[A2k] Jennifer Howard: Publishers Will Appeal E-Reserves Decision That Favored Georgia State U

Manon Ress manon.ress at keionline.org
Thu Sep 13 08:18:31 PDT 2012

Publishers Will Appeal E-Reserves Decision That Favored Georgia State U.

September 10, 2012, 6:12 pm

By Jennifer Howard

The publisher plaintiffs who accused Georgia State University of
copyright infringement in a lawsuit over course e-reserves aren’t
happy with the outcome of that case. On Monday they said they would
appeal a federal judge’s decision, handed down in May, that was
largely a win for the defendants.

In a statement, Cambridge University Press, Oxford University Press
USA, and SAGE Publications said that the decision, by Judge Orinda D.
Evans of the U.S. District Court in Atlanta, had left them “no
alternative but to appeal, to protect our authors’ copyrights and
advocate for a balanced and workable solution” to the challenge of
accommodating both copyright and fair use.

The case,  Cambridge U. Press et al. v. Becker et al., has been
closely tracked by publishers, librarians, and fair-use advocates.

In her May ruling, Judge Evans found only five instances of copyright
infringement by Georgia State out of 99 claims originally advanced by
the publishers. In August she rejected the plaintiffs’ “highly
regimented” request for injunctive relief, and ordered them to pay
legal fees for both sides. She required the university only to
maintain copyright policies consistent with her May 11 ruling.

The Association of American Publishers, along with the Copyright
Clearance Center, bankrolled the lawsuit. The court’s decision is
“inconsistent with prior judicial decisions and other authority as to
the scope of fair use in an educational context,” the group said in
its own statement on Monday. “The court misunderstood and misapplied
the law.”

In a conference call with reporters, publishers’ representatives
emphasized the need to protect their authors’ intellectual property,
and described the legal action as regrettable but necessary. Blaise R.
Simqu, president and chief executive officer of SAGE Publications,
said that “engaging in litigation with a fellow member of the academy
is not taken lightly.” But “we believe that authors entrust publishers
with their intellectual property,” he said. “We consider this to be a
very, very sacred trust.”

Mr. Simqu said he had personally contacted more than 50 SAGE textbook
authors to sound them out on whether to appeal the decision. “All but
two of the authors not only were supportive but felt very strongly,
very passionately that it was critical SAGE continue with this
appeal,” he told reporters.

Niko Pfund, academic publisher and president of Oxford University
Press, expressed similar discomfort with the situation. “We are
obviously in an uncomfortable position being in an adversarial
position with a library,” Mr. Pfund said. “I want to stress that, as a
community, we really, ardently do believe in fair use.”

Mr. Pfund also presented the decision to appeal as regrettable but
necessary. Many university presses operate “with razor-thin budgets,”
Mr. Pfund said. “What enables us to keep operating is our backlist
titles.” He added, “Our concern is that this decision would cut us off
at the knees in that regard.”

Georgia State University issued a brief written statement in response
to the appeal. “We believe Judge Evans’s decision provides thoughtful
and careful guidance concerning the application of fair use in higher
education,” Andrea Jones, a Georgia State spokeswoman, said. “We will
continue to defend the university’s right to make proper fair use of
copyrighted material for educational purposes.”

Brandon Butler, director of public-policy initiatives for the
Association of Research Libraries, said the publishers’ appeal did not
come as a surprise. “Ultimately, an appeal is very, very cheap
compared to a trial,” he said. “The only cost is the time of the
handful of lawyers writing the brief.”

Mr. Butler likened the plaintiffs’ situation to that of gamblers who
have little left to lose. “They’ve been gambling all day, they’re way,
way in the hole, they can make one last gamble and win everything
back,” he said.

The appeal will be heard by the U.S. Court of Appeals for the 11th
Circuit. Asked what kind of track record the 11th Circuit has on
fair-use cases, Mr. Butler noted that it had ruled in a high-profile
case involving Alice Randall’s novel The Wind Done Gone, a retelling
of Margaret Mitchell’s Gone With the Wind from a slave’s point of
view. The Mitchell estate sued the publisher Houghton Mifflin for
copyright infringement. In 2001 the court struck down an injunction
against publishing Ms. Randall’s book. (The parties later settled out
of court.)

According to Mr. Butler, in its The Wind Done Gone decision, the 11th
Circuit “focused on the public benefit that is copyright’s ultimate
goal, and on the importance of limitations to that right in assuring
the free flow of ideas, commentary, and criticism.” If that view still
holds on the 11th Circuit, he said, “that could be bad news for the

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