Cambridge University Press v. Patton
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''Cambridge University Press et al. v. Patton et al.'' (also captioned ''v. Becker''), 1:2008cv01425, was a case in the
United States District Court for the Northern District of Georgia The United States District Court for the Northern District of Georgia (in case citations, N.D. Ga.) is a United States district court which serves the residents of forty-six counties. These are divided up into four divisions. Appeals from cases ...
in which three publishers,
Cambridge University Press Cambridge University Press is the university press of the University of Cambridge. Granted letters patent by Henry VIII of England, King Henry VIII in 1534, it is the oldest university press A university press is an academic publishing hou ...
,
SAGE Publications SAGE Publishing, formerly SAGE Publications, is an American independent publishing company founded in 1965 in New York by Sara Miller McCune and now based in Newbury Park, California. It publishes more than 1,000 journals, more than 800 books ...
, and
Oxford University Press Oxford University Press (OUP) is the university press of the University of Oxford. It is the largest university press in the world, and its printing history dates back to the 1480s. Having been officially granted the legal right to print books ...
, initially filed suit in 2008 against
Georgia State University Georgia State University (Georgia State, State, or GSU) is a Public university, public research university in Atlanta, Atlanta, Georgia. Founded in 1913, it is one of the University System of Georgia's four research universities. It is also the ...
for
copyright infringement Copyright infringement (at times referred to as piracy) is the use of works protected by copyright without permission for a usage where such permission is required, thereby infringing certain exclusive rights granted to the copyright holder, s ...
.


Background

The plaintiffs claimed that Georgia State University engaged in "systematic, widespread and unauthorized copying and distribution of a vast amount of copyrighted works" through its e-reserves system. Georgia State asserted that its system did not infringe copyright because its uses were
fair use Fair use is a doctrine in United States law that permits limited use of copyrighted material without having to first acquire permission from the copyright holder. Fair use is one of the limitations to copyright intended to balance the interests ...
. The district court issued a 350-page findings of fact and conclusions of law on 11 May 2012, finding that in almost all cases the alleged infringements were fair use.
Cambridge University Press v. Patton
', No. 08-01425 (D.Ga. May 11, 2012).
In a subsequent decision the court deemed that Georgia State University was the prevailing party and ordered the plaintiffs to pay GSU's attorney's fees.Steve Kolowich
'The Prevailing Party'
''
Inside Higher Ed ''Inside Higher Ed'' is a media company and online publication that provides news, opinion, resources, events and jobs focused on college and university topics. In 2022, Quad Partners, a private equity firm, sold Inside Higher Education to Time ...
'' (13 August 2012).
The plaintiffs characterized the decision as "flawed" but not a "loss",Andrew Albanese
"Publishers Appeal 'Flawed' Decision in GSU E-Reserves Case"
''
Publishers Weekly ''Publishers Weekly'' (''PW'') is an American weekly trade news magazine targeted at publishers, librarians, booksellers, and literary agents. Published continuously since 1872, it has carried the tagline, "The International News Magazine of B ...
'', 11 September 2012.
and filed an appeal. The costs of the litigation were funded in large part by the
Copyright Clearance Center Copyright Clearance Center (CCC) is a U.S. company based in Danvers, Massachusetts, (although it is incorporated in New York State), that provides collective copyright licensing services for corporate and academic users of copyrighted materials. C ...
, a licensing company which funded 50% of the litigation and announced plans to continue to do so on appeal, and the
Association of American Publishers The Association of American Publishers (AAP) is the national trade association of the American book publishing industry. AAP lobbies for book, journal, and education publishers in the United States. AAP members include most of the major commercia ...
(AAP). On 17 October 2014, the 11th Circuit reversed and remanded to the lower court for reconsideration in light of its opinion. The 11th Circuit reversed the grant of attorney's fees, and closely examined the lower court's 300-plus page fair use decision in their own 129-page decision, affirming and reversing various portions of the District Court's analysis. On 31 March 2016, the lower court issued its decision on remand, finding this time 4 of 49 to be infringements, and again awarding costs and attorneys' fees to Georgia State University as the prevailing party. The case concluded on 29 September 2020, when "Judge Orinda Evans declared GSU to be the prevailing party after finding the plaintiff publishers succeeded in establishing copyright infringement in just 10 of 99 claims brought to trial."


