Publishers and Georgia State See Broad Implications in Copyright Ruling

May 14, 2012

The publisher plaintiffs in the closely watched lawsuit over Georgia State University's use of copyrighted material in electronic reserves say they are "disappointed" with much of the ruling handed down by a federal judge on Friday. But they made the best of it in statements issued Monday, playing up points on which the judge had agreed with them. And one plaintiff, Oxford University Press, said that the decision "marks a significant first step toward addressing the need for clarity around issues of copyright in the context of higher education."

Meanwhile, in its own series of public comments, the university praised the judge's careful handling of a complex issue. It called the ruling, by Judge Orinda D. Evans of the U.S. District Court in Atlanta, "significant not only for Georgia State University, but for all educational fair use in general," in the words of President Mark P. Becker.

Kerry L. Heyward, the university's chief lawyer, added that the case "highlights the importance of fair use in providing academic faculty a cost-effective, legal way to spread important knowledge to their students." And Nancy H. Seamans, the university's dean of libraries, took a wider view of Georgia State's approach to fair use, saying that the university's policy on e-reserves "was based on practices from the broader academic library community."

The publishers stuck to the particulars while agreeing with the defendants that the case, Cambridge University Press et al. v. Becker et al., has broad implications. Oxford University Press was one of three scholarly publishers that sued the university in 2008 over alleged copyright violations in electronic course readings.

While Judge Evans found that only five of the 99 infringements alleged by the publishers actually violated the plaintiffs' copyrights, the Oxford press said on Monday that it was "pleased" she had recognized that the university's "flawed 2009 copyright policy resulted in infringement of our works."

The publisher argued that the judge "did not consider the pattern and practice of GSU's infringement" but concentrated on specific works. Still, "we appreciate the court's acknowledgment that current practices around fair use vary widely and can use some practical guidelines," the Oxford press said. "We hope that this decision will start us down a path where librarians, teachers, and publishers can work together to chart a course through this evolving landscape."

The Association of American Publishers, which helped bankroll the lawsuit, put out its own statement, saying it was pleased that the court found Georgia State's copyright policy "accountable for specific infringements."

But it led with a reference to Georgia State's "systematic massive infringements of published works," and said the court "failed to examine the copying activities at GSU in their full context."

It described the court's fair-use analysis as "legally incorrect in some places," and warned that publishers' ability to publish scholarly work could be at risk. "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 association said.

The Copyright Clearance Center, which sells licenses to universities that want to use copyrighted material in courses, also helped pay the publishers' legal fees in the case. It too said it was "disappointed" by parts of the decision, especially its fair-use analysis. It said it looked forward to continuing its work with universities and publishers to come up with "efficient and accessible licensing solutions," especially for digital works. The judge was more inclined to find infringement when a CCC license existed for the copyrighted material at issue. "We are pleased that the court viewed CCC as playing an effective role in that process," the group said.

The plaintiffs said they are continuing to study the decision as they decide what next steps to take.