In the latest wrinkle in the long-running Georgia State University e-reserves case, the losing publishers have asked the court to reconsider its awarding of legal fees to GSU, citing a recent Supreme Court decision in another high profile copyright case—Kirtsaeng v. Wiley.
The publishers’ latest motion comes after GSU attorneys in March defeated the publishers' lawsuit for a second time, and once again were awarded legal fees. Although the final amount is still to be determined, GSU attorneys in April asked the court to order the publishers to pay them roughly $3.25 million in attorney fees, and an additional $85,746 in costs.
But in a decision two weeks ago, the Supreme Court issued new guidance on the awarding of legal fees in copyright cases. Specifically, in vacating a decision that denied Supap Kirtsaeng reimbursement of his attorney fees in the landmark 2013 copyright case, the court held that such fee awards should not be awarded to the prevailing party simply as a matter of course, and that the “reasonableness” of a losing party’s case should carry “substantial weight” in determining whether or not to award fees.
Citing that guidance, attorneys for the publishers have now filed a motion for reconsideration, arguing that their case against GSU is clearly reasonable. Calling the closely watched case a “bellwether” for fair use in the academic setting, publisher attorneys argue that it is “a quintessential example of the type of ‘useful copyright litigation’ that is to be encouraged.”
In addition, the publishers' lawyers claim that a line in Judge Orinda Evans' most recent decision, which stated that the defendants were “entitled” to legal fees as the prevailing party, suggests that her decision to award fees was made pro forma, and thus runs afoul the Supreme Court’s latest guidance.
“By its single sentence determination that Defendants are the prevailing side and therefore are 'entitled' to an award of attorneys’ fees,” the publisher brief argues, “this Court failed to undertake the objective reasonableness evaluation that is now unquestionably required.”
That may not be exactly true, however. In her first order in the case, in 2012, Evans did in fact explain that, despite her belief that the publishers filed their suit in good faith, GSU was entitled to collect fees because the publishers’ “failure to narrow their individual infringement claims” significantly increased the cost of defending the suit.
Evans awarded GSU just over $2.86 million in attorneys’ fees in 2012, following their first court victory, which was vacated on appeal.
First filed in April, 2008, by three academic publishers (Oxford University Press, Cambridge University Press and SAGE Publications, with support from the Copyright Clearance Center and the AAP) the suit alleges that GSU administrators systematically encouraged faculty to offer unlicensed digital copies to students as a no-cost alternative to traditionally licensed coursepacks. After eight years of litigation, and two losses before Judge Evans, the case could be headed for yet another appeal.
