The Association of American Publishers has issued a statement on the Georgia State University e-reserves copyright case ruling.

Here's an excerpt from the press release:

At the same time, we are disappointed with aspects of the Court's decision. Most importantly, the Court failed to examine the copying activities at GSU in their full context. Many faculty members have provided students with electronic anthologies of copyrighted course materials which are not different in kind from copyrighted print materials. In addition, the Court's analysis of fair use principles was legally incorrect in some places and its application of those principles mistaken. As a result, instances of infringing activity were incorrectly held to constitute fair use. . . .

The Court's ruling has important implications for the ongoing vitality of academic publishing as well as the educational mission of colleges and universities. Contrary to the findings of the Court, if institutions such as GSU are allowed to offer substantial amounts of copyrighted content for free, publishers cannot sustain the creation of works of scholarship. The resources available to educators will be fundamentally impaired.

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ARL has released "Issue Brief: GSU Fair Use Decision Recap and Implications."

Here's an excerpt:

Although the decision is certainly not perfect (the use of bright line rules for appropriate amount under factor 3 is particularly troubling), Judge Evans has written a thorough and thoughtful analysis of the issues, and her opinion represents an overwhelming victory for Georgia State individually, a major defeat for the plaintiff publishers and for the AAP and CCC, and overall a positive development for libraries generally. The substance of the opinion is not ideal, but it is far more generous than the publishers have sought, it establishes a very comfortable safe harbor for fair use of books on e-reserve, and libraries remain free to take more progressive steps.

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The ruling is in for the Cambridge University Press et al. v. Patton et al. case.

Here's an excerpt from the ruling:

Of the 99 alleged infringements that Plaintiffs maintained at the start of trial, only 75 were submitted for post-trial findings of fact and conclusions of law. This Order concludes that the unlicensed use of five excerpts (of four different books) infringed Plaintiffs' copyrights. The question now is whether Georgia State's 2009 Copyright Policy caused those infringements. The Court finds that it did, in that the policy did not limit copying in those instances to decidedly small excerpts as required by this Order. Nor did it proscribe the use of multiple chapters from the same book. Also, the fair use policy did not provide sufficient guidance in determining the "actual or potential effect on the market or the value of the copyrighted work," a task which would likely be futile for prospective determinations (in advance of litigation). The only practical way to deal with factor four in advance likely is to assume that it strongly favors the plaintiff-publisher (if licensed digital excerpts are available).

Read more about it at "The GSU Decision—Not an Easy Road for Anyone" and “Inside the Georgia State Opinion.”

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College & Research Libraries has released a preprint of "Copyright Policy and Practice in Electronic Reserves among ARL Libraries."

Here's an excerpt:

This paper presents the results of a survey of 110 ARL institutions regarding their copyright policies for providing electronic reserves. It compiles descriptive statistics on library practice as well as coding responses to reveal trends and shared practices. Finally, it presents conclusions about policy-making, decision-making and risk aversion in ARL institutions.

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U.S. District Court Judge Orinda D. Evans granted Georgia State University's motion for directed verdict in part in the Cambridge University Press et al. v. Patton et al. case. A directed verdict for the contributory infringement claim was granted.

Here's an excerpt from "Publishers Lose Another Claim as GSU Trial Comes to a Close" by Brandon Butler:

And just like that, Judge Orinda Evans threw out the second of the publishers' three claims. Now indirect infringement is the only remaining claim against GSU. . . .

This claim is the hardest one for GSU to avoid because, in theory, the publishers just have to find one infringement by one professor to prove GSU is an 'indirect infringer.'

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Below is some recent commentary about the Cambridge University Press et al. v. Patton et al. case.

"A Nightmare Scenario for Higher Education" by Kevin Smith. Here's an excerpt:

First, if this injunction were adopted as proposed, it would enjoin everyone at Georgia State, including students, who would seem to largely lose their fair use rights by virtue of enrolling at GSU. It would apply to e-reserves, faculty web pages and any learning management systems in use or adopted in the future. It would make GSU responsible for every conceivable act of copying that took place on their campus. In short, administrators at Georgia State would have to look over the shoulders of each faculty member whenever they uploaded course material to an LMS or any other web page. . . .

Not only would GSU have to micromanage each faculty member’s choices about how to teach every class, they would also have to give the plaintiff publishers access to all of the computer systems on campus so that they too could examine each professor’s decisions.

"The Georgia State Filing—A Declaration of War on the Faculty?" by Paul Courant. Here's an excerpt:

Call me gullible, but even now I am not fully persuaded that academic publishers are the enemies of faculty and the university. However, I do think that something has gone horribly wrong when entities that were created to serve scholarship employ legal procedures that would hamstring scholars and students who engage in customary and effective behaviors in their teaching and learning. I hope that Judge Evans will recognize that the publishers’ proposal is a plain violation of copyright and would be destructive of vital public purposes.

"What's at Stake in the Georgia State Copyright Case." The Chronicle of Higher Education published comments from prominent experts in this article. Here's an excerpt from Dorothea Salo's contribution:

Should a ruling come down that adds so much complication, cost, or risk to provisions about electronic reserves that institutions and their libraries no longer feel safe offering them, faculty and librarians will unite at last in shared outrage on the far shore of the Rubicon.

"Georgia State, Copyright and the Future of Higher Education" by Tracy Mitrano. Here's an excerpt:

We need senior leadership in our institutions, guided by national associations, to pull that campus radical of the 1960's out of the suits and high heels we now don and get serious about a direction of change that preserves us.

