The NY Times and the Chronicle of Higher Education report that a group of publishers have filed a lawsuit against officials at Georgia State University for copyright infringement.
The suit which was filed by Cambridge University Press, Oxford University Press and Sage Publications in US District Court in Atlanta, alleges that the university had “facilitated, encouraged, enabled and induced Georgia State professors to upload and post to" (various online systems and students to) “download, print, copy and distribute” many assigned course readings owned by the plaintiffs and others. The complaint also alleges that requiring the payment of permission fees would not jeopardize legitimate exercises of fair-use. While the complaint names the University President, Provost, and Dean of Libraries as defendants, the University itself is not named (which is because of state immunity rules in the United States).
The GSU library webpage maintains a link to course reserves which allows the user to search on a variety of fields including course, department, instructor, or document.
While the suit alleges that the system is accessible to the general public, one does not get too far without a password. I tried bringing up a copy of Plato’s Apology, but was unsuccessful since I did not have a proper course reserve password to enter.
In order to access any of the materials, one must first agree to the following
The copyright law of the United States (Title 17, United States Code) governs the making of photocopies or other reproductions of copyrighted materials. Under certain conditions specified in the law, libraries and archives are authorized to furnish a photocopy or other reproduction. One of these specified conditions is that the photocopy or reproduction is not to be used for any purpose other than private study, scholarship, or research. If a user makes a request for, or later uses, a photocopy or reproduction for purposes in excess of fair use that user may be liable for copyright infringement.
Please enter the course reserves page password in the box below and click the 'Accept' button to continue.
The complaint further alleges that “efficient and user-friendly mechanisms for the licensing of copyrighted materials for use in paper coursepacks and electronic distribution systems have long been available…" (both directly from the publishers and through the Copyright Clearance Center)…and “despite the presence of these efficient licensing mechanisms—and despite Georgia State’s widespread use of digital course reading distribution methods…electronic licensing fees actually paid by Georgia State are miniscule."
As a result, the plaintiffs state three separate causes of action based on direct, contributory and vicarious inringement (categories that are not directly equivalant in Canadian law) for which they are asking for an injunction against the university’s practices as well as for costs and attorneys fees.
There has already been a growing body of commentary on the suit, which is well-summarized by Charles W. Bailey, Jr . The action will no doubt generate quite a bit of additional commentary and controversy. As Kevin Smith writes in a blog maintained by the Duke University Libraries:
The complaint against Georgia State acknowledges fair use, as it must, but it relegates it to a tiny fraction of situations, none of which can realistically be expected to occur on a modern college campus. In effect, this is an attempt to enforce judicially a “pay-per-use” model of content distribution. The real irony is that it is justified as an attempt to remedy a “free-rider” problem — the claim that universities are appropriating the work of publishers and authors without just compensation. This claim is patently absurd, given the amount of money university libraries invest in published resources, but it is downright offensive when the real issue is clarified. Publishers here are themselves the free-riders, obtaining a huge amount of academic content from the universities and their faculty without compensation. The GSU complaint cites as an irony the fact that one of the professors who is cited as infringing the copyright of Sage Publishing has himself published three articles in Sage journals. The gall of the man! Nowhere is it mentioned that he was required to give up those articles without payment for the privilege of publishing with a company that is now suing his employer to recover even more money for those freely donated articles.
Another insighftul observation comes from Paul Courent, the Dean of Libraries at the University of Michigan:
For all of the flowery language that we often hear from university presses about the importance of a robust nonprofit publishing sector in service to the academy, the issue here is plainly about the profits of the “nonprofit” publishing sector. . . .
Things have come to a pretty pass when academic institutions sue each other over academic matters. Even if the publishers prove to be right on the merits, the lawsuit ought to be the last resort, and student use of academic materials produced by academic institutions ought be priced at something like marginal cost, rather than at the price that maximizes profit. And one wonders why three rich and distinguished institutions would go after an urban university that is much less well-resourced.
The points being raised by Smith and Courent are well taken, and are no doubt only the beginning of a reaction that will likely raise the profile of the pay-per-use v open access debate in scholarly publishing. The controversy also underlines the threats posed to fair-use when courts give too much weight to one factor, in this and related U.S. cases being the economic effect on the owner of the work.
Of course the inevitable question is how will this suit impact the situation here in Canada?
I suspect that the supporters of the pay-per-use licensing model (perhaps joined by their risk-averse institutional patrons) will point to the suit as further proof of the prudence of faithfully paying royalties even where fair-dealing could be available. While it might at first glance be tempting to use this suit as an example to caution such further restraint, a more thoughtful analysis would disclose not only some serious flaws in the publishers’ position in the US, but how it would be on an a much weaker footing here in Canada.
I’ll expand on these points in a subsequent posting.