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The Georgia State University Lawsuit: Back To The Future

(This is a reproduction of the blog posting I wrote for the Collectanea Blog at the Center for Intellectual Property at UMUC while I was the Intellectual Property Scholar.  The CIP has since been disbanded but this is the text of that blog).

The Georgia State University Lawsuit: Back To The Future In Four Parts
Readers of this blog are no doubt aware, to some degree, about the 2008 lawsuit by publishers, including non-profit university presses, against officials of Georgia State University (GSU) alleging massive copyright infringement occurring in GSU’s electronic reserves service as well as in online courses hosted through GSU’s course management system.  Plaintiffs’ complaint goes to the very core activities – e-reserves and online teaching- that form the basis of most university teaching activities, demanding that permission fees should be paid for copyrighted materials used in excess of fair use.  The examples listed in plaintiffs’ initial complaint as exceeding fair use for electronic reserves ranged from 9.9% to 26.4% of works being posted without permission.
Although the suit has been percolating along for years, it exploded onto our internet radar last week, during its first weeks of trial, when the publisher plaintiffs filed a proposed injunction requesting the judge to require seeking permission and paying permission fees for each and every use of copyrighted material at GSU that exceeds the very stringent, out-of-date, and essentially obsolete amounts contained in the “Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with Respect to Books and Periodicals”, contained in the legislative history of the 1976 Copyright Act.  That’s right. Books, classrooms, 1970s, and not actually the law -even in 1976.
Not only would this injunction require all faculty, all librarians, all students, basically EVERYONE at GSU to seek permission for pretty much everything they use, it also asks the judge to order GSU to police all uses and certify adherence to the injunction, give everyone on campus a copy of the injunction, ensure compliance with the restrictions, change policies, educate, designate an individual responsible for compliance, and allow plaintiffs access to the university’s computer systems every semester so the publishers can verify what is actually being used.  The President of GSU would have 45 days to submit a report outlining the steps taken to implement the injunction requirements and to certify compliance.  After that, such report and certification would fall to the Provost for the next 3 years.  The report must include a list of every item on e-reserves, the course-reserve page where the materials are listed and the number of “hits” for each item during the semester.
I’m not making this stuff up – really.
Because this lawsuit will likely be a landmark case for higher education, it warrants some discussion and observations, which I will divide into:
• Why did the publishers choose this university and this fact pattern?
• Is the injunction even legal?
• Was the injunction a smart move?  What does it tell us about the publisher-plaintiffs?
            -Reality check
            -Time travel
            -In the land of make-believe
• Finally, thanks for the help!!
To be sure, it was inevitable that e-reserves and online course use of copyrighted material would eventually provoke a lawsuit. Indeed, numerous universities had received complaints about their e-reserve practices that generally included a letter and a sample legal complaint, showing the publisher’s willingness and readiness to sue should the university not mend its ways. Some universities changed their written policies, notably Cornell. However, after clamping down on e-reserves, a Cornell employee noted that e-reserve use dropped something like 70%, with the professors simply moving the desired materials directly into their online course.
E-reserves was the obvious choice for litigation, with the hope that a favorable decision there could scope creep over into online course practices.  Why?  Because two lawsuits, in the 1990s (the evening of the paper dominated world and the dawn of the digital internet era), Kinko’s and the Michigan Document Services (MDS), had ‘established’ that use of articles and excerpts in print course packs required permission, and, invariably, permission fees, with the cost passed on to the student.  Even then, however, the later suit (MDS) addressing fair use, reversed twice, with the publishers finally prevailing in 5/4 vote.  Hardly a settled matter even among copyright experts.
These cases were enough to support challenging e-reserves (and by association, online courses) as representing a vulnerable practice, if done without payment of permission fees.  Surely, the publishers thought, a judge could see that e-reserves are merely the digital version of coursepacks.  The only legal rationale supporting the use of portions of copyrighted materials in e-reserves, without permissions, is Section 107, Fair Use, a powerful and critical doctrine that allows a balance of competing interests, and, without which copyright could not achieve its purpose of promoting science and the useful arts.  The e-reserves battleground is clearly over the existence and interpretation of fair use.
