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Back in May, I discussed the ruling that was handed down that month in the infamous Georgia State University copyright case. The judge threw out 25 of the 99 claims brought, and ruled for the defendants in 69 of the 74 claims remaining. Despite the incredibly lopsided nature of the plaintiffs’ loss, I suggested that it was “not completely clear sailing from here for Georgia State,” given that there was “still the matter of the five claims in which the Court found for the plaintiffs.”

As it turns out, I was mistaken about that.

On August 10, Judge Orinda Evans effectively denied the plaintiffs’ requests for injunctive and declaratory relief in those five remaining claims. On the declaratory side, she simply elucidated her earlier ruling; on the injunctive side, her sole direction to the defendants is that they “maintain copyright policies . . . which are not inconsistent with the Court’s Order of May 11, 2012” and “disseminate (those policies) to faculty and relevant staff.”

Not a good day for the plaintiffs, you say? But wait, there’s more.

Both the plaintiffs and the defendants had asked the Court for an award of their attorneys’ fees. In finding that, “on balance. . . . Defendants are the prevailing party in this case,” Judge Evans “[exercised her] discretion to award the Defendants their reasonable attorneys’ fees.” That can only have added a little extra sting to the resounding thumping administered to the plaintiffs in this case.

For a more in-depth discussion of this order from the library perspective, see Kevin Smith’s always-helpful Scholarly Communications @ Duke blog.

The Association of American Publishers, which (along with the Copryight Clearance Center) substantially funded the lawsuit, responded on Monday, August 13, with a brief statement asserting that Judge Evans’ decision is “marred by a number of serious legal errors” and leaving the door open to appeal. As of this writing, the CCC does not appear to have made any public statement on the matter.

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Rick Anderson

Rick Anderson

Rick Anderson is University Librarian at Brigham Young University. He has worked previously as a bibliographer for YBP, Inc., as Head Acquisitions Librarian for the University of North Carolina, Greensboro, as Director of Resource Acquisition at the University of Nevada, Reno, and as Associate Dean for Collections & Scholarly Communication at the University of Utah.


6 Thoughts on "Georgia State Redux: And Now the Trouncing Is Complete"

Great post Rick! I’ll be very interested to see how the publishing world responds to this. Working in Academia in a for-profit enterprise leads me to watch this situation very closely.

It seems to me that when the University of Georgia system changed their policy in 2008 or 2009 in response to the filing, the plaintiffs should have declared victory and gone home. This is somewhat 20/20 hindsight, but they really got most of what they wanted at that point. It’s true Georgia State refined the policy and their practice after going through the trial and judgement, but most of the refinement that showed greater respect for protected works was accomplished through the policy overhaul.

When you lose by such a wide margin, why would any law firm go back to court and ask for any relief? Spending even more legal fees to go after GSU is a waste of time and energy. You lost guys get over it and find another battle to fight. Having read the complete decision and hearing the tone of the judge, one has be in denial to seek another attempt for any money.


The goal of this suit was never to get monetary damages out of GSU. Rather, it was to set a legal precedent that e-reserves were not fair use or at least to limit the extend to which e-reserves could be considered fair use. Having by and large failed to get that outcome, the cost of pursuing an appeal seems like it may well be worthwhile relative to the possible increase in revenue from additional sales of material if the decision was overturned.

Plus, any appeal will be heard by a different panel of judges who may have very different views on the issue, so I’m not sure how the trial judge’s tone should be taken as an indication of whether it’s wise to proceed with appeal or not.

Honestly, I wouldn’t be surprised if this ended up making it all the way to the Supreme Court (particularly if the publishers don’t prevail at the appellate level). This is an important issue on which clarification from the courts (and nationally binding precedent, which this trial is not) would be valuable to all.

I am aware that of the intent and purpose and this was my attempt at humor. I have been to the Supreme Court already over the fair use issue…. NLM vs. Williams & Wilkins and the publishers lost that battle as well. I believe that there was a poor choice of the University to sue, a even poorer group of publishers to make the case, plus poor choice of the 99 examples. Not sure if any group of judges in any court would have given any relief.

As somewhat of a pessimist on the ability of the legal system to stand up to moneyed interests, it is nice to see a victory for common sense.

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