Cambridge University Press et al v. Patton et al

Filing 323

DEPOSITION of Denis Charles Gainty, Ph.D. taken on April 20, 2011 by Cambridge University Press, Oxford University Press, Inc., Sage Publications, Inc.. (Attachments: # 1 Exhibit D-1, # 2 Exhibit D-2, # 3 Exhibit P-1, # 4 Exhibit P-2, # 5 Exhibit P-3)(Rains, John)

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CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 1 1 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA, ATLANTA DIVISION 2 3 4 CAMBRIDGE UNIVERSITY PRESS, OXFORD UNIVERSITY PRESS, INC., and SAGE PUBLICATIONS, INC., 5 Plaintiffs, 6 Civil Action No. 1:08-CV-1425-ODE -v.7 8 MARK P. BECKER, in his official capacity as Georgia State University President, et al., 9 10 Defendants. _______________________________/ 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Videotaped deposition of DENIS CHARLES GAINTY, Ph.D., taken on behalf of the defendants, pursuant to the stipulations contained herein, before Carole E. Poss, RDR, CRR, Certified Court Reporter, at 1180 Peachtree Street, NE, Atlanta, Georgia, on the 20th day of April, 2011, commencing at the hour of 10:13 a.m. _______________________________________________________ SHUGART & BISHOP Certified Court Reporters 13 Corporate Square Suite 140 Atlanta, Georgia 30329 (770) 955-5252 SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 2 1 INDEX TO EXAMINATIONS 2 3 Examination Page 4 5 Direct Examination by Ms. Moffitt Cross-Examination by Mr. Bloom Redirect Examination by Ms. Moffitt 5 41 60 6 7 INDEX TO EXHIBITS 8 9 10 Defendants' Exhibit Gainty TX 1 Syllabus, Cross-Cultural Encounters in World History 11 11 2 Fair use checklist 21 12 13 14 Plaintiffs' Exhibit Gainty PX 1 Policy on the Use of Copyrighted Works in Education and Research 44 15 2 16 17 3 Excerpt from The Cambridge History of China, volume 8, part 2 Portion of e-reserve report relating to Dr. Gainty's HIST 4820 course 18 19 20 21 22 23 24 25 SHUGART & BISHOP 56 58 CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 3 1 APPEARANCES OF COUNSEL: 2 On behalf of the Plaintiffs: 3 JONATHAN BLOOM, ESQ. Weil, Gotshal & Manges LLP 4 767 Fifth Avenue New York, New York 10153-0119 5 On behalf of the Defendants: 6 NATASHA H. MOFFITT, ESQ. 7 King & Spalding LLP 1180 Peachtree Street, NE 8 9 10 Atlanta, Georgia 30309-3521 Also Present: Elizabeth Kemp, Videographer 11 12 - - - 13 14 THE VIDEOGRAPHER: We're now on the video 15 record. 16 This is the videotaped deposition of Denis Gainty 17 taken by the defendants in the matter of Cambridge 18 University Press, Oxford University Press, 19 Incorporated, and Sage Publications, Incorporated, 20 versus Mark P. Becker, in his official capacity as 21 Georgia State University president, et al. 22 23 This is the beginning of tape number 1. Madam Court Reporter, would you please swear in the witness. 24 (Witness sworn.) 25 MR. BLOOM: I'd like to make an objection on SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 4 1 the record before we begin the questioning. 2 Plaintiffs object to this deposition to the extent 3 it's intended to be offered as trial testimony. 4 The witness resides within the United States 5 District Court for the Northern District of 6 Georgia and is represented by counsel for the 7 defendants, and presumably the defendants could 8 subpoena the witness to appear at trial and 9 provide live testimony. 10 Accordingly, plaintiffs expressly reserve and 11 do not waive the right to object to any attempt by 12 the defendants to introduce this deposition 13 testimony of Professor Gainty at trial because he 14 or she is certainly not unavailable within the 15 Federal Rules of Evidence and the Federal Rules of 16 Civil Procedure and the applicable rules of this 17 federal district. 18 the deposition will go forward subject to those 19 objections. 20 So the parties have agreed that I'd also like to put on the record an 21 objection to defendants' withdrawal of Professor 22 Gainty's -- Professor Gainty for purposes of a 23 discovery deposition. 24 that issue with the Court, but I wanted to be 25 clear on the record that we don't waive any rights And we will be pursuing SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 5 1 in that regard by proceeding with the deposition 2 here this morning. 3 MS. MOFFITT: Thank you, and I'll just note 4 simply for the record that we acknowledge your 5 reservation, your right to object at a later time 6 with respect to our use of this deposition at 7 trial, and also with respect to our withdrawal of 8 our offer to make Professor Gainty available for a 9 discovery deposition. And we will, of course, 10 respond to your arguments and objections when 11 they're made, at a later time. 12 This will be the deposition of Dr. Denis 13 Gainty, taken by agreement of the parties. 14 deposition is being taken for use at trial and for 15 any other purpose permitted under the Federal 16 Rules. 17 This DENIS CHARLES GAINTY, Ph.D., 18 being first duly sworn, was deposed and testified as 19 follows: 20 21 22 23 DIRECT EXAMINATION BY MS. MOFFITT: Q Professor Gainty, could you please state your name for the record? 24 A Denis Charles Gainty. 25 Q And do you understand, Professor Gainty, that SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 6 1 you are here to provide testimony today under oath in 2 connection with a copyright infringement case brought 3 by Cambridge University Press, Oxford University Press, 4 and Sage Publications against the president of Georgia 5 State University, certain members of the Board of 6 Regents of the University System of Georgia, and 7 others? 8 A Yes. 9 Q And do you understand that this case is 10 scheduled for trial starting on May 13, 2011? 11 A Yes. 12 Q Do you plan to be in the Atlanta area in the 13 May-June time frame? 14 A No. 15 Q Why not? 16 A My wife, our children, and I are going on a 17 family vacation that we've planned for some time. 18 We're going to be in upstate New York, in the Finger 19 Lakes area, visiting my elderly mother and in the 20 Baltimore area visiting my in-laws. 21 some time at Bethany Beach. 22 if that's Delaware or Maryland. 23 planned for some time, for several months, including 24 having made payments on a rental house. 25 Q There will also be And I honestly don't know But that's also been And do you know approximately when you will SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 7 1 2 3 be leaving on your trip to New York and Baltimore? A exactly. It's sometime early May. I don't know That's -- my wife knows. 4 Q And how long do you plan to be away? 5 A Until early July, July 1 or 2 or something 6 7 8 9 like that. Q Again, my wife knows. And how long did you say that you believe this trip has been planned? A Oh, for several months. I know that my 10 mother-in-law needed particularly to lock in the rental 11 of the property some time ago. 12 Q Who do you work for? 13 A Georgia State University. 14 Q And what do you do for Georgia State 15 University? 16 A I'm an assistant professor of history. 17 Q Are you associated with any particular 18 department at Georgia State University? 19 A I am. 20 Q When did you start teaching at Georgia State 21 22 The history department. University? A In the fall of 2007. I was hired as a 23 visiting lecturer. 24 lecturer, and then I was hired in a tenure track 25 capacity in the fall of 2009. I had two years as a visiting SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 8 1 Q Can you describe for us generally what types 2 of courses you've been teaching at Georgia State 3 University since the fall of 2007? 4 A As a visiting lecturer, I taught almost 5 exclusively lower-level survey courses in world 6 history, either from 1500 to the present or from, I 7 guess, the beginning of time to 1500. 8 2009 specifically as a world historian. 9 undergraduate courses tend to focus on world history, I was hired in So my 10 which emphasizes transnational and transregional 11 contact processes, modes of communication, that sort of 12 thing. 13 and in pedagogy. 14 I also teach graduate courses in world history 15 Q Have you ever taught a course called Cross-Cultural Encounters in World History? 16 A Yes. 17 Q Is the course number associated with that 18 course H-I-S-T or HIST 4820? 19 A Yes. 20 Q Can you tell us generally what that course is 21 22 about? A Generally, the -- and I have a description on 23 the course syllabus but -- which says it probably in a 24 more eloquent way than I can now, but generally the 25 course is concerned with looking at contact between and SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 9 1 among different cultures as a way to think about 2 different narratives in world history. 3 contact among and between cultures before Columbus, 4 before the age of European exploration, to emphasize 5 the connectivity of different cultures before that 6 time, and it also looks at contact after the sort of 7 Columbian moment, especially focusing on non-European 8 kind of centers of power or cultural exchange. 