In the ongoing copyright litigation between Georgia State University and Cambridge, Oxford and Sage publishers, we are at a stage where everyone is waiting for Judge Orinda Evans to rule on the cross motions for summary judgment. In the interim before her ruling, it is fascinating to look at the orders she has issued directing the parties to give her information. The orders may tell us a bit about what the Judge is thinking, although such divination is always fraught with uncertainty.
In here first such order, back in June, Judge Evans directed the parties to file with the court a complete and certified copy of the new Georgia State copyright policy. This development presumably indicated that the Judge was giving full consideration to the fair use argument and also that she was determined to stick to the analysis of the current policy. Those who purport to speak for the plaintiffs in the case sometimes seem to want to continue to make the case about practices at GSU prior to the adoption of the new policy, in spite of Judge Evan’s previous rulings. This order in June indicates, I hope, that the Judge is keeping her eye on the ball.
Last week is when the orders got really interesting, in my opinion. First the Judge order the plaintiffs to provide her with a list of all of the items assigned for each class in the three 2009 semesters that are alleged to be infringing. Again, she seems determined to look only at practices that occurred after the new policy was adopted in February of 2008, and is looking careful at what those practices really are. Whether or not this is a good thing for defendants or for plaintiffs, it speaks well of the determination of the Judge to keep the cases within the bounds she has set for it and not be swayed by outside rhetoric.
If we are looking for good news for the defendants in this case, however, I think it is to be found in the next order, filed last Thursday. There the Judge orders the plaintiffs to provide her with a list of the retail cost of each work that was allegedly infringed during the 2009 semesters and the cost of licensing the excerpts that were used. It is my opinion that the deeper the Judge looks at the economics of scholarly publishing and university teaching the clearer the need for fair use in this context will be. To be fair, one could interpret this order a different way, and see it as the Judge evaluating the harm that has been done to publishers by Georgia State’s alleged infringement. But this interpretation seems less likely when one looks at the actual language the Judge uses in her order. She clarifies what she wants by asking to be shown “what a student would have to pay to purchase the entire work.” Regarding licensing fees, she puts the question in terms of “what each instructor would have to pay” and then adds a request for the cost per student of these fees.
My strong hope is that Judge Evans, in these orders, is evincing a desire to fully understand the potential costs of of the ruling she is being asked by plaintiffs to make. Her decision has the potential to dramatically raise the cost of higher education for students and/or reduce the options available to instructors in the state. I hope that when she sees the high cost of books from these presses and realizes that permission fees are pegged to cost as much or more than retail sales, she will understand that the fundamental policy choice she must make is a trade-off between higher revenues for publishers and quality, accessible education for Georgians.