Pre-trial

Cambridge University Press, SAGE Publications, and Oxford University Press filed the lawsuit on 15 April 2008. They named four Georgia State officials as the defendants. The plaintiffs alleged that Georgia State made over 6,700 works available through its e-reserves system and website. They also alleged that the university "invit dstudents to download, view, and print such materials without permission of the copyright holder." The plaintiffs alleged direct,
vicarious Vicarious may refer to: * Vicariousness, experiencing through another person * Vicarious learning, observational learning In law * Vicarious liability, a term in common law * Vicarious liability (criminal), a term in criminal law Religion * Vicar ...
, and contributory infringement. They filed for
summary judgment In law, a summary judgment (also judgment as a matter of law or summary disposition) is a judgment entered by a court A court is any person or institution, often as a government institution, with the authority to adjudicate legal disputes ...
on all three claims, and Georgia State submitted counter-motions for summary judgment. On 17 February 2009, the
Georgia Board of Regents The Georgia Board of Regents oversees the University System of Georgia as part of the state government of Georgia in the United States. The University System of Georgia is composed of all state public institutions of higher education in the state. T ...
changed the challenged e-reserve system, making it more similar to peer institutions. Following this change, on 22 June 2009, the university was granted a court order that limited
discovery Discovery may refer to: * Discovery (observation), observing or finding something unknown * Discovery (fiction), a character's learning something unknown * Discovery (law), a process in courts of law relating to evidence Discovery, The Discovery ...
to the university's ongoing conduct. On 1 October 2010, Judge Orinda Evans granted summary judgment in favor of Georgia State on the claims of direct and vicarious infringement. She granted summary judgment on direct infringement because there was not enough evidence to show that any of the four named defendants engaged in acts of infringement. She also granted summary judgment on vicarious infringement because there was no evidence the named defendants profited from the alleged infringement of librarians working under them. The plaintiffs then submitted a partial motion for reconsideration. The judge granted it, allowing the vicarious infringement claim to go forward under a theory of
indirect liability Indirect liability refers to legal liability imposed on an entity which is facilitating an infringement of another's rights, particularly of intellectual property rights, but not accruing benefit (or loss) from the infringement. Indirect liability ...
. Money damages were not at issue in the case. Under the doctrine of state sovereign immunity, the plaintiffs could only seek
injunctive relief An injunction is a legal and equitable remedy in the form of a special court order that compels a party to do or refrain from specific acts. ("The court of appeals ... has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in par ...
against Georgia State.