9 Q It focuses on How do you go about teaching your students in 10 that particular course, HIST 4820, the subject matter 11 of the course? 12 A Well, we -- I assign readings, including 13 several monographs, or typically single-authored 14 scholarly works, books, basically, and also excerpts or 15 articles that are shorter in length that address one 16 facet or another of intercultural contact and even the 17 definition of what cultures are. 18 then discuss those readings with students. 19 to write papers based on those readings and other -- 20 other work that they may do and their own kind of 21 thoughts on the matter. 22 Q 23 fall of 2009? 24 A I did not. 25 Q Why not? And I lecture and I ask them Did you teach the History 4820 course in the SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 10 1 2 A underenrollment. 3 4 The course was canceled due to Q Do you know approximately when it was canceled due to underenrollment? 5 A The -- I don't remember specifically. The -- 6 we met for one day. 7 at which I think eight or nine students showed up. 8 believe nine or ten students were registered at that 9 point for the course. There was only one class meeting, I That was under the number that 10 was required for the course to make, we say, to 11 continue. 12 hoped that more students might register, but they did 13 not. 14 to cancel, to cancel quickly so that those students who 15 were enrolled would have a chance to enroll in another 16 course before those courses filled up. 17 18 19 20 21 22 And I know we waited for a day or two. I And at the same time I wanted, if we were going Q So is it the case then that you met only A We met only one time, for the introductory once? class meeting. Q There were no other class meetings. In one of your previous answers you referenced a syllabus for the course? 23 A I did. 24 Q Did you prepare a syllabus for that course? 25 A I did. SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 11 1 MS. MOFFITT: 2 (Defendants' Exhibit Gainty TX 1 marked for 3 4 5 Mark this exhibit for me. identification.) BY MS. MOFFITT: Q Professor Gainty, the court reporter has 6 handed you a document that has been marked Gainty TX 1, 7 and it bears production numbers in the bottom 8 right-hand corner Georgia State 0066084 through 9 0066090. Do you recognize this document? 10 A I do. 11 Q What is it? 12 A This is my syllabus for the HIST 4820 13 Cross-Cultural Encounters in World History course. 14 Q Did you prepare this document? 15 A I did. 16 Q And does this syllabus relate to a particular 17 semester the course was taught? 18 A This relates to fall 2010. 19 Q How does the fall two thousand -- well, let 20 me start by asking, when did you prepare this 21 particular syllabus dated fall 2010? 22 A This particular syllabus -- I don't -- maybe 23 the best way to answer is to say I prepared much of the 24 text of this syllabus for the fall 2009 course. 25 the fall 2009 course was canceled, subsequently -- I SHUGART & BISHOP When CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 12 1 can't remember exactly when -- I changed the dates, as 2 appropriate, and the classroom and the meeting time. 3 In the upper left-hand corner of the first page you'll 4 see the CRN. 5 believe that's different. 6 So there are details like that that were changed. 7 for the most part, the content of the syllabus, with 8 the exception of those details, is the same as it was 9 for the fall 2009 course. 10 Q That's some kind of computer number. I My office, I believe, moved. But When did you prepare the fall 2009 syllabus 11 with respect to the 4820 course you were going to teach 12 in the fall 2009? 13 A I can't recall exactly. I would imagine at 14 some point after finding out that I was hired as a 15 tenure track professor and finding out that I would be 16 teaching this course and before the course actually 17 began. 18 Q Okay. 19 A So it's -- perhaps over the summer of 2009. 20 Q Do you still have a copy of the actual 21 syllabus that was used or intended to be used for the 22 fall 2009 4820 course? 23 A I do not. 24 Q Why not? 25 A When the course was canceled, I didn't see SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 13 1 any reason to keep paper copies of the syllabus, and I 2 changed in the electronic version the dates and the 3 details that I mentioned earlier and then saved over 4 that file. 5 Q So other than perhaps the CRN number and your 6 classroom information and the time that the course was 7 being offered, do you believe that in substance the 8 syllabus is identical to the syllabus you used for the 9 fall 2009 course? 10 A The dates are also different. 11 Q Which dates are you referring to? 12 A I'm sorry. The schedule -- under schedule of 13 class meetings and assignments, the dates reflect 2010 14 dates, but otherwise I believe -- I believe the content 15 is the same. 16 17 Q And the dates you're referring to are those depicted on Georgia State 66087 through 90? 18 A Correct. 19 Q On the first page of Gainty TX 1, Georgia 20 State 66084, you have a section entitled "Course 21 Description"? 22 A Yes. 23 Q Earlier when I asked you to provide a general 24 overview of what the course was about, you referenced a 25 description in your syllabus; is that correct? SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 14 1 A Yes. 2 Q Is this the course description that you were 3 referring to in the substance of your answer to my 4 previous question? 5 A Yes. 6 Q Turning to page 2 of your -- the second page 7 of your syllabus, marked 66085, you have a section 8 entitled "Course Readings." Do you see that? 9 A Yes. 10 Q There are five numbered paragraphs within 11 that section. 12 A Yes. 13 Q What are those five items that are listed in 14 Do you see that? that paragraph under "Course Readings"? 15 A They are collectively the monographs that I 16 assigned as required reading for the course. 17 were directed to purchase and read them in their 18 entirety or at least overwhelming portions of them. 19 20 Q A 25 Because I wanted them to read all or almost all of each monograph. 23 24 Why did you require students to purchase these monographs? 21 22 Students Q And can you explain again what a monograph A I'm sorry. is? A monograph, as I understand it, SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 15 1 is a book-length scholarly work that constructs and 2 supports a single core argument or a sort of cluster of 3 arguments that all revolve around a central issue. 4 It's different from a textbook in that it's designed to 5 put an argument forward rather than, I guess, 6 communicate data with less of an overt argument. 7 Q Turning to the fourth page of your syllabus, 8 which is marked Georgia State 66087, you have a section 9 there entitled, "Schedule of Class Meetings and 10 Assignments." 11 A I do. 12 Q What does this particular section in your 13 14 Do you see that? syllabus reflect? A This section of the syllabus, pages 66087 15 through 66090, gives a list of dates on which the class 16 will meet and then tells the student on which date they 17 are asked to do readings and/or submit written work. 18 Essentially it tells them what the assignments are and 19 when they must complete the assignments. 20 Q And with respect to the readings that you 21 have assigned in this section, were those required 22 readings? 23 A Yes. 24 Q On the page marked Georgia State 66088 of 25 Gainty TX 1 there's an entry for Tuesday, October 5. SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 16 1 Do you see that? 2 A I do. 3 Q What are the two items that you have -- or 4 what are the items that you have essentially listed for 5 that date? 6 A The first item is a short paper that is due, 7 which is a student paper that was assigned to them on 8 readings in the previous unit. 9 you'll see different short paper assignments in bold. Throughout the syllabus 10 The other two parts are two readings that I assigned to 11 the students. 12 in the Chinese Dynastic Histories," which is excerpted 13 from a book called Sources of Japanese Tradition, 14 volume 1. 15 "Sino-Korean Tributary Relations Under the Ming," which 16 is excerpted from The Cambridge History of China, 17 volume 8, part 2. 18 Q The first is a reading entitled, "Japan And the second is a reading entitled, With respect to The Cambridge History of 19 China entry listed there, can you describe for me 20 generally, what is The Cambridge History of China? 21 A The Cambridge History of China is a 22 multivolume, multipart scholarly work that contains, as 23 I understand it, many different writings by different 24 authors, all of which relate in some way to the history 25 of China. SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 17 1 2 Q Cambridge History of China? 3 4 Do you know how many volumes make up The A Honestly, I know that there are at least eight, but I don't know how many in total. 5 Q How do you know there are at least eight? 6 A The excerpt that I chose to assign to my 7 students comes from volume 8. 8 I'm sorry. 9 assume also means that there is a volume 8, part 1. 