Publisher Plaintiff Statement on GSU Appeal
The publisher plaintiffs are appealing the latest set of rulings by the District Court, issued in July on remand from the Eleventh Circuit’s 2014 order reversing and vacating the District Court’s original judgment on the merits and award of attorneys’ fees and costs to the defendants. The appeal will focus on the District Court’s disregard of the Eleventh Circuit’s key rulings and other governing precedents regarding fair use and the award of legal fees to a “prevailing party.”
This case was brought with reluctance after years of failed efforts to persuade GSU to stop its extensive use of publishers and authors unlicensed copyrighted content, and solely to curb practices that threaten scholarly communication and publishing activities vital to institutions of higher education. The investments of time and resources by authors and publishers would no longer be practical in a world where academic institutions can make unauthorized reproductions of thousands of copyrighted works year after year, as the record shows has been the practice at GSU. No monetary damages have been sought by the plaintiffs.
There are four statutory factors that must be weighed to determine fair use. Among other issues, the publisher plaintiffs are concerned with the District Court’s assignment of numerical values to each fair use factor, which appear to be weighted in order to produce findings of fair use even where the publisher can establish substantial market harm under the critical fourth factor. The Court further erred by failing to recognize that depriving the Plaintiffs of an established licensing market by permitting unlimited reproduction of substantial portions of their copyrighted works causes significant harm to authors as well as to the business model that allows publishers to continue to invest in the creation production, and distribution of works such as those at issue. Finally, the rulings do little to clarify workable principles for teachers.
The District Court’s failure to engage in a fair use analysis that accords appropriate significance to the market harm caused by GSU’s unlicensed copying permits the continuation of an institutional policy that fails to support the establishment of appropriate licensing practices and turns a blind eye to blatant infringement. The District Court’s failure to properly implement the Eleventh Circuit’s 2014 ruling is reflected in the fact that on remand the Court found even fewer infringements than in its original ruling despite the Eleventh Circuit’s emphasis on the need to place greater weight on the harm to the market for and value of Plaintiffs’ works.
It is highly unusual that attorney fees are awarded to a party that has only partially prevailed, especially on a novel question with the potential to have national significance. A reversal on the merits would nullify the award of attorneys’ fees and costs - as it did when the case was remanded to the District Court. Even if the Court’s fair use determinations are upheld, the attorneys’ fee award should not stand under the Supreme Court’s recent ruling in Kirtsaeng, given the indisputable reasonableness of the Plaintiffs’ litigating position, demonstrated by the Eleventh Circuit’s 2014 order and the finding of infringements, and the importance of the issues raised by Plaintiffs’ claims concerning the parameters of fair use in the higher education context.