That explains the attack on e-reserves, but why would anyone choose Georgia State University, a public institution that enjoys immunity from copyright infringement lawsuits based on the 11th Amendment sovereign immunity doctrine.  One can’t sue the university itself, money damages are not available, leaving only university officials, in their capacity, as the defendants and injunctions as the relief. [the named  defendants were the President, the Provost, the Library Director and the IT head] Some publishers assert that GSU’s activities were uniquely excessive. Are they? Maybe not today,
Do you think that a group advocating such a proposed remedy,  especially in the current economic climate, has their finger on the pulse of e-reserve practices?  One can’t help but wonder whether this injunctive lawsuit might have been targeting a certain widely read, extensive and liberal copyright faq document, “The Regents Guide to Understanding Copyright and Educational Fair Use”, which immediately disappeared from the web after this lawsuit was filed.
The proposed injunction, with its detailed prohibitions concerning nearly every action taken by any human being at GSU, has to be read to be fully appreciated. As has been noted by several commentators and bloggers, it would be impossible to implement this injunction, even if one had the tons of money and time it would require.  The mandatory and comprehensive permission requirements may be illegal as written, since they contradict actual statutory provisions of the Copyright Act, including Section 110, the Performance and Display exceptions, as well as a host of other copyright rulings.  Let’s not forget as well, the trampling of student FERPA  and rights of privacy should plaintiffs be allowed regular access to the university computer system.
Is it a smart move? 
I don’t know. I do think about issues of credibility, ethics, and behaving in a consistent manner.  In this proposed injunction, the publisher plaintiffs are demanding payment for used of nearly every single word, yet the same groups are willing to sign on to an Amended Settlement Agreement in the Google Books lawsuit, that basically allows unimpeded copying of orphan works.  Go figure.
-Reality Check and Time Travel
Reading the history lesson of the old Classroom Guidelines, which, recall, were never law and specifically state they represent the minimum that could be done,  this injunction’s attempt to raise them from the dead and make them the “law” at GSU today (2011), is akin to falling down the rabbit hole.  This injunction would have us travel back in time to the higher education world of the 1970s.  Plaintiffs would have us adopt guidelines that were written in a world without personal computers, the internet, cell phones, text messaging, digital TVs, dvds, online classrooms, digital cameras, YouTube, fax machines, satellite radio, personal gps systems, Kindles, and on and on.  Does this make any sense in today’s reality? 
Plaintiffs yearn for the good old days, when a business model based on making money from copies made more sense and was somewhat doable.  They aren’t alone.  As society progresses, evolves, and advances, those who adapt to change and continue to make themselves relevant succeed, while others are no longer needed.  Remember TV antennas, typewriters (manual and electric where a physical action was needed to start a new line and mistakes needed white-out or correctable white tape), carbon copy paper, eight-track tapes, cassette tapes, records and record players, rented telephones, televisions without remotes, slide projectors, overhead transparencies, renting the vhs or beta player machine when you rented a movie?  Remember?  Such items and entire businesses based on them played very relevant and critical roles in their day.  Do they make sense today?  If they do, I have a nice electric typewriter for sale…
-In the Land of Make Believe: Everyone who knows there is an economic crisis, raise their hand
In the middle of the worst economic period in my lifetime, plaintiffs would have America’s higher education system, facing yet another year of historic cuts in their budget – cuts that are now clearly affecting the quality of education delivered (huge classes, fewer choices, elimination of entire programs, majors, and colleges, staff, as well as faculty lay-offs, regular furloughing) plaintiffs would have universities, their students, and the underlying taxpayers, not only come up with permission fees, even if the use is actually permitted under current copyright law, but also conjure money to develop and implement the infrastructure that would be required.
State employees (those who still have jobs) face yearly increases in health care costs and deductibles, parking fees, and other consumer cost of living increases, but received no pay increase, even to address rises in the Consumer Price Index.  At the same time, their workload increases as colleagues are riffed.
-Let’s Kill the Golden Goose
Librarians, primarily, have been aware of this illogical system of scholarly communication and use of copyrighted materials for decades.  Many have tried to engage faculty in taking back control of their own system, with varying degrees of success.  Since scholarly journal prices increase nearly every year, unlike university budgets or salaries, one has little choice but to conclude the majority of faculty members are happily otherwise occupied or, perhaps, don’t believe they could possibly make a difference.
Mind you, these publisher plaintiffs would have nothing to publish without the content and research results given freely to them by faculty authors.  Certainly, no one at the publishers’ business is qualified to write anything like what they are given, including the copyright, by faculty authors.  Could the faculty authors, for the most part, acquire, discover, or create the material they give away without being supported – in salary, equipment, facilities – by a university or company research facility?  Not many.  Even those who could author something scholarly from their basement, rely upon access to other journal results, usually obtained through university libraries.
Could the publishers stay in business without the scholarly (faculty) authors, faculty peer-review, and the universities that both make the content possible and also serve as the primary publishers’ customers? No.