Georgia State is in an ongoing lawsuit with Oxford University Press, Cambridge University Press and Sage Publications for eight years.
The three publications first pressed charges against the Panthers in 2008,claiming that Georgia State infringed upon their rights by allowing students to access their works without proper procedures.
Laura Burtle, the associate dean in Digital Library Services & Special Collections at the university library, said a lot of professors have been influenced by the lawsuit.
“Faculty have been spooked by this lawsuit,” she said. “If the court ever found that we have to pay for every use of this material that [would] mean we buy less books and journals.That money isn’t in anyone’s budget.”
The central controversy of the lawsuit, Electronic reserves (E-reserves), are still available for university faculty and students, and allow them to view and read small portions of published material that can not be found on the internet elsewhere. E-reserve materials are placed online for enrolled Georgia State students to access in their courses that call for the material.
However, according to personal from Oxford, the university hit the radar during a regular checks for unlicensed use of their published work. Oxford reached out to Georgia State after becoming aware of the use of unlicensed and unrestricted published works, with the result of the university adding restrictions towards E-reserve material.
The publishers said the unlicenced material provided to students is not protected under the doctrine of Fair Use.
“It’s extremely unlike anything would not be fair use. In other words, pretty much anything you [faculty] use would be fair use,” said John Challice, Oxford University Press, Vice President and Publisher for Higher Education, who spoke independently to The Signal.
Fair Use is a doctrine under copyright law that allows published works under certain circumstances to be “quoted verbatim for purposes such as criticism, news reporting, teaching, and research, without the need for permission from or payment to the copyright holder”.
The publishers alleged that Georgia State administrators consistently advocated for faculty to offer students unlicensed, infringing copies of digitized readings as a no-cost alternative to commonly licensed coursepacks.
The plaintiffs released a joint statement about the lawsuit to Association of American Publishers on Aug. 31 explaining their claims.
It said “authors and publishers would no longer be practical in a world where academic institutions can make unauthorized reproductions of thousands of copyrighted works year after year.”
A last attempt
The publishers said this is another attempt to make Georgia State change its ways.
“This case was brought with reluctance after years of failed efforts to persuade [Georgia State] to stop its extensive use of publishers’ and authors’ unlicensed copyrighted content,” the statement said.
Challice said the cost for the digitizing portions of published work under Oxford, Cambridge or Sage publications would be fairly inexpensive.
“To properly license all the material at issue in this case would cost [Georgia State an additional] $3.75 per student per year,” he said. “Nor do [Georgia State] seem to be put off by the millions of dollars they have spent and will continue to spend on legal fees on the case.
Georgia State Communications Professor Yvonne McDowell said her classes often used E-reserves when she was an undergraduate at the university.
“I personally believe that it is important to preserve fair use in education. The decision of the District Court recognizes that importance,”she said. “If the publishing company had prevailed, the slippery slope could have had a tremendous effect on academia and the education of students.”
Professors still have access to E-reserve and Georgia State has provided them with a copyright checklist since 2008 to assess what is infringement and what is fair use. Challice said Georgia State left faculty the responsibility of discerning what is fair use with a vague set of guidelines.
The publishers said in their statement, “Georgia State’s unlicensed copying permits the continuation of an institutional policy that fails to support the establishment of appropriate licensing practices and turns a blind eye to blatant infringement”.
The judge’s decision
The District Court made a decision in May 2012 on the case that only five of the infringement claims were in violation. Judge Orinda Evans found that the university’s digital experts from published works had a non-profit educational nature. There is a four factor analysis under fair use which was applied to accurately address the copyright lawsuit. The four factors of analysis are purpose and character of the use, nature of the work, amount and substantiality of the portion used, and the effect on the potential market value.
Evans used a mathematical approach to weigh each factor equally and concluding that if three of the factors favored the user, then the use was fair.
Unsatisfied with the result, the three publishers filed an appeal with the Eleventh Circuit court in October 2014. Instead of making the final decision, the court revised the methodology in which Judge Evans should have determined the ruling.
According to Association of Research Libraries, “The Eleventh Circuit rejected the ten-percent-or-one-chapter formulation and determined that fair use decisions must be conducted on a case-by-case basis. It also rejected the Classroom Copying Guidelines as a basis for fair use.”
In addition to the four factors of analysis, the ten-percent-or-one-chapter formulation and Classroom Copying Guidelines are formulas used by Judge Evans, which the publishers disagreed with. She established the rule that if the digital excerpts were less than one chapter or 10 percent, then the published material is fair use and Classroom Copy Guidelines are general standards for universities. Neither are legal statues.
The case was returned to Judge Evans and she applied the new methodology prescribed by the Eleventh Circuit. Evans decision in March 2016 changed slightly. Georgia State had only violated fair use in four of the 48 works presented.
Most recently the Plaintiffs have filed yet another appeal after the July 27 finale order. The appeal was filed on Aug. 26.
Challice put what the publishers seek into the simplest terms.
“We want Georgia State University (and any university that seeks to emulate Georgia State University) to change their checklist to something reasonable and legal. We want to correct the incorrect case law precedent set by the district court,” he said. “We want to make it really clear to our marketplace, which are academic institutions in the US in this case, that there is no difference between copyrighted content made available in digital format or that made available printed on paper when it comes to licensing it.”
Challice said the publishers have offered to settle out of court over several negotiations, and their offer still applies.
