Following their second district court loss in eight years of litigation, the publisher plaintiffs in Cambridge University Press vs. Patton (known commonly as the GSU e-reserves case) have again appealed the case.
In an August 26 notice of filing, the publishers confirmed that they will ask the U.S. Court of Appeals for the 11th Circuit in Atlanta to review Judge Orinda Evans’ March 30 verdict against them, as well as “all prior orders and rulings” in the closely watched copyright case, which involves the use of digitized course readings, known as e-reserves, common on college campuses.
The appeal comes after Evans, on July 27, issued her final order in the case.
First filed in April, 2008, by three academic publishers (Oxford University Press, Cambridge University Press, and Sage Publications, with costs paid by the AAP and the Copyright Clearance Center) the suit alleges that Georgia State Univeristy administrators systematically encouraged faculty to offer students unlicensed, infringing copies of digitized readings as a no-cost alternative to traditionally licensed coursepacks.
Tom Allen, president and CEO of the AAP, has called the suit a “test case” that will “inform the application of fair use” in the academic setting.
So far, however, that test case has followed a long and winding legal road.
After years of legal wrangling, Evans first ruled for GSU in 2012, holding that GSU’s copying was protected by fair use in all but five of 48 infringement claims presented at trial. The publishers appealed, and in October, 2014, a three-judge panel of the 11th Circuit unanimously reversed and remanded the case to Evans, with instructions to rebalance her four-factor fair use test.
Observers, however, noted that despite reversing, the 11th Circuit’s written opinion affirmed much of Evans’ handling of the case. Indeed, the publishers even undertook the unusual step of petitioning the 11th Circuit for a full “en banc” review of their unanimous victory—which was denied.
Most recently, in her March 30 remand decision, Evans found only four cases of infringement—fewer than in her first ruling. And, in her July 27 final order, she rejected a number of publisher motions, including the publishers' proposal for injunctive relief, and affirmed that the publishers must pay GSU’s legal fees.
Although the final amount of that fee award has not yet been determined (and that determination will likely now be delayed by the appeal), GSU attorneys have has asked the court to order the publishers to reimburse them for more than $3.3 million in fees and costs.
At press time, a schedule had not yet been set for filings and oral arguments.
