E-Reserves and Copyright: Cambridge University Press et al. v. Patton et al. Trial Set for 5/16/2011

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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New Ruling in Georgia State University E-Reserves Copyright Case

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."

Copyright and E-Reserves: Update on Cambridge University Press et al. v. Georgia State University

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.

Text of Georgia State University Filing in E-Reserves Copyright Case

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."

Georgia State Claims Fair Use in E-Reserves Lawsuit

In a filing in the Cambridge University Press, Oxford University Press, and SAGE Publications copyright infringement suit against Georgia State, Georgia State University has claimed that is use of materials from those publishers in its e-reserves system is permitted under fair use provisions.

Read more about it "In Lawsuit, University Asserts That Downloading Copyrighted Texts Is Fair Use."

Further Coverage about and Commentary on the Georgia State Digital Copyright Lawsuit

Here's a selection of recent news articles and Weblog postings about the Georgia State copyright infringement lawsuit. See my prior postings for further information about the suit ("Georgia State Copyright Infringement Suit Coverage and Commentary" and "Georgia State Sued by Three Publishers for Alleged Digital Copyright Infringement in E-Reserves, Course Management, and Other Systems").

"Academic Publishers Sue US Uni over Digital Course Material"

It is an estimate that electronic course packs now constitute half of all syllabus reading at American colleges and universities. . . . Cambridge University Press, for example charges 17 cents a page for each student for electronic use, and generally grants permission for use of as much as 20 percent of a book.

"Copyright Suit Tests How Much Is Too Much"

Indeed, the complaint notes that the three plaintiffs have published more than 100 books and monographs authored by GSU professors. That GSU is a nonprofit institution shouldn't have any bearing on how much unauthorized copying it can do, Smith [Frank Smith, Cambridge University Press] says.

"We're a nonprofit," he points out. "I assume they wouldn't want their classes flooded with students who weren't paying tuition, but you could say there's no extra cost to filling another desk. I'm sure they would resist that, and I could see why."

"Publishers vs Academics"

The educational area is one where courts have traditionally afforded a greater degree of leeway in fair use and even the plaintiff's lawyer has to admit that he can't find a law or binding precedent stating how much digital copying would be "not too much." It seems likely that if the case ever makes it as far as a decision that decision would be appealed. My personal opinion is that they'll work out a settlement before it gets that far—neither side wants to see a precedent set that would go against them. Plus there's a core reality that academic publishers and educational institutions exist in a kind of death-grip dependency that would harm both if it was violently broken.

"Publishing Group Hires Qorvis for Lawsuit Messaging"

The Association of American Publishers hired Qorvis to handle messaging for three academic publishers' copyright lawsuit against Georgia State University.

"Suing Georgia"

So, . . . what's left if you really, really, really believe that educators ought to be able to use whatever they need to and want to use in their classrooms without worrying about what it costs or whether it's fair use?

Consumer resistance, or OA.

"Temperance Is a Virtue"

If that case every reaches the stage of arguing the fair use defense, I hope the court will look very hard at the second fair use factor—the nature of the copyrighted work. Previously, the action on this factor has been minimal and has largely focused on published versus unpublished works and how much originality is necessary for "thick" or "thin" protection. But the economics of a particular segment of publishing, especially one as dysfunctional as scholarly publishing, ought to be considered when analyzing fair use, and factor two is a good place to do that. If the system is structured in a way that undermines the whole incentive purpose of copyright, as I have argued the scholarly publishing is, factor two, which really focuses on the expectations of creators of different types of works, should strongly favor an expansive application of fair use.

"What Does the Lawsuit against Georgia State Mean?"

There are a number of possible outcomes in this case. Settlement is possible. The complaint itself is somewhat vague in its details; while specific examples are provided for some of the allegedly infringing uses, the publishers provide no specific details or examples of professors linking to course material from their open web pages, or any information about specifically infringing behaviors within the course management system. Although it claims the copying is in excess of what is permitted as fair use, the publishers do not offer a specific discussion of what it considers to be the bounds of fair use, nor does it adequately define course packs, nor offer any interpretation of the cited cases against copy shops, other than to broadly claim that they act as guiding precedence.