10 11 Q It also comes from -- It comes from volume 8, part 2, which I What pages did you assign for the particular excerpt you assigned for this reading? 12 A 272 through 300. 13 Q What was the title of that work again that 14 you assigned as a reading for this particular class? 15 16 17 A "Sino-Korean Tributary Relations Under the Ming." Q Do you understand that plaintiffs in this 18 case have alleged that the use of this particular 19 excerpt infringes on one or more of their copyrights? 20 A I do. 21 Q What was the subject matter of the class that 22 you intended to teach where you were using this reading 23 or where you planned to use this reading? 24 25 A The subject matter of the class was an introduction to a historical examination of the SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 18 1 phenomenon, I guess, of Chinese history and its 2 connections to other East Asian and Asian cultures or 3 states or polities. 4 to introducing that idea, presented two examples of 5 contact between China and another -- another such Asian 6 culture or state. 7 Q This particular class, in addition And what were the other -- the one or more 8 other Asian cultures or states that you were presenting 9 in this particular class? 10 A In this particular class one of them is 11 Japan, and the other is Korea. 12 historically, Korea and Japan both at different points 13 in history have meant different things. 14 have gone by the name of "Japan" or "Korea." 15 convenience what I'm referring to is the group of 16 people that lived at that point in the place that we 17 now refer to as Japan or, similarly, the group of 18 people that live in the place that we now refer to as 19 Korea. 20 Q To be clear They may not So for With respect to your reading "Sino-Korean 21 Tributary Relations under the Ming," why did you select 22 that particular reading for this class? 23 A This class dealt with Chinese interactions 24 with other Asian states or peoples or cultures, and the 25 reading "Sino-Korean Tributary Relations Under the SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 19 1 Ming" deals directly with the question of how China 2 interacted with one other such state or people or 3 polity or what have you. 4 Q How does that particular reading compare to 5 the other reading you assigned that day, "Japan in the 6 Chinese Dynastic Histories"? 7 A Well, "Japan in the Chinese Dynastic 8 Histories" deals particularly with how China was 9 interacting with Japan, and "Sino-Korean Tributary 10 Relations Under the Ming" deals specifically with how 11 China dealt with Korea or the peoples or cultures or 12 states in Korea, especially through tributary 13 relations. 14 Q Understanding that the class in the fall of 15 2009 or the course in the fall of 2009 was canceled, 16 how did you intend for your students of that course, 17 had it not been canceled, to obtain a copy or access a 18 copy of the "Sino-Korean Tributary Relations Under the 19 Ming" reading? 20 A Had the class not been canceled, I would have 21 tried to make it available. 22 have expected them to find it through the university's 23 e-reserve system. I would have -- I would 24 Q And what is the e-reserve system? 25 A It's based in the library. SHUGART & BISHOP And as I CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 20 1 understand it, it's a mechanism by which some readings 2 are made available in electronic form to students. 3 Those students in a particular class must have a 4 password provided to them so that only the students in 5 that class can access the material. 6 through the library website and are able to see those 7 readings and then read them. 8 9 10 Q And they go Do you recall whether you requested in advance of the course in fall 2009 that this excerpt be loaded to the e-reserve system? 11 A I believe I did. 12 Q What steps did you take to request that this 13 excerpt, "Sino-Korean Tributary Relations Under the 14 Ming," be loaded to e-reserve prior to your fall 2009 15 course being offered? 16 A At some point before 2009 the university 17 changed the manner in which they asked faculty to make 18 e-reserve requests. 19 e-mail with a list of all of the readings, with 20 identifying information, such as title, author, page 21 numbers, to the library, as one document. 22 then switched over, before this point, to a system of 23 submitting on the library website an individual request 24 through a library form for each individual reading in 25 order to -- or we are prompted by the library website Previously we would simply send an SHUGART & BISHOP However, we CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 21 1 to complete a fair use checklist to determine whether 2 the reading that we're requesting may fairly be used. 3 Q And in connection with this particular work, 4 "Sino-Korean Tributary Relations Under the Ming," did 5 you complete a fair use checklist prior to requesting 6 that this work be loaded into e-res? 7 A 8 9 MS. MOFFITT: 12 13 Can I have you mark this document Gainty TX 2? 10 11 I believe I did. (Defendants' Exhibit Gainty TX 2 marked for identification.) BY MS. MOFFITT: Q Professor Gainty, the court reporter has 14 handed you what's been marked as Gainty TX 2. 15 recognize this document? Do you 16 A I do. 17 Q And what is it? 18 A This is a fair use checklist that I completed 19 for -- although it's very hard to read, unfortunately, 20 on this copy, but it -- as I make it out, for the work 21 "Sino-Korean Tributary Relations Under the Ming." 22 Q And given that this particular checklist 23 appears to be somewhat illegible, are you able to 24 ascertain from other information contained in this 25 checklist that it is, in fact, the checklist related to SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 22 1 that particular work? 2 A Yes. 3 Q What informs you on this checklist that this 4 checklist, in particular, relates to that particular 5 work? 6 A I can read my name, the name of the course, 7 the author and publisher and portions to be used, the 8 page numbers. 9 Q When -- did you fill out this checklist? 10 A I did. 11 Q When did you fill out this fair use 12 13 14 15 16 All of those match the work in question. checklist? A I filled out this fair use checklist in the last few months. Q Now, in the upper right-hand corner it's dated August 1, 2009. Do you see that? 17 A Yes. 18 Q What does that date reflect? 19 A I tried, as best I could, to the best of my 20 ability, to recreate the fair use checklist that I 21 would have filled out and I believe I did fill out for 22 the fall 2009 semester. 23 24 25 Q You stated that you recreated the checklist. Can you explain why you recreated the checklist? A I did not have any longer a copy of the fair SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 23 1 2 3 use checklist that I completed for 2009. Q And why not? Why did you no longer have a copy of that checklist? 4 A I discarded it. 5 Q Why? 6 A I believed that because the course was 7 canceled after one class meeting, it was not necessary 8 to retain the fair use checklist. 9 10 11 Q And can you explain why you went about recreating this checklist? A I was informed that there was a lawsuit and 12 asked by the Office of Legal Affairs at Georgia State 13 to recreate this checklist. 14 Q And when you recreated the checklist, did you 15 make an effort to fill it out in the same way that you 16 filled it out in the office -- or in the 2009 time 17 frame before the course started? 18 A Yes. 19 Q When you originally filled this particular 20 checklist out in the 2009 time frame, did you make a 21 good faith effort to conduct a fair use analysis in 22 accordance with the checklist? 23 A Yes. 24 Q And this particular checklist, Gainty TX 2, 25 relates to which pages of the "Sino-Korean Tributary SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 24 1 Relations Under the Ming"? 2 A Pages 272 through 300. 3 Q And were those the pages that you intended to 4 assign your students to read in the History 4820 course 5 had it not been canceled? 6 A Yes. 7 Q I'm going to direct your attention to page 1, 8 the first page, marked Georgia State 66119, of the fair 9 use checklist, Gainty TX 2. Are you there? 10 A Yes. 11 Q Page 1 -- or this first page of Gainty TX 2 12 refers to a "Factor 1: 13 Use." Purpose and Character of the Do you see that? 14 A Yes. 15 Q Did you complete this section of the fair use 16 checklist? 17 A Yes. 18 Q And I should -- so upon completing that 19 section of factor 1, did you reach a conclusion about 20 whether factor 1 weighed in favor of fair use? 21 A I did. 22 Q And what was your conclusion with respect to 23 24 25 factor 1? A My conclusion was that the subfactors in factor 1 weighed in favor of fair use. SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 25 1 Q Why? 2 A I checked one, two, three boxes under "Weighs 3 in Favor of Fair Use." 4 column "Weighs Against Fair Use." 5 that a preponderance of factors in favor of fair use 6 existed, and therefore the entire section weighed in 7 favor of fair use. 8 9 10 Q I checked no boxes in the So it seemed to me Which factors did you select that weighed in favor of fair use? A The first subfactor, I guess, "nonprofit 11 educational," the second subfactor, "teaching, 12 including multiple copies for classroom use," and the 13 final subfactor, "use is necessary to achieve your 14 intended educational purpose." 