Both the blogosphere and the water-coolers in library and publisher staffrooms have been abuzz this week with news of the ruling handed down last Friday in what has become popularly known as the “Georgia State University e-reserves case,” a ruling that one observer characterized as a “crushing defeat for the publishers.”
The plaintiffs in the suit were Cambridge University Press (CUP), Oxford University Press (OUP), and SAGE Publications (though an early filing in the case revealed that the financial backing for the action actually came from the Association of American Publishers and the Copyright Clearance Center). The suit alleged that GSU had gone well beyond fair use in its reserve practices and that the university library’s policies led directly to routine copyright infringement on a massive scale. The plaintiffs brought 99 specific claims of infringement; however, in the course of a 350-page ruling, Judge Orinda Evans found that only a handful of those cases constituted an infringement of copyright beyond fair use.
Of the 99 claims, 74 actually survived to the fair use analysis phase — in the 25 cases that failed, the plaintiffs were unable even to convince the judge that they held copyright in the works in question. Of the 74 claims that ended up being litigated, 69 were dismissed and five were upheld by the court. In her opinion, Judge Evans laid out the logic that underlay her findings in regard to fair use; a detailed account of her reasoning would take up too much space here, but can be found in several commentaries available online. Perhaps the most thorough and useful of these commentaries so far is the one provided by Brandon Butler, Director of Public Policy Initiatives for the Association of Research Libraries. In his view, from the library perspective “the substance of the opinion is not ideal, but it is far more generous than the publishers have sought, it establishes a very comfortable safe harbor for use of books on e-reserve, and libraries remain free to take more progressive steps.” There are also nicely measured analyses from Kevin Smith, Scholarly Communications Officer at Duke University, and from James Grimmelmann of the New York University School of Law.
In-depth commentary from the publisher side has been slower in coming. In the aftermath of the ruling, the plaintiffs themselves were predictably grumpy. The Copyright Clearance Center’s response was terse, while the one from the American Association of Publishers was defiant. OUP and SAGE looked for the silver lining, expressing satisfaction that the ruling “recognized that Georgia State University’s flawed 2009 copyright policy resulted in infringement of our works” and that “the Court rejected the idea that public universities can shield themselves from allegations of copyright infringement.” CUP’s statement was perhaps the most negative in tone, criticizing the Court for holding that “a single quantitative figure can usefully be applied to cover all cases” and expressing disappointment at “the failure of the Court in this case to recognise that GSU’s conduct amounted to systematic and industrial-scale unauthorised reproduction of our authors’ works.”
To be sure, it’s not completely clear sailing from here for Georgia State. There is still the matter of the five claims in which the Court found for the plaintiffs — what kind of injunctive relief will the judge grant? (Given the lines of reasoning she followed in her opinion, I’m going to guess the remedies will be minimal, but who knows?)
At this point, it is indeed hard to read the ruling itself as anything less than a resounding defeat for the plaintiffs.