Publishers Will Appeal E-Reserves Decision That Favored Georgia State U.

The publisher plaintiffs who accused Georgia State University of copyright infringement in a lawsuit over course e-reserves aren’t happy with the outcome of that case. On Monday they said they would appeal a federal judge’s decision, handed down in May, that was largely a win for the defendants.

In a statement, Cambridge University Press, Oxford University Press USA, and SAGE Publications said that the decision, by Judge Orinda D. Evans of the U.S. District Court in Atlanta, had left them “no alternative but to appeal, to protect our authors’ copyrights and advocate for a balanced and workable solution” to the challenge of accommodating both copyright and fair use.

The case,  Cambridge U. Press et al. v. Becker et al., has been closely tracked by publishers, librarians, and fair-use advocates.

In her May ruling, Judge Evans found only five instances of copyright infringement by Georgia State out of 99 claims originally advanced by the publishers. In August she rejected the plaintiffs’ “highly regimented” request for injunctive relief, and ordered them to pay legal fees for both sides. She required the university only to maintain copyright policies consistent with her May 11 ruling.

The Association of American Publishers, along with the Copyright Clearance Center, bankrolled the lawsuit. The court’s decision is “inconsistent with prior judicial decisions and other authority as to the scope of fair use in an educational context,” the group said in its own statement on Monday. “The court misunderstood and misapplied the law.”

In a conference call with reporters, publishers’ representatives emphasized the need to protect their authors’ intellectual property, and described the legal action as regrettable but necessary. Blaise R. Simqu, president and chief executive officer of SAGE Publications, said that “engaging in litigation with a fellow member of the academy is not taken lightly.” But “we believe that authors entrust publishers with their intellectual property,” he said. “We consider this to be a very, very sacred trust.”

Mr. Simqu said he had personally contacted more than 50 SAGE textbook authors to sound them out on whether to appeal the decision. “All but two of the authors not only were supportive but felt very strongly, very passionately that it was critical SAGE continue with this appeal,” he told reporters.

Niko Pfund, academic publisher and president of Oxford University Press, expressed similar discomfort with the situation. “We are obviously in an uncomfortable position being in an adversarial position with a library,” Mr. Pfund said. “I want to stress that, as a community, we really, ardently do believe in fair use.”

Mr. Pfund also presented the decision to appeal as regrettable but necessary. Many university presses operate “with razor-thin budgets,” Mr. Pfund said. “What enables us to keep operating is our backlist titles.” He added, “Our concern is that this decision would cut us off at the knees in that regard.”

Georgia State University issued a brief written statement in response to the appeal. “We believe Judge Evans’s decision provides thoughtful and careful guidance concerning the application of fair use in higher education,” Andrea Jones, a Georgia State spokeswoman, said. “We will continue to defend the university’s right to make proper fair use of copyrighted material for educational purposes.”

Brandon Butler, director of public-policy initiatives for the Association of Research Libraries, said the publishers’ appeal did not come as a surprise. “Ultimately, an appeal is very, very cheap compared to a trial,” he said. “The only cost is the time of the handful of lawyers writing the brief.”

Mr. Butler likened the plaintiffs’ situation to that of gamblers who have little left to lose. “They’ve been gambling all day, they’re way, way in the hole, they can make one last gamble and win everything back,” he said.

The appeal will be heard by the U.S. Court of Appeals for the 11th Circuit. Asked what kind of track record the 11th Circuit has on fair-use cases, Mr. Butler noted that it had ruled in a high-profile case involving Alice Randall’s novel The Wind Done Gone, a retelling of Margaret Mitchell’s Gone With the Wind from a slave’s point of view. The Mitchell estate sued the publisher Houghton Mifflin for copyright infringement. In 2001 the court struck down an injunction against publishing Ms. Randall’s book. (The parties later settled out of court.)

According to Mr. Butler, in its The Wind Done Gone decision, the 11th Circuit “focused on the public benefit that is copyright’s ultimate goal, and on the importance of limitations to that right in assuring the free flow of ideas, commentary, and criticism.” If that view still holds on the 11th Circuit, he said, “that could be bad news for the publishers.”

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