NB — An embarrassing correction — the motion discussed below was actually filed by the plaintiffs, the publishers, not by GSU. So this does look very much like the publisher intent is to go forward with new proceedings in the District Court. And speculation below about what GSU intends is misplaced. Sorry, folks.
Spurred by this error, I have uploaded the motion, so interested readers can see it here
Before I get way down in the weeds to describe a new development in the GSU case, I want to tell readers about a wonderful new article about the case, still in draft form here on SSRN, by Brandon Butler, lately of the ARL and now at the George Washington College of Law at American University. This is a clear and concise summary of where we are regarding educational fair use after the Court of Appeals ruling that reversed and remanded the GSU case. It also is as good a set of “instructions” as I have seen for how we can move forward with fair use in the academy; I hope many of you will read it.
And, now, for those who enjoy the more arcane aspects of our law, the latest on that very case.
When last we heard from the Georgia State University copyright infringement lawsuit, the publishers were facing a decision — should they appeal to the Supreme Court, try to settle the case, or let the case go back to the trial court for further proceeding in light of the Court of Appeals ruling?
I have no insight into what is going on in the minds of the plaintiff publishers, or those who are instructing them; all I can say is that I don’t think they have yet filed with the Supreme Court for a Writ of Certiorari. But because of a filing made in the District Court last week, we do now know something about what GSU is thinking, and it seems they are preparing for reconsideration of the case by Judge Orinda Evans.
On February 24, right in the middle of Fair Use Week, GSU filed a motion in Judge Evans’ court to “reopen the record on remand.” When a case is appealed, the trial court “certifies” the record and sends it up to the court that will hear the appeal; that is, the lower court attests that the materials sent to the Appellate level are complete and accurate. Now the case has been sent back to that trial court, and GSU wants to reopen the record — the documentary evidence in the case — so that Judge Evans would base any new opinion on the most up-to-date evidence.
At the root of this request is the fundamental fact in this case that Georgia State, as a state university, cannot be sued for money damages because of sovereign immunity. In other words, they cannot be assessed a fine by the Federal courts for past actions. Early in our nation’s history, we decided that we did not want to give the Federal courts that kind of power to reach into state treasuries and redistribute taxpayer money. So all that a plaintiff suing a state university can hope for is an injunction — a form of order from the court that tells the defendant to stop doing something in the future. There is no looking back at past wrongs when sovereign immunity is in play; only the potential for future violations of the law can be addressed. This is an exception to sovereign immunity from a Supreme Court case called Ex Parte Young, and it is supposed to be followed quite strictly.
Those paying close attention may recall that this single-minded focus on the future came into play earlier in the GSU case, when the Regents of the University of Georgia system adopted a new copyright policy. At that time, GSU successfully argued that only actions taken after the new policy was adopted should be considered by the court, since any injunction could only address future actions, which would be governed by the new policy. The trial court agreed, and the case was tried over specific excerpts from books published by the plaintiffs that were used in the GSU e-reserve system after the new policy was adopted.
Since the trial, however, the GSU policy has changed again. Specifically, the Regents acted to incorporate into that policy the instructions given them by Judge Evans, who found a couple of flaws in the original form of the new policy. So once again, GSU is asking that they be judged only on the current state of practice, which is the appropriate context for an injunction (which always looks forward). They are asking that the record be reopened so that, in her reconsideration of the case, Judge Evans would evaluate only excerpts used in GSU’s e-reserves since the original trial and the subsequent amendment of the copyright policy.
If this motion is granted, and it makes sense both under the legal rule of Ex Parte Young and the past history of the case, the publishers would have to look at more recent semesters than were the subject of the original trial, and see what excerpts, if any, from works they own were used for e-reserve after the 2012 ruling. If they find any that they think are infringing, it would be those materials, rather than the “original” 75 excerpts, that would be the subject of Judge Evans’ reconsideration.
In short, GSU is asking that those “further proceedings consistent” with the Court of Appeals ruling, be focused on a new set of excerpts, ones used by the GSU faculty since the copyright policy was last revised.
If the motion is granted, the new proceedings in the trial court would have a very different look. There would not necessarily be a new trial, but at least the Judge would have to reconsider her approach to fair use based on what the Court of Appeals has told her, and then apply that revised approach to a different set of readings. It seems clear that GSU believes that this would improve the chance that she would still find lots of fair uses. Perhaps they are more confident that the revised policy is being followed and, since it was revised based on the Judge’s instructions, it will still pass muster with her. Perhaps GSU has been careful not to use many, or any, of plaintiffs’ works since the trial. And, perhaps, this is a gambit in settlement negotiations.
I will be anxious to see how the Judge responds to this motion, if the case reaches the point for her to rule on it. I suspect that the publishers will see this request as a kind of trickery, designed to pull the rug out from under them and fight the case on new terrain. But they knew the boundaries when they sued a state institution, or at least they should have. From another perspective, this motion reflects an attempt by GSU to be consistent, and even to act with integrity. If they believe, as I think they do, that they have tried at every turn to employ fair use as it has been clarified for them by the courts, this is nothing more than a plea to be judged on their current understanding and current practice, which seems very fair and appropriate.