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August 13, 2012
GSU Wins Again In E-Reserve Case
Judge Orinda D. Evans issued an order on Friday addressing the plaintiff publishers’ requests for relief in the Georgia State University electronic reserve copyright case. The publishers filed the proposed order and memorandum of law 20 days after the Court had found the University infringed on 5 of the 126 works at issue. They had sought strict limits on the size of an excerpt that may be used:
4. constitute a decidedly small excerpt in accordance with the following criteria:
a. if from a book that is not divided into chapters or contains fewer than ten chapters and for which a license for digital academic use is available, do not exceed ten (10) percent of the pages in the Work; or
b. if from a book that contains ten or more chapters and for which a license for digital academic use is available, do not exceed one (1) chapter; or
c. if, after a reasonable investigation that shall at a minimum include consulting both the copyright owner and its authorized agent (such as Copyright Clearance Center, Inc.), GSU determines that the digital excerpt cannot be licensed or purchased for use on GSU Electronic Course Systems, and that the excerpt is sufficiently small so as not to cause actual or potential market harm to the Work;
Judge Evans rejected this as well as the request that the publishers have access to various GSU systems for the next three years to audit compliance. Her rationale is that the number of infringements was few in relation to the claims presented and that GSU had a good faith belief that the use of the infringing works was fair use. Rather, the Judge ordered declarative relief:
Access to excerpts shall be limited by a passcode or password to only the students enrolled in the course, and then only for the term of the course. Students must be prohibited by stated policy from distributing copies to others. They must be reminded of the limitations of the copyright laws each time they access excerpts on ERES. Each chapter or the excerpt must fill a demonstrated, legitimate purpose in the course curriculum and must be narrowly tailored to accomplish that purpose.
Judge Evans noted that the use of 18.52 percent of a musical score by Franz Liszt where electronic permissions were not available did pass a fair use analysis, though that amount was likely close to the upper limit. Her point was fair use analysis had to be made on a case by case method. If the publishers were seeking something akin to the CONTU guidelines, Judge Evans did not deliver. The publishers’ proposed order reserved the right to appeal any denial of its terms. I would expect the 11th Circuit will be docketing this case in the very near future. It looks good, so far, for GSU. The Court found that the University was entitled to attorneys’ fees as the prevailing party in the case. That should frost the plaintiffs and the Copyright Clearance Center which motivated the claims against GSU and funded the litigation.
More commentary is available from the Chronicle of Higher Education and Kevin Smith’s blog post at Duke University. Both have links to Judge Evans’ Order. The plaintiffs' rejected order and memorandum is available through the following links: Download GSU 426-1 (memo) and Download GSU 426-2 (order). [MG]