Officials at the Association of American Publishers have confirmed that the publisher plaintiffs in the Georgia State University e-reserve case have lodged an appeal with the EleventhCircuit Court of Appeals. At press time, it was unclear what issues the appeal would specifically address, but the Association of American Publishers has said Judge Orinda Evans’ decision in the case was “marred by a number of serious legal errors,” and was “legally vulnerable on multiple grounds.” The appeal comes after Evans filed her final order for relief in the case, on August 10, rejecting the plaintiff publishers’ sweeping proposal for relief and ordering the publishers to pay the defendants’ attorneys’ costs.
The appeal is the latest move in a contentious four-year legal battle, Cambridge University Press et al v. Patton et al, in which three academic publishers, (Oxford University Press, Cambridge University Press, and Sage Publications, supported by the AAP and with costs partially underwritten by the Copyright Clearance Center) alleged that GSU administrators systematically encouraged faculty to commit copyright infringement via GSU’s e-reserve systems as a no-cost alternative to traditional coursepacks. The order follows Evans’ May 11 verdict in which she found GSU liable on just five of 99 counts.
In a statement, the plaintiff publishers (Cambridge University Press, Oxford University Press USA, and SAGE) said the decision to appeal was made after “considerable” discussion, eventually deciding there was “no alternative” but to appeal.
“From the earliest days of this litigation, we have been solely focused on the need for a solution that is genuinely workable for all participants in the academic community, one that respects established fair use principles and basic copyright protection for our authors’ work without unduly encumbering teachers and librarians,” the statement reads. “Instead, the Court’s rulings, culminating in the August injunction decision, shift radically from long-accepted fair use principles.”
In a separate statement, AAP officials said the District Court’s rulings were “inconsistent with prior judicial decisions,” noting there is no “legal basis for according less copyright protection to printed books and articles when portions are made available in digital form rather than bound into hard-copy coursepacks.”
If left “uncorrected,” the AAP argues, the courts’ decision "will encourage educational institutions across the country to engage in massive infringement of copyright at a great cost to the entire academic community.”
In response, the Association of Research Libraries criticized the move. “It is extraordinarily disappointing that the publishers (and the funders of the lawsuit, the Copyright Clearance Center and the Association of American Publishers) have decided to double down on this wasteful and misguided lawsuit," an ARL statement read. "The district court's framework created a comfortable safe harbor for Georgia State while preserving a very generous market for publishers willing to license their works for teaching use. Every day that this litigation continues is further proof that the publishers have little understanding or respect for the fair use rights of teachers, students, and libraries."