15 16 17 Q Why did you select "nonprofit educational" for this particular work? A Because Georgia State University is a 18 nonprofit -- or a not-for-profit institution and 19 because a university is engaged in education, and I was 20 teaching in a classroom and engaged in education. 21 Q And you also selected "teaching, including 22 multiple copies for classroom use." 23 that subfactor for this particular work? 24 25 A teaching. Why did you select Because I planned to use the work for I planned to discuss the work with students SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 26 1 in the classroom. 2 Q And you also selected "use is necessary to 3 achieve your intended educational purpose." 4 you select that particular subfactor for this 5 particular work? 6 A Why did I believed that the use of this reading was 7 necessary in order to illuminate the educational 8 purpose of that class, which was presenting Chinese 9 relations with other cultures or states or peoples in 10 Asia. 11 Q And why did you believe that the use of this 12 reading was necessary to illuminate that educational 13 purpose of the class? 14 A Well, this reading touches directly on the 15 question of Chinese relationships with another East 16 Asian or, more broadly, Asian state or peoples or 17 culture. 18 larger question of how China interacted in its history 19 with other peoples or cultures. 20 Q And, as such, it speaks directly to the I want to direct your attention now to factor 21 2, which appears on Georgia State 66120 of Gainty TX 2. 22 Did you complete the section under factor 2 entitled, 23 "Nature of Copyrighted Work" in the fall of 2009 time 24 frame? 25 A I -- yes. SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 27 1 Q Upon completing that section for factor 2, 2 did you reach a conclusion about whether factor 2 3 weighed in favor of fair use? 4 A I did. 5 Q What was that conclusion? 6 A My conclusion was that the factor, the nature 7 of copyrighted work, weighed completely in favor of 8 fair use. 9 Q And how did you reach that conclusion? 10 A I read the subfactors on both sides, both in 11 favor of fair use and against fair use, and in each 12 case I selected the subfactor in favor of fair use. 13 14 Q And specifically which subfactors did you select in favor of fair use? 15 A I selected the first subfactor, "published 16 work." 17 nonfiction work," and I selected the third subfactor, 18 "important to educational objectives." 19 I selected the second subfactor, "factual or Q With respect to the first subfactor, 20 "published work," why did you select that subfactor for 21 this particular work? 22 23 24 25 A Because this particular work is -- is published. Q With respect to the second subfactor, "factual or nonfiction work," why did you select that SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 28 1 particular subfactor for this particular work? 2 A Because -- I selected that because this is 3 not a work of fiction and -- because it's a nonfiction 4 work. 5 Q And with respect to the third subfactor in 6 favor of fair use, "important to educational 7 objectives," why did you select that subfactor? 8 9 A Similar to my previous answer regarding factor 1 subfactor, "use is necessary to achieve your 10 intended educational purpose," I believe that this work 11 was important to my educational objectives, those 12 objectives being to introduce students to different -- 13 different examples of Chinese interaction with other 14 Asian states or peoples or cultures. 15 16 17 Q And can you explain why this particular reading was important to that objective? A This particular reading deals with China and 18 its interactions with Korea, which is a neighboring 19 state or a neighboring cultural region, or whatever you 20 would like to call it, through the tributary system, 21 which was an important component of Chinese 22 relationships with other Asian states or peoples or 23 cultures. 24 in introducing those ideas to students. 25 Q So I felt that presenting this was important On page 66120 of Gainty TX 2 there's a factor SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 29 1 3 entitled, "Amount and Substantiality of Portion 2 Used." Did you complete that portion of the checklist? 3 A I did. 4 Q And upon completing that section of the 5 checklist relating to factor 3, did you reach a 6 conclusion about whether factor 3 weighed in favor of 7 fair use? 8 A I did. 9 Q And what was that conclusion? 10 A I concluded that the factor weighed in favor 11 12 13 14 of fair use. Q And why did you conclude that factor 3 weighed in favor of fair use? A I read all of the subfactors, both in favor 15 of fair use and against fair use, and I checked two of 16 the three subfactors in favor of fair use and none of 17 the subfactors against fair use. 18 19 20 Q What were the factors that you selected in favor of fair use? A The first is "small portion of work used," 21 and the second is "amount taken is narrowly tailored to 22 educational purpose, such as criticism, comment, 23 research, or subject being taught." 24 25 Q Why did you select, for this particular work, "small portion of work used"? SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 30 1 A Because I -- in -- I deemed this to be a 2 small portion of the entire work, certainly a very 3 small portion of the entire Cambridge History of China, 4 which is, although a multivolume set, one title, as I 5 understand it, but it's also a small portion of even 6 that volume 8, part 2, of The Cambridge History of 7 China. 8 9 10 Q assigned, with respect to this excerpt, from The Cambridge History of China? 11 12 A I assigned 29 pages, if I am counting correctly. 13 14 Do you know roughly how many pages you Q Do you recall how many pages are contained within that volume 8, part 2, from which you assigned? 15 A I do not, but I believe it has at least 300 16 pages, given that my selection is from page 272 through 17 page 300. 18 Q You also selected that the amount taken is 19 narrowly tailored to educational purpose, such as 20 criticism, comment, research, or subject being taught. 21 Why did you select that subfactor for this particular 22 work? 23 A I thought carefully about how much of both 24 The Cambridge History of China and of this particular 25 volume and, in fact, of this article was necessary for SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 31 1 educational purpose. 2 judgment, that pages 272 through 300 were necessary for 3 my educational purpose regarding the subject being 4 taught and the general construction of a historical 5 argument. 6 Q And I determined, in my best Was any portion of the excerpt that you 7 selected, 272 through 300, unrelated to the subject 8 matter that you were teaching that day in class or that 9 you intended to teach that day in this particular 10 class? 11 A No, not -- not -- not to my knowledge. 12 Q Turning to the fourth factor entitled, 13 "Effect on Market for Original" on that same page, 14 66120 of Gainty TX 2, did you complete that section on 15 the checklist? 16 A I did. 17 Q Upon completing the section, did you reach a 18 conclusion about whether factor 4 weighed in favor of 19 fair use? 20 A I did. 21 Q What was that conclusion? 22 A I concluded that factor 4 weighed in favor of 23 fair use. 24 Q How did you reach that conclusion? 25 A I, as in the other factors, read all of the SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 32 1 subfactors and used my best judgment to determine which 2 accurately described my use of the material in this 3 class. 4 use and one subfactor against fair use. 5 to be silly, but because three is greater than one, I 6 felt that there were more factors in favor of fair use, 7 and therefore the aggregate outcome of factor 4 weighed 8 in favor of fair use. 9 10 11 I selected three subfactors in favor of fair Q Because -- not Which three factors did you select that weighed in favor of fair use? A I selected "no significant effect on market 12 or potential market for copyrighted work" and "use 13 stimulates market for original work" and "restricted 14 access to students or other appropriate group." 15 16 Q And which factors did you select under factor 4 that did not weigh in favor of fair use? 17 A "Required classroom reading." 18 Q I want to step through each of these 19 subfactors, as we have before. 20 first subfactor under "Weighs in Favor of Fair Use," 21 "no significant effect on market or potential market 22 for copyrighted work," can you explain why you selected 23 that particular subfactor? 