A contentious copyright case over e-reserves in university libraries has grown a little more tense. PW has learned that the Association of Research Libraries (ARL) has sent a letter to the Copyright Clearance Center protesting its role in funding an ongoing publisher lawsuit against four individuals at Georgia State University over the use of electronic course content. In a letter addressed to CCC CEO Tracey Armstrong, ARL director Charles Lowry expressed “deep disappointment with the decision by the Copyright Clearance Center (CCC) to underwrite 50% of the plaintiffs’ costs in the litigation.” Lowry noted that the library community only learned of CCC’s key role in the action after it was revealed in a footnote in a recent ruling by Judge Orinda Evans of the Federal District Court in Atlanta.
In the letter, Lowry pointed out that CCC was founded as “a collaboration of content creators, content publishers, and content users.” Indeed, a sizable portion of the nonprofit CCC's revenues come from academic libraries. Since learning of CCC's role in the GSU e-reserve case, some librarians have bristled at the idea that their fees have helped fund a lawsuit against them, especially during a time of extreme budget pressure.
While Lowry conceded that “balancing the interests” of publishers and users “can be a challenging task,” he suggested that CCC, given its central role as a facilitator, should support “collaboration,” rather than litigation. “This action by the CCC signals to the content user community that the CCC no longer seeks to serve the interests of all of the partners in the scholarly communications enterprise.” Lowry urged the CCC to “reconsider its role in funding the litigation going forward.”
In response, a CCC spokesperson told PW that the CCC’s role in partially funding the lawsuit was actually disclosed in a court filing in October of 2009, and defended its decision to underwrite the suit. CCC stressed that no monetary damages were at stake, only an injunction, which could have clarified fair use. “There is nothing inconsistent, in our view, between acting as a good faith intermediary to facilitate licensing,” the CCC statement reads, “while at the same time supporting efforts to address outlying instances of egregious copyright infringement.”
Observers, meanwhile, are at a loss to explain why the parties have not settled. The publishers’ case was severely weakened in June of 2009, when Evans limited the case to GSU’s conduct after February, 2009, after GSU had amended its e-reserve policies and practices to conform to those in use at other institutions. That ruling seemed to offer an opening to settle, with publishers even able to claim a small victory—after all, GSU had adopted practices at other institutions, including Syracuse, Marquette, and Hofstra universities, approved by publishers.
But the case continues. On October 1, Evans dealt publishers another blow, denying all three of their motions for summary judgment, while granting two of the defendants’ motions. A third claim of contributory infringement was approved to proceed to trial, although, observers note, Evans has set a high—and potentially expensive—legal bar for publishers to clear in order to succeed on that claim. The court had given the parties until late October to come up with a schedule for proceeding to trial—or, perhaps to settle—but publishers have since filed a motion asking Evans to reconsider her decision.
Kevin Smith, scholarly communications officer at Duke University, who has followed the case closely from the start, was unable to say what is keeping the case from being settled. “The only answer to why [there hasn’t been a settlement],” he told PW, “is that one party or the other is not motivated enough to do so.”