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Publishers’ lawsuit against Georgia State heats up

Fight over use of Georgia State’s e-reserves could mark beginning of bigger battle

Published: Tuesday, April 6, 2010

Updated: Tuesday, April 6, 2010 07:04

e-reserves

The e-reserve system is a compiled source of copyrighted works professors use to aid in their classes.

A copyright infringement lawsuit against Georgia State by a group of publishing companies came to a head last week after the two sides each filed summary judgments – or competing motions requesting a decision on their behalf from a judge, without a jury – in an attempt to bring the case to a close. The controversial suit is centered around Georgia State's e-reserve system on Blackboard/WebCT (which is now ULearn) and online on the library's Web site, where professors post course materials for students to download.

The suit was filed in April 2008 by Oxford University Press, Cambridge University Press, and SAGE Publications, and supported by the Association of American Publishers (AAP). The group of publishers all claim that Georgia State has participated in "widespread and unauthorized copying and distribution" of their copyrighted text, and that, "with the university's encouragement, hundreds of professors…have compiled thousands of copyrighted works, made them available for electronic distribution, and invited students to download, view, and print such materials without permission from the copyright owners," according to paperwork filed at the beginning of the suit.

The publishers say they have lost large sums of possible copyright revenue at Georgia State, but aren't seeking monetary awards in the case; instead, they say they just want GSU to admit to the copyright infringement and have the court impose "satisfactory copyright guidelines" on the school's digital text resource.

In 2008, Oxford University Press publisher Niko Pfund says they tried to discuss their issues with the e-reserve system with Georgia State on several occasions, but were ignored. So they resorted to legal action.

"They responded by not responding," Pfund said in 2008. "I consider this a failure of dialogue. It's a shame. We've successfully come to agreements with others over the years. But Georgia State just wouldn't talk with us."


Georgia State is defending itself on several different grounds. First, officials are claiming fair use, a doctrine that allows limited use of copyrighted materials in nonprofit areas such as research, reporting, or academia (amongst others). They're also claiming that passive permission to use and post the materials was been given by the publishers repeatedly because, for years, there have been little to no complaints about the system, warranting the school's actions (what the legal community calls "acquiescence"). 

Georgia State also says that they are immune from such charges because of its status as a not-for-profit, public institution.

Pfund recognized all of Georgia State's claims, but said the university is still abusing their position, especially concerning fair use. 

"Fair use is critically important to university presses," he said. "We can't publish without a liberal interpretation of fair use. But they were extremely unwilling to enter into a conversation about this."


Georgia State has since amended its policies on the library's system. A few months after the suit was filed, the school created a "checklist" of agreements for professors that supposedly helps them to determine whether the materials they are posting fall under the guidelines of fair use in order to curb further criticism from the publishers. The publishers in turn have said that the checklist is biased and still gives professors that are "unschooled in copyright law" the irresponsible freedom to post whatever they want online.

Tension over electronic copying and the making of course packets has existed for a number of years between publishers and universities, but at the time the suit was filed, this is the first time a publishing company has taken legal action against a school over e-reserve practices.  Those involved in the suit, like Columbia University Professor Kenneth Crews, who wrote a 70-page report for the case in defense of Georgia State, think it may be the beginning of a new, embattled age between web academics and publishers. 

"Although the federal courts have handed down many rulings on fair use, few are directly about education or involve facts that are closely analogous to educational needs and EReserves in particular," Crews said in his defense report. "Reserves are a critical component of higher education, and they enable students to have access to a variety of materials that might not otherwise be realistically or affordably available by any other means," Crews said in his report.

The decision involving Georgia State could set an important precedence for other universities that have received similar grief for its digital course materials. A decision concerning the summary judgments filed last week should be made in early summer of this year.
 

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