Georgia State Copyright Infringement Suit Coverage and Commentary

Here's a selection of news articles and Weblog postings about the Georgia State copyright infringement lawsuit.

"Coursepack Sharing: An Idea Whose Time Has Come?": John Mark Ockerbloom, who maintains The Online Books Page, looks at the suit from an open access point of view. He says:

But in a world that's brought us global content sharing systems like Flickr, CiteULike, and PubMedCentral, it's not that much of a stretch to imagine systems that would let instructors provide and share open access course readings more readily. A well-designed, browsable and searchable repository of such readings could provide a convenient way for professors to upload, organize, and disseminate open coursepacks for their students ("Just go to the OpenCoursePacks website, and type in the name of my course", they could say). The same site could also let profs could tag, annotate, and recommend their readings, thereby making it that much easier for other professors to find and include suitable open access content in their own coursepacks. With a good design, and suitable scale and interest, a coursepack sharing site could make a lot more good instructional material widely and freely used and shared.

"Georgia State Sued For Copyright Infringement": Information Media Partners supports the suit and provides an interesting comment about publishers' fear of entering the "valley of death" of the print-to-electronic transition.

"Oxford, Cambridge and Sage Sue Georgia State": Paul N. Courant, University Librarian and Dean of Libraries at the University of Michigan, reacts to the suit. In summary, he says:

Things have come to a pretty pass when academic institutions sue each other over academic matters. Even if the publishers prove to be right on the merits, the lawsuit ought to be the last resort, and student use of academic materials produced by academic institutions ought be priced at something like marginal cost, rather than at the price that maximizes profit. And one wonders why three rich and distinguished institutions would go after an urban university that is much less well-resourced.

"A Press Revolt against E-Packet Practices": Andy Guess' Inside Higher Ed article overviews the suit, provides background information about prior communications between GSU and the plaintiff’s law firm, notes that the suit indicates that the e-reserves system wasn't restricted access until after a complaint to the university, and includes a call from Kenneth C. Green, director of the Campus Computing Project, for a iTunes-like system for scholarly material.

"Publishers Sue Georgia State for Copyright Infringement": Calvin Reid's Publisher's Weekly article overviews the suit and includes comments by Patricia Schroeder (AAP President and Chief Executive Officer), Allan Adler (AAP Vice President, Legal and Governmental Affairs), and Niko Pfund (Oxford University Press Vice President).

"Publishers Sue Georgia State University Over E-Reserves": Andrew Albanese's Library Journal article overviews the suit and includes comments by Pfund as well as a useful brief recap of prior e-reserves disputes and resolutions. (For more background, see Albanese's 2007 article "Down with E-Reserves: Confusing, Contentious, and Vital, E-Reserves Fuel Higher Education—And an Ongoing Copyright Battle.") Albanese notes that the "suit offers a remarkably detailed view of what the plaintiffs believe to be infringing activity at GSU, including specific examples of uses it considers to be well beyond the scope of fair use and a detailed appendix of alleged infringed materials."

"Trying to Sue State U": Kevin Smith, Scholarly Communications Officer at Duke University, analyzes the suit, weaving in an analysis of a recent case of state sovereign immunity and copyright infringement (discussed here in "Copyright Infringement Liability of State Employees"). In summary, Smith says:

A little bit of attention to the economics of scholarly publishing quickly undermines the claim in this complaint that, without permission fees for electronic reserves, the incentive system of copyright will be undermined. No monetary incentive currently exists for the vast majority of academic publishing, from the point of view of faculty, yet academics keep writing. There is no evidence at all that this well of free content will suddenly go dry if publishers are not able to collect an additional income stream from that well. If this suit goes forward in spite of sovereign immunity, that should be the issue on which the court focuses its attention.

