E-reserves lawsuit in NYTimes (Georgia State University)

[Ann Okerson <ann.okerson@yale.edu>]

Of wide interest... How is this like or unlike the Cornell 
situation of recent years?  Ann Okerson

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[COPYRIGHT 2008 The New York Times]

April 16, 2008

Publishers Sue Georgia State on Digital Reading Matter

By KATIE HAFNER

Three prominent academic publishers are suing Georgia State 
University, contending that the school is violating copyright 
laws by providing course reading material to students in digital 
format without seeking permission from the publishers or paying 
licensing fees.

In a complaint filed Tuesday in United States District Court in 
Atlanta, the publishers -- Cambridge University Press, Oxford 
University Press and Sage Publications -- sued four university 
officials, asserting 'systematic, widespread and unauthorized 
copying and distribution of a vast amount of copyrighted works' 
by Georgia State, which the university distributes through its 
Web site.

The lawsuit, which may be the first of its kind, raises questions 
about digital rights, which are confronting many media companies, 
but also about core issues like the future of the business model 
for academic publishers.

Indeed, as the printed word is put in digital form, holding onto 
rights seems to many like climbing up the slippery sides of a 
glass. The case centers on so-called course packs, compilations 
of reading materials from various books and journals. The lawsuit 
contends that in many cases, professors are providing students 
with multiple chapters of a given work, in violation of the 'fair 
use' provision of copyright law. The publishers are seeking an 
order that the defendants secure permissions and pay licensing 
fees to the copyright owners.

Officials at Georgia State, in Atlanta, declined to comment on 
the lawsuit. 'We have been informed that a lawsuit is being 
filed,' a spokeswoman, DeAnna Hines, said. 'However, we have not 
received it, and therefore we won't be able to comment, pending 
potential litigation.'

Over the years, electronic course packs have become increasingly 
common, supplanting their physical counterparts. They consist of 
reading material taken from a variety of printed sources, which 
is then scanned, compiled and posted on a university's Web site. 
By some estimates, electronic course packs now constitute half of 
all syllabus reading at American colleges and universities.

'Digitally delivered course content is probably more widespread 
than we'd like to think,' said Patricia S. Schroeder, president 
of the Association of American Publishers, which supports the 
lawsuit.

R. Bruce Rich, a partner in the law firm of Weil, Gotshal & 
Manges, which is representing the plaintiffs, said that in spite 
of repeated attempts to work with Georgia State, 'they indicated 
that they had no interest in having a discussion.'

Mr. Rich said that in a letter his firm received last summer, 
Georgia State officials 'indicated their view that all of their 
practices are covered under the fair use doctrine.'

He said that over the last year or so, half a dozen or so other 
universities had been contacted about copyright violations. Those 
institutions, he said, showed more willingness to work with the 
copyright holders and establish stricter university policies 
around licensing the material.

Legal precedents exist for cases involving course packs from 
photocopied material, but experts say the lawsuit against Georgia 
State is the first to be filed over electronic course packs.

In 1991, Basic Books and others won a suit again Kinko's, which 
was selling course packs it had photocopied.

And in 1992, Princeton University Press and others sued Michigan 
Document Services, a photocopying service, which was producing 
course packs for University of Michigan students without 
permission from the copyright holders. The business was 
eventually found to be in copyright infringement.

'Georgia State's activity seems identical with Michigan Document 
Services' activity,' said Susan P. Crawford, a visiting professor 
at Yale Law School.

But she pointed out that unlike Kinko's and Michigan Document 
Services, Georgia State was not making money from the electronic 
course packs.

Yet, she added: 'It's difficult to argue that this is a truly 
noncommercial use. Georgia State may be a nonprofit institution, 
but its students pay a lot of money for course materials, and 
would presumably pay money for the materials being provided to 
them by the university.'

Frank Smith, editorial director for academic books at Cambridge 
University Press, said that for electronic use in a course, 
Cambridge typically charges 17 cents a page for each student, and 
generally grants permission for use of as much as 20 percent of a 
book.

'Publishers have created a market for course materials that is 
very similar to the market for luxury goods,' Professor Crawford 
said. 'There is only one version available, and at a very high 
price.'

The dispute recalls problems the music industry had in protecting 
the format of an album on a CD. 'What publishers don't understand 
is they could disaggregate,' Professor Crawford said. 'They could 
electronically rip apart their books and sell them chapter by 
chapter, and everyone would be happier.'

The publishing industry's reluctance to do so , she said, stemmed 
from 'a fear that they would cannibalize the market for the 
printed object, and they're reluctant to let go of that model.'

Other experts wonder if such a lawsuit might be premature, 
emphasizing that in many ways it is too early to settle on a 
business model for the distribution of digital materials.

'In academic publishing, we need to find the digital services 
people really want,' said Brewster Kahle, founder of the Internet 
Archive, a nonprofit digital library based in San Francisco. 'I 
wonder if this will turn out to be an 'attack the innovator' suit 
like the peer-to-peer suits for the music industry. Sometimes a 
bit of slack can help us all discover a winning formula.'

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