Monday, August 13, 2012

The Other Shoe Drops at GSU - and Lands on the Publishers

The other shoe has dropped in the Cambridge v. Georgia State (GSU) case, where a lengthy 350 page decision was issued on May 11, 2012. In that decision, the University prevailed in 94 of 99 copyright claims. The Court at that time provided some very useful steps towards the evolution of predictable guidelines that can be used to determine fair use/fair dealing in the context of e-Reserves in the university milieu.

On August 10, the Court followed up by declining to issue an injunction for a number of interesting reasons, the conclusions of which I quote below and awarding costs in favour of the GSU as by far the prevailing party that are likely to be very substantial.

This is decision is unlikely to be overturned on appeal. The Judge has been very careful and extraordinarily detailed (about 375 pages and counting) in her “fact finding”, which is the basis for most of her conclusions. Appellate courts almost never overrule conclusions based on fact finding and consideration of evidence - or lack thereof. Moreover, an appeal might trigger a cross-appeal for even more liberal exceptions and limitations, which might only exacerbate the plaintiffs’ clear defeat and result in even more generous upper limits on what may constitute fair dealing.

Here’s the extract relating to the refusal to issue on an injunction. Much of this reasoning could ring true in Canada. I have taken the liberty of highlighting some particularly pertinent passages, Note that individuals were sued here (entirely unsuccessfully) for procedural and constitutional reasons that don’t apply in Canada.

II. Injunctive Relief
Next, the Court turns to the issue of injunctive relief. Four
factors influence the Court to reject the highly regimented type of
injunctive relief Plaintiffs propose in their May 31, 2012 filing
[Doc. 426]. FN2 The first is that the fair use analysis is quite fact
intensive and specific to each individual case. There is no single
formulation which would cover all cases. Second, the Court is
convinced that Defendants did try to comply with the copyright laws;
this is demonstrated by the fact that there were only five successful
infringement claims. Third, Defendants are state officials or
officers with oversight responsibility, not line responsibility for
individual fair use choices. Fourth, Defendants and Georgia State's
officers and employees work at taxpayer expense to carry out their
duties. There is insufficient reason to impose a burdensome and
expensive regimen of record-keeping and report-making based on the
totality of the circumstances. Accordingly, the Court sets
injunctive relief as follows: Defendants are hereby ORDERED AND
DIRECTED to maintain copyright policies for Georgia State University
which are not inconsistent with the Court's Order of May 11, 2012 and
this Order. Defendants are also ORDERED AND DIRECTED to disseminate
to faculty and relevant staff at Georgia State the essential points
of this Court's rulings. The Court will retain jurisdiction for the
sole purpose of enforcing these Orders.
Note 2 Plaintiffs' proposed injunctive relief seeks to enjoin
Defendants and all Georgia State agents, employees, and students from
violating the Court's May 11 Order. Plaintiffs seek to have the
Court require Defendants to implement a program that keeps extensive
records and provides Plaintiffs with access to monitor Defendants'
compliance. Plaintiffs' proposed injunction requires, inter alia,
that Defendants keep extensive records for three years as to each
excerpt posted on ERES along with all information pertaining to the
investigation done as to its fair use status; that Defendants comply
with a reporting procedure to Plaintiffs for three years as to
Georgia State's provost's attempts to monitor and enforce compliance;
and that Defendants provide Plaintiffs with monthly access to ERES,
uLearn, and similar programs where excerpts may be accessed [Doc.
426-1] .

So  - the other shoe has dropped in the GSU case. It has landed on the publishers. And the footprint could include Canada.


PS - Here's the decision of March 31, 2016 in searchable format on remand after the Circuit Court ruled. 

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