After more than 12 years of litigation, Cambridge University Press et al v. Patton et al, known as the Georgia State University e-reserves case, has finally come to a conclusion. And while the plaintiff publishers once again were deemed by the court to have lost the closely-watched copyright suit, the plaintiff publisher's financial backers—the Association of American publishers and the Copyright Clearance Center—dodged a major financial bullet as the court declined GSU’s bid to be awarded attorneys' fees.
In a 14-page final order in the case, filed on September 29, Judge Orinda Evans declared GSU to be the prevailing party after finding the plaintiff publishers succeeded in establishing copyright infringement in just 10 of 99 claims brought to trial. But in light of recent rulings—most notably the Supreme Court’s 2016 ruling in another publishing-related case, Kirtsaeng v. Wiley—Evans opted not to order the plaintiffs to pay GSU's attorney fees, reversing an earlier decision.
“The Court does believe and again finds that Plaintiffs' failure to narrow their infringement claims prior to trial unnecessarily increased the work of Defendants’ counsel,” Evans wrote. But, “upon reconsideration” Evans said it was unclear whether that failure was significant enough to merit a fee award.
That decision represents a huge, multi-million dollar silver lining for the publishers as the case finally concludes. In 2012, Evans had ordered the plaintiff publishers to pay nearly $3 million in legal fees and costs to GSU. That order was vacated by the 11th Circuit in 2018, however, after the Supreme Court in Kirtsaeng issued new guidance on fee awards in copyright cases which held that the “reasonableness” of a losing party’s case should carry “substantial weight” in determining whether or not to grant fees.
Evans did order the plaintiff publishers to pay GSU's costs, however, excluding their attorney fees. In their most recent filing, cited by Evans in her order, GSU had sought to recover $85,746.39 in costs (separate from the $3,094,196.48 they had sought in attorneys’ fees).
In terms of injunctive relief, Evans declined to issue a sweeping injunction proposed by the publishers, which, among its provisions, would have given the plaintiff publishers the ability to periodically "audit" how instructors were using course materials at GSU.
“While the court finds the number of proven infringements (10) is sufficient to warrant injunctive relief, the regimented program of oversight called for by the Plaintiffs' proposal is not warranted,” Evans concluded. Instead, the judge ordered GSU administrators to simply “maintain copyright policies which are not inconsistent with the rulings of United States Court of Appeals for the 11th Circuit in this case,” and to inform all GSU professors in writing of the rulings.
The final order in the case ends what had become an unexpectedly long and contentious legal odyssey. The suit was first filed on April 15, 2008 by three named plaintiffs (Cambridge University Press, Oxford University Press, and Sage, with costs underwritten by the AAP and the CCC), alleging that GSU administrators were systematically encouraging faculty to offer students unlicensed, infringing digitized course readings, known as e-reserves, as a no-cost alternative to traditionally licensed coursepacks.
In response, GSU modified its e-reserve policies, and mounted a vigorous defense. After two previous verdicts against the publishers and two reversals and remands on appeal, Evans delivered her third and final ruling in the case on March 2, 2020.
When it was first filed, AAP called the litigation a “test case" designed to "inform the application of fair use in the academic setting.” But after more than a decade of litigation, observers tell PW the case failed to deliver any useful guidance for educators seeking to determine where the fair use line should be drawn. Further, advances in technology and new business products and models have largely mooted the fears that prompted the suit back in 2008.
“The world has moved on in a lot of ways,” Brandon Butler, director of information policy at the University of Virginia Library, told PW in 2019, ahead of Evans' third and final decision in the case. “We’re now looking to university presses as partners in an open access world, which of course includes access by students. I think more and more libraries are also looking at e-book licenses that allow unlimited simultaneous users as an attractive way to support affordable education for our students—a model that would facilitate assigning a chapter here and there. We are also supporting open educational resources that in some cases can replace expensive textbooks and, perhaps, render e-reserves less important."