"The Georgia State University Lawsuit Injunction: Back to the Future" by Peggy Hoon. Here's an excerpt:

However, this proposed injunction is so onerous, so intrusive, so far-reaching, and so incompatible with the reality of teaching and learning in the 21st century, that simply widely publicizing the existence of and contents of the proposed injunction may well achieve what the library community has been trying to do for the last twenty years.

**WAKE UP THE FACULTY AND MOBILIZE THEM TO RECLAIM CONTROL OF THEIR OWN WORKS OF AUTHORSHIP AND THEIR OWN SYSTEM OF SCHOLARLY COMMUNICATION.**

This injunction is your fuel—now LIGHT that fire!

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Cambridge University Press and other plaintiffs have submitted a proposed injunction in the Cambridge University Press et al. v. Patton et al. case. The trial starts on 5/16/11.

Here's an excerpt:

II. Subject only to the provisions of Paragraph III hereof, GSU shall be and is permanently enjoined and restrained from creating, reproducing, transmitting, selling, or in any manner distributing, or assisting, participating in, soliciting, encouraging, or facilitating the creation, reproduction, download, display, sale, or distribution in any manner of, copies, whether in hard copy format, digital or electronic computer files, or any other format, of any and all Works without permission.

Read more about it at "A Nightmare Scenario for Higher Education" and "The Missing Preface or, How Publishers Are Misusing 20th Century Guidelines to End Fair Use at GSU."

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The Cambridge University Press et al. v. Patton et al. trial date has been set for 5/16/2011.

Here's an excerpt from ruling:

At trial, the parties will need to present evidence and argument that will allow the Court to rule on the question whether Plaintiffs may proceed under Ex Parte Younp or whether the case must be dismissed for lack of subject matter jurisdiction. Based on the pleadings alone, the Court cannot say that it lacks subject matter jurisdiction to hear the case. Dismissal under Rules 12(b) (1) and 12(c), Federal Rules of Civil Procedure, would be improper.

Accordingly, Defendants' Motion to Dismiss (Doc. 2393) is DENIED WITHOUT PREJUDICE. The parties are DIRECTED to file a proposed consolidated pretrial order no later than April 29, 2011. The trial is set for May 16, 2011 at 10:00 a.m.

Read more about it at "Judge Sets Trial Date in Georgia State University E-Reserves Lawsuit ."

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U.S. District Judge Orinda Evans has issued a ruling about the defendants' and plaintiffs' motions for summary judgment in the Cambridge University Press et al. v. Patton et al. case.

Here's an excerpt:

Overall, the evidence presented does not indicate that Defendants "profited directly from" or "had a direct financial interest in" the infringement alleged by Plaintiffs. There is absolutely no evidence in the record showing that Georgia State benefitted financially from the alleged infringements. At most, if the Court takes the inferential steps suggested by Plaintiffs, any benefit the infringement provides to students constitutes "just an added benefit" rather than a clear "draw" to Georgia State. Therefore, the Court GRANTS Defendants' Motion for Summary Judgment as to the third claim, vicarious copyright infringement and DENIES Plaintiffs' Motion for Summary Judgment as to the third claim. . . .

The record before the Court on the motions for summary judgment does not speak to the question of whether in practice the Current Policy is encouraging improper application of the fair use defense. The Court therefore DENIES both Defendants' and Plaintiffs' motions for summary judgment as to the contributory infringement claim. . . .

Going forward, in order to show that Defendants are responsible for the copyright infringements alleged in this case, Plaintiffs must show that the 2009 Copyright Policy resulted in ongoing and continuous misuse of the fair use defense. To do so, Plaintiffs must put forth evidence of a sufficient number of instances of infringement of Plaintiffs' copyrights to show such ongoing and continuous misuse. Defendants will have the burden of showing that each specified instance of 2009 Copyright Policy infringement was a fair use. Both sides will be limited to the list of claimed infringements produced in response to the Court's August 11, 2010 and August 12, 2010 orders. The parties are DIRECTED to confer and determine whether further discovery is needed before resolving the remaining contributory infringement claim. Within twenty (20) days, the parties shall present a proposed scheduling order.

Read more about it at "Going Forward with Georgia State Lawsuit."

Sanford G. Thatcher has published "Georgia State and (Un)Fair Use: A Rebuttal to Kenneth Crews" in Against the Grain. This paper examines an expert report by Crews in the important Cambridge University Press et al. v. Patton et al. e-reserves copyright case.

In "Interesting Development in Georgia State Case," Kevin Smith provides an update on Cambridge University Press et al. v. Georgia State University, an important case about copyright and electronic reserves in libraries.

Here's an excerpt:

Earlier this year, the Georgia Regents adopted a new copyright policy after a select committee reviewed and entirely rewrote the older one. The new policy is shorter, more easily comprehended and more pragmatic. . . .

After this new policy was adopted, attorneys for GSU filed a motion for a "protective order" which would state that only information about electronic course content going forward, under the new policy, could be "discovered" by the plaintiffs. GSU argued that since they were a state institution, and therefore entitled to immunity from damages, the plaintiffs could only get prospective relief (an injunction) and therefore should be limited to information about practices related to the policy under which GSU would go forward. After some legal maneuvering, the Judge granted this request last week.

Georgia State University's filing in copyright infringement suit the e-reserves copyright infringement suit brought against key GSU officials by three publishers is now available. It presents eighteen defenses, including sovereign immunity and fair use.

Read more about it at "Georgia State University Strongly Answers Publishers’ E-Reserve Lawsuit."