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.

HPK

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