Attorneys for Georgia State University are seeking roughly $3.18 million—$3,094,196.48 in attorneys’ fees and an additional $85,746.39 in costs—after a third ruling in a long-running copyright dispute over digitized course readings on college campuses. And in a supporting brief filed this week, GSU is asking the court to send a message with the award.
“Fair use is a statutorily recognized right that furthers the constitutional purpose of promoting the progress of science and learning,” the GSU brief states. “Nonprofit educational institutions such as Defendants should be able to rely on this right and make a fair use of certain materials in teaching their students. If Plaintiffs and other similar publishers are not deterred from asserting an unwarranted number of unsupported infringement claims against these nonprofit educational institutions, it will make the cost of defending the fair use right exorbitant and educational fair use is likely to fade into non-existence.”
The request comes after judge Orinda Evans on March 2 issued a 241-page written opinion finding that 38 of 48 claims presented at trial were permissible—nearly 80% of the claims that made it to a fair use analysis. The decision was Evans’ third ruling in the case, following two remands from the 11th Circuit Court of Appeals.
After her first ruling in the case, back in 2012, Evans designated GSU the prevailing party in the case and ordered the publishers to pay nearly $3 million in legal fees and costs to GSU. The award, however, was vacated by the 11th Circuit in 2018 after new Supreme Court guidance was issued holding that the “reasonableness” of a losing party’s case should carry “substantial weight” in determining whether or not to grant fees.
Meanwhile, in a March 23 brief, the plaintiff publishers argue that they should be named the prevailing party after prevailing on "a significant number of their infringement claims." The publishers—who are not seeking legal fees nor damages—argue that given “the vigorously disputed nature of the copyright issues that were raised in this case for the first time in the context of digital course readings,” their position was clearly, objectively reasonable.
In their April 13 brief, however, GSU attorneys pushed back against the publishers' position.
“The instant case was a ‘test case litigation’ that was organized by the Copyright Clearance Center (‘CCC’) and the American Association of Publishers (‘AAP’) who recruited the three Plaintiffs to serve as plaintiffs,” GSU attorneys argue. “Accordingly, Plaintiffs’ motivation was not to enforce valid copyright interests, but rather, to act as a conduit to test whether publisher clearing houses could successfully argue that any educational use of a copyrighted work, no matter how small, is not a fair use and requires payment of a license fee.”
The case was first filed 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. It alleged that GSU administrators were systematically encouraging faculty to offer students unlicensed digitized course readings, known as e-reserves, as a no-cost alternative to traditionally licensed coursepacks.
The publishers are expected to file a reply brief in the coming days.