Reaction to the initial lawsuit

Both librarians and publishers are watching this case for its implications for broader conflicts about fair use and copyright infringement in the education community. As universities replace traditional printed resources with electronic course resources (either in the form of e-reserves or electronic
course packs Coursepacks are printed collections of readings assembled by teachers to supplement college and university courses. The practice of assembling coursepacks for students developed as a systematization of the practice of disseminating "handouts" for r ...
), publishers have sought to limit unlicensed uses in these forms. Similar cases have been filed against universities, including
UCLA The University of California, Los Angeles (UCLA) is a public land-grant research university in Los Angeles, California. UCLA's academic roots were established in 1881 as a teachers college then known as the southern branch of the California St ...
, and in other countries,
York University York University (french: Université York), also known as YorkU or simply YU, is a public university, public research university in Toronto, Ontario, Canada. It is Canada's fourth-largest university, and it has approximately 55,700 students, 7,0 ...
,
Delhi University Delhi University (DU), formally the University of Delhi, is a collegiate university, collegiate Central university (India), central university located in New Delhi, India. It was founded in 1922 by an Act of the Central Legislative Assembly and ...
, and New Zealand. In Seattle, a lawsuit was filed against a commercial copyshop serving
Seattle University Seattle University (SeattleU) is a private Jesuit university in Seattle, Washington. Seattle University is the largest independent university in the Northwestern United States, with over 7,500 students enrolled in undergraduate and graduate prog ...
. The District Court distinguished the university, a nonprofit educational institution directly serving its users, from the commercial copyshops found to have infringed copyright in two cases in the early 1990s. Academic librarians and their lawyers have described the case as a "nightmare scenario." Barbara Fister, a librarian at
Gustavus Adolphus College Gustavus Adolphus College ( ) is a private liberal arts college in St. Peter, Minnesota. It was founded in 1862 by Swedish Americans led by Eric Norelius and is affiliated with the Evangelical Lutheran Church in America. Gustavus gets its nam ...
, has suggested that the plaintiffs have lost sight of their missions, which include furthering education and scholarship. Similarly, Paul Courant, University Librarian and dean of libraries at the
University of Michigan , mottoeng = "Arts, Knowledge, Truth" , former_names = Catholepistemiad, or University of Michigania (1817–1821) , budget = $10.3 billion (2021) , endowment = $17 billion (2021)As o ...
, has argued that the plaintiffs in this suit are in danger of becoming enemies, rather than simply adversaries, of libraries and authors. Kevin Smith, the director of scholarly communications at
Duke University Duke University is a private research university in Durham, North Carolina. Founded by Methodists and Quakers in the present-day city of Trinity in 1838, the school moved to Durham in 1892. In 1924, tobacco and electric power industrialist James ...
, has said that a broad holding in the plaintiffs' favor would have "catastrophic consequences," either limiting the information that students can read or greatly increasing the cost of higher education. Both Fister and Smith also suggest that a narrow interpretation of fair use could lead more professors and academic authors to embrace the
open access Open access (OA) is a set of principles and a range of practices through which research outputs are distributed online, free of access charges or other barriers. With open access strictly defined (according to the 2001 definition), or libre op ...
movement. Publishers and their representatives also feel that the stakes are very high. Tom Allen, president and CEO of the Association of American Publishers, has written that Georgia State's policy "invited disregard for basic copyright norms" and would threaten copyright's incentives for producing original work. Allen emphasized that educational purpose is not enough for a finding of fair use—other factors also enter the analysis. He also wrote that Georgia State's practices, if universalized, could bring down the entire "creative ecosystem." Sandy Thatcher, then the executive editor for social sciences and humanities at Penn State University Press, commented in 2010 that the loss of revenue from the unlicensed electronic use of copyrighted material limited the University Press's ability to publish new books.


Trial

The trial began on 17 May 2011 and ended on 8 June 2011. After hearing the plaintiffs' arguments, Judge Evans granted the defendants' motion for a
directed verdict In law, a verdict is the formal finding of fact made by a jury on matters or questions submitted to the jury by a judge. In a bench trial, the judge's decision near the end of the trial is simply referred to as a finding. In England and Wales, ...
on the claim of contributory infringement. The defendants' arguments largely related to fair use. The parties filed their final post-trial briefs later that summer. The district court issued a 350-page findings of fact and conclusions of law on 11 May 2012, a ruling that was appealed to the
Eleventh Circuit The United States Court of Appeals for the Eleventh Circuit (in case citations, 11th Cir.) is a federal court with appellate jurisdiction over the following U.S. district courts: * Middle District of Alabama * Northern District of Alabama * ...
. The Court found that most uses considered were fair use, considering the purpose of the use (nonprofit educational), the nature of the works (scholarly and factual), the amount taken (often less than 10%), and the effect on the market (little or to none known especially where there was no license available for electronic excerpts). Of the other allegations, the Court dismissed some as ''
de minimis ''De minimis'' is a Latin expression meaning "pertaining to minimal things", normally in the terms ''de minimis non curat praetor'' ("The praetor does not concern himself with trifles") or ''de minimis non curat lex'' ("The law does not concern i ...
'' (because no students had in fact used the reserve copies), and dismissed others because the plaintiffs could not show that they actually owned the copyrights. Specific factual fightings included the Court determining that the relevant length of the work was the entire work, not individual chapters or portions of works, and a finding "that no book sales were lost." Based on the overwhelming number that were found to be noninfringing, the Court held Georgia State to be the "prevailing party", and awarded attorney's fees to Georgia State.


