Publishers Sue Georgia State University regarding “Digital Course Packs”

Cambridge University Press et al. v. Georgia State University, April 15, 2008. United States District Court for the Northern District of Georgia, Atlanta Division
http://www.publishers.org/main/PressCenter/documents/GSUlawsuitcomplaint.pdf

On April 15, 2008, publishers, Cambridge University Press, Oxford University Press, and Sage Publications, filed a complaint in the US District Court for the Northern District of Georgia, Atlanta Division, against various representatives of Georgia State University regarding what the publishers allege to be “pervasive, flagrant, and ongoing” (p.3) infringement of their copyrights.

While many of the “infringing” examples cited by Cambridge et al. include the digital distribution of only one chapter of a work, the publishers argue that the amount copied “vastly exceeds . . . fair use in an educational setting” (p.3). It appears from the complaint that most of the information supporting the plaintiffs’ allegations was gleaned from accessing GSU’s online library course reserves. According to plaintiffs, these reserves, including links to instructors’ syllabi as well as digital copies of copyrighted course readings, were freely available not just to students, but to the public in general, at least until the university responded to a request from plaintiffs to address the issue. The university subsequently required students use a password to access the materials.

One interesting component of the lawsuit is that the publishers seem to be arguing that the use of their materials across the university as a whole should determine whether the use is “fair.” The traditional mode of making this determination is to look on a case-by-case basis at the individual infringer – i.e. in this case, the faculty member. But because digital technologies permitted publishers a global view of the use across the entire university, they’ve decided to offer a unit of infringement as that of the entire university.

The complaint lists the various practices by GSU and its faculty that the publishers object to. Such practices include:

1. Creating anthologies by mixing together various readings under the professor’s directions: “practice of anthologizing” (p. 18).

2. Constructing classes such that students never “set foot in a bookstore or expend . . . a single cent” (p. 5) in order to participate in a course.

3. Using copyrighted materials without proper permission or payment of fees (the copyright clearance center is suggested as a viable alternative).

4. Construction of “digital course packs” used semester after semester.

5. GSU’s copyright guidelines, which they argue “plainly exceed legal boundaries” (p. 17)

The complaint goes on to state that the problem is not limited to electronic course reserves, but also includes the digital downloading of materials on Blackboard/WebCT (p.21). In this area of the discussion, plaintiffs seem to be challenging the legality of the very nature of course management systems. They say, with condemnation: “A key feature of these systems . . . is the easy ability of instructors to ‘upload’ electronic files . . . ‘content files,’ including a ‘media library’ of course content for students to view, download, and save to their own computers” (p. 22).

In the complaint, the publishers construct an ethos that they are at least in part “non-profit,” that they have published “well over 100” (p. 10) GSU’s faculty writings, and that if they don’t receive compensation they won’t be able to continue supporting faculty research and writing. They state that the loss of revenue caused by GSU’s behavior “will in turn threaten Plaintiffs’ incentive to continue supporting and publishing the cutting-edge scholarship upon which the academic enterprise depends” (p.5). They also state that these behaviors have been completed “in the face of notice and repeated attempts by Plaintiffs to reach an amicable and mutually acceptable solution without the need for litigation” (p.3).

Also, while the publishers assert that requiring permission and the payment of fees “will not jeopardize . . . fair use,” (p. 5) at least some of the uses they list appear to be fair uses, at least when determining a use on a professor-by-professor basis.

It’s doubtful the publishers can do anything about 1 & 2 above – the self-creation of anthologies and the ability of students to avoid paying the exorbitant cost of textbooks is going to continue. That’s the changed nature of course readings due to the affordances of digital technologies. One serious flaw with the publishing industry is the time it takes to get an anthology or textbook into print. In light of the speed at which information comes to us now, that slow model is not very effective. Many of us are already past the textbook by the time it’s released. Thus, the “anthologizing” is a product of a flaw with the publishing industry.

On the other hand, some of the uses described in great detail in the complaint, don’t appear to be totally responsible. If it’s true that 6 chapters of a copyrighted book, were digitally distributed semester after semester, and the fact that this is happening is made very public, it seems like a blatant invitation for a lawsuit. In this case, the publishers got the information supporting their lawsuit from electronic course reserves where materials were allegedly freely available not just to students, but the public. So that’s a problem.

As for damages, it appears the plaintiffs are asking for declaratory and injunctive relief. That is, they want a statement that this is not fair use, and they want the practices to stop. The plaintiffs also request attorneys' fees and costs, and any other relief the court sees fit. The usual time frame for filing an answer to the complaint is 21 days. So we will have to wait and see how the university responds.

For those of us switching our readings every year, using open access, public domain, or free-licensed (CC) materials, keeping course readings in password protected areas, and avoiding the scanning and uploading of many chapters or entire books, I don’t think we need to panic yet.

I do think we could work on:
1. A statement of best practices in fair use for writing teachers -- example http://www.centerforsocialmedia.org/resources/publications/statement_of_best_practices_in_fair_use/
2. Learning how to better negotiate publishing contracts in order to allow educational fair use of our own words.
3. Further development of free-licensed and open access academic journals.
4. Submitting our own scholarly work to publishers who have a more liberal view of fair use in educational contexts. Supporting such publishers by using their texts when teaching, rather than texts of publishing companies with limited views of fair use, might also be an effective strategy.