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. 

Friday, August 03, 2012

Judge Posner Major Decision on Contributory Infringement

Here's a major decision from Judge Posner of the 7th Circuit Court of Appeals in the USA.

Audio of May 25, 2012 hearing of myVidster's appeal in the 7th Circuit. 
Basically  and oversimplified:

  • this was an appeal from a preliminary injunction
  • myVidster  serves a similar function as YouTube, but is doesn't host or store anything (it used to do so for premium users but has stopped and this decision doesn't deal with that scenario)
  • myVidster allows users to embed links to videos, some of which may be infringing videos.
  • myVidster does not host infringing videos or invite infringing links or specialize in any type of video.
  • Only actual infringement is by those up upload the infringing material to a server somewhere - which is not myVidster. 
  • Also no "public performance" - and suggests that this provision needs legislative clarification
  • Posner holds that there is no infringement by either myVidster or myVidster users/members who merely watch and don't download infringing videos
  • Therefore, no contributory infringement by myVidster.
  • DMCA irrelevant because "a noninfringer doesn't need a safe harbour"

Here's a good 1709 posting pointing out that Canada allows linking to noninfringing material and USA now even to infringing material. And it's worth noting that embedding goes well beyond linking in many ways because the result looks as if it's on the website of the provider of the embedded link.

Anyone curious about the comparison of the American "contributory infringment" doctrine and the Canadian "authorization" concept can read my brief filed in the Grokster case in the US Supreme Court in 2005.