and pragmatic evaluation of activities that, in my opinion, ought to be considered fair use.  Even if the court ultimately agrees with me, we will have a lot of work to do to make sure that we understand the reasoning behind such a verdict and are able to apply it to our own institutional situations.  And, of course, an appeal would probably be inevitable.  But at this early stage (and it is early, even after two and a half years) it is better to have events trending in your favor than otherwise.