The briefs are now coming in on the appeal of the recently concluded Georgia State e-reserves case, and the case has apparently drawn the scrutiny of U.S. attorneys. In a surprising turn of events, a document shows that U.S. attorneys may be preparing to weigh in.
In a brief filed last week, U.S. attorneys asked for a 21-day extension “in which to file any amicus brief in support of appellants, or in support of neither party.” However, in a hint as to how the parties feel the government filing will go, the brief states that the plaintiffs/appellants—that is, the publishers—have consented to the government’s request, while the GSU defendants/appellees do not consent, and could oppose U.S. participation.
In its filing, U.S. attorneys said the government was still evaluating whether to participate in the appeal as amicus curiae. However, the filing of an Amicus from the U.S. must be authorized by the solicitor general, “after consultation with all interested agencies within the government,” U.S. attorneys noted, and that “consultation and review process has not yet concluded.” If the court schedule can accommodate it, U.S. attorneys have asked to have until February 25 to file its brief, should it decide to weigh in.
While there will almost certainly be no suprises in the party briefs, as no new evidence can be brought up in the appeal, the potential involvement of U.S. attorneys could be a major development, and raises questions. For example, which "agencies" are being consulted by U.S. attorneys? Certainly, one senses the hand of the Copyright Office here. But given the outcry against the suit from the higher education community, will the education agencies also be consulted?
The appeal comes after Judge Orinda Evans filed her final order for relief in the case, on August 10, rejecting the publishers’ sweeping proposal for relief and, in a rebuke to publishers, ordered them to pay $2.8 million is defendants’ attorneys’ costs. The publishers lodged an appeal last fall with the Eleventh Circuit Court of Appeals, contending that Evans’ ruling “shifts radically from long-accepted fair use principles.”
In Cambridge University Press et al v. Patton et al 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. In a May 11 verdict , however, Judge Evans found GSU liable on just five of 99 counts presented at trial.
In their brief, filed with the appeals court this week, publisher attorneys blasted that verdict. “The district court’s disregard of fundamental precepts of copyright law led it to try a different case than the one brought, and to resolve that different case erroneously,” the brief states, adding that the publishers “presented the district court with an undisputed record of GSU’s systematic, unauthorized copying and distribution of substantial excerpts from their copyrighted works.”