24 25 A With respect to the I believe that whether a student reads this excerpt or not will not have a significant negative SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 33 1 effect on the potential market for the copyrighted 2 work. 3 Q Why not? 4 A The copyrighted work contains much more and, 5 as I understand it, very diverse writing on the history 6 of China. 7 specifically with one small component of the 8 multimillennia history of China. 9 felt the work I selected in no way exhausted the entire This particular excerpt from the work deals Because of this, I 10 range of ideas or scholarship contained in the larger 11 work. 12 Q You also selected that the use stimulates the 13 market for the original work. 14 selected that subfactor? 15 A Yes. Can you explain why you The -- selecting "use stimulates market 16 for original work" reflects my belief and -- at least 17 my hope but my belief that exposing students to a small 18 portion of this sort of scholarship will encourage 19 students to continue to be excited by and seek out 20 readings and other scholarship on Chinese history and 21 on history in general. 22 I think a reasonable belief that students who are 23 excited by this particular excerpt would then, on their 24 own, potentially try to find more from this particular 25 work. It was my hope, therefore, and SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 34 1 Q You also selected the subfactor "restricted 2 access to students or other appropriate group." 3 did you select that subfactor? 4 A Why It's my understanding that the e-reserve 5 system, which is password protected, only allows 6 students who have the password from the course to have 7 access to that particular course's page and to read 8 those materials. 9 Q This restricts access. Do you have any understanding of what happens 10 to the materials posted to e-res once a course has 11 concluded? 12 A I do. 13 Q And what is that understanding? 14 A My understanding is that the materials are no 15 longer available through e-reserve, even to students 16 with the password. 17 personal experience when I have gone on the library's 18 e-reserve website. 19 searched in a number of ways. 20 instructor name. 21 only my current courses for that semester are visible, 22 and courses from previous semesters are not visible. 23 Q This understanding is based on my The e-reserve system can be One of them is by When I search by instructor name, On the right-hand side of the section under 24 factor 4, you selected "required classroom reading." 25 Can you explain why you selected "required classroom SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 35 1 reading"? 2 A I required my students to read this work. 3 Q So once you completed the checklist for all 4 four of these factors that we just discussed, did you 5 arrive at an overall conclusion about whether your use 6 of this excerpt constituted a fair use? 7 A I did. 8 Q And what was your overall conclusion with 9 respect to fair use for this particular excerpt that 10 you assigned? 11 A My overall conclusion was that all of the 12 factors weighed in favor of fair use and that my use of 13 this reading, this excerpt, in this class was a fair 14 use of this copyrighted work. 15 Q After you completed this checklist, Gainty TX 16 2, for the excerpt that you intended to assign in this 17 course, History 4820, what steps did you take to 18 request that the excerpt be loaded to the e-reserve 19 system? 20 MR. BLOOM: Object to the form of the 21 question. 22 "intended to assign." 23 assign. 24 25 The objection just is you said I think he actually did You can go ahead and answer. A I'm sorry. I'm a little bit confused by that SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 36 1 exchange, but I -- could you please repeat the 2 question? 3 Q I'll repeat the question, sure. 4 A I'm sorry. 5 Q After you completed this fair use checklist, 6 Gainty TX 2, what steps did you take to request that 7 this excerpt be loaded to the e-reserve system? 8 9 A There is a form on the library website that is to be completed by the faculty member for each 10 course in order to submit a request for a document or a 11 reading to be placed on e-reserve. 12 completed this form and requested that this be loaded 13 onto the e-reserve site. 14 Q I believe I And what type of information are you 15 requested to submit in connection with this form that 16 you completed? 17 A I -- I don't remember exactly, but it would 18 be some kind of identifying data about that work so 19 that librarians know what it is that I'm requesting, 20 such as author or edition or page numbers or that sort 21 of thing. 22 Q Are you -- does the form prompt you to say 23 anything about your completion of the fair use 24 checklist? 25 A It does. SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 37 1 2 3 Q And specifically what does it prompt you to submit with respect to the form? A This is only my paraphrasing. I don't 4 remember exactly, but I believe there are boxes to be 5 checked, one of which says something like, to the 6 effect of, this -- the use of this reading constitutes 7 fair use according to a fair use checklist that I 8 completed. 9 Q I believe it's something like that. And do you recall whether you submitted any 10 information with respect to that prompt in the form, 11 for this particular work? 12 A I believe, again, that I checked that box. 13 Q And had you, in fact, completed a fair use 14 checklist for that particular work that you were 15 requesting to be posted for the fall 2009 course, the 16 work that we've been discussing from The Cambridge 17 History of China? 18 A 19 20 MR. BLOOM: 23 I'm sorry. Could I have that question and answer read back, please? 21 22 As I recall, yes. (Last question and answer read.) BY MS. MOFFITT: Q If it is determined that your use of the 24 "Sino-Korean Tributary Relations Under the Ming" work 25 excerpt that you intended to assign from The Cambridge SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 38 1 History of China was not a fair use, what would you do 2 with respect to your use of this excerpt? 3 MR. BLOOM: 4 MS. MOFFITT: 5 MR. BLOOM: Basis? Just so I understand your objection. 6 Object to the form. 7 Again, you just said "intended to assign." 8 MS. MOFFITT: 9 MR. BLOOM: 10 11 12 Okay. And I believe the testimony is that he did assign the reading. BY MS. MOFFITT: Q Let me ask the question then. With respect 13 to the fall 2009 course, History 4820, that you 14 testified earlier was canceled due to underenrollment, 15 is it your belief that you assigned the "Sino-Korean 16 Tributary Relations Under the Ming" excerpt from The 17 Cambridge History of China to your students that were 18 enrolled in that course for that particular semester? 19 20 21 22 A I'm sorry. Now, do I correctly understand your question to be did I assign it? Q I think that's what I'm asking, but if my question isn't clear, I can try again. 23 A Could you please try again? 24 Q Sure. 25 A I'm sorry. Thank you. SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 39 1 Q With respect to this History 4820 course 2 that -- in the fall of 2009 that was canceled due to 3 underenrollment, did you assign to your students the 4 "Sino-Korean Tributary Relations Under the Ming" 5 excerpt from The Cambridge History of China? 6 A I placed it on the syllabus that -- I'm now 7 feeling slightly unsure about the definition of 8 "assignment." 9 I mean -- MR. BLOOM: 10 interrupt you. 11 A Maybe -- I don't want to I apologize for that. I -- one might say 12 that one only assigns a work on that given day. 13 certainly placed it on the syllabus with the intention 14 that students would read it. 15 16 MR. BLOOM: Maybe we can just stipulate that he selected this reading for that course -- 17 MS. MOFFITT: 18 MR. BLOOM: 19 Yeah. -- which was subsequently canceled. 20 MS. MOFFITT: 21 MR. BLOOM: 22 23 24 25 I Okay. I just wanted the record to be precise. Is that a fair characterization? selected this reading for that course? THE WITNESS: Yes. SHUGART & BISHOP You CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 40 1 2 BY MS. MOFFITT: Q I can ask the question for you so you feel 3 comfortable about our exchange. 4 Professor Gainty, that with respect to the History 4820 5 course that was scheduled to be taught in the fall of 6 2009, that you selected the "Sino-Korean Tributary 7 Relations Under the Ming" excerpt from The Cambridge 8 History of China as a reading for that particular 9 course? 10 A Yes. 11 Q All right. Would you say, So if it is determined that your 12 use of this excerpt, "Sino-Korean Tributary Relations 13 Under the Ming," was not a fair use, what would you do 14 with respect to your use of this checklist in this 15 course? 16 A If it were determined, according to the fair 17 use checklist, that it was not, in fact, fair use, I -- 18 I suppose -- I can only speculate, but I suppose I 19 would either find a different reading -- I don't know 20 what that reading would be; I would look for one, I 21 suppose -- or I would speak with the Office of Legal 22 Affairs. 