In a preliminary decision issued late last week, federal district judge Orinda Evans in Georgia cleared up a host of key issues in a closely-watched copyright lawsuit. A trio of academic publishers brought suit in 2008 against administrators and trustees of Georgia State University (GSU). The publishers claim GSU infringed copyright using’ its electronic reserves and course management systems (CMS), while GSU contends (among other defenses) that their practices are protected by fair use. Judge Evans dismissed two of the publishers’ three claims last week, and narrowed the third claim in a way that likely favors GSU as the litigation goes forward. (details below)
GSU Library Classroom - photo CC BY Anne G.
(N.B. The publishers could not sue Georgia State University itself due to the doctrine of state sovereign immunity, so they sued various GSU administrators in their official capacity. I will use “GSU” in this post as shorthand for those administrators.)
Universities and research libraries are watching the case very closely, as it involves popular and widely-used e-reserves and course management software. The publishers claim that GSU used the software to infringe copyright under three theories:
direct liability: the publishers argued GSU had directly infringed copyright under the theory of respondeat superior—i.e., their employees were acting within the scope of their employment when they used the electronic systems in an allegedly infringing manner, so the employees’ infringement is imputed to GSU;
vicarious liability: they claim GSU profited directly by alleged infringement and had a right and ability to supervise the people doing the infringing (faculty, students, or whoever uses the e-reserves system); and
contributory liability: they claim GSU, with knowledge of the alleged infringement, induced, caused, or materially contributed to the allegedly infringing conduct of the students/teachers/staff.
In Thursday’s decision, Judge Evans dismissed the first two claims.
On direct liability, the judge rejected the respondeat superior argument, saying this is a form of indirect rather than direct liability. She saw no other basis for direct liability for GSU.
She dismissed the publishers’ vicarious liability claim, as well, seeing no evidence that GSU profited from the alleged infringement. Judge Evans was not persuaded by the publishers’ argument that GSU profited because its use of cutting-edge technology was an attraction to students. Any such benefit is attributable to GSU’s use of technology in general, not just the alleged infringing uses.
Perhaps more importantly, Judge Evans was impressed by declarations from multiple professors about how they use e-reserves. She quotes at length one professor’s explanation that she uses e-reserves only in cases where she is assigning so little of a work that students would not buy the text if it were assigned. Judge Evans also cites approvingly several professors’ declarations to the effect that if they had to pay a royalty to use e-reserves, they would stop using the system.
Ultimately, the court’s rejection of this claim was decisive: “There is absolutely no evidence in the record showing that Georgia State benefited financially from the alleged infringements.”
On the remaining claim of contributory liability, the judge narrowed the issue in several important ways:
First, the court ruled that the only infringing behavior relevant to the case is behavior likely to take place under the current GSU copyright policy, which was revised in 2009. Alleged infringements under an earlier policy are irrelevant. The publishers must show a likelihood of future infringement because GSU is a public institution protected by state sovereign immunity. That immunity limits remedies against public institutions, requiring a plaintiff to show that a state policy will lead to “continuous and ongoing” violations of federal law in order to obtain a court order against a policy.
Second, the court rejected the publishers’ argument that GSU is contributorily liable merely because it provided the CMS and e-reserves services and it knew about the materials that were posted there. Instead, Judge Evans invoked the test from the landmark Sony Betamax case: the CMS and e-reserves systems are “capable of significant non-infringing uses,” so GSU can’t be contributorily liable merely for making these tools available to students and faculty.
At the same time, Evans cited the rule from Grokster, which holds that someone who distributes a technology that satisfies Sony can still be contributorily liable if evidence shows statements or actions directed to promoting infringement. In this case, such statements or actions would be either the copyright policy itself, or else the way GSU implements the policy.
Third, the court held that there is currently no evidence of such statements or actions in the record. Specifically, GSU’s current copyright policy is not evidence of such an intent. In fact, Judge Evans praises the policy as a “positive step to stop copyright infringement.” At the same time, the court seems to set a fairly low bar for such policies. In an important footnote on page 29 of the opinion, the court concludes that, “[O]verall the Current Policy cannot be said to be an intentional effort to encourage infringement.” Institutions who worried the court may set a bar with this decision that would force them to scramble to revise their own policies can probably breathe a sigh of relief. So long as their own policies cannot be characterized as such a botched or bad faith exercise as to amount to an encouragement to infringe, they have likely satisfied the court’s standard.
Fourth, and finally, the court laid out the terms on which the case would go forward. Because the court has found that GSU’s policy itself does not induce infringement, the publishers’ only remaining theory is that the policy is implemented in a way that induces continuous and ongoing infringement. This holding is worth quoting at some length:
“…Plaintiffs [publishers] must show that the 2009 Copyright Policy resulted in ongoing and continuous misuse of the fair use defense. To do so, Plaintiffs must put forth evidence of a sufficient number of instances of infringement of Plaintiffs’ copyrights to show such ongoing and continuous misuse. Defendants [GSU] will have the burden of showing that each specified instance of 2009 Copyright Policy infringement was a fair use.”
The result of this framework is that the publishers, who up to this point have relied on sweeping assertions of liability based on the mere existence of the technology and GSU’s general policies for its use, will now have to get down in the weeds and show infringement in enough particular cases to show that the GSU policy going forward will cause continuous and ongoing infringement. GSU has a burden, as well: it has to establish fair use in enough cases to prevent GSU from crossing the “ongoing and continuous” threshold.
The publishers will have to slog through and try to eke out enough infringement claims to show “continuous and ongoing” infringement in order to get a final judgment from a court that is clearly not sympathetic to their arguments. Alternatively (and the decision seems to push in this direction), the publishers could come to a settlement agreement with GSU, perhaps requiring GSU to stick to its fairly strict 2009 copyright policy.
The court gave the parties twenty days to decide on a schedule for the rest of the adjudication, or (implicitly) to come to agreement on a settlement.
UPDATE: In December, 2010, Judge Evans reinstated the “direct infringement” claim, based on a respondeat superior theory, under the new heading of “indirect infringement.”
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