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Are College Professors and Librarians Digital Pirates?
First it was online music sharing. Next came video uploads and digitized books. Now a new copyright battle over digitized content is raging, this time with an unlikely set of alleged pirates: college professors and librarians.
In case you hadn't heard, college students these days consume a lot of their information online, and university faculty have tried to accommodate them by posting more course materials on college library Web sites. But academic publishers are crying foul in federal courts from Georgia to New York to California. Backed by trade groups and copyright enforcement houses, the publishers are litigating aggressively, while the universities—almost all of them public—are zealously defending the practice of putting some portion of course content online.
Federal district court judge Orinda Evans in Atlanta is expected to throw down the first marker when she rules on Georgia State University's "e-reserve" service, where professors post individual chapters of books—or sometimes multiple chapters—when the entire book isn't necessary for a class. There's "not a single case in the U.S. at any level that spells out what the standards are for fair use within a university like Georgia State," Evans said during closing arguments in a three-week bench trial conducted last spring. Lawyers in the case say that they expect the judge to rule any day now.
The suit isn't the only one targeting a college library for alleged copyright violations. The owner of an educational video about the works of William Shakespeare claims that the video was illegally streamed on a library Web site at the University of California at Los Angeles. Though a judge dismissed the suit last October, the plaintiff has filed an amended complaint. And in September the Authors Guild and other international writer groups sued HathiTrust, a partnership that includes Google Inc., the University of Michigan, and several other academic institutions, which has digitized more than 9 million works from college libraries. The plaintiffs say that they want to block "the potentially catastrophic, widespread dissemination" of those volumes.
At Georgia State, at least 19 professors, four librarians, and the university president have been deposed about content sharing. The plaintiffs—several academic publishers, including Cambridge and Oxford university presses—are seeking to enjoin Georgia State faculty and students from posting more than a few pages of copyrighted content without first obtaining permission. R. Bruce Rich, a partner at Weil, Gotshal & Manges, and Edward Krugman, a partner at Atlanta-based Bondurant Mixson & Elmore, are leading the publishers' legal team. The suit is funded by the Copyright Clearance Center and the American Association of Publishers.
"By using the migration to digital course readings as a premise for circumventing plaintiffs' copyright rights, defendants are fostering and condoning practices that pose a serious threat to the long-term viability of academic publishing," the publishers asserted in a posttrial brief filed last July.
However, the case hasn't gone well for the publishers so far. Judge Evans dismissed claims of direct and vicarious infringement in 2010 while approving the university's creation of a "fair use checklist" that professors fill out before deciding whether to make book excerpts available online without permission. But Evans agreed to hold a trial on whether professors were abusing the checklist process, which could make university officials indirectly liable.
Georgia State's defense team includes attorneys from King & Spalding; Ballard Spahr; Atlanta's McKeon Meunier Carlin & Curfman; and four members of the Georgia attorney general's office. The university argues that the fair use exception to copyrights applies broadly at nonprofit educational institutions, and that even if Georgia State is giving away some content, the university remains an enormous paying consumer of academic literature. The school says that it spends about $4 million a year on electronic materials, including e-books and journal articles, and that its students pay on average $500 a year for textbooks.
As a public, nonprofit educational institution, Georgia State would appear to be a sympathetic defendant. But the school created a curious system for copyright compliance. Rather than have university lawyers or librarians decide what could be put online for free, the college entrusted individual faculty with determining fair use. The university's copyright committee decided that faculty members, "being both the creators of copyrighted materials as authors and users of copyrighted material as teachers, would be the individuals in the best position to perform a fair use analysis with respect to materials to be used in their teaching," McKeon Meunier's Stephen Schaetzel wrote last July in the defendants' proposed findings of fact.
In the UCLA case, Ambrose Video Publishing and the Association for Information Media and Equipment (AIME) sued the university for allegedly taking the BBC/Time Life production The Plays of William Shakespeare and streaming it to students via a program called Video Furnace. Ambrose owns the rights to the production, and says it offered UCLA access to Ambrose 2.0, "a high-quality, reasonably-priced institutional streaming license," but the university turned it down. The plaintiffs are represented by Washington, D.C.'s Lutzker & Lutzker and Irvine, California's Mulcahy LLP.
Federal district court judge Consuelo Marshall in Los Angeles dismissed the suit in October, finding among other things that AIME, a copyright compliance trade association, lacked standing to sue. The plaintiffs have amended their complaint, which the university, represented by in-house counsel and San Francisco's Keker & Van Nest, have again moved to dismiss.
The HathiTrust defendants moved for judgment on the pleadings in December. They make a similar argument on standing, citing the UCLA decision to argue that author trade groups can't bring a copyright action over orphan works. "This court should likewise find that questions about who holds the copyrights in the digitized books preclude the associational plaintiffs from establishing associational standing," wrote lawyers from Kilpatrick Townsend & Stockton in a motion pending before U.S. district court judge Harold Baer in New York. The Authors Guild and related plaintiffs are represented by New York's Frankfurt Kurnit Klein & Selz.
In all three cases publishers see their business model as being at stake. For professors, Schaetzel put it this way in closing argument for Georgia State: "The decisions of this court are going to bear directly on how they will conduct their classrooms."