Is the end drawing near for a contentious copyright case involving e-reserve practices at Georgia State University? A federal judge has ruled that the case will go forward, but only on one narrowly drawn claim of contributory infringement. In her October 1 ruling, Judge Orinda Evans denied all three of the publishers’ motions for summary judgment, while granting two of three GSU motions, effectively ending the defendants’ exposure for direct and vicarious infringement. The court gave the parties 20 days to come up with a schedule for proceeding to trial—or, perhaps, to settle.
The ruling is the latest blow to publishers, who filed suit in 2008, alleging that as of February 19, 2008, GSU’s e-reserve system was far too liberal, making over 6,700 total works available for some 600-plus courses, and “inviting students to download, view, and print such materials without permission of the copyright holder.” In June of 2009, the court granted a protective order to the GSU defendants, limiting the case to practices after February 17, 2009, when a new copyright policy was adopted, a ruling that seriously undercut the publishers’ case.
If the case does indeed move to trial, Plaintiffs [publishers] will now have to show that the implementation of GSU’s 2009 Copyright Policy “resulted in ongoing and continuous misuse of the fair use defense,” notes Evans’ decision. “To do so, Plaintiffs must put forth evidence of a sufficient number of instances of infringement of Plaintiffs’ copyrights to show such ongoing and continuous misuse.”
A blog post on the Association of Research Libraries’ web site elaborated on what that means in practice: “Publishers...will now have to get down in the weeds and show infringement in enough particular cases to show that the GSU policy going forward will cause continuous and ongoing infringement.” Attorneys for the GSU defendants, the post notes, would then have to “establish fair use in enough cases to prevent GSU from crossing the ‘ongoing and continuous’ threshold.”
Meanwhile, in a footnote in Evans' ruling, it was also disclosed that the Copyright Clearance Center has been supporting the publishers’ case financially. Cambridge University Press, Oxford University Press, and Sage Publications are the named plaintiffs in the case known as Cambridge University Press et. al. v. Patton, but CCC, a nonprofit organization that collects permission fees on behalf of publishers, was said to be covering half the costs. A spokesperson for the CCC declined to comment directly on the most recent rulings, but issued a statement saying that CCC has supported the case as “an attempt to further clarify the balance around fair use.”