23 Q I don't know. Would you continue to assign the excerpt to 24 your students if it were determined that your use of 25 that excerpt was not a fair use? SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 41 1 A If -- if in its current form it were not fair 2 use, then I would not assign it. 3 say, I guess, is that I would not assign a reading in a 4 form that was specifically determined not to be fair 5 use. 6 7 MS. MOFFITT: Those are all the questions I have for now. 8 MR. BLOOM: 9 MS. MOFFITT: Okay. Your witness. 10 MR. BLOOM: 11 MS. MOFFITT: 12 MR. BLOOM: 13 THE VIDEOGRAPHER: 14 What I'm trying to Can we just take two minutes? Sure. Go off the record? Off the video record at 11:18. 15 (Discussion off the record.) 16 THE VIDEOGRAPHER: 17 record. 18 We're back on the video The time is 11:23 a.m. CROSS-EXAMINATION 19 BY MR. BLOOM: 20 Q Professor Gainty, my name is Jonathan Bloom. 21 I'm with the law firm Weil, Gotshal & Manges in 22 New York, and I'll be asking you some questions on 23 behalf of the plaintiffs in this action. 24 won't keep you all that long. 25 Hopefully I You testified that sometime prior to the SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 42 1 start of the fall semester in 2009 you completed a fair 2 use checklist for the Clark reading; is that correct? 3 A I believe so. 4 Q Okay. Now, do you have a specific 5 recollection of completing a fair use checklist back in 6 2009 with respect to that reading? 7 A I believe that I completed one. I -- I can't 8 recall specifically, for example, sitting at my desk 9 and filling out a checklist. 10 11 12 Q And given that, why is it that you believe you did complete a checklist? A The university, as I understood it, asked us 13 to complete checklists for materials that we wanted to 14 place on e-reserve. 15 prompt on the e-reserve submission system which directs 16 us again to the fair use checklist. 17 18 Q And there, as I mentioned, is a So it's your belief that you would have followed that instruction; is that correct? 19 A That's correct. 20 Q But you don't specifically recall doing so? 21 A That's correct. 22 Q And just to confirm, you testified that you 23 did not retain that checklist -- we'll assume that you 24 actually completed a checklist -- when you learned that 25 the course was canceled; is that correct? SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 43 1 A That is correct. 2 Q But you don't have any specific recollection 3 of discarding it? Is that also correct? 4 A That's also correct. 5 Q And Ms. Moffitt walked you through the fair 6 use checklist that you testified that you completed in, 7 I think you said, the last few months with respect to 8 the Clark reading. 9 A Yes. 10 Q Okay. Is that -- you recall that? 11 And you concluded that the reading was fair use, correct? 12 A That's correct. 13 Q Okay. And do you have an understanding, one 14 way or the other, as to whether that reading that you 15 selected and completed -- or I believe you completed 16 the checklist for actually was placed on the e-reserve 17 system? 18 A I do not. 19 Q So you never checked that? 20 A I certainly don't recall checking it. 21 Q Okay. 22 way or the other? So you just don't know for sure one Is that accurate? 23 A That's correct. 24 Q Okay. 25 And are you -- you testified about a change in the university's copyright policy in 2009. SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 44 1 Do you recall that? 2 A I do. 3 Q Okay. 4 And can you explain how you became aware of that change in policy? 5 A Honestly, I don't recall specifically. 6 Q Do you recall when you became aware of it? 7 A No. 8 Q And do you recall a sort of larger document 9 of which this checklist is a portion? 10 11 Honestly, I do not. MS. MOFFITT: A Object. I -- no, I do not. Assumes facts. I'm trying to recall if 12 there is -- if this is a portion of the document, and 13 that doesn't -- I don't recall. 14 Q Let me just -- I'm going to show you what I'm 15 going to mark as Gainty Plaintiffs' Exhibit 1 and just 16 ask you if you recall having seen that document before. 17 18 (Gainty Plaintiffs' Exhibit 1 marked for identification.) 19 20 MS. MOFFITT: I'm going to object on the grounds it goes beyond the scope of direct. 21 Can you read the question back, please? 22 (Last question read.) 23 24 25 A I don't recall specifically seeing this document. Q Okay. Well, that answers the question. SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 45 1 Okay. You can put that aside. 2 Professor Gainty, when you were answering 3 Ms. Moffitt's questions about the fair use checklist 4 and how you completed it, you, you know, referenced 5 using your judgment as to the factors listed on the 6 exhibit. 7 testimony? Is that a fair characterization of your 8 A Yes. 9 Q Okay. Did you receive any kind of 10 instruction from anyone at the university that sort of 11 informed the judgment that you exercised in completing 12 this checklist? 13 MS. MOFFITT: 14 You can answer it if you understand it. 15 16 17 A Object. The question is vague. I -- I don't remember a specific instance of instruction. Q Did you intend -- did you attend any kind of 18 class offered by the university with respect to how to 19 fill out the checklist? 20 A Not that I recall. 21 Q And did you seek any guidance from anyone at 22 the university with respect to how to complete the 23 checklist? 24 25 A Do you mind if I ask you to be specific? MR. BLOOM: Can you read the question back, SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 46 1 please? 2 (Last question read.) 3 BY MR. BLOOM: 4 Q Did you have any discussions with anyone in 5 the legal affairs office with respect to how to 6 complete the checklist? 7 8 9 A The -- just to clarify, to be sure that I understand, do you mean generally how to use this form? Q 10 Okay. Yeah, I understand your confusion. Let me just ask, generally, at any time, did 11 you have any conversations with anyone in the legal 12 affairs department about how fair use checklists in 13 general, not with respect to this specific work 14 necessarily, should be completed? 15 A Not that I recall. 16 Q Okay. Not that I recall. And so then I assume you didn't have 17 any conversations with anyone in the legal affairs 18 department about this specific checklist; is that 19 correct? 20 A To be clear, I believe I made mention before 21 about having a conversation with the legal affairs 22 department about reproducing this checklist. 23 Q Okay. And let me ask you about that, that 24 testimony. 25 say, recreating the checklist, did you -- do you recall When you were in the process of, as you SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 47 1 rethinking any of the factors as you went through that 2 exercise? 3 4 A sorry. I read the factors carefully. I'm -- I'm Can you -- 5 Q Let me ask another question. 6 A Thank you. 7 Q Maybe it will be easier for you to answer. 8 9 When you were completing this checklist, did you -- do you recall, with respect to any of the 10 factors, questioning whether you had thought about it 11 correctly back in 2009? 12 A I don't recall any such example. 13 Q But you testified earlier, I believe, and 14 correct me if I'm wrong, that you don't specifically 15 recall completing the checklist in 2009, correct? 16 17 MS. MOFFITT: The question has been asked and answered. 18 BY MR. BLOOM: 19 Q You can answer again. 20 A Correct. 21 Q Okay. Let me direct your attention to page 1 22 of the checklist. 23 reasons why you checked the three boxes on the 24 left-hand side, "Weighs in Favor of Fair Use." 25 recall that? You testified earlier as to the SHUGART & BISHOP You CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 48 1 A Yes. 2 Q Okay. And those are the "nonprofit 3 educational," "teaching," and "use is necessary to 4 achieve your intended educational purpose," correct? 5 A Yes. 6 Q Is it fair to say that -- or do you agree 7 with the proposition that you would complete or fill 8 out each of those boxes for any reading that you had 9 decided you wanted to assign to your class? 10 MS. MOFFITT: 11 MR. BLOOM: Object. Calls for speculation. Let me ask the question 12 differently, if I could. 13 one. 14 BY MR. BLOOM: 15 Q So I'll withdraw that Can you imagine a situation in which you 16 would select a reading as appropriate for one of your 17 classes where you would not check all three of those 18 boxes? 19 20 A May I -- may I ask a clarification or -- can you tell me what you mean by "appropriate"? 21 MR. BLOOM: 22 (Last question read.) 23 BY MR. BLOOM: 24 Q Can you read the question back? 25 So let me just try one more time. Can you imagine identifying a reading as one that you wish to SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 49 1 use with one of your classes, such as the Clark 2 reading, for which you would not check each of those 3 three boxes? 4 A I -- honestly, I don't know. I'm trying to 5 imagine -- I'm trying to imagine what sort of reading I 6 would want for a class that would not be necessary to 7 achieve my intended purpose or that I would -- I don't 8 have any occasion to -- that I can think of right now, 9 to engage in for-profit activities in the course of my 10 11 teaching. Q I -- I don't know. I'm sorry. So is it fair to say that you cannot imagine 12 specifically a scenario in which you would not fill all 13 three of those out? 14 MS. MOFFITT: 15 answered. 