Publishers file response to GSU ruling

Yesterday the three plaintiff publishers in the copyright infringement case against Georgia State filed their proposed injunction, as the Judge required that they do, and a memorandum of law in support of that proposal.  So now we have a chance to examine their first legal response (as opposed to press releases) to the ruling Judge Evans handed down three weeks ago.

First a couple of comments about the memorandum of law.  There is a statement in it which asserts that the May 11 order found enough infringement to justify imposing the original injunction the publishers suggested back before the trial.  This is wishful thinking indeed, considering how many points the Judge has found in favor of GSU since that sweeping proposed injunction was offered.  And remember, the Court found only 5 instances of infringement out of the 75 excerpts examined or 5 out of 95 if we count the ones consider at trial and subsequently withdrawn by the plaintiffs.   But this hardly seems like a serious hope on the part of the three publishers, and the rest of the memorandum is spent explaining and defending the alternate proposal they offer, which is, they say, more narrowly tailor to track the Court’s fair use analysis.

One other comment in the memorandum caught my eye — the assertion that the GSU policy “did nothing” to limit GSU’s copying for electronic reserves to “decidedly small” excerpts.  This is technically a true statement but seems to misrepresent the Judge’s exact words and their implication (in fairness, the plaintiffs do quote those exact words later on).  What the Judge did say was the the GSU policy did cause the infringement “in that it did not limit copying in those instances [the five infringements] to decidedly small excerpts as required by this order.” She does not say that the policy did nothing to limit the copying, only that it did not conform to an arbitrary standard which was not available to GSU when the policy was implemented.  Hardly a culpable lapse, and the Judge does go on to say that the policy was a good faith attempt to comply with the law.

The phrase “in those instances” may be very important as this case proceeds, because much will turn on whether or not the Judge thinks the instances of infringement that she found rise to the level of “ongoing and continuous” violation of federal law.  The publishers assert that it does, and use those words over and over.  They need to make this argument in order to get an injunction that broadly proscribes future behavior by GSU. The exception to sovereign immunity on which this case is founded allows a court to issue an injunction only to prevent such “ongoing and continuous” violation.  So it is possible that the Judge could decline to issue an injunction at all by ruling that the few infringements she found amongst the many excerpts she examined do not suggest a pattern of ongoing and continuous violation.  Or she could simply order small tweaks to the GSU policy.

In their (alternate) proposed injunction, the publishers ask for much more.  They want GSU to be enjoined from ever using any excerpts from Sage, Oxford or Cambridge works without permission unless a strict set of conditions is met.  Those conditions include meeting all of the fair use factors (it would no longer be a balancing test), as they have been defined by the Judge, although the injunction combines factors three and four into a single set of requirements.  The proposal says that, to be used by GSU without payment, any excerpt from these three publishers must be “strictly without charge for nonprofit educational purposes” AND be “narrowly tailored” to “fulfill a legitimate purpose in the course curriculum” AND not be the heart of the work AND not be more than 10% or a single chapter, whichever is less.  Alternatively, if a digital license is not available from either the CCC or directly from the publisher (they want GSU to pursue both options), the excerpt must still be sufficiently small “as not to cause actual or potential market harm to the work.”

These requirements are taken very closely from the analysis Judge Evans used, but they are shaped into a less flexible test than the Judge actually employed.  For example, in the one case where the use of the “heart” of a work led to a finding of infringement by Judge Evans, that excerpt also exceeded her standard in terms of length (it was two chapters and 12.5%).  Because the third factor did not favor fair use, the factors were tied, and the Judge looked at the issue of the centrality of the excerpt to break the tie.  Thus she never actually asserted, as the proposed injunction would have her do (it connects length and centrality with a conjunction, not a disjunction), that an excerpted could be infringing if it was the heart of the work even if it was sufficiently short to meet her basic third-prong test.

The proposed injunction goes on to impose additional requirements on GSU, which look very like what was suggested in the publishers’ first proposal.  GSU would have to rewrite its policy to conform with the publishers’ reading of Judge Evans’ ruling, and state explicitly that the fair use checklist had been superseded.  They would have to document extensively, including evidence of an inquiry about a license made to both the CCC and the publisher for every excerpt.  Faculty would be required to see the entire proposed order every time they tried to upload anything, and to be threatened with sanctions if they disobey it in any particular.  The Provost would have to certify compliance to the Court each semester for the next three years.  And perhaps most objectionably, GSU would be required to provide the publishers with access to its course management system so that they could verify compliance.

The proposed order is clearly intended to humiliate GSU and to make fair use as difficult as possible for them.  It reads to me like a party who actually won very little at the trial still trying to spike the ball in the other parties’ face.  I hope the Judge will see it as yet another attempt to overreach the evidence on the part of the publishers.

One thing I can say with confidence.  If the publishers are given the right to poke around in GSU’s course management system, faculty will be outraged, at GSU and elsewhere.  That outrage might lead some to look for “underground” methods for sharing academic readings, which would be unfortunate.  It might also lead to difficulties in finding faculty authors who will be willing to continue to provide free content and free labor to these three publishers.

GSU now has 15 days to respond to this proposal, and then the Judge will decide what she will order.  It is likely her order will not be exactly what either side wants, and that the case will then move to the Eleventh Circuit Court of Appeals.