GSU E-Reserve Ruling Raises Stakes, Paves the Way for A  Settlement

Publishers seem to be keeping the pressure on with subpoena of copyright expert Kenneth Crews documents

Andrew Albanese and Lynn Blumenstein -- Library Journal, 7/9/2009

• Copyright consultant is Kenneth Crews of Columbia U.
• Publishers considered him a testifying expert
• Court on July 6 agreed; issuing subpoena

The stakes just got a little higher for academic libraries—and the odds of success perhaps a little longer for publishers—after recent developments in the controversial lawsuit brought last April by a group of publishers against four individuals at Georgia State University (GSU) over the use of electronic course content, including the university’s e-reserves system. On June 22, the U.S. District Court in Atlanta granted a protective order to the GSU defendants, limiting the plaintiffs’ (Oxford University Press, Cambridge University Press, and SAGE Publications) discovery to GSU’s “ongoing and continuous conduct,” in light of a new, more conservative copyright policy, adopted earlier this year by the Georgia State Regents.

In its initial suit, publishers charged that as of February 19, 2008, GSU’s e-reserve system was far too liberal, making "over 6700 total works available for some 600-plus courses," and “inviting students to download, view, and print such materials without permission of the copyright holder.” On February 17, 2009, however, the new policy adopted by the Georgia State Regents went into practice, a policy that hews more closely to guidelines regarding the use of electronic content at other schools.

The new policy, GSU attorneys argued, “rendered any claims about GSU’s past conduct moot,” because under State Sovereign Immunity, the only relief available to the plaintiffs is injunctive relief, not damages. Therefore, the defense contended and the court agreed, it would be overly burdensome to fight against an injunction that in essence would bar practices no longer in effect. Specifically, the court ordered that the plaintiffs may no longer “inquire into practices or policies in existence before February 17, 2009,” except to ask how the new policy differs from the old policy.

Higher Stakes?
The effect of the ruling on the litigation remains to be seen—but it would certainly seem to pave the way for a settlement in which both sides could claim victory. The plaintiffs, for example, could claim that the suit has succeeded in changing the liberal policies governing electronic course content at GSU. The defense, meanwhile, avoids an injunction.

The stakes, however, are still high for both sides should the case continue. Because GSU’s policy now reflects guidelines at most other insitutions, “the decision about fair use, if the case gets that far, will be a lot more relevant to e-reserve and course management systems use around the country,” blogged Duke University's Kevin Smith. “That, of course, could be a good thing or a bad thing, depending on how the decision goes.”

As for that decision, Smith also noted that GSU at least stands a better chance of winning since the implementation of its new policy. “A ruling in favor of fair use is a little more likely now that it will be decided on the basis of this more pragmatic policy,” he wrote. 

Copyright expert subpoenaed
For their part, publishers seem to be keeping the pressure on. On July 6, attorneys for the plaintiffs filed with the court a notice to serve copyright expert Kenneth Crews, director of the Columbia University Libraries/Information Services Copyright Advisory Office, with a subpoena to turn over documents, arguing that a report Crews prepared for GSU, which GSU later submitted as expert testimony, was both inadmissible and was improperly withheld from discovery.

In their motion, attorneys for the publishers claim they were “sandbagged well after the applicable discovery deadline,” by Crews’ report which they claim constitutes improper legal advocacy. “Defendants’ ‘hide the ball’ gamesmanship with respect to Dr. Crews, coupled with the blatant attempt to usurp the Court’s role as the legal expert in this action, should be rejected,” the plaintiffs argue, “and the Crews Report excluded in its entirety.”

Defendants (GSU's president Mark Becker, provost, associate provost for technology, and dean of libraries, Charlene Hurt) claimed that Crews was engaged as a “non-testifying, consulting expert” in October 2008 and was further engaged to prepare a report on the state’s new electronic course content guidelines in April. Upon submission of the first draft in mid-May, it was decided to convert his status to a testifying witness. At press time, Crews did not respond to a call for comment.

Settlement?
While there has been no public talk of a settlement, recent developments clearly offer both sides a way out of a thorny litigation. Should the action go forward the case otherwise comes down to a roll of the legal dice: a judge’s reading of fair use—a verdict that could have major ramifications for libraries and publishers. A decision in favor of GSU, Smith noted, could be an important victory for libraries. “Such a ruling would more clearly support widespread practices in higher education.” Of course, he adds, the sword cuts both ways. “A ruling against Georgia State would make it much harder for the rest of us to explain away and distinguish from our own practices.”

Publishers, meanwhile have in the past shown a willingness to be satisfied by a public endorsement of what they consider reasonable use guidelines, which they may now have at GSU. This is the first time publishers have filed a lawsuit over a university's e-reserve practices. In 2006, Cornell University and the Association of American Publishers (AAP) released joint guidelines for electronic content under the threat of litigation. In January of this year, AAP approved of agreements reached with Syracuse, Marquette, and Hofstra universities regarding their new guidelines for the use of electronic content. OUP publisher Niko Pfund told the LJ Academic Newswire in April that he was reticent to turn to legal action.

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