Cambridge Univ. Press v. Becker

371 F.Supp.3d 1218

CAMBRIDGE UNIVERSITY PRESS; Oxford University Press, Inc.; Sage Publications, Inc., Plaintiffs,

v.Mark P. BECKER, in his official capacity as President of Georgia State University; Risa Palm, in her official capacity as Senior Vice President for Academic Affairs and Provost of Georgia State University; J.L. Albert, in his official capacity as Georgia State University Associate Provost for Information Systems and Technology; Nancy Seamans, in her official capacity as Dean of Libraries at Georgia State University; Robert F. Hatcher, in his official capacity as Vice Chair of the Board of Regents of the University System of Georgia; Kenneth R. Bernard, Jr., Larry R. Ellis, W. Mansfield Jennings, Jr., James R. Jolly, Donald M. Leebern, Jr., William Nesmith, Jr., Doreen Stiles Poitevint, Willis J. Potts, Jr., C. Dean Alford, Kessel Stelling, Jr., Benjamin J. Tarbutton, III, Richard L. Tucker, Larry Walker, Rutledge A. Griffin, Jr., C. Thomas Hopkins, Jr., Neil L. Pruitt, Jr., and Philip A. Wilheit, Sr., in their official capacities as members of the Board of Regents of the University System of Georgia, Defendants.

CIVIL ACTION NO. 1:08-CV-1425-ODE

United States District Court, N.D. Georgia, Atlanta Division.

Signed March 31, 2016

Edward Bryan Krugman, John H. Rains, IV, Bondurant Mixson & Elmore, LLP, Atlanta, GA, Jonathan Bloom, Pro Hac Vice, R. Bruce Rich, Randi W. Singer, Pro Hac Vice, Todd D. Larson, Weil Gotshal & Manges, New York, NY, for Plaintiffs.

Katrina M. Quicker, Baker Hostetler, LLP, Stephen M. Schaetzel, Anthony B. Askew, Lisa Pavento, Mary Katherine Bates, Meunier Carlin & Curfman, LLC, John Weldon Harbin, Natasha Horne Moffitt, King & Spalding, LLP, Mary Josephine Leddy Volkert, State of Georgia Law Department, Atlanta, GA, for Defendants.

