In its response filed with the court on April 7, attorneys for Georgia State University claim they are the “prevailing party” in a long-running lawsuit over digitized course readings, and argue that a proposal for injunctive relief sought by the plaintiff publishers is unwarranted and should be denied.
The filing comes after Judge Orinda Evans last month delivered her third opinion in the now 12 year-old GSU e-reserves case, once again finding fair use in the majority of infringement claims lodged by three academic publishers. In a 241-page written opinion, Evans found 10 infringements, while finding 38 of the 48 claims considered by the court to be fair use. The 10 findings of infringement is double the number Evans found in her first ruling in the case, back in 2012.
“Of the Plaintiffs’ initial 99 allegations of copyright infringement brought to trial, this Court found only ten of those, or 10%, were not fair uses,” GSU attorneys told the court. “Ten instances of infringement are not a sufficient number to indicate that Defendants are encouraging an ongoing misuse of the fair use defense. Thus, Plaintiffs’ request for an injunction should be denied.” A number of the initial 99 claims presented for trial in case were thrown out for technical reasons, leaving just 48 claims making it all the way to a fair use analysis.
The GSU brief comes in response to a March 23 filing in which the publisher plaintiffs claimed that the 10 infringements are sufficient to declare the publishers to be the prevailing party in the suit, and enough to merit a permanent injunction that would, among its provisions, require GSU to “maintain records of unlicensed copying from the plaintiffs' works” and would give the plaintiff publishers the right to "audit" GSU's future e-reserve practices for their works. The publishers are not seeking monetary damages in the case.
As expected, GSU attorneys claim they are in fact the prevailing party, and reject the publishers’ proposed injunction as unwarranted. In addition, GSU attorneys asked that the court’s declaratory judgment in the case acknowledge that GSU prevailed on the bulk of the claims in the suit, which the publishers' proposed declaratory judgment does not mention.
“Defendants believe that it is appropriate for this Court to issue a final judgment stating that it has found Sage to prevail in eight infringement allegations and Oxford to prevail in two infringement allegations, and Defendants to prevail on the remaining 89 infringement allegations brought to trial (including all of those brought by Cambridge),” the GSU brief argues, asserting that "a declaratory judgment strictly about past violations is not permissible under the law."
The plaintiff publishers have already indicated to the court they are not seeking to have their legal fees and costs paid. However GSU is seeking an award, which previous claims in the suit suggest could run upwards of $3.3 million.
The closely-watched copyright case was first filed against four administrators at Georgia State University on April 15, 2008 by three academic publishers (Cambridge University Press, Oxford University Press, and Sage) supported by the Association of American Publishers and the Copyright Clearance Center.
The AAP has called the litigation a “test case” designed to “inform the application of fair use in the academic setting.” But as the latest filings suggest, after three verdicts and two reversals on appeal, the contentious case appears to have yielded little clarity on the question of fair use for those in the classroom: following 12 years of litigation, both sides are claiming victory.