First Appeal

The plaintiffs appealed to the 11th Circuit, which heard oral arguments in the fall of 2013. On 17 October 2014, the 11th Circuit reversed and remanded to the lower court for reconsideration in light of its opinion. The 11th Circuit reversed the grant of attorney's fees, and closely examined Judge Evans' 300-plus page fair use decision in their own 129-page decision. They affirmed the lower court's holdings on the first factor, finding that the course reserves were not transformative, but that nonprofit educational uses are favored under fair use. They reversed the lower court on the second fair use factor, requiring a closer examination of the original works and the relative composition of original analysis data. However, they noted that this factor "is of relatively little importance in this case." On the third factor, the 11th Circuit held that the lower court had erred in establishing a strict quantitative test for the "amount and substantiality taken". Evans had suggested that less than 10% or one chapter in ten would be considered fair use; more than that, perhaps not. The 11th Circuit held that ''per se'' rules were not appropriate, and that the third factor had to be considered separately in light of the first and fourth factors. On the fourth factor, the 11th Circuit agreed with the lower court that "the small excerpts Defendants used do not substitute for the full books from which they were drawn," and ultimately found "that the District Court's analysis under the fourth factor was correct, and that the District Court properly took license availability into account in determining whether the fourth factor weighted for or against fair use." The publishers had argued that the District Court had erroneously shifted the burden of proof to plaintiffs on the question of license availability, but the 11th Circuit found no error on this point. Instead, the Court held that requiring plaintiffs to produce evidence of availability was "reasonable", since "Plaintiffs–as publishers–can reasonably be expected to have the evidence as to availability of licenses for their own works." After such evidence is presented, defendants still "retain[] the overall burden of persuasion on the fourth factor". The 11th Circuit also held that "the District Court did not err in performing a work-by-work analysis of individual instances of alleged infringement."11th Circuit, p. 110. However, the 11th Circuit held that "the District Court did err by giving each of the four fair use factors equal weight, and by treating the four factors mechanistically." The 11th Circuit vacated the injunction and declaratory relief, and the award of attorney's fees and costs, and remanded to the lower court for further proceedings. District Court Judge Vinson, sitting on this panel, wrote a concurrence in which he disagreed with several of the majority's holdings. The concurrence reads more like a dissent, including language that asserts the notion of fair use originally was a common law creation and thus "fair use analysis does not require conventional statutory interpretation."


Subsequent proceedings

On remand, the District Court applied the 11th Circuit's guidance, and ultimately found even fewer infringements (four in total) and again awarded attorney's fees. The plaintiffs again appealed to the 11th Circuit, which in October 2018 held that the District Court had been too mechanistic in its approach to fair use and remanded for a third review.''Cambridge University Press v. Becker'', 11th Cir. Oct. 19, 2018.


Conclusion

The case closed on 29 September 2020, with GSU as the prevailing party.


See also

*
List of copyright case law The following is a list of cases that deal with issues of concern to copyright in various jurisdictions. Some of these cases are leading English cases as the law of copyright in various Commonwealth jurisdictions developed out of English law while ...
* '' Williams & Wilkins Co. v. United States'' * '' American Geophysical Union v. Texaco'' *
Books in the United States As of 2018, several firms in the United States rank among the world's biggest publishers of books in terms of revenue: Cengage Learning, HarperCollins, Houghton Mifflin Harcourt, McGraw-Hill Education, Scholastic, Simon & Schuster, and Wiley. H ...


References


External links

* Trial -
Cambridge University Press v. Becker
', 863 F.Supp.2d 1190 (N.D. Ga. 11 May 2012) ** The case'
docket
** Th
original complaint
** Th
answer
to the original complaint. ** Th
amended complaint
** Th
answer
to the amended complaint. *
Order
granting defendants' motion for summary judgment on claims of direct infringement and vicarious infringement. *
Order
granting plaintiffs' motion for reconsideration; the Court affirmed its grant of summary judgment to defendants on direct infringement claims, but denied defendants summary judgment on vicarious infringement claims. *
Order
denying defendants' motion to dismiss without
prejudice Prejudice can be an affective feeling towards a person based on their perceived group membership. The word is often used to refer to a preconceived (usually unfavourable) evaluation or classification of another person based on that person's per ...
. * 11th Circuit opinions
Case: 12-14676 Date Filed: 10/17/2014
**Case: 16-15726 Date Filed: 10/19/2018 * {{cite web , url=http://libguides.law.gsu.edu/gsucopyrightcase , title= Research Guide: GSU Library Copyright Lawsuit , publisher=Georgia State University College of Law Library, editor=Laura Burtle , location=US United States copyright case law Fair use case law United States Internet case law United States education case law United States Court of Appeals for the Eleventh Circuit cases 2014 in United States case law Georgia State University Cambridge University Press Oxford University Press United States lawsuits