16 A The question has been asked and I'm sorry. I really -- I -- the whole realm 17 of conjecture is getting a little bit sort of tricky 18 for me. 19 Q I apologize. Any reading that you are contemplating 20 assigning to your students would be nonprofit 21 educational, right -- 22 A Uh-huh. 23 Q -- if you're doing this at GSU, correct? 24 A Correct. 25 Q And every one would be for the teaching SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 50 1 purpose, correct? 2 A Correct. 3 Q And you would have decided, if you were 4 contemplating using it for your class, that the use was 5 necessary to achieve your educational purpose, correct? 6 A I'm trying to imagine, in respect to the 7 third subfactor, whether I would think it was funny or 8 silly to assign something that didn't have an intended 9 educational purpose. Then I'm driven to imagine, well, 10 perhaps silliness is its own educational purpose. 11 is why I'm sort of confused about -- and I do 12 apologize. 13 honestly as possible. 14 This Q I'm trying to answer as completely and I understand. That's fine. Let me ask you 15 about the -- one of the factors on the other side of 16 the ledger, "non-transformative." 17 understanding one way or the other as to whether this 18 particular reading -- the placement of this particular 19 reading on e-res would be transformative or 20 non-transformative? 21 A Do you have an I honestly was not sure what "transformative" 22 might mean. 23 should have checked "transformative," thinking now 24 about it. 25 I suppose that's a new utility or purpose. On the one hand, the work -- maybe I The work was not intended for my class. SHUGART & BISHOP I don't So CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 51 1 2 know. Q Turning to the next page, Professor Gainty, 3 Ms. Moffitt asked you a number of questions about the 4 factor 3 subfactors, and you testified as to whether a 5 small portion was used, that you deemed this particular 6 reading to be a small portion of the entire work. 7 that an accurate characterization of your testimony? Is 8 A Yes. 9 Q And you testified that you deemed it a small 10 portion of the work conceived of as all of the volumes, 11 as well as the work conceived of as this particular 12 volume, correct? 13 A Yes. 14 Q Okay. Did you consider whether it was a 15 small portion of the work used in relation to this 16 particular chapter by Donald Clark? 17 A My understanding was that "work" referred to 18 a single published work, and I understood that Clark's 19 work was not published individually. 20 Q So you didn't conceive of a chapter within a 21 book as being a separate work. 22 characterization of your thinking? Is that an accurate 23 A Yes. 24 Q Looking down at factor 4, you testified, as 25 to your overall evaluation of this factor, that you SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 52 1 checked three boxes in the left-hand column and one box 2 in the right-hand column and that three was greater 3 than one, as you stated, and that led you to conclude 4 that the factor, as a whole, weighed in favor of fair 5 use. Do you recall that testimony? 6 A I do. 7 Q Okay. When you say three is greater than 8 one, does that reflect an understanding that each of 9 the subfactors is to be treated equally in terms of its 10 weight in the analysis? 11 A It does. 12 Q Okay. And do you have an understanding, with 13 respect to the factors, 1 through 4, not the subfactors 14 but factors 1 through 4, do you have an understanding 15 as to whether they are also to be treated equally in 16 the analysis? 17 A Honestly, I do not. 18 Q You don't have an understanding one way or 19 the other? Is that your testimony? 20 A That's correct. 21 Q Looking at the right-hand column under factor 22 4, the second box is "licensing or permission 23 reasonably available." Do you see that? 24 A I do. 25 Q Is that -- did you give any thought to that SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 53 1 subfactor when you were completing this form? 2 A I did. 3 Q And can you tell me what your thinking was? 4 A I was not sure what licensing or permission 5 would constitute. 6 7 Q Does it mean that you don't understand what those terms refer to? 8 A 9 10 What does that mean? Essentially, yes. I -- I'm sorry. I also was not sure what "reasonably" meant. 11 Q So is it -- do you have an understanding one 12 way or the other as to whether it is possible to get 13 permission to use a portion of a book in connection 14 with the e-res system? 15 A My understanding is that fair use is exactly 16 fair use and that either permission or the 17 determination of fair use would justify the use of a 18 work. 19 20 Q Have you ever heard of the Copyright Clearance Center? 21 A I have not. 22 Q And I believe you testified when Ms. Moffitt 23 asked you whether -- if you undertook -- if a work that 24 you -- well, if this work were -- strike the question. 25 If your use of this chapter were determined SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 54 1 not to be fair use, that you would find a different 2 reading was one possibility, or you weren't sure what 3 else you might do. 4 your testimony? 5 Is that a fair characterization of MS. MOFFITT: Object to the extent that I 6 think it mischaracterizes the testimony. 7 A I think it is -- in some respects that's 8 accurate. 9 now I can't recall exactly, I'm sorry. 10 11 Q I believe I said something else, although Well, you said you might speak to the legal affairs department. 12 A I do. 13 Q Okay. Do you recall that? 14 But you -- if you were -- if -- strike that. 15 If -- hypothetically, if you were told that 16 it were possible to obtain permission from the 17 publisher, for a fee, to use the chapter in the manner 18 that you contemplated, is that something that you would 19 consider in that scenario? 20 A Honestly, I don't know. 21 Q And that was not something that you 22 considered at the time because you concluded that this 23 was fair use, correct? 24 A That's correct. 25 Q Professor Gainty, you also testified that you SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 55 1 believed that the assignment of this chapter to your 2 students might stimulate the market for the work. 3 you recall that? 4 A I do. 5 Q Okay. Do And you checked that factor on the 6 left-hand column under factor 4 of that subfactor, 7 correct? 8 A That's correct. 9 Q Okay. And I believe you testified that you 10 hoped it would encourage students to seek out such 11 readings. Do you recall that? 12 A I do. 13 Q You have no basis other than your sort of 14 aspiration for making that conclusion; is that -- is 15 that fair to say? 16 MS. MOFFITT: I'm going to object on the 17 grounds that it mischaracterizes and misstates his 18 prior testimony. 19 MR. BLOOM: 20 BY MR. BLOOM: 21 Q I'm asking -- strike that. Is it fair to say that that is a hope on your 22 part but that you have no other basis for concluding 23 that the assignment would stimulate students to seek 24 out and purchase the work? 25 MS. MOFFITT: Again, I'm going to object SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 56 1 because it mischaracterizes his prior testimony. 2 A Could you repeat the question? 3 Q Other than your hope as to the effect that 4 assigning the work would have on your students, do you 5 have any other basis for believing that your using this 6 excerpt on e-reserves would stimulate the market for 7 the work? 8 A Yes. 9 Q And what is that? 10 A It occurs to me that a student who has never 11 been made aware of The Cambridge History of China would 12 be less likely to pursue The Cambridge History of China 13 than a student who has had a limited exposure to The 14 Cambridge History of China. 15 16 MR. BLOOM: Can we go off the record for a moment? 17 MS. MOFFITT: 18 THE VIDEOGRAPHER: 19 Sure. Going off the video record at 11:54. 20 (Discussion off the record.) 21 THE VIDEOGRAPHER: 22 23 24 25 We're back on the record at 11:55. (Gainty Plaintiffs' Exhibit 2 marked for identification.) BY MR. BLOOM: SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 57 1 Q Professor Gainty, we've been discussing at 2 length the Donald Clark chapter from The Cambridge 3 History of China. 4 show you Garity (sic) Plaintiff's Exhibit 2, which -- 5 and ask you to look at that and tell me if that is the 6 table of contents for that volume? 7 MS. MOFFITT: 8 MR. BLOOM: 9 MS. MOFFITT: 10 I just, for the record, wanted to Do you have a copy? Yeah (handing). Thank you. I just object on the grounds that this is an 11 incomplete copy, obviously, of The Cambridge 12 History of China but also that it doesn't include, 13 for example, copyright-related information 14 relating to this particular version of this 15 particular book. 16 But other than that, you can answer the 17 question, Professor Gainty, to the extent you can. 18 A I can't say for sure. 19 Q Can you locate on here the chapter that we 20 were discussing that you selected for your students in 21 History 4820? 