For further reactions, see Jennifer Howard's "Librarians React to Lawsuit Against Georgia State U."

Association of American University Presses Issues Press Release Supporting Digital Copyright Lawsuit against Georgia State

The Association of American University Presses has issued a press release supporting the digital copyright lawsuit against Georgia State University (see "Georgia State Sued by Three Publishers for Alleged Digital Copyright Infringement in E-Reserves, Course Management, and Other Systems.")

Here's an excerpt from the press release:

In today's universities, it is increasingly rare for students to buy assigned books at the campus bookstore or purchase coursepacks at the local copyshop. Instead, professors often distribute assigned course readings electronically through digital course management, e-reserves, or similar systems. While many universities seek legally required permissions, others do not and simply distribute substantial excerpts from books and journals without permission or compensation. This has become a significant problem for university presses, who depend upon the income due them to continue to publish the specialized scholarly books required to educate students and to advance university research.

Against this backdrop, three scholarly publishers, Cambridge University Press, Oxford University Press, and Sage Publications, have recently filed suit against Georgia State University officials, citing a pattern of illegal distribution of copyrighted book and journal content through digital course management and similar systems controlled by Georgia State. The Association of American University Presses supports the difficult decision made by Cambridge and Oxford, both AAUP members, to take this action—particularly in light of its broad concerns for the critical role that university presses, which are non-profits, play in the world of university instruction and scholarly communications.

The basic legal issue in the suit, namely whether permissions are required for course materials, was forcefully addressed in Basic Books v. Kinko's Graphics Corp. (1991), which held that the coursepacks sold by Kinko's required the payment of permissions fees to publishers, and that the reproduction of a single chapter was "quantitatively [and] qualitatively substantial" under the Copyright Act. While AAUP respects the doctrine of fair use, which permits spontaneous and limited uses of copyrighted material for instruction, it is clear that universities need to seek permission for more regular and substantial uses of excerpts in coursepacks and other assigned reading. That the delivery method for coursepacks is digital rather than print-on-paper does not change the nature of the use or the content, and such uses are governed by the same legal principles established in earlier cases.

University presses are non-profits that operate on very thin margins, and their primary audience is the university community. Indeed, although university presses comprise only a small segment of the market, they supply a very significant proportion of the books and journal articles taught and read in universities, particularly in graduate and upper-level undergraduate courses. . . .

University presses also serve a critical role for universities by providing faculty with a platform to publish their research, a role central to scholarship and the tenure system. . . .

Many universities have understood these realities and have promulgated strong institutional policies on the digital use of copyrighted materials. Over the last two years, publishers have had productive discussions with several universities including Cornell, Syracuse, Marquette and Hofstra, all of whom have recently adopted sound copyright policies about the use of digital course materials. Several mechanisms currently exist for universities to obtain clearance for the use of these materials, whether through individual publishers or the Copyright Clearance Center. While many universities have adopted a centralized approach and treated electronic course materials as they do paper, Georgia State has flatly rebuffed repeated attempts by publishers to work toward an acceptable university policy and has continued to foster a system of widespread copyright abuse.

The decision to file a suit is never easy, and always a last resort. It is particularly painful for non-profit publishers to sue a university, even if in this situation it was unavoidable. "It feels like suing a member of the family" said AAUP Executive Director Peter Givler. "Unfortunately, the alleged infringement is like stealing from a member of the family."

Georgia State Sued by Three Publishers for Alleged Digital Copyright Infringement in E-Reserves, Course Management, and Other Systems

Backed by the Association of American Publishers, Cambridge University Press, Oxford University Press, and SAGE Publications have sued Georgia State University alleging "systematic, widespread and unauthorized copying and distribution of a vast amount of copyrighted works" via GSU's e-reserves, course management, and other systems.

The suit "seeks injunctive relief to bring an end to such practices, but does not seek monetary damages." The defendants named in the suit are the GSU President, Provost, Dean of Libraries, and Associate Provost for Information Systems and Technology.

