Digital Course Packs Case - University Asserts Soverign Immunity, Fair Use, Discovery Process Begins

I’ve been following the Cambridge University Press et al v. Patton et al (Patton et al are being sued in their official capacity representing the University of Georgia) – a case where publishers challenge the use of digital versions of publications provided to students through various digital management systems – electronic course reserves, Web Ct, and so on. The publishers initiated their lawsuit with a complaint; the university’s filed their formal Answer, and the parties are now initiating the “discovery” process – discovery is a term of art use to describe the formal process of gathering evidence.

All of the legal proceedings are being collecting here:

http://news.justia.com/cases/featured/georgia/gandce/1:2008cv01425/150651/

I summarized the original complaint and the publisher’s claims here:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1122585

http://martinecourantrife.blogspot.com/2008_04_01_archive.html

And I’ve mentioned the Answer, or the university’s position here:

http://martinecourantrife.blogspot.com/2008/07/in-lawsuit-university-asserts-that.html

http://martinecourantrife.blogspot.com/2008_06_01_archive.html

I’ve had time to more closely read the university’s Answer and so I provide an update.

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.

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)

In its response (“Answer”), the university admits that various chapters were provided by sundry faculty to students in digital format. (The university provides 18 defenses total, all of which I will not recite here):

“GSU admits that students in the Spring 2007 term of Professor Belcher’s course “Qualitative Research” ( AL8961) were given access to five digital excerpts from the second edition of the Handbook of Qualitative Research, edited by Norman Denzin and Yvonna S. Lincoln and published by Plaintiff SAGE Publications” (p. 11).

The Answer goes on to list in great detail exactly what was and was not available to students in digital format. However, the university denies that it was creating digital anthologies, as alleged by the publishers.

With respect to having digital copyrighted materials available in a public space for all to access with no password, the university states: “GSU admits that a software mistake was discovered in May/June 2007 and that this software mistake enabled views without a password to access Course Researches Pages through clicking one of more of the other columns on a Course Research Index page . . . GSU contacted the software vendor to repair the mistake so that only students who are given a specific password by the instructor can access the pages” (p. 16).

Throughout the Answer, the university asserts that it relies on fair use for its use of digital materials.

SOVEREIGN IMMUNITY

An interesting aspect of the lawsuit that has arisen is the status of the legal entity being sued. While I state that the university has filed the Answer, it has done so through the attorney general of the State of Georgia. In other words, by suing GSU the publishers have in fact sued the state. As GSU (through the attorney general) states in its Answer:

"GSU denies that Georgia State university is a not-for profit corporation. By way of clarification, Georgia State university is not an incorporated entity. Georgia State University is a unit of the Regents of the University System of Georgia, an agency of the State of Georgia created by O.C.G.A. Section 20-3-20" (p. 8).

Due to GSU’s legal entity status as “The State,” in its Answer it thus asserts sovereign immunity under the 11^th amendment of our Constitution:

"The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."

http://caselaw.lp.findlaw.com/data/constitution/amendment11/

I will just say here that the concept of sovereign immunity is extremely complex and has been interpreted variously and sometimes inconsistently. It will be interesting to see how the court deals with this, in the event the case is not settled before the production of a judicial opinion. I like to think about sovereign immunity because it plays with our ideas of authorship. I don’t usually see myself, as an employee of a public teaching institution, as “The State,” with respect to my writings in the scope of employment. There are some really interesting intersections between authorship concepts, work-for-hire, and our status as “The State,” (as opposed to “the individual”) that have been largely unexplored in rhet/comp.

Other defenses that GSU raises are the statute of limitations and laches. Both concepts deal with time – that is, both argue that too much time has expired before the injured party took legal action, and provide a remedy that bars either fully or partially, the lawsuit. Laches is an equitable doctrine, and the statute of limitation (usually three years for copyright law), is a legal doctrine. Chaim Perelman, writing on Aristotle, points out that Aristotle categorized equity and law, saying something along the lines that equity is the crutch of the law – i.e. it comes into play with the “law is lame.”

William Patry has a nice summary of the difference between the statute of limitations and laches.

Laches and the Statute of Limitations

http://williampatry.blogspot.com/2007/01/laches-and-statute-of-limitations.html

Both the publisher and the university are filing their discovery documents as well as trying to narrow the issues. (In rhetoric we might call upon stasis theory with respect to this narrowing of the issues). The legal documents also point out that settlement conferences have been or will be scheduled (usually a requirement nowadays).

I will continue following the suit.