22 A I -- assuming this is the same edition, of 23 which I have no way of knowing, certainly the same 24 title and author are here as chapter 5, and the page 25 numbers are the same. SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 58 1 Q 2 3 as Gainty Plaintiffs' Exhibit 3. (Gainty Plaintiffs' Exhibit 3 marked for identification.) 6 7 MS. MOFFITT: I have a question. What was the prior exhibit number? 8 9 You can put that aside. Let me just show you what I'm going to mark 4 5 Okay. MR. BLOOM: That was Plaintiffs' Exhibit -- Gainty Plaintiffs' Exhibit 2. 10 MS. MOFFITT: 11 Q Thanks. Sorry. BY MR. BLOOM: 12 Okay. 13 Professor Gainty, is this a document you've -- you recognize? 14 A No. 15 Q I will represent to you that this is a 16 portion of an e-res report that was provided to us by 17 the defendants in this action, and this is the portion 18 that relates to your course History 4820. 19 that course reference there under the second column? 20 A I do. 21 Q Okay. Do you see And that's your -- that's the class 22 that you intended to offer in the fall of 2009 that 23 we've been discussing? 24 25 MS. MOFFITT: I'm going to object to form on grounds of foundation, and it's not clear to me SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 59 1 based on what's in this particular document that 2 that's what that reflects. 3 BY MR. BLOOM: 4 Q You see the third row down on the left-hand 5 side? 6 "Sino-Korean Tributary Relations Under the Ming"? It says, "Donald Clark." 7 A I do. 8 Q Okay. It identifies the text 9 10 And is that the reading that we were discussing for which you filled out an e-res -- a fair use checklist? 11 A Yes. 12 Q Okay. 13 And do these pages correspond to the pages listed on the checklist? 14 A I'm sorry. 15 Q Yeah. 16 A I'm so sorry. 17 Q On Gainty TX 2. 18 A In the -- oh, Gainty TX. 19 Q It's okay. 20 A Yes. 21 Q And do those correspond to the pages that are Listed on the checklist? I'm so sorry. 22 identified in the table of contents that we just marked 23 a minute ago? 24 A 25 They do. MR. BLOOM: I have no further questions. SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 60 1 2 MS. MOFFITT: redirect, Professor Gainty. 3 4 5 I just have a few questions on REDIRECT EXAMINATION BY MS. MOFFITT: Q I believe you indicated in response to one of 6 Mr. Bloom's questions that the university asked 7 professors to complete checklists for materials that 8 they wanted to place on e-reserves; is that correct? 9 A I believe so, yes. 10 Q And is it your practice, Professor Gainty, to 11 complete checklists for works that you intend to place 12 on e-reserve, further to the request of the university? 13 A Yes. 14 Q And do you have any reason to believe that 15 you did not complete a checklist for the Clark work 16 identified in your syllabus, TX 1, as "Sino-Korean 17 Tributary Relations Under the Ming" from The Cambridge 18 History of China in the fall 2009, sometime prior to 19 when the History 4820 course started? 20 21 22 A I have no reason to believe that I didn't complete a checklist. Q And when you recreated the checklist that we 23 marked Gainty TX 2 a few months ago, as you testified, 24 did you use your best efforts to recreate the checklist 25 as you believed you had filled it out in the 2009 time SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 61 1 2 frame? A Yes. 3 MS. MOFFITT: 4 Did you have any -- can we go off the record 5 6 7 I have no further questions. for just a second? THE VIDEOGRAPHER: Going off the video record at 12:03. 8 (Discussion off the record.) 9 THE VIDEOGRAPHER: 10 11 MS. MOFFITT: Mr. Bloom, did you have any further questions? 12 MR. BLOOM: 13 THE VIDEOGRAPHER: 14 15 16 We're back on the record. No further questions. Going off the video record at 12:03 p.m. (Deposition concluded at 12:03 p.m.) - - - 17 18 19 20 21 22 23 24 25 SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 62 1 E R R A T A P A G E Pursuant to Rule 30 (e) of the Federal Rules of Civil Procedure and/or Georgia Code Annotated 9-11-30(e), any changes in form or substance which you desire to make to your deposition testimony shall be entered upon the deposition with a statement of the reasons given for making them. To assist you in making any such corrections, please use the form below. If supplemental or additional pages are necessary, please furnish same and attach them to this errata sheet. I, the undersigned, DENIS CHARLES GAINTY, Ph.D., do hereby certify that I have read the foregoing deposition and that, to the best of my knowledge, said deposition is true and accurate with the exception of the following corrections below. 2 3 4 5 6 7 8 9 10 11 Page / Line / Change / Reason 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ / / / / / / / / / / / / / ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ / / / / / / / / / / / / / _____________________ _____________________ _____________________ _____________________ _____________________ _____________________ _____________________ _____________________ _____________________ _____________________ _____________________ _____________________ _____________________ SHUGART & BISHOP / / / / / / / / / / / / / _________________ _________________ _________________ _________________ _________________ _________________ _________________ _________________ _________________ _________________ _________________ _________________ _________________ CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 63 1 ____ / ____ / _____________________ / _________________ 2 ____ / ____ / _____________________ / _________________ 3 ____ / ____ / _____________________ / _________________ 4 ____ / ____ / _____________________ / _________________ 5 ____ / ____ / _____________________ / _________________ 6 ____ / ____ / _____________________ / _________________ 7 ____ / ____ / _____________________ / _________________ 8 ____ / ____ / _____________________ / _________________ 9 ____ / ____ / _____________________ / _________________ 10 ____ / ____ / _____________________ / _________________ 11 ____ / ____ / _____________________ / _________________ 12 ____ / ____ / _____________________ / _________________ 13 ____ / ____ / _____________________ / _________________ 14 ____ / ____ / _____________________ / _________________ 15 ____ / ____ / _____________________ / _________________ 16 17 18 ________________________________ DENIS CHARLES GAINTY, Ph.D. 19 Sworn to and subscribed before me 20 this _____ day of _______________, 2011. 21 22 ________________________________________ 23 Notary Public. My commission expires___________________ 24 25 SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 64 1 C E R T I F I C A T E 2 STATE OF GEORGIA: 3 DEKALB COUNTY: 4 I hereby certify that the foregoing transcript 5 was taken down, as stated in the caption, and the 6 proceedings were reduced to typewriting under my 7 direction; that the foregoing pages 1 through 61 8 represent a true and correct transcript of the evidence 9 given upon said hearing. I further certify that I am 10 not of kin or counsel to the parties in this case, am 11 not in the regular employ of counsel for any of said 12 parties, nor am I in anywise interested in the result 13 of said case. 14 Disclosure pursuant to OCGA 9-11-28: 15 party taking this deposition will receive the original 16 and one copy based on our standard and customary per 17 page charges. 18 furnished at our standard and customary per page 19 charges. 20 be charged to any party where applicable. 21 The Copies to other parties will likewise be Incidental direct expenses of production may This the 25th day of April, 2011. 22 23 _______________________________ 24 CAROLE E. POSS GA CCR B-1182 25 SHUGART & BISHOP CAMBRIDGE vs. BECKER DENIS GAINTY APRIL 20, 2011 Page 65 1 2 3 DISCLOSURE STATE OF GEORGIA: COUNTY OF DEKALB: 4 5 Deposition of DENIS CHARLES GAINTY, Ph.D. 6 7 8 Pursuant of Article 10.B. of the Rules and Regulations of the Board of Court Reporting of the Judicial Council of Georgia, I make the following disclosure: 9 10 I am a Georgia Certified Court Reporter. as a representative of Shugart & Bishop. I am here 11 12 13 14 15 16 17 18 19 20 21 I am not disqualified for a relationship of interest under the provisions of OCGA 9-11-28. Shugart & Bishop was contacted by the offices of Bondurant, Mixson & Elmore to provide court reporting services for this deposition. Shugart & Bishop will not be taking this deposition under any contract that is prohibited by O.C.G.A. 15-14-37 (a) and (b). Shugart & Bishop has no exclusive contract to provide reporting services with any party to the case, any counsel in the case, or any reporter or reporting agency from whom a referral might have been made to cover this deposition. Shugart & Bishop will charge its usual and customary rates to all parties in the case, and a financial discount will not be given to any party to this litigation. 22 23 24 CAROLE E. POSS, GA CCR B-1182 25 SHUGART & BISHOP DATE: 4-25-11