The Eleventh Circuit Court of Appeals has rejected an unusual bid by the three publisher plaintiffs in the Georgia State University copyright case to have the case reheard “en banc” by the full Eleventh Circuit—despite the fact that a three-judge panel handed them a victory last October when it unanimously reversed a 2012 district court verdict against them. The court declined the publishers’ motions for a rehearing last Friday, without comment.
The closely-watched case, Cambridge University Press v. Patton (known as the Georgia State University (GSU) e-reserves case) involves what three academic publishers allege was a systematic effort by GSU administrators to use unlicensed digital readings as a no-cost alternative to traditionally licensed coursepacks. In 2012, Judge Orinda Evans ruled against the publishers. But last October, the Eleventh Circuit reversed Evans. While on its face that reversal stands as a legal victory for the publishers, observers were quick to note that the Eleventh Circuit in fact largely rejected the publishers’ core arguments. By petitioning for hearing by the full Eleventh Circuit, the publishers appeared to agree.
In a statement, Association of American Publishers president and CEO Tom Allen explained the decision to ask for a full hearing of the Eleventh Circuit, citing errors by the court, and calling the litigation a “test case” that would “inform application of fair use” in the academic setting.
For now, the decision means that the case is headed back to the district court, where Judge Evans will reconsider her fair-use calculus, with new instructions from the Appeals Court, although court-watchers say those new instructions are not likely to tip the balance of the case in favor of the publishers. However, the publishers could also appeal to the Supreme Court, although it is unclear whether the top court would hear the case.
In a blog post, Duke University scholarly communication officer Kevin Smith, who has followed the case closely, says a Supreme Court date is a long shot for the publishers at this point, although it may be their only option "if they hope to save any of those principles that they have gone to war to establish.”
