Cambridge University Press et al v. Patton et al

Filing 324

DEPOSITION of Daphne Greenberg, Ph.D. taken on April 21, 2011 by Cambridge University Press, Oxford University Press, Inc., Sage Publications, Inc.. (Attachments: # 1 Exhibit D-1, # 2 Exhibit D-2, # 3 Exhibit D-3 - part1, # 4 Exhibit D-3 - part 2, # 5 Exhibit D-4, # 6 Exhibit D-5, # 7 Exhibit P-1)(Rains, John)

1   IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION CAMBRIDGE UNIVERSITY PRESS, OXFORD UNIVERSITY PRESS, INC., and SAGE PUBLICATIONS, INC., Plaintiffs, CIVIL ACTION FILE NO. 1:08-CV-1425-ODE vs. MARK P. BECKER, in his official capacity as Georgia State University President, et al., Defendants. ~~~~~~~~~~~~~~~~~~~~~~~~~~ VIDEOTAPE DEPOSITION OF DAPHNE GREENBERG, Ph.D. April 21, 2011 1:41 p.m. Conference Room 16-M 1180 Peachtree Street, N.E. Atlanta, Georgia S. Julie Friedman, CCR-B-1476 Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 2   1 2 3 APPEARANCES OF COUNSEL On behalf of the Plaintiffs: WEIL, GOTSHAL & MANGES JONATHAN BLOOM, ESQ. 4 767 Fifth Avenue New York, New York 5 10153 212.310.8775 212.310.8007 Fax 6 7 8 jonathanbloom@weil.com On behalf of the Defendants: KING & SPALDING LLP JOHN W. HARBIN, ESQ. 9 1180 Peachtree Street, N.E. Atlanta, Georgia 10 30309-3521 404.572.2595 404.572.5100 Fax 11 jharbin@kslaw.com 12 Also Present: 13 Henry Stewart, Videographer 14 15 16 17 18 19 20 21 22 23 24 25 Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 3   1 2 3 4 INDEX OF EXAMINATIONS WITNESS: Daphne Greenberg, Ph.D. Page 6 DIRECT EXAMINATION By Mr. Harbin 5 6 7 8 CROSS-EXAMINATION By Mr. Bloom 26 INDEX TO EXHIBITS 9 10 11 12 Defendant's Exhibit Description 1 Syllabus for Educational Psychology 8070, Understanding and Facilitating Adult Learning, Fall Semester 2009, GaState0066231-241 Page 9 13 2 Title Page, Table of Contents, Index for "Handbook of Adult Development and Learning" 10 3 Chapter 3, Research Design and Methodological Issues for Adult Development and Learning, by Caskie and Willis; Chapter 20, Advanced Avenues in Adult Development and Learning: The Role of Doctoral Study, by Stevens-Long and Barner 12 4 7-1-09 Fair Use Checklist, EPY 8070, Understanding and Facilitating Adult Learning Fall 09 16 5 Curriculum Vitae 26 14 15 16 17 18 19 20 21 22 23 24 25 Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 4   INDEX TO EXHIBITS 1 2 Plaintiff's Exhibit Description Page 3 1 4 Policy On the Use of Copyrighted 39 Works in Education and Research 5 6 (Original Defendant's Exhibits 1 through 5 and 7 Original Plaintiff's Exhibit 1 have been attached to the original transcript.) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 5   1 Videotape Deposition of Daphne Greenberg, Ph.D. April 21, 2011 2 3 4 (Reporter disclosure made pursuant to 5 Article 10.B. of the Rules and Regulations of 6 the Board of Court Reporting of the Judicial 7 Council of Georgia.) 8 9 10 (Defendant's Exhibits 1 through 4 were marked for identification.) THE VIDEOGRAPHER: This is Tape No. 1 to 11 the videotape deposition of Professor Daphne 12 Greenberg, in the matter of Cambridge University 13 Press versus Mark Becker. 14 This deposition is being held at King & 15 Spalding, 1180 Peachtree Street in Atlanta, 16 Georgia on April 21st, 2011. 17 1:41 p.m. 18 The time is now We're on the record. My name is Henry Stewart. 19 videographer. 20 I'm the Friedman. 21 The court reporter is Julie Counsel, will you please introduce 22 yourselves and affiliations; and the witness 23 will be sworn. 24 25 MR. BLOOM: Jonathan Bloom, Weil, Gotshal & Manges, LLP, for the plaintiffs. Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 6   MR. HARBIN: 1 And John Harbin with King & Spalding for the defendants. 2 DAPHNE GREENBERG, Ph.D., having been first 3 4 duly sworn, was examined and testified as 5 follows: 6 DIRECT EXAMINATION 7 BY MR. HARBIN: 8 Q. 9 Professor Greenberg, would you state your full name for the Court, please. 10 A. Daphne Greenberg. 11 Q. Great. 12 Thank you. And you're a professor at Georgia State University? 13 A. Yes, sir. 14 Q. And how long approximately have you taught 15 at Georgia State? 16 A. Since 2001. 17 Q. Could you tell the Court what your 18 undergraduate degree is in and where you obtained it? A. 19 20 University. Q. 23 And what postgraduate education do you A. 21 22 It's in psychology from Brandeis A master's degree in general psychology have? 24 from Yeshiva University, Ferkauf School, graduate 25 school, of Psychology. Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 7   And then a Ph.D. from the graduate center 1 2 of the City University of New York in educational 3 psychology. 4 5 Q. And we'll mark a copy of your CV as an exhibit so the -- for the Court's reference. But have you published several articles 6 7 and -- Well, first, you published several articles 8 in your field? 9 A. Yes, sir. 10 Q. And what department do you teach in at 11 12 13 Georgia State? A. Educational psychology and special education. MR. BLOOM: 14 John, I'm sorry. 15 interrupt for a sec. 16 you off. 17 objection on the record. 18 the -- 20 21 Sorry to throw Let me just, if I could, just get my MR. HARBIN: 19 This -- If I can I think compared to Oh, yeah. That's fine. Yes, yes. MR. BLOOM: Just for the record, 22 plaintiffs object to the deposition of -- of 23 Professor Greenberg to the extent it's intended 24 to be offered as trial testimony. 25 The witness resides within the subpoena Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 8   1 range of the United States District Court for 2 the Northern -- Northern District of Georgia and 3 is represented by counsel for the defendants, 4 who presumably could subpoena the witness to 5 appear at trial to provide live testimony. And on that basis, plaintiffs expressly 6 7 reserve and do not waive the right to object to 8 any attempt by defendants to introduce Professor 9 Greenberg's testimony at trial on the grounds 10 that she's unavailable within the meaning of the 11 Federal Rules of Evidence, the Federal Rules of 12 Civil Procedure, or the applicable rules of the 13 Northern District of Georgia. 14 Thank you. 15 MR. HARBIN: 16 17 18 19 20 21 Q. Sorry to interrupt. Sure. (By Mr. Harbin) In that regard, what are your plans during the second half of May this year? A. The -- Between May 8th and May 24th, I'll be in Australia. Q. Okay. And is that something that's been scheduled for some time? 22 A. Yes. 23 Q. Okay. 24 25 And I think you describe -- You've named the department you teach in. A. Yes. Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 9   1 Q. And are you presently the director for 2 Georgia State University's Coalition for the Study of 3 Adult Literacy? 4 A. Yes, sir. 5 Q. Was that previously the Center for the 6 Study of Adult Literacy? 7 A. Yes. 8 Q. Okay. 9 10 Did you teach a course in the fall of 2009 entitled "Understanding and Facilitating Adult Learning"? 11 A. Yes. 12 Q. Let me show you what's been marked as 13 Defendant's Exhibit Greenberg 1 and ask if that is -- 14 I think you have a copy of it -- the syllabus for 15 your course that -- in fall of 2009? 16 A. Yes, sir. 17 Q. Can you summarize what is covered in this 18 course? 19 A. Sure. It -- It's basically to introduce 20 students to the whole field of adult learning. We 21 talk about the heterogeneity of adult learners. 22 talk about development of adults. 23 theory of adult learning, and we talk about all types 24 of adult learners and research issues in terms of 25 adults. We We talk about Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 10   1 2 3 4 5 6 Q. Okay. And approximately how many students were in the class, if you recall? A. The -- The classes are capped at about 20, so give or take a few. Q. Do you recall if there was approximately 15 in the fall of '09? 7 A. It would probably be between 15 and 20. 8 Q. Okay. 9 A. Yeah. 10 Q. And if you look at the syllabus on the 11 second page, were there books that the students were 12 required to purchase in the course? 13 14 15 A. Yes. Those two books, the Merriam text and the King text. Q. Okay. The plaintiffs are challenging your 16 use of one excerpt of a publication in that class, 17 and I want to ask you in this course in the fall of 18 2009, did you use an excerpt of a book called "The 19 Handbook of Adult Development and Learning"? 20 A. Yes. 21 Q. And let me hand you what's been marked as 22 I believe so. Defendant's Exhibit Greenberg 2 -- 23 A. Yeah. 24 Q. -- and ask if you recognize that as the 25 title page of that book -Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 11   1 A. Uh-huh. 2 Q. -- and some of the contents, including 3 particularly the table of content -- contents and the 4 index of what's in the book. 5 A. Yes. I'm familiar with this. 6 Q. So is this -- Is it correct this book is 7 approximately over -- over 563 pages long if you 8 include the author and subject indexes? 9 A. That's what it says. Yes. 10 Q. And it's about 536 pages of material 11 overall if you exclude the author and subject index; 12 is that right? 13 A. That looks like that's correct. 14 Q. Okay. 15 16 Yes. And can you briefly describe what this handbook is. A. Sure. It's -- At the time that it was 17 written, it would be the -- represent the different 18 researchers at that time in terms of different areas 19 of adult learning, both development and learning, in 20 fact, and different chapters regarding different 21 aspects of adult learning and -- and development. 22 23 24 25 Q. Okay. And is it a compilation of articles or essays by different authors? A. Yes. It's a compilation of different chapters by different authors. Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 12   1 2 Q. Okay. And it looks like there are 22 chapters; is that right? 3 A. I believe so. 4 Q. And did you use two chapters -- all or 5 Yes. part of two chapters of this book, if you recall? 6 A. Yeah. 7 Q. Okay. And let me hand you what's been 8 marked together as Defendant's Exhibit Greenberg 3 9 and ask you if this comprises the excerpts that you 10 used. 11 And I'll show you here that you have -- 12 The first page is chapter -- is the title page for 13 Chapter 3 and the first page of Chapter 3, and then 14 here there's a first page and continuing thereafter 15 of Chapter 20? 16 A. Uh-huh. 17 Q. You see that? 18 19 20 So do you recall that's the excerpt of this book that you used? A. I believe -- 21 MR. BLOOM: 22 THE WITNESS: 23 MR. BLOOM: 24 25 Object. -- so. Object to the form of the question. MR. HARBIN: Sorry? Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 13   1 MR. BLOOM: 2 You can answer. 3 THE WITNESS: 4 MR. HARBIN: 5 THE WITNESS: 6 MR. BLOOM: 8 THE WITNESS: 10 Oh. Okay. So I ignore that objection? Oh. 7 9 I just objected to the form. Q. Yes. Okay. (By Mr. Harbin) So yeah. Okay. So if you look at the pages, did you use Pages 52 to 70 of Chapter 3? 11 A. Uh-huh. 12 Q. And Pages 455 to 475 of Chapter 20? 13 A. Yes. 14 Q. So you used approximately 39 pages 15 total -- 16 A. Uh-huh. 17 Q. -- of that publication? 18 A. Yes. 19 Q. So is it correct that you used something 20 less than 8 percent of the book by pages? 21 A. Uh-huh. 22 Q. And what was your purpose in using these 23 24 25 chapters? A. Well, the Chapter 3 was a nice introduction to the students for learning about Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 14   1 methodological issues when you Windows research in 2 adult learning. And the second chapter on the doctoral, I 3 4 believe -- what was it, Chapter 20 -- 5 Q. 20. 6 A. -- yeah, was an example of adult 7 learners -- of a type of adult learner, which would 8 be doctoral students. Q. 9 Okay. Did you view -- Did you view 10 either chapter as the heart or critical part of the 11 book? 12 A. No. 13 Q. And why do you say that? 14 A. Because this is a handbook of many 15 different aspects of adult learning. It was just two 16 out of many chapters, and it definitely was not 17 the heart. 18 and -- and development. The heart of it is really learning theory And the two chapters that I picked was, 19 20 one, introduction to research; and the other one was 21 just one aspect of adult learning, of learners, a 22 type of adult learner, which was the doctoral 23 students. 24 of the book in my opinion. 25 Q. Those are considered pretty minor aspects Okay. Did you own a copy of this book? Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 15   1 A. Yes, sir. 2 Q. And do you know if the library also owned 3 a copy? 4 A. Yes, sir. 5 Q. In -- In making your decision to use this 6 excerpt in the class, there -- these two excerpts in 7 the class in fall of 2009, did you utilize the fair 8 use checklist provided by Georgia State University? 9 A. Yes, sir. 10 Q. At the time you were preparing the reading 11 list for the class, the fall 2009 class, had you been 12 trained in the university's copyright policy that 13 encompasses the use of the checklist? 14 A. Yes. 15 Q. So did you attend a training session, one 16 or more training sessions about that? A. 17 You know, I don't remember completely. 18 I -- I know that there was, I believe, a training 19 session at the library and a training session in my 20 department. 