Publishers File Motion to Reopen Record in GSU Electronic Reserves Case; GSU Opposes

On October 17, 2014, the Eleventh Circuit ruled in the Georgia State University e-reserve case, directing the lower court to revisit its fair use analysis and avoid using an arithmetic approach to the four factors (i.e., if three factors favor fair use but one does not, then fair use applies).  While the case was reversed and remanded, the Eleventh Circuit actually rejected many of the arguments advanced by the plaintiff publishers.  In its holding, the court affirmed that fair use is determined on a case-by-case basis, rejected bright-line rules, affirmed that even non-transformative uses may be a fair use, and rejected applicability of the coursepack cases.

The plaintiff publishers subsequently filed a petition for rehearing en banc, which the Eleventh Circuit rejected in January.

On remand to the district court, on February 24, 2015, the publishers filed a motion to reopen the record.  The publishers claim the need for “evidence of GSU’s ongoing conduct (e.g. its use of E-Reserves during the most recent academic term).”  Essentially, the publishers are seeking a new trial with potentially new claims, rather than allowing Judge Evans to simply revisit the analysis used with respect to the existing claims-at-issue.

On March 13, 2015, GSU filed its opposition to the motion to reopen, noting that “The record here was fully developed at trial and is complete, and from it, this Court can” make a fair use determination.  As GSU points out, there is no reason to reopen the record because the Eleventh Circuit remanded the case based on the legal analysis rather than an incomplete factual record.

GSU also points out the burdensome nature of reopening the record:

The process of re-opened discovery that the Plaintiffs propose would be grossly burdensome–requiring Defendants to, among other things, collect substantial electronic and paper records and acquire the sworn statements of yet-undetermined number of faculty and staff.  The Court would then have to use its finite resources to start anew analyzing new individual allegations of infringement–and would (According to Plaintiffs’ plan) have to do so without the benefit of trial testimony on such things as the pedagogical purposes of the alleged uses.

GSU’s opposition goes on to explain that reopening the record would be unfair given that the publishers declined to stay the case while GSU was implementing its new policy on electronic reserves:

Moreover, Plaintiffs’ Motion does not make any claims of prejudice to Plaintiffs.  Nor could Plaintiffs do so.  The Court will recall that Plaintiffs declined Defendants’ offer to stay this case during initial implementation of the Policy.  Having elected to proceed, Plaintiffs should not now be heard to complain of the record they insisted on presenting to this Court in the first place.

GSU points out that the publishers are essentially looking an entirely new trial:

The Eleventh Circuit’s and this Court’s thorough disposition of the legal and factual arguments advanced over years of litigation–including almost a month of trial testimony–simply cannot be a dry run for Plaintiffs’ “second go” at whole new allegations of infringement.

It seems clear from the publishers’ motion to reopen that they intend to aggressively pursue the case.  Given that the publishers were largely defeated the first time the case was heard in the district court and most of their arguments were rejected on appeal, it indeed seems that they want to treat the existing record as a “dry run” and now seek a new trial with a new set of allegations.