At the end of her massive ruling in the Georgia State University copyright case, Judge Orinda Evans directed the plaintiff publishers to file a proposed text and rationale for whatever injunction and declaratory relief they think is called for in light of the decision. She also gave the defendants time to respond to whatever the publishers proposed. All this is pretty standard for a case like this.
The publishers made their proposal a couple of weeks ago, and I wrote about it here. Basically they suggested that enough infringement had been found to justify the extremely sweeping injunction they had originally suggested back in February, before the trial had been held. Perhaps recognizing that this was quite a stretch, they proposed an alternative that they said was more narrowly tailored to the Judge’s actual ruling. In fact, their “c0mpromise” position proposed to lump all of the different criteria that the Judge had considered in her careful balancing of the fair use criteria into one big pot and call them all requirements for any fair use. In short, they took criteria that the Judge considered as either/or and asked that they be made both/and.
Now GSU has responded, and the response could not be more different. Where the publishers suggest that their original, pretrial, “throw the book at them” injunction would still be appropriate, the defendants assert that no injunction at all is called for. It is probably not unusual for the two sides to have such divergent views about the remedy even after a ruling, but one has to think that, given that she has now been presented with the full range of options that were before her in the first place, Judge Evans wonders if it was worthwhile even to ask the parties in the first place.
The filing by GSU begins, appropriately in my opinion, by pointing out that very little infringement was actually found by the Judge in her May 11 ruling. The plaintiff publishers refer over and over again to “systematic and widespread” infringement; even their statements to the press contained this kind of language. Yet the Judge only found five instances of infringement out of the 99 excerpts that were at issue at trial and the 74 excerpts that she ultimately analyzed (25 were voluntarily withdrawn by the plaintiffs after trial). The defendants point out that not only is this not systematic and widespread infringement, it is not even the pattern of “ongoing and continuous violation of federal law” that is necessary to justify any injunction in this case.
Because Georgia State is a state institution, lawsuits against it in federal court are severely circumscribed. The Federal Courts cannot award money damages to a plaintiff, for example, because that would give those courts too much power over state treasuries. They can order injunctions, telling the state how to behave in the future, only when there is an “ongoing and continuous violation of federal law.” The language comes from a Supreme Court case called Ex Parte Young, and Georgia State is asserting that that standard has not been met, not when so few infringements were found in such a large pool of excerpts examined.
GSU makes the point that this is a very small percentage, which represents the behavior of only 3 professors from amongst the 33 whose fair use decisions were challenged at trial. And they remind the judge that no copyrights at all that are held by one of the plaintiffs, Cambridge University Press, were found to have been infringed. For all these reasons, they argue that no injunction should be issued or, under the rules of Ex Parte Young, can be issued.
Instead, GSU essentially asks for a “declaratory judgement,” which is a binding statement from the court that establishes the rights of the parties without providing any enforcement mechanism. The basis for this request is that GSU has already modified their copyright policy in accord with the May 11 ruling. In these amendments they have addresses the two aspects of the 2009 policy that the Judge criticized in her decision. First, the revised policy now limits the amount of a work that can be used for digital course readings to 10% or one chapter, whichever is less. Second, they built in the idea that if a digital excerpt license for the work is readily available from the publisher or the Copyright Clearance Center, that availability weighs the fourth factor against fair use, and it tips the balance if more that 10%/one chapter is being used.
These changes track the Judge’s ruling quite closely. So GSU is arguing that, having amended their policy (which the Judge admitted was a good faith attempt to obey the copyright law in the first place) to correct the flaws the Judge found, all that is needed is a declaratory judgment that the policy now correctly defines fair use for the GSU faculty.
In this exchange of proposed remedies, the tendency of the plaintiffs to over-reach the evidence and make sweeping statements without justification has again been obvious. The proposal that the judge can bring the trial phase of the case to a close by simply acknowledging that the amended policy now conforms with her findings of fact and conclusions of law makes a great deal of sense. It might seem anti-climatic, especially given the size of that May 11 set of findings, but it is the sensible and prudent course. And, naturally, it will set up the next stage of the case — the inevitable, I believe, appeal by the publishers.
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