RE: Update on Georgia State's copyright infringement case

[Kevin Smith <kevin.l.smith@duke.edu>]

Let's start with direct infringement, which is the only type of 
infringement mentioned in the copyright act.  This occurs when a 
party other than the rights holder exercises one of the exclusive 
rights in copyright without either permission or authorization 
under the law.  To prove direct infringement, a copyright holder 
must show only that they hold a valid copyright and that the 
alleged infringer copied protected elements.

In her recent ruling, Judge Evans held that the defendants sued 
from Georgia State cannot be liable for direct infringement 
because there is no evidence that they actually copied anything. 
She further ruled that the institutional liability for actions 
done by its employees is a kind of indirect, not direct, 
liability.

Indirect liability has been developed in the courts and includes 
two types.  A party can be vicariously liable when one knows 
about the infringement and profits from it.  Here the judge has 
ruled out vicarious infringement because there is no evidence 
that GSU profited from the alleged infringement.

What remains, on which the case will proceed, is contributory 
infringement.  To prove this, the plaintiffs will have to show 
that there was direct infringement on the part of librarians and 
faculty members (none of whom are the defendants) and that the 
university (represented by the four defendants) knew about and 
"induced, caused or materially contributed" that direct 
infringement.

In regard to the first thing that must be shown -- direct 
infringement by staff members -- this is where the fair use 
defense will come in.  The judge has stated that the burden of 
proving fair use will be on the defendants.  If the judge were to 
accept that all alleged instances of infringement were fair use, 
the case would stop there.  If she does not, two other stages in 
the proof of contributory infringement would be needed.

I suspect there is no issue in proving that GSU knew about staff 
use of its e-reserve and CMS systems, so that "prong" of the 
evidence will not be disputed.  Nevertheless, knowledge of actual 
infringement (i.e. a sufficient number of cases where fair use 
claims have been abused)  may be disputed in establishing the 
last element.

The final task for plaintiffs would be showing that GSU induced 
or materially contributed to the infringement.  Here the Grokster 
and Sony cases' emphasis on inducement will be relevant.  The 
judge has ruled that merely proving the technological system that 
is used for e-reserves and course sites is not inducement, since 
these can obviously be used for non-infringing purposes.  She has 
also held that the new copyright policy is not in itself an 
inducement to infringement; indeed, she called it a positive step 
toward preventing infringement.  So the remaining path for 
proving this last element is to show that the fair use claim has 
been abused in a sufficiently systematic way, presumably with 
disregard for the policy now in place, that GSU knew about and 
was contributing to it.  This is why the judge has told 
plaintiffs that they must prove a "sufficient number" of 
instances of alleged infringement, which will then be winnowed by 
GSU, if possible, using fair use.

As you may be able to tell, this division of proof into 
"elements" is a construct lawyers and judges use to make sure the 
evidence really establishes what is claimed for it.  In practice, 
however, evidence often crosses over the artificial boundaries 
between elements, which is why my discussion above may seem 
circular.  Nevertheless, I hope this helps clarify how the case 
will proceed.

Kevin

Kevin L. Smith, M.L.S., J.D.
Director of Scholarly Communications
Duke University, Perkins Library

-----Original Message-----
From: owner-liblicense-l@lists.yale.edu 
[mailto:owner-liblicense-l@lists.yale.edu] On Behalf Of 
Liblicense-L Listowner
Sent: Monday, October 04, 2010 9:44 PM
To: liblicense-l@lists.yale.edu
Subject: Re: Update on Georgia State University's copyright 
infringement case

Can someone on this list help non-legal readers to understand
better the concept of "contributory infringement" as understood
in this (Georgia State) case?  Thank you.


On Mon, 4 Oct 2010, B.G. Sloan wrote:

>> From Kevin Smith's "Scholarly Communications@Duke" blog:
>
> http://bit.ly/9lT6Jw
>
> Bernie Sloan