By Josh Hadro

According to a ruling on October 1, the closely watched Georgia State University (GSU) ereserves lawsuit will come down to whether the named defendants participated in the specific act of "contributory infringement," as two other original accusations were removed from the case.

This narrows the scope of the charges lodged by the publisher plaintiffs—Oxford University Press, Cambridge University Press, and SAGE Publications—and has Fair Use advocates cautiously optimistic as the case moves closer to trial.

In a blog post, library copyright watchdog and Duke Scholarly Communications Officer Kevin Smith wrote that he was "surprised at how favorable the ruling issued yesterday is to Georgia State; even though the Judge clearly expects to go to trial, there is a lot in her ruling to give hope and comfort to the academic community."

Barring a narrow settlement, the case could have a broad effect on academic library practice. If GSU's current policies are affirmed, libraries nationwide with similar digital reserves policies will be reassured if not emboldened. Should the plaintiffs prevail, however, there is likely to be a considerable chill on Fair Use deliberations as libraries reconsider the digital access they grant to copyrighted materials.

Two levels of infringement tossed out
Judge Orina Evans of Federal District Court in Atlanta ruled against all of the plaintiffs' motions for summary judgment, and granted two of the defendants' three counter-motions.

This ruling essentially holds there to be insufficient evidence to show that the named defendants (GSU's president Mark Becker, provost, associate provost for technology, and dean of libraries, Charlene Hurt) committed any acts of infringement, thus ruling out a charge of "direct infringement."

Likewise, Judge Evans similarly determined that there was no evidence of any profit directly from infringement committed by librarians under their supervision, excluding "vicarious infringement."

Contributory infringement
What remains is the question of "contributory infringement."

As Smith, a lawyer and a librarian, wrote to the Liblicense-L email list:
"To prove this, the plaintiffs will have to show that there was direct infringement on the part of librarians and faculty members (none of whom are the defendants) and that the university (represented by the four defendants) knew about and 'induced, caused or materially contributed' that direct infringement."

Smith adds that the judge will closely consider the implementation of the policy at GSU: "This emphasis on the local practices rather than the policy itself will certainly make it easier for other campuses to learn from an eventual ruling and, if necessary, adjust their own implementations to meet whatever standards arise, but it decreases the likelihood that large and dramatic changes will be needed."

Case summary
The case has been consistently narrowed from the scope of the original complaint brought by the plaintiffs in 2008. The publishers claimed widespread infringement of "over 6700 total works available for some 600-plus courses" as a direct result of improper e-reserve use.

GSU has since revised its policies and practices. In 2009, Judge Evans ruled that GSU's prior behavior and policies could not be considered. This confined the case to the far more conservative current practice and increased the burden on the plaintiffs to prove infringement solely under GSU's new practices.

Meanwhile, the defendants have claimed the school's use of materials on the course reserve system has been consistently covered under Fair Use.

Copyright Clearance Center funding
LibraryLaw blogger Peter Hirtle has made note of a footnote that describes the Copyright Clearance Center (CCC) as "financing 50% of this copyright litigation."

(The document supporting that footnote reads, "[d]espite not being a party to this case, Copyright Clearance Center is funding half of the Plaintiffs' lawsuit," and in turn references a deposition taken from Debra Marinello, Director, Rightsholder Relations & Inventory Strategy at Copyright Clearance Center; that deposition is currently sealed.)

Hirtle adds, "[i]t is disturbing to think that a portion of the administrative fees that libraries are paying to the CCC are being used to bring legal actions against those paying the fees."

Asked to respond, a CCC spokesperson told LJ, "yes, CCC supported this case as we firmly stand behind the principles of copyright. This is a case which sought no monetary damages, but rather a ruling on the principles in an attempt to further clarify the balance around Fair Use."