As soon as I read this short note in Inside Higher Ed reporting that the 11th Circuit Court of Appeals had barred a pharmacy association from suing the University System of Georgia for copyright infringement because of sovereign immunity, I knew I needed to read the decision and blog about it. It seemed, after all, to have potential relevance in the copyright infringement case against Georgia State University, which could, once a decision is reached, have a much broader impact on higher education. Since this pharmacy case comes from the Appellate Circuit in which the GSU case has been brought, it is a binding precedent for Judge Orinda Evans in the latter case.
Nevertheless, once I read the decision I discovered two things that reduced its importance in my eyes. First, the report in Inside Higher Ed is not entirely accurate; it makes the decision seem more sweeping and categorical than it really is. Second, once we see what was actually decided by the 11th Circuit it is clear that it is not in any way decisive for the Georgia State case.
The decision is difficult to follow and concludes without a clear summary, so I hope that any misreadings I make here will be corrected by others. But as I see it, the 11th Circuit ruling is a split decision for sovereign immunity. On the one hand, the Court upheld the lower court’s decision to dismiss the claim for damages from the alleged infringement because it is barred by the rules that prevent federal courts from hearing most cases, especially those seeking money damages, against the states. But on the other hand, the 11th Circuit reinstated the claim for an injunction (an order to stop doing what it is doing) against the Georgia system that relies on the exception to sovereign immunity known as Ex Parte Young (after the Supreme Court case that established it).
So Inside Higher Ed got it only half right — the pharmacy association cannot bring a case seeking damages against the state entity, but its claim asking for an injunction will go forward. The state is not, contra IHE, immune from that type of suit.
The Georgia State Case about e-reserves and course readings in an LMS is itself based on Ex Parte Young and seeks only an injunction, not damages. So the pharmacy decision handed down yesterday does not mean that the GSU case must also be dismissed, since the Appeals Court actually upheld the injunctive part of the claim.
Georgia State has also asked the court in its e-reserves case to dismiss based on sovereign immunity, and what this pharmacy case really does is remind us of what GSU must do to win on that point. The issue is essentially whether the court believes that there is a likelihood of ongoing violation of the copyright law or not. In the pharmacy case, the Appeals Court was not persuaded that there was no chance of continuing infringement, so it refused to dismiss and will let that issue be decided at trial. Likewise, GSU has basically said that its new copyright policy means that infringement is a thing of the past and that the new policy ensures that its ongoing actions will be within the scope of fair use. The GSU court has already articulated a standard for what must be proved at trial — the plaintiff must show a substantial number of continuing infringements and the defendant then has the burden of demonstrating that those alleged infringements are really fair use — that looks very much like what the 11th Circuit wants in such cases.
So the impact of this recently decided case on the GSU trial will probably be minimal. One or both of the GSU parties will certainly point it out to the GSU trial court — they are obligated to do so — as a supplemental authority. But even though this appellate decision is a binding precedent in Georgia, it is not, in my opinion, determinative of the issues before the GSU court.