GSU Injunction Rejected; Plaintiffs Must Pay Legal Fees

On August 10, Judge Orinda Evans rejected the “more narrowly tailored injunction” proposed by the plaintiffs in the Georgia State University (GSU) ereserves case. Earlier this year, Evans found five cases of infringing behavior on GSU’s part; the other seventy instances considered were either dismissed on technical grounds or held to be fair use. Evans rejected “the highly regimented type of injunctive relief Plaintiffs propose” on the grounds that no single formulation would cover all cases, that GSU did try to comply with copyright laws; that the defendant officials had “oversight responsibility, not line responsibility for individual fair use choice,” and that “there is insufficient reason to impose a burdensome and expensive regimen of record-keeping and report-making.” Instead, the only injunctive relief ordered is that GSU must maintain copyright policies consistent with the Court's previous order and this one, and to disseminate the essential points  to faculty and relevant staff. "The judge's order is a validation that the university has acted in good faith within the bounds of fair use,” GSU President Mark P. Becker said in a statement. “We are pleased to have helped set the bar going forward.” Though finding that none of the books in the case were solely intended for use of students in a course, not the instruction of their professors or a wider audience, Judge Evans indicated that she was receptive to the plaintiff’s argument that such books should be held to a stricter standard. However, she eschewed the use of the term “textbook” as too ambiguous, and cautioned  “this does not automatically mean that there could never be fair use protection for any use of these books.” Evans also ordered the plaintiffs to pay Georgia State’s attorneys’ fees, both because GSU was, on balance, the prevailing party, and because “plaintiffs' failure to narrow their individual infringement claims significantly increased the cost of defending the suit.” GSU has until August 24 to file a detailed list of claims; the plaintiffs have until September 10 to object. Though the plaintiffs of record are publishers Oxford University Press, Cambridge University Press, and Sage Publications, they have been bankrolled American Association of Publishers (AAP) and the Copyright Clearance Center (CCC). The plaintiffs issued a joint statement saying, in part, “As with the initial decision to bring suit, the decision regarding an appeal will be based on a considered assessment that takes into account the extent to which this ruling, which we believe to be legally vulnerable on multiple grounds, endangers the creation and dissemination of high-quality academic work.” But while it remains to be seen whether an appeal is in the works and, if it is, whether it will continue to be financially supported (as well as whether CCC and AAP intend to pay the freight for GSU’s legal fees), one observer, at least, considers an appeal likely. “Unfortunately, I expect that […], they will “double down” on an appeal,” Kevin Smith, Duke University’s scholarly communications officer, predicted. Barbara Fister, librarian at Gustavus Adolphus College and LJ Academic Newswire columnist, told LJ, "It's a vindication of libraries' good faith efforts to legally and ethically provide course reserves in a digital era. The fact that the plaintiffs were ordered to pay reasonable court costs reflects the Judge's frustration with the overreaching claims that the publishers made and, I think, shows respect for the difficult work that library staff do when applying the four factors. Though the decision may be appealed, it's encouraging news for librarians, who should be grateful to the individuals at GSU who weathered this storm rather than doing the much easier thing of settling out of court."

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