Read more about it at "Publishers Sue Georgia State on Digital Reading Matter" and "Publishers Take Action against Georgia State University Copyright Infringement."

Podcast: Columbia's James Neal Provides Copyright Update

EDUCAUSE has released "EDUCAUSE Live! Podcast: Update on Key U.S. Copyright Developments," in which James G. Neal, Vice President for Information Services and University Librarian at Columbia University, discusses recent copyright issues.

Here's a description of the podcast:

Copyright continues to be a core interest of the higher education and academic library communities. This briefing focuses on eight critical legislative and legal arenas where the United States will be working on copyright: orphan works, digital fair use, broadcast flag, Section 1201 anti-circumvention rulemaking, electronic reserves, peer-to-peer file sharing, open access to government-funded research, and the report of the Section 108 Study Group on exceptions and limitations for libraries and archives. The work of the study group is highlighted, including its primary findings and recommendations. In addition, two important recent studies are described and their importance for libraries are cited. The advocacy and educational roles and responsibilities of librarians on copyright also is outlined.

AAP Reaches Agreement with Three Universities about E-Reserves Guidelines

The Association of American Publishers has announced it has reached agreement with Hofstra University, Marquette University, and Syracuse University about copyright guidelines for e-reserves.

The guidelines are below:

Here's an excerpt from the press release:

The guidelines, which were developed separately by the three universities, govern how librarians and faculty members distribute copyrighted content through library electronic course reserves systems, course management systems, faculty and departmental web pages and other digital formats.

AAP worked with each of the three universities in cooperative efforts to establish easily understood and common-sense standards that help faculty and staff understand and interpret their rights and responsibilities when using copyrighted content in educational settings. Each of the guidelines reflects the specific needs of the particular university and is consistent with the principles of fair use while providing helpful guidance as to when permission from the copyright holder is required to copy or post materials in digital formats. AAP believes the guidelines, which are similar to those adopted by Cornell University last year, will serve as models for others colleges and universities. . . .

In the last two years AAP has initiated discussions with a number of universities after observing that unlicensed digital copies of course materials were gradually replacing the licensed physical copying of articles, book chapters and other copyrighted works. While it is well established that physical copying of materials for distribution to multiple students, often in compilations known as coursepacks, generally requires permission from the copyright holder, faculty and staff seem less aware that permission is similarly required for distribution of electronic copies of such copyrighted materials.

Read more about it at "AAP Pressures Universities to Limit Fair Use" and "Despite Skeptics, Publishers Tout New 'Fair Use' Agreements With Universities" (Chronicle of Higher Education subscribers only).

Streaming Video E-Reserves at Emory University Libraries

Emory’s Woodruff Library has a streaming video e-reserves service. Here are a few quotes:

Material to be digitized must be owned either by the library or by the person requesting the digitization. We will not digitize any third-party copies, recordings, or transfers, including personal recordings of television broadcasts or rentals. If you would like to digitize material that is not owned either by you or by the library, please contact us and we will attempt to purchase it for the library’s collection. . . .

We will digitize video and compress it into a streaming video format that is accessible via a link posted in ReservesDirect for the duration of the semester. Our current streaming formats of choice are Real and QuickTime. Real and quicktime video players may be downloaded freely from the web. . . . We will optimize the stream for a reasonably wide cross-section of those who are likely to view it. . . .

As with other materials that are digitized and placed on ReservesDirect, we will place a copyright notice at the beginning of all video we digitize. All digitized materials will be retained and archived solely by us. . . .

We will digitize up to 20% total of a commercially produced video or film. . . .

Since all video submitted is for use in an instructional context, we anticipate that all materials submitted will follow guidelines for what is appropriate for display in a classroom setting. Therefore we will not judge or censor materials submitted to us for digitization. However, if a challenge concerning the appropriateness of materials is submitted to us, we reserve the right to restrict access to digitized materials at any time while we review the challenge and make a decision on whether to continue access to the material.