ORDER

ORINDA D. EVANS, UNITED STATES DISTRICT JUDGE

Table of Contents

I. The Case on Remand...1230

II. Preliminary Matters...1236

III. FAIR USE ANALYSIS FOR INDIVIDUAL INFRINGEMENT CLAIMS...1239

A. Professor Kaufmann...1239

Maymester 2009: EPRS 8500

1. The Craft of Inquiry (Oxford)...1239

2. Handbook of Feminist Research (Sage)...1241

3. Handbook of Social Theory (Sage)...1241

4. The Sage Handbook of Qualitative Research (Third) (Sage)...1246

5. Handbook of Critical & Indigenous Methodologies (Sage)...1248

6. Handbook of Narrative Inquiry (Sage)...1250

Summer 2009: EPRS 8510

7. The Sage Handbook of Qualitative Research (Second) (Sage)...1252

Fall 2009: EPRS 8500

8. The Craft of Inquiry (Oxford)...1255

9. Approaches to Qualitative Research (Sage)...1255

10. Handbook of Feminist Research (Sage)...1257

11. Handbook of Narrative Inquiry (Sage)...1259

12. The Sage Handbook of Qualitative Research (Third) (Sage)...1261

13. Handbook of Social Theory (Sage)...1263

B. Professor Esposito...1263

Summer 2009: EPSF 8280

14. Handbook of Feminist Research (Sage)...1264

15. The Sage Handbook of Qualitative Research (Second) (Sage)...1266

16. The Sage Handbook of Qualitative Research (First) (Sage)...1269

Fall 2009: EPRS 8520

17. Theoretical Frameworks in Qualitative Research (Sage)...1271

C. Professor Kruger...1273

Summer & Fall 2009: EPY 7090

18. Awakening Children's Minds (Oxford)...1273

Fall 2009: EPY 8220

19. Understanding Trauma (Cambridge)...1275

D. Professor Orr...1277

Summer 2009: MUS 8860

20. Liszt: Sonata in B Minor (Cambridge)...1277

21. The Cambridge Companion to Mendelssohn (Cambridge)...1278

22. The Cambridge Companion to Schumann (Cambridge)...1280

23. The Music of Berlioz (Oxford)...1281

Fall 2009: MUS 8840

24. The Organ as a Mirror of Its Time (Oxford)...1282

E. Professor Dixon...1283

Fall 2009: AAS 3000

25. The Slave Community (Oxford)...1284

26. African American Single Mothers (Sage)...1286

27. Black Children (Sage)...1289

28. Black Families (Third) (Sage)...1291

F. Professor Hartwig...1295

Fall 2009: AH 4900

29. Ancient Egyptian Materials & Technology (Cambridge)...1295

G. Professor Kim...1296

Fall 2009: AL 8550

30. Fundamental Considerations in Language Testing (Oxford)...1296

31. Assessing Speaking (Cambridge)...1298

32. Learning Vocabulary in Another Language (Cambridge)...1300

H. Professor McCombie...1301

Fall 2009: ANTH 4440

33. International Health Organisations (Cambridge)...1301

34. Evolution of Infectious Disease (Oxford)...1303

I. Professor Anggoro...1304

Fall 2009: EPY 8960

35. Language Acquisition & Conceptual Development (Cambridge)...1304

J. Professor Davis...1306

Fall 2009: HIST 7010

36. Region, Race & Reconstruction (Oxford)...1307

37. The Unpredictable Past (Oxford)...1309

K. Professor Freeman...1310

Fall 2009: JOUR 4800

38. Living Ethics (Oxford)...1310

L. Professor Moloney...1312

Fall 2009: NURS 8035

39. Handbook of Mixed Methods (Sage)...1312

M. Professor Lasner...1314

Fall 2009: PERS 2001

40. Crabgrass Frontier (Oxford)...1315

41. The Politics of Public Housing (Oxford)...1317

N. Professor Hankla...1318

Fall 2009: POLS 3450

42. Contemporary Cases in U.S. Foreign Policy (Sage)...1319

43. U.S. Foreign Policy (Sage)...1321

O. Professor McCoy...1323

Fall 2009: POLS 8250

44. Regimes & Democracy in Latin America (Oxford)...1323

P. Professor Whitten...1325

Fall 2009: PSYC 4030

45. A World of Babies (Cambridge)...1325

Q. Professor Harvey...1327

Fall 2009: SOCI 8030

46. The Power Elite (Oxford)...1327

R. Professor Ohmer...1330

Fall 2009: SW 8200

47. The Sage Handbook of Qualitative Research (Second) (Sage)...1330

48. Utilization-Focused Evaluation (Sage)...1332

IV. Summary...1336

V. Relief To Be Granted...1336

VI. Costs and Attorneys' Fees...1336

ATTACHMENT: Permissions and Book Sales Revenue for Books Involved on Remand

I. The Case on Remand

This copyright infringement case is before the Court on remand from the United States Court of Appeals for the Eleventh Circuit. The case was previously tried to the undersigned sitting without a jury in May 2011. An Order¹ containing findings of fact and conclusions of law and final judgment was entered on May 11, 2012 [Doc. 423]. A final judgment was entered on September 30, 2012 [Doc. 463]. On appeal, Defendants Mark P. Becker, Risa Palm, J.L. Albert, Nancy Seamans, Robert F. Hatcher, Kenneth R. Bernard, Jr., Larry R. Ellis, W. Mansfield Jennings, Jr., James R. Jolly, Donald M. Leebern, Jr., William Nesmith, Jr., Doreen Stiles Poitevint, Willis J. Potts, Jr., C. Dean Alford, Kessel Stelling, Jr., Benjamin J. Tarbutton, III, Richard L. Tucker, Larry Walker, Rutledge A. Griffin, Jr., C. Thomas Hopkins, Jr., and Philip A. Wilheit, Sr.² (collectively, "Defendants") prevailed on most of the claims,³ either because Plaintiffs Cambridge University Press, Oxford University Press, Inc., and Sage Publications, Inc. (collectively, "Plaintiffs") did not establish a prima facie case or because Defendants succeeded on their fair use defense. Plaintiffs did not appeal this Court's rulings that no prima facie case had been established for 26 of the claims. The Court of Appeals affirmed in part and reversed in part this Court's overall fair use analysis; it announced some additional holdings governing fair use and the case was remanded with direction. Op. at 3, 112; Patton at 1284. As a result this Court must revisit the fair use analysis for 48 infringement claims.

Briefly, the fair use defense in this case centers on a program at Georgia State University ("Georgia State") which allows a professor to make small excerpts of copyrighted books available to students enrolled in his or her class without paying royalties or other fees to the publisher.⁴ A fair use checklist is provided to assist in selecting the excerpts. The excerpts typically supplement an assigned textbook which students must purchase. Georgia State librarians scan the designated excerpts and upload them to a server. Class members then may download the excerpts to their computers and print them. The students must acknowledge and agree to respect the copyrighted nature of the materials. Some students bring the printed excerpts to class; others may read them in class on their computers. At the end of the course students' access to the electronic excerpts ends.

Plaintiffs argue that students' unpaid use of the excerpts infringes their copyrights, cutting into their revenues and diminishing the value of their copyrights. Defendants argue that Georgia State's program is sanctioned by the fair use section of the Copyright Act, 17 U.S.C. § 107. They argue that all of Plaintiffs' infringement claims are barred by the defense of fair use. Plaintiffs disagree.

The trial evidence showed that Defendants could have purchased licenses (also called permissions) to make digital copies of some of the excerpts from either the Copyright Clearance Center or Plaintiffs directly. The fair use analysis, as determined by the Court of Appeals, makes it harder, but by no means impossible, for Defendants to establish fair use where such licenses were available but were not purchased.

The fair use doctrine is codified at 17 U.S.C. § 107, as follows:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

17 U.S.C. § 107.

In reversing this Court's Order, the Court of Appeals held as follows:

(1) This...