The increasingly testy copyright infringement lawsuit between Cambridge University Press and other publishers and Georgia State University (GSU) over electronic course materials may be coming to a climax. Both sides have recently filed competing motions with the federal court in Atlanta for a summary judgment decision on their behalf. The publishers are relying on evidence that shows that GSU continues to infringe on their copyrights beyond any reasonable fair use level. Georgia State asserted initially that the law immunized them from past actions and that their current actions do not violate the law due to fair use. Their motion for summary judgment, however, minimizes fair use in favor of technical legal arguments and assertions that they are not legally responsible for any infringement taking place.
The lawsuit was filed in April 2008 when Cambridge University Press, Oxford University Press, and Sage Publications entered their complaint that GSU was engaged in "systematic, widespread and unauthorized copying and distribution" of their copyrighted materials. Central to the complaint were GSU's digitizing and electronically distributing classroom materials through its electronic course reserve system and its BlackBoard-based course web software. Through these platforms, the publishers said that they lost substantial licensing revenue and that the materials substituted for both textbooks and "coursepacks" for which copyright permission is required.
The complaint did not request money damages. Instead, the publishers asked the court for a decision that GSU committed copyright infringement and the imposition of a permanent injunction against continued infringement. The publishers also made it clear that they wanted the court to impose "satisfactory copyright guidelines" on GSU's digitization and distribution of electronic course materials.
Georgia State defended itself on several grounds, including fair use, acquiescence in its practices by the publishers, Section 108 of the Copyright Act governing copying by libraries, and the immunity from liability belonging to its status as a public institution.
Several months after the lawsuit was filed, Georgia State announced that it was amending its policies governing copying materials for use in the classroom. The new policy "informs and educates students, faculty and staff about copyright law" and outlines the fair use considerations for use of copyrighted materials. It offers faculty a "fair use checklist" for determining whether a use may be fair. The checklist presents a series of circumstances which may weigh in favor of or against fair use. Faculty check a series of boxes for or against, then are instructed that "where the factors favoring fair use outnumber those against it, reliance on fair use is justified."
Checklists such as these are increasingly common at colleges and universities as an effort to achieve copyright compliance. However, they have not been accepted as accurate by the publishing industry, particularly in light of clearinghouses such as the Copyright Clearance Center (CCC) and obtaining permission through the publisher.
When Georgia State announced its new policy, the lawsuit took on a new dimension. GSU claimed that its new policy addressed any past infringement that might have taken place and that the lawsuit was only to deal with infringement under the new policy. As part of this claim, GSU sought to limit the lawsuit only to the current policy and not GSU's prior practices. GSU retained several expert witnesses to review its new policy and to support its argument that its practices were reasonable and constituted fair use. One expert, Columbia University professor Kenneth Crews, is one of the originators of the fair use checklist. His 70-page report on behalf of GSU found its new policy "consistent with the copyright law of the United States." Crews' report was sharply criticized by the publishers, so much so that they filed several motions with the court to have it excluded.
The publishers' expert witnesses focused heavily on the role of the Copyright Clearance Center and publisher permissions' services in making it "easier" to obtain permission and pay royalties. GSU strongly disputed that position, arguing that licensing, the CCC, and permission services can be "inefficient, costly, and prone to error." The parties also disputed who should bear the costs of permissions, the student using the materials in the classroom (who would normally pay for a textbook or coursepack) or the university (which would normally pay for database licenses).
The recent filings for summary judgment are equally disputed and, in the case of Georgia State's filing, show the significant shift that the lawsuit has taken. The publishers continue to assert that GSU's new policy encourages copying well beyond fair use. They argue that the fair use checklist is biased and that its use delegates responsibility for copyright compliance to faculty "unschooled in copyright law." They also continue to emphasize the role of the CCC and point out that no money has been allocated by GSU for paying royalties on electronic course materials.
By contrast, the GSU argument takes a very different tack. While the university makes an initial, broad statement that its new policy "is grounded upon" fair use, the bulk of its argument asserts several technical reasons that the defendants are not infringing copyrights and does not rely on fair use. The argument points out that the specific GSU defendants-the president, provost, trustees, library director, and other senior officials-were not directly engaged in copying activities. Professors, librarians, and staff may have been copying materials, but the named individuals were not.
The university further argues that the named defendants had not "induced, caused or materially contributed to," nor profited from infringement that may have been done by faculty and staff and based this argument on the new policy's intention to "discourage and prevent" infringement. It asserts that the existence of the electronic course reserve and course web systems itself are not enough to establish liability, and, as a nonprofit institution, GSU cannot "profit" from any infringing that may have been done by its faculty and staff.
A decision on the summary judgment motions is expected by late spring or early summer. As an academic librarian, I've been waiting for a case like this to possibly resolve what we can and cannot do in our course web and electronic course reserve systems under fair use. (As long as it wasn't us being sued!) While the lawsuit's resolution may be forthcoming, it remains to be seen what actually will be resolved.
[For the links to documents on the GSU case, go to http://faculty.law.pitt.edu/pike/georgiastatedocs. -Ed.]