21 they're kind of fuzzy in my memory. I believe I actually went to both, but But I know that I must have -- that 22 23 received training, 'cause I wouldn't have known how 24 to do it. 25 it. I wouldn't have even known anything about Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 16   1 Q. Okay. Did you understand there were 2 resources available, if you had questions, you could 3 look at on-line? 4 A. Yes. 5 Q. And did you understand there were 6 And I did. personnel available -- 7 A. Absolutely. 8 Q. -- to consult if you had questions? 9 A. Absolutely. 10 Q. Let me hand you what's been marked as 11 Defendant's Exhibit Greenberg No. 4 and ask you if 12 you could identify what this document is. 13 14 15 A. It's the fair use checklist that I used for -- for this book for this class. Q. Okay. And it says -- 16 print, but it says portions. 17 total of -- 18 It's kind of small can't read it. 19 20 21 22 You say two chapters I think you said 38 or 39 pages. I Do you see that? A. Yeah. It's hard to say. Maybe 38 but it's -Q. You say the entire book has 20-something 23 chapters and 537 pages, I think you wrote; is that 24 right? 25 A. Right. I obviously did not include the Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 17   1 subject index. 2 Q. Right. 3 A. Yeah. 4 5 MR. BLOOM: John. I'm sorry. Did you mark this? 6 MR. HARBIN: 7 4, Greenberg Exhibit 4. 8 Q. 9 Yes. (By Mr. Harbin) It's -- It's Exhibit And when did you fill this out? 10 A. 11 fall -- 12 Q. Was -- 13 A. -- 'cause that's when I prepare my 14 15 16 It would have been the summer before the classes. Q. Okay. Was it on or about July 1, 2009, the date up at the top -- 17 A. Oh. 18 Q. -- first page? 19 A. There you go. 20 21 22 I did do it. Okay. July 1st, yeah, 2009. Q. And the handwriting at the top of the first page, is that your handwriting? 23 A. Yes, sir. 24 Q. What does that say? 25 A. It was a note to myself that I should not Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 18   1 throw this out; and I should just basically keep 2 forever because it was something I was supposed to 3 keep forever; and I was worried that I would throw it 4 out, so I wrote that little note to myself. 5 6 Q. Okay. And that's what it says, keep forever? 7 A. Yes. 8 Q. And it was your understanding from the 9 10 instructions from GSU you were to retain the checklist that you filled out? 11 A. Yes, sir. 12 Q. Okay. MR. BLOOM: 13 14 Q. Just object to the form of the last question. 15 That's why I wrote that. 16 (By Mr. Harbin) And I'm not going to go through every factor, but just a couple of them. If you look at the second page, the third 17 18 factor, you checked a small portion of the work 19 used -- of work used? 20 A. Yes. 21 Q. And you checked -- You checked portion 22 used is not central or significant to entire work as 23 a whole? 24 A. Yes. 25 Q. And was that for the reason you testified Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 19   1 to earlier? A. 2 Yes. MR. HARBIN: 3 Excuse me. Let's go off the record one second. 4 THE VIDEOGRAPHER: 5 1:54 p.m. Off the record. 6 7 (Discussion ensued off the record.) 8 (Defendant's Exhibit 5 was marked for identification.) 9 THE VIDEOGRAPHER: 10 11 Q. Back on the record. 12 1:55 p.m. (By Mr. Harbin) And you checked the box 13 under that amount taken as narrowly tailored to 14 educational purpose, et cetera? 15 A. Uh-huh. 16 Q. And what was your thinking about that? 17 A. Well, the specific chapters that I picked, 18 they were directly related to -- to a few points that 19 I wanted them to get from the course. Q. 20 And then under Factor 4, just a couple 21 questions. You checked use stimulates market for 22 original work. 23 A. Uh-huh. 24 Q. What was your thinking in checking that 25 box? Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 20   A. 1 That if students found the chapters 2 interesting, they may want to purchase the book to 3 read the other chapters. Q. 4 Okay. And the handwriting on -- lower 5 down on the Factor 4 on that second page, what 6 appears to say "mistake" beside supplemental 7 classroom reading and then checked required classroom 8 reading -- 9 A. Yes. 10 Q. -- is that your handwriting? 11 A. Yes. 12 Q. And what does it say on the right-hand 13 side? It is. Does that say -- 14 A. "Correct answer." 15 Q. Okay. And so you checked -- In the form 16 you checked it's -- it is required classroom 17 reading -- 18 A. Yes. 19 Q. -- under Weighs Against Fair Use? 20 A. Uh-huh. 21 Q. Okay. And what was your overall 22 conclusion in 2009 about whether or not the use of 23 this excerpt or these two chapter excerpts in your 24 class would constitute fair use, as -- 25 A. I -Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 21   1 Q. -- you understood it? 2 A. I believed that it was fine to use under 3 the fair use guidelines because it only had one 4 checkmark in -- in one of the factors -- 5 Q. Okay. 6 A. -- and -- 7 Q. And -- 8 A. -- that was against fair use, so I -- 9 I believed it met the fair use. 10 Q. 11 of fair use? 12 A. 13 And you checked several that were in favor Yes. Uh-huh. And there were -- there were quite a few in the -- the fair use category. Q. 14 Okay. Is this something you did lightly, 15 or did you take time to do this and analyze this? 16 How would you -- 17 A. Oh. 18 Q. -- characterize your evaluation of fair A. Yeah. 19 20 use? 21 MR. BLOOM: 22 You can answer. 23 When I object, unless your counsel 24 25 Objection to form. instructs you not to answer, you can -THE WITNESS: Oh. Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 22   1 MR. BLOOM: 2 THE WITNESS: 3 I'm sorry. 4 Q. -- go ahead. Okay. Thank you. What was the question again? (By Mr. Harbin) Let me just -- How would 5 you characterize your deliberations about this, these 6 excerpts, and whether or not they're fair use? 7 A. Oh, I took it extremely seriously. I 8 mean, that -- 9 pointed out the correct answer, and I wrote keep 10 11 12 13 14 15 16 That's why when there was a mistake, I forever, and so forth. Q. Okay. In that regard, if you look back at the syllabus that is Greenberg Exhibit 1 -A. (Witness complies with request of counsel.) Q. -- do you have -- if you look at -- Do you give instructions about not copying -- 17 A. Yeah. 18 Q. -- copyrighted materials, not duplicating 19 necessarily or -- or selling such materials on the 20 first page -- 21 A. Yeah. 22 Q. -- under professional behavior? 23 A. Exactly. 24 Q. And do you give oral -- 25 Yes. I do. Did you give oral instructions in your class about that? Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 23   1 A. Yes. I go over the syllabus, and there 2 are a few things that I highlight orally; and that's 3 one of them, because students are generally 4 surprised. 5 they understand it. 6 7 Q. They don't know this, so I make sure that And did you do that in this class in the fall of 2009, to your recollection? 8 A. Yes, sir. 9 Q. Do you generally do that? 10 A. I -- 11 Q. Okay. 12 A. -- one of the things I always do. 13 Q. All right. Yeah. I do it every class. It's -- Have you had occasions where 14 you've undertaken an analysis of a work using this 15 checklist and determined that in your view at least 16 it would not be fair use -- 17 A. Yes, sir. 18 Q. -- or -- or was close enough call that 19 caused you concern? 20 A. Yes. 21 Q. And what did you do in those cases? 22 A. Did not use the readings. 23 Q. Okay. And what would you have done in 24 this case if you determined that these excerpts, 25 Chapters 3 and 20, would not have constituted fair Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 24   1 use? 2 A. I would not have used them. 3 Q. Okay. 4 Did the university encourage you to use Ereserve to post excerpts of works? 5 A. No. 6 Q. Did you ever use uLearn in this class in 7 posting excerpts of books for the class? 8 A. No. 9 Q. Following the university's adoption of the 10 copyright policy including the use of the fair use 11 checklist, did your practice about putting excerpts 12 on Ereserve change in any way? 13 A. MR. BLOOM: 14 15 16 17 18 Absolutely. Q. I'm sorry. (By Mr. Harbin) MR. BLOOM: How did it change? Could I just have that question and answer read back. (Whereupon, the record was read by the 19 reporter as requested.) 20 MR. HARBIN: Let me rephrase the question 21 if you've got stopping, 'cause that's not what I 22 intended to ask. 23 THE COURT REPORTER: Excuse me. 24 MR. HARBIN: Yeah. 25 THE COURT REPORTER: Right. Adoption. That's it. Do you want me to -Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 25   MR. HARBIN: 1 2 Q. I'll just reask it. 3 I'll just reask it. (By Mr. Harbin) Following the 4 university's adoption of the current copyright policy 5 that incorporates the use of the fair use checklist, 6 did your practice about putting excerpts on Ereserve 7 change in any way? 8 A. Yes. 9 Q. How did it change? 10 A. I was a lot more careful. I realized it 11 wasn't just a matter of pages, but I had to go 12 through this checklist. And over time I started to use fewer and 13 14 fewer and fewer chapters, to the point that today, 15 like if you looked at my syllabus for this semester, 16 I have zero chapters. 17 Q. And why is that? 18 A. Because, to be quite honest, this is very 19 onerous; and I take it seriously; and so it's -- 20 It's just not worth it to me to -- to have to do this 21 for every single thing that I want to assign to them, 22 so I don't. 23 24 25 Q. Okay. MR. BLOOM: I just move to strike the last two answers to the extent that they address Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 26   1 Professor Greenberg's practice following the 2 fall of 2009. 3 Q. 4 (By Mr. Harbin) Okay. And let me just -- As I said, I wanted to put this in the record. Let me hand you what's been marked as 5 6 Green -- Defendant's Greenberg Exhibit 5 and ask you 7 if that is a copy of your CV that -- your curriculum 8 vitae with names of students that appeared on Pages 2 9 through 4 redacted. 10 A. MR. BLOOM: 11 12 Yes. Can I get a copy of that, John. 13 MR. HARBIN: 14 MR. BLOOM: 15 MR. HARBIN: 16 Thank you, ma'am. 17 Q. Thanks. That's all I have right now. BY MR. BLOOM: 19 I'm sorry. CROSS-EXAMINATION 18 Oh, yes, yes. Okay. Good afternoon, Professor 20 Greenberg. 21 Manges on behalf of the plaintiffs. 22 you some additional questions. 23 I'm Jonathan Bloom with Weil, Gotshal & I'll be asking Can you give me your best guess as to how 24 many individual readings you've completed a checklist 25 for in your career at GSU? Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 27   1 A. I really don't know. No. 2 All I can say is that since the fair use 3 checklist became something that we were supposed to 4 do, I did it for every reading from a book that I was 5 thinking of assigning. 6 7 Q. Okay. So would -- you -- You can't give me a ballpark guess? 8 A. (Witness shakes head negatively.) 9 Q. Okay. And you testified a moment ago, I 10 think, that there were a few instances in which you 11 determined that a reading that you were contemplating 12 posting on the reserves was not fair use; is that 13 correct? 14 A. Uh-huh. 15 Q. Okay. 16 A. No. 17 Q. -- specifically? 18 A. No. 19 Q. You don't. 20 A. No. 21 Q. Okay. Do you recall when that occurred -- Okay. Do you recall the year? Can you tell me a little bit more 22 specifically with respect to those instances why you 23 concluded that the use would not be fair use? 24 25 A. I do not know. All I know is that I would do this checklist, and it would become apparent that Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 28   1 there were too -- either not enough factors in favor 2 of fair use and/or too many against fair use. 3 Q. Okay. Do you have a recollection as to 4 any of the specific readings that you decided would 5 not be fair use? 6 A. No. 7 Q. Okay. 8 Do you recall how long they were in -- in, you know, in length? 9 A. (Witness shakes head negatively.) 10 Q. Okay. 11 MR. HARBIN: 12 THE WITNESS: 13 MR. HARBIN: 14 If you could, answer audibly. Oh, sorry. Even though it's being videotaped -- 15 THE WITNESS: 16 MR. HARBIN: 17 Okay. THE WITNESS: -- it will be more clear. Okay. 18 Q. (By Mr. Bloom) Okay. 19 A. So the answer to that was no. 20 Q. (By Mr. Bloom) Okay. Do you recall with 21 respect to those works any of the factors on the 22 weighs against fair use side of the ledger on 23 Greenberg Exhibit 4 that you checked? 24 A. Can you repeat that one more time, please. 25 Q. Yeah. With respect to these works that Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 29   1 you concluded would not be fair use -- 2 A. Uh-huh. 3 Q. -- I'm wondering which of the boxes on the 4 weighs against fair use side of the checklist you 5 checked when you were completing the checklist for 6 those works. 7 A. It's not really an easily answerable 8 question, because I don't remember what works they 9 were, so I don't see how I could really know what I 10 would have checked or what I checked. 11 Yeah. Q. 12 Okay. If you don't remember, that's fine. Were there ever any -- 13 I can't. Was there ever an 14 occasion where you presented a proposed reading to 15 the library staff to be posted on a reserve where 16 they informed you that the reading would not be fair 17 use? 18 A. For 2009? 19 Q. Yes. 20 A. Okay. 21 Q. The question is whether during 2009 there Let's stick to 2009. And so what's the question again? 22 was ever a situation where you presented a reading to 23 the library for posting on Ereserves where they told 24 you it would not be fair use? 25 A. I believe that the answer would be no; but Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 30   1 that would be because I did this so carefully and 2 seriously, that it wouldn't have been an issue. 3 Q. And hypothetically -- 4 A. Okay. 5 Q. -- if the university provost were to tell 6 you that a reading that you wanted to post on 7 Ereserves would violate fair use -- 8 A. Uh-huh. 9 Q. -- would you -- and -- and asked you to 10 take remedial action, i.e., not post it on Ereserves, 11 would you follow that instruction -- 12 A. Yes. 13 Q. -- from the provost? 14 A. Yes. 15 16 I would not post anything that violated fair use. Q. Okay. And if the head of the library had 17 told you the same thing, that posting an excerpt 18 would not be fair use, would you follow that 19 instruction? 20 A. Yes. 21 Q. Okay. 22 The same question with respect to the university president? 23 A. Yes. 24 Q. Same question with respect to the Board of 25 Regents? Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 31   1 A. Yes. 2 Q. Okay. 3 Turning back to the -- Oh, strike that. Just if you would, refer to Exhibit 1, 4 5 which is the -- the syllabus. 6 moment ago at the paragraph on the first page on 7 professional behavior. 8 A. Uh-huh. 9 Q. Right. We were looking a You see about halfway down the -- 10 or actually, I guess the second to last sentence -- 11 I'm sorry -- third to last sentence in the paragraph 12 says, "Duplicating copyrighted materials is illegal, 13 and copying and selling such material is a felony." Do you see that? 14 15 A. Yes, sir. 16 Q. Okay. Do you have an understanding as to 17 whether copying is involved in the process of -- is 18 involved with the Ereserve -- Ereserves system? 19 A. What do you mean? 20 Q. Strike that. 21 Do you have an understanding as to whether 22 when you instruct a -- when you select a reading for 23 posting on Ereserves and the library staff posts it 24 on Ereserves at your direction, do you have an 25 understanding as to whether copying is involved in Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 32   1 2 that process, posting the work on Ereserves? A. I'm not involved with the process of how 3 it gets on Ereserves, but it would have followed the 4 fair use act (indicating). 5 Q. Okay. But do you have an understanding 6 one way or the other as to whether there are acts of 7 copying involved in the posting of the reading on 8 Ereserves? 9 A. I've never asked nor -- I don't -- 10 I mean -- 11 involved but -- 12 Q. Huh. I mean I -- I guess copying would be Okay. But I don't know that for a fact. Do you have any understanding as to 13 whether copying is involved when a student accesses a 14 reading on Ereserves? 15 A. I do not know. 16 Q. Okay. 17 In your experience when -- And let's talk specifically with respect to this course. 18 A. Okay. 19 Q. In your experience do students in this 20 class sometimes print out the readings from Ereserves 21 and bring them to class? 22 23 24 25 A. They do sometimes print out readings. Which readings they print out, I do not remember. Q. Do you make a recommendation to them that they should print out readings and bring them to Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 33   1 class? 2 A. Yes. 3 Q. Okay. 4 A. That sometimes students find it helpful to 5 6 7 And what do you tell them? bring copies of the readings to the class. Q. Okay. So do you tell them that it's something that they may want to do? 8 A. Like I say, sometimes it's helpful. 9 Q. Okay. 10 A. Yeah. 11 Q. Okay. 12 13 Would you say most students in -- in this class follow that advice? A. No. Not necessarily, because there are a 14 lot of readings and a lot of articles; and this 15 generation of students are very comfortable reading 16 off the screen. 17 Q. Okay. 18 A. And they don't necessarily need to bring 19 20 hard copies of anything. Q. Okay. And when a student prints a copy of 21 a reading off of Ereserve, do you have an 22 understanding one way or the other as to whether an 23 act of copying is involved in that process? 24 25 A. It -- It feels like you're trying to trick me into something 'cause -Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 34   1 Q. No. 2 A. I mean, you know. 3 Q. I assure you I'm not. 4 A. -- if -- if they're bringing a -- a 5 I mean -- copy -- I mean, this is a copy (indicating), right? So I -- 6 I'm not sure exactly how to 7 answer your question; but if they're bringing a copy, 8 then yes. Q. 9 10 question. I guess it's a copy. Well, let -If -- Let me rephrase the If a student downloads -- 11 A. Yes. 12 Q. -- a reading from Ereserve and prints it 13 out -- 14 A. Okay. 15 Q. -- and brings it to class, is it your 16 understanding one way or the other as to whether a -- 17 a copy is made? A. 19 20 I would have to say yes, a copy has been Q. 18 Okay. made. Mr. Harbin asked you, I believe, 21 whether GSU encouraged you to use Ereserves. 22 remember that? 23 A. Uh-huh. 24 Q. Okay. Do you 25 And your answer was no. Am I -- Is that right? Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 35   1 2 A. No. He -- He asked about -- specifically about excerpts from chapters. 3 Q. Okay. 4 A. We were encouraged, if we had readings 5 which could include articles -- 6 I mean, we were encouraged to use Ereserves -- 7 Q. Okay. 8 A. -- as a place; but, you know, that -- 9 10 He specifically asked about book chapters. Q. Okay. And just following up on that, 11 what -- what do you recall you were told with -- 12 Strike that. So at some point, I take it, you were 13 14 advised that Ereserves was an alternative way for you 15 to make readings available to students; is that 16 correct? 17 A. Yes, sir. 18 Q. And do you recall when that was? 19 A. No, sir. 20 Q. Okay. Do you recall -- Do you recall 21 anyone in the university administration ever saying 22 to you either one on one or as a part of a meeting of 23 some kind that it was a good idea to use Ereserves? 24 25 A. To be honest, I don't -- I don't remember how I learned about Ereserves in general. I -- I Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 36   1 know that at some point I learned that Ereserves was 2 a good place to put materials for classes. 3 Q. Okay. And I believe for this course, 4 according to the syllabus, the readings for Ereserves 5 were articles. 6 on Ereserves were articles; is that correct? 7 A. The -- the readings that were placed It would be whatever is on the syllabus 8 with -- except for the physical books that were 9 physically available to the students, so it included 10 mainly articles. You're correct. 11 Q. Okay. 12 A. But it did include, as you know, these two 13 chapters. 14 Q. Okay. When did you start teaching at GSU? 15 A. About 2001. I -- 16 It's possible that -- I taught I think one class as a 17 staff member, and that would have been in the late 18 1990s, but I became a faculty member in 2001. 19 20 21 22 Q. Okay. What was your position at the time when you were -- in 2001? A. Two -- You mean where did I come from as staff? 23 Q. No. I mean what was your title? 24 A. Oh. Assistant professor. 25 Q. Okay. And your title today is? Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 37   1 A. Associate. 2 Q. Associate. 3 Okay. And are you a tenured -- 4 A. Yes. 5 Q. -- faculty member? Okay. 6 7 And do you recall when you began using Ereserves -- 8 A. No. 9 Q. -- at GSU? You don't? 10 11 A. No. 12 Q. Was it sometime after 2001? 13 A. Yes. 14 Q. Okay. It wasn't immediately at 2001. And -- And how did you make 15 articles available to your students prior to the time 16 you started using Ereserves? 17 A. Through a course packet. 18 Q. Do you recall just roughly sort of over 19 20 21 how many years you used course packs? A. twice. I do have a recollection of using it It's possible I used it more. 22 Q. Okay. 23 A. Yes, sir. 24 Q. Okay. 25 Twice meaning for two classes? And would you say -- is it a -- and -- and -Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 38   So now do you continue to use course 1 2 packs? 3 A. No. 4 Q. Okay. And do you have an understanding as 5 to whether with respect to those course packs any 6 fees were paid to the publishers of the materials you 7 used in the course packs? 8 A. I do not know. 9 Q. Okay. 10 You don't know one way or the other? 11 A. No. 12 Q. Okay. Okay. And with respect to the 13 readings that have been posted on Ereserves at your 14 direction, do you have an understanding as to whether 15 any fees were paid for any of those readings to the 16 publisher? 17 A. I do not know. 18 Q. Okay. Okay. And when did you first 19 become aware of the -- of the new GSU copyright 20 policy? 21 A. 22 use it. 23 Q. Okay. 24 A. No. 25 Q. Okay. Whenever they told us we were supposed to Sorry. I don't remember. It was prior to the fall of 2009? I don't remember. Do you recall reading the policy? Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 39   1 A. I would have. Yes. 2 Q. Okay. 3 A. I don't have a strong memory of it, but I 4 would have read it in order to -- to understand what 5 I'm supposed -- 6 Q. Okay. 7 A. -- to be doing. 8 Q. Do you today have a physical copy of the 9 10 GSU copyright policy? A. I don't know for a fact, but my guess is 11 that in the same place that I keep all these things 12 (indicating), I probably have that copyright. 13 Q. Okay. 14 A. A memo whatever it's called. 15 Q. Okay. 16 I'm just going to show you a document. (Plaintiff's Exhibit 1 was marked for 17 18 identification.) 19 Q. (By Mr. Bloom) Oops. Let me show you a document that I've 20 21 marked as Greenberg Plaintiff's Exhibit 1 and ask you 22 if you recall having seen this before. 23 A. It looks familiar. 24 Q. Okay. 25 A. So yes. I believe it -Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 40   1 Q. And what -- 2 A. It's -- What is this? Well, it says a whole bunch of 3 different things; but it's basically all the things 4 that can help me know how to do this. 5 actual policy, the general policy; and let's see. 6 It's all about fair use and how to use the fair use 7 checklists and so forth. 8 9 10 Q. 13 14 15 16 For the record, the first page of this document is titled, "Policy on the Use of Copyrighted Works in Education and Research." Okay. 11 12 Okay. It's the So do you -- Do you recall reading the -- reading this document? A. It looks very familiar, so yes. I believe I did read it. Q. Okay. If I could direct your attention to Page 15. 17 A. Okay. 18 Q. You'll see toward the bottom there, 19 there's a -- 20 are two bullets, and the first one says, "Copyright 21 Clearance Center." Under the heading "Online Works," there 22 A. Uh-huh. 23 Q. Do you see that? Do you know what the Copyright Clearance 24 25 Center is? Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 41   1 A. No. 2 Q. Okay. 3 A. I don't think so. 4 Q. Okay. 5 the -- I don't. Have you ever heard of it before? So given that answer, I take it Strike that. So you don't recall anyone from GSU ever 6 7 explaining to you what the Copyright Clearance Center 8 is? 9 A. It's possible they did. 10 Q. Okay. I don't remember. And you said you've -- You 11 testified earlier I think that you -- you believe you 12 attended a training session -- 13 A. Uh-huh. 14 Q. -- at least one -- 15 A. Right. 16 Q. -- correct? Okay. 17 18 Do you recall whether there were any materials distributed at -- 19 A. Yeah. 20 Q. -- at a meeting? 21 A. I have a vague memory of PowerPoint stuff 22 23 24 25 and some stuff from this packet. Q. Okay. Now turning for a moment to the fair use checklist -A. Okay. Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 42   Q. 1 -- this was Exhibit 4. Looking at the 2 first page under Factor 1, you did not check on the 3 left-hand side transformative use, correct? 4 A. Uh-huh. 5 Q. And on the right-hand side, you didn't 6 check nontransformative either, correct? 7 A. Uh-huh. 8 Q. Okay. 9 10 Do you have an understanding as to what transformative means in the context of copyright law? A. 11 I believe it means that you are -- are 12 doing something to the actual document that changes 13 it. 14 Q. And with respect to these excerpts from 15 adult development and learning, do you have an 16 understanding as to whether they -- whether your use 17 of them in connection with Ereserves is 18 transformative? 19 A. I don't believe they are. 20 Q. Okay. 21 Okay. Is there a reason you didn't check nontransformative? 22 A. Don't remember. 23 Q. Okay. And by the way, you did not for any 24 of the factors check either factor weighs in favor of 25 fair use or factor weighs against fair use. Is that Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 43   1 a -- Was that an oversight on your part? 2 A. I'm not sure what you're saying. 3 Q. If you look at, for example, in Factor 5 A. Uh-huh. 6 Q. -- at the bottom, on -- there's a box on 4 7 1 -- the left -- 8 A. Oh. 9 Q. -- that says, "...Weighs in Favor...," and 10 one on the right that says "... Weighs Against Fair 11 Use." Do you see that? 12 13 A. Yes. 14 Q. Okay. I do. I -- and I take it you -- that 15 was -- 16 check one of the two? 17 18 Was that an oversight on your part not to A. Yeah. My guess is that I did it in my head and -- 19 Q. Okay. 20 A. -- didn't think about it at that time -- 21 Q. Okay. 22 A. -- of marking it. 23 Q. Okay. But is -- Did you conclude with 24 respect to each of the four factors that they weighed 25 in favor of fair use? Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 44   A. 1 I don't remember if I concluded that for 2 every factor, but I do know that I would have 3 concluded that overall. Q. 4 It qualified as fair use. And just in -- in general, did you have an 5 understanding as to whether each -- each of the 6 subfactors, that is, each -- each box was to be given 7 equal weight in the fair use analysis? A. 8 9 10 I've done these checklists. I -- I guess I would -- I would have gone by whatever the instructions say. Q. 11 12 You know, it's been such a long time since So sitting here today, you don't recall; is that correct? 13 A. Right. 14 Q. Okay. 15 you. And do -- do you -- Let me ask Sitting here today -- 16 A. Uh-huh. 17 Q. -- do you have any understanding as to 18 whether Factors 1, 2, 3, and 4 are each to be given 19 equal weight in the fair use analysis? A. 20 That feels a little bit like an unfair 21 question, because I don't put -- I don't assign 22 chapters from books anymore that -- unless I require 23 students to buy them, so it's been a really long time 24 since I've studied the fair use checklist, so I don't 25 know. Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 45   I mean, if you want me to study, you know, 1 2 this stuff now, I can tell you what I think. 3 Q. Okay. 4 A. But I just don't remember. MR. BLOOM: 5 Okay. Well, recognizing that 6 my question invited it, I'm going to move to 7 strike the answer to the -- prior answer to the 8 extent it addresses your current practice, which 9 is not something I'm faulting you for. THE WITNESS: 10 11 12 Q. (By Mr. Bloom) Okay. But let's -- Let's cast your mind back -- 13 A. Okay. 14 Q. -- to the fall of 2009. 15 Do you recall if at the time -- 16 A. Uh-huh. 17 Q. -- you had an understanding as to whether 18 each of the Factors 1 through 4 was to be weighed 19 equally? 20 A. I really don't remember. 21 Q. Okay. That's fine. Referring you to your curriculum vitae -- 22 23 A. Okay. 24 Q. -- it's Exhibit 5. 25 You note that beginning on Page 10, there's a list of what is Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 46   1 called refereed journal articles. 2 A. Yes, sir. 3 Q. Can you explain what a refereed journal 4 article is. A. 5 Sure. It's an article that's published in 6 a journal; and in order to be accepted into the 7 journal, blind reviewers review the -- the 8 manuscript. I don't know who's reviewing the 9 manuscript. They don't know who's written the 10 manuscript. And then based on their reviews, it either 11 12 gets accepted; or you have to make changes; or it 13 gets rejected for publication. Q. 14 Okay. And why is it that you list these 15 articles as a sort of separate category on the -- on 16 your curriculum vitae? A. 17 Because that's what we do in academia. 18 guess it's also for promotion and tenure purposes. 19 It -- I It served, I guess, many different purposes. But having a journal article that has been 20 21 refereed is considered higher status, higher 22 scientific value than an article that is not, so 23 you're expected to differentiate the types of 24 publications you have. 25 Q. All right. And how -- how does the Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 47   1 referee -- refereeing process work? Is that 2 something that is organized by the publisher of the 3 journal -- 4 A. I believe -- 5 Q. -- if you know? 6 A. -- it's the editor; and -- and what the 7 interaction is between editor and publisher, I do not 8 know. 9 Q. Okay. And so is a refereed journal 10 article considered a -- an important credential for 11 the academic promotion process? 12 A. Yes. 13 Q. Okay. 14 A. I have published chapters, two chapters in And have you published books? 15 two different books, but I have not edited or 16 published a whole book. 17 Q. Okay. 18 A. They're on Page 13, the top of Page 13. 19 Q. Okay. 20 21 22 25 Were those refereed, those chapters? A. The first one, "Tales from the field," was invited. The second one, I do not know. 23 24 And were -- It's a long time ago. Q. Okay. Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 48   1 A. I was still a student. 2 Q. Okay. And have you ever published a -- 3 either a journal article or a book chapter where the 4 publisher played a role in helping you shape the 5 content of the -- 6 A. No. 7 Q. -- article? 8 9 10 11 Okay. With respect to these book chapters, did you -- did you sign a -- a contract with the publisher? A. Wow. The second one, I was still a 12 student. 13 coauthor, so my guess is probably not. 14 first author did it. 15 I do not remember. I was a second Probably the The first one, I vaguely remember signing 16 something, but I don't know if that was with the 17 editor or the publisher or what it was. 18 19 Q. Okay. Okay. So do you endeavor to publish regularly in your field of expertise? 20 A. Yes. 21 Q. Okay. 22 A. I guess for two reasons. Why is that? One is that 23 that's the only way to move the field forward is by 24 getting your work out there, and then from the 25 selfish reason I need it for my job. Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 49   1 Q. Okay. Why do you need it for your job? 2 A. Because that's -- I -- I guess I don't 3 strictly need it at this point; but that's how you're 4 valued on your job, by what you produce. 5 6 7 8 9 10 11 Q. Okay. How important are publications in -- in the tenure evaluation process at GSU? A. Refereed article publications are important. Q. Okay. And what about -- What about books? A. I -- I do not know for a fact, but my 12 understanding is that books are given lower currency 13 than articles. 14 15 16 Q. And -- And do you have an understanding as to why that is the case? A. Because they don't go through as -- the 17 more -- as more of a -- as much of a vigorous 18 refereeing process as articles do -- 19 Q. Okay. 20 A. -- or as refereed articles do. 21 There isn't that blind review. 22 Q. Okay. 23 A. But I could be wrong. 24 25 involved. Q. I've never been That's what I mean. Yeah. I was just going to ask you. Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 50   1 Have you -- have you ever served as a referee for -- 2 A. Oh, yeah. 3 Q. -- someone else's scholarly work? 4 A. Yes. 5 Q. Okay. 6 A. Oh, for articles. 7 Q. For articles. 8 A. No. 9 Q. Okay. 10 But never for a book. And who asked you to participate as a referee with respect to the -- let's just -A. 11 It really varies. You know, for instance, 12 a -- a journal will -- will not specialize, let's 13 say, in adult literacy, which is my area of 14 expertise; and all of a sudden, someone submits an 15 article -- a manuscript for possible publication in 16 their journal on adult literacy. So they know of my name; and they'll 17 18 contact me, asking me if I can review this one 19 manuscript. 20 In other situations I'm actually on their 21 editorial board, so I routinely get manuscripts from 22 them. 23 24 25 Q. Okay. Going back for a moment to course packs -A. Uh-huh. Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 51   1 Q. -- just a couple of questions. Comparing 2 a course pack to a reading on Ereserve from the 3 student's perspective, can you identify any -- any 4 differences between the two types of reading 5 materials? 6 7 A. 10 11 Well, that's probably because I was never a student that had access to -When I was a student, things were not 8 9 I don't know. electronic yet, so yeah. Q. But I mean other -- other than the fact that one is paper and one is -- 12 A. Yeah. 13 Q. -- digital, are -- can you identify any 14 distinction? 15 A. No. 16 Q. Were you asked to collect any documents in 17 collect -- in connection with this litigation? 18 A. No. 19 Q. Okay. 20 Did you provide any documents to counsel in connection with this litigation? 21 A. Just my vitae (indicating). 22 Q. Okay. 23 A. Oh, yes. How about the fair use checklist? This was awhile ago, though. 24 don't -- 25 I I don't remember when but -- so I'm guessing it was with this case. Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 52   But yeah. 1 At some point I got an e-mail 2 from -- from I think one of the GSU lawyers asking me 3 for my fair use checklists of some -- 4 Q. Okay. 5 A. -- year or something. 6 Q. Okay. 7 8 9 And what, if anything, did you do to prepare for this deposition? A. Look up when I first started at GSU, because I never remember. 10 Q. Okay. 11 A. But that's it. Oh. 12 13 14 15 16 (indicating). Q. And I met -- I met with him Last week. Okay. And did you look at any documents with John? A. Oh, with John, yes. He showed me my 17 syllabus, and he showed me the fair use checklist, 18 and he showed me the two readings. 19 Q. Okay. I don't want you to tell me 20 anything that the two of you discussed. 21 I'm not asking for that. 22 A. Oh, okay. 23 Q. Did you speak to anyone other than -- 24 25 other than John about this deposition? A. I -- I did speak to -- I -- I think Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 53   1 they're called GSU lawyers in terms of practicalities 2 like scheduling and stuff like that. 3 Q. 4 else -- 5 A. Okay. 6 Q. -- any substance of what you talked about 7 And I don't want to know anything with them either. Have you read anything about this case in 8 9 Okay. the press or the blogosphere? 10 A. No. 11 Q. Okay. 12 Did you ever ask for help from anyone in completing a fair use checklist? A. 13 I don't have specific examples, but I 14 would have -- I do remember talking to librarian 15 staff, whether it was for this particular class or 16 not. But there -- there would sometimes be 17 18 occasions where that -- where I would get to some 19 item, and I wouldn't know how to fill it out, and I 20 would call and ask for help. 21 22 Q. Okay. recollection of -- of any of those conversations? 23 A. No. 24 Q. Okay. 25 And do you have any specific I just know that I had them. Do you recall who specifically you spoke to? Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 54   1 2 A. Whoever was assigned to help me, 'cause I don't remember who -- 3 Q. It was -- 4 A. -- it was. 5 Q. -- someone in the library -- 6 A. Yes. 7 Q. -- correct? 8 A. I believe so. 9 Q. Okay. 10 A. Or it might have been somebody in the 11 legal department. I -- I don't remember. 12 Q. You don't recall? 13 A. It would be one of those two. 14 Q. Okay. 15 A. Or maybe both. 16 Q. Okay. And is it your testimony that you 17 had a question about a specific item on the 18 checklist? 19 A. No. My testimony is that I remember 20 having questions, but I don't remember what they 21 were, and I remember seeking help about -- 22 Q. Okay. 23 A. -- about them. 24 Q. And do you remember getting the help that 25 you were seeking? Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 55   1 A. MR. BLOOM: 2 3 Okay. Go off the record for a minute. THE VIDEOGRAPHER: 4 5 Yes. 2:37 p.m. Off the record. 6 (Discussion ensued off the record.) 7 THE VIDEOGRAPHER: 8 Q. Back on the record. 9 2:39 p.m. (By Mr. Bloom) Okay. Professor 10 Greenberg, if I could direct your attention back to 11 fair use checklist -- 12 A. Uh-huh. 13 Q. -- on the second page, Factor -- Factor 4, 14 on the right-hand side, the second box is "Licensing 15 or permission reasonably available." Do you see that? 16 17 A. Uh-huh. 18 Q. And you didn't check that, correct? 19 A. Uh-huh. 20 Q. Can you tell me why not? 21 A. I don't remember. 22 Q. Okay. 23 Do -- do you have -- Strike that. Do you recall whether you investigated 24 whether licensing or permission was reasonably 25 available for use of portions of -- of this text? Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 56   1 A. I don't remember. 2 Q. Okay. I'm sorry. And you concluded that use of these 3 excerpts would not have a significant effect on the 4 market or potential market for the copyrighted work, 5 correct? 6 A. Yes, sir. 7 Q. Okay. 8 9 And can you just explain to me what your thinking was on that factor. A. I thought that two chapters or 30-some-odd 10 pages from such a big book would not impact the 11 selling of the book in -- in any kind of major way. 12 Q. Okay. And in evaluating that subfactor, 13 did you take into consideration the market for the -- 14 the licensing of excerpts from the book? 15 A. I do not know. 16 Q. Okay. 17 A. No. 18 19 20 You don't recall doing so? I don't -- I don't remember one way or the other. MR. BLOOM: Okay. I have no further questions. 21 MR. HARBIN: All right. Thank you, ma'am. 22 I don't have anything else. 23 THE VIDEOGRAPHER: 24 MR. HARBIN: 25 THE WITNESS: This -- You're done. Cool. Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 57   1 THE VIDEOGRAPHER: This concludes the 2 videotape deposition of Professor Daphne 3 Greenberg, April 21, 2011, 2:42 p.m. 4 the record. 5 6 7 We