Back in October the 11th Circuit Court of Appeals issued its ruling in the Georgia State copyright infringement suit brought by three publishers and the Copyright Clearance Center to try to end reliance on fair use for course readings that are digitized and made available to students in a closed online forum. As has been widely reported, that decision looked like a win for publishers, in that it vacated the lower court decision that largely favored Georgia State University, and it remanded the case back to the District Court for further proceedings. But what looked like a win was very dissatisfying to the publisher plaintiffs — Cambridge University Press, Oxford University Press and Sage Publishing. In the course of the opinion, all of the radical changes to copyright law that they hoped to advance with the lawsuit — the imposition of the 1976 Classroom Copying guidelines as a maximum limit rather than a safe harbor, the idea that the copy shop cases involving commercial course packs were appropriate precedents for in-house electronic reserves, a move from analysis of individual claims of fair use to a comprehensive impact analysis, and a statement that non-profit educational use did not necessarily favor fair use — were rejected by the Court of Appeals.
The publishers were very unhappy with this decision, even though it gave them the outcome they desired in the specific conflict. They are looking for a radical realignment of fair use; the actual case is relatively unimportant, I think, compared to this desire to change the landscape so that many more licenses for educational institutions would be required. So they asked the entire 11th Circuit to rehear the case (en banc) instead of letting the decision of the usual three judge panel stand. Their petition for rehearing is a wish list of the principles they would like to have govern copyright in academia, which, of course, all point to paying those publishers more money.
On Friday the 11th Circuit rejected this petition for an en banc rehearing, as well as the petition for rehearing filed by GSU. The Court did not comment on the rejection; they simply denied both petitions, thus leaving the opinion of the Appellate panel as the Court’s final word on the case.
For libraries, this means we are still in the uncertain and murky position I describe back in October.
For the publishers, there are a dwindling number of options left for them:
- They can petition the Supreme Court to hear the case. This is really the only option that is available if the plaintiff publishers still want to fight for the ridiculous arguments they have been championing throughout the six and a half years of this lawsuit, so I will not be surprised if they do this. I am sure the lawyers representing the publishers are advocating for this; so is the Copyright Clearance Center, in all likelihood, and they are paying the bills. But the Supreme Court accepts only a tiny fraction of the cases they are asked to consider — the number is less than 4% of cases for which the petitioner has paid the usual filing fees (it is much lower for cases submitted where the plaintiff, usually a prisoner, claims that they cannot pay the costs). The cases the Supreme Court is most likely to accept are those where there is a split of opinions among the different Circuits of the Court of Appeals, and that is not the case with the GSU opinion. So this is a long shot for the publishers, but their only option now if they hope to save any of those principles that they have gone to war to establish.
- They can seek the rehearing by the District Court that is the point of a remand from the Appeals Court. That hearing must be “consistent” with the analysis in the 11th Circuit ruling, so it is not likely to gain much for the publishers. The best they can hope for here would be a slightly tighter e-reserves policy at GSU that they could wave under the noses of other universities. But that would be a victory for them that would feel an awful lot like a loss.
- Finally, they could settle the case. This would be the rational approach, but the plaintiff publishers (or those who are calling the shots for them) have shown little taste for reasonableness. They have poured a lot of money into fighting to undermine fair use for education, and settling now is probably less sensible, from their perspective, than it would have been months or years ago. And, to be honest, GSU has little to gain from a settlement at this point; they might just as well wait for further proceedings in the District Court. A settlement earlier in the case might have given the publishers a lever to use in negotiations with other institutions, but that opportunity faded when the 11th Circuit rejected all of those principles that the publishers were after. Now they have a much weaker hand.
Overall, I think we will see a petition for a Writ of Certiorari, which is what you file to ask the Supreme Court to consider your case. I doubt it will be granted, but I expect that 2015 will be a year of tilting at windmills for the publishers in this case.