The prevailing party

Since the ruling in the Georgia State case in May that decided, at the trial court level, the substantive issues of the claimed copyright infringement, I have been telling people to wait for a while before deciding to take any strong action based on that ruling .The case, I keep saying, is far from over.  There is likely to be an appeal, for one thing.  But even prior to an appeal, I wanted to encourage people to wait for Judge Evans’ ruling on the remedy — the steps she would order to fix the handful of actual infringements that she found (five) out of the large number of claims that were submitted to her (ninety-nine, at trial).  The remedy would tell us, I have been saying, how the Judge sees her own ruling.  After all, in their filings since May the two sides have claimed to find radically different things in the Judge’s decision; her ruling about a remedy is her chance to tell us what she thinks the impact of her findings of fact and conclusions of law really should be.

On Friday the Judge filed her order on declarative and injunctive relief, and she clearly told us who she thinks won the case.  The prevailing party is Georgia State University.

Judge Evans addressed both declaratory and injunctive relief in her ruling.  In her declaratory ruling, she announced three principles intended to clarify points in her earlier order that the plaintiff publishers.  They are helpful for understanding her ruling, but not startling, I don’t think:

1. The holding that excerpts must be “decidedly small” in order for the third fair use factor to favor the use applies to all excerpts assigned from a book for a particular course in the aggregate.  This merely tells us that “an excerpt” means the total amount assigned from a single book; it presumably rules out the possibility of putting one chapter on reserve for a while, then replacing it with a second chapter later on and asserting that only one chapter ( at a time) is being used.  I doubt that many universities would be willing to resort to this trick, but the Judge has explicitly disapproved of it.
2. The analysis of fair use by Judge Evans does not apply to books that are intended solely for classroom instruction.  The Judge seems to be telling us that there is a more restrictive standard for fair use of textbooks than the one she applied in this case, but she also uses a pretty narrow definition of a textbook.  None of the works that were at issue in this case fall into that category, she says.
3. Fair use in the context of e-reserves and course management systems is conditioned, she tells us, on strict controls over who can access the excerpts — only students registered for a class — and on notice telling those students that they may not further distribute the excerpts.  I hope this is already our practice in higher ed.

Interestingly, the Judge also adds a “cautionary note” that is outside of her declaratory findings because, presumably, it goes beyond that matter strictly before her.  She notes that where digital licenses were not available from publishers, the fourth factor favored fair use and, in such cases, allowed excerpts longer than her strict definition of “decidedly small.”  How long, we might ask, and the Judge tells us that the longest excerpt she allowed, at 18.5 %, is near the limit of fair use.  So much beyond that point, in her opinion, fair use will not apply even when the other factors seem to support it.  It is helpful for the Judge to tell us this, although other courts might find that this approach puts too much weight on a single factor.  Certainly such a limit has been rejected by higher authorities in cases where the use was found to be transformative.

When she turns to the matter of an injunction, the Judge rejects the very broad, “highly regimented” injunction sought by the plaintiffs. She feels such restrictive rules, with record-keeping requirements and monitoring, are unnecessary, given that GSU policy was a genuine attempt to comply with the copyright law and that its application resulted in so few actual infringements.  Instead, she limits her injunction to an order that GSU maintain policies consistent with the May 11 ruling and the one from Friday, and that they disseminate those policies to faculty and staff.  To the best of my knowledge, GSU is already doing those things.

The stunner in this order comes at the end, when the Judge must rule on the requests from each side to have the other pay for the costs and attorney’s fees of both.  The Judge must first decide who was the prevailing party.  She recognizes that both sides won on some points, but overall she holds that GSU was the prevailing party.  Even so she does not have to order the publishers to pay GSU’s costs and attorney’s fees, but that is exactly what she does.  She reminds us that of the 99 excerpts over which claims were made at trial, 25 were withdrawn by the publishers and for another 26 the publishers were not able to clearly prove that they owned the copyright.  Also, there were 33 excerpts for which permission for digital excerpts was not available even if it had been sought.  Because of all these situations where the infringement claims were implausible from the beginning, the Judge holds that the plaintiffs “significantly increased the cost of defending the suit.”  And on that basis she orders that the publishers pay the reasonable costs and attorney’s fees incurred by Georgia State.

Early on in the case I wrote that the Copyright Clearance Center, which financed half of the plaintiffs’ costs, was using litigation as a marketing strategy.  Now I hope that the CCC and the others behind this case would learn that that strategy was both counterproductive and much too costly.  Unfortunately, I expect that rather than learn that lesson, they will “double down” on an appeal and, in the process, throw more money that should be spent on supporting new publishing away on the ill-advised project of trying by force to increase permission fees for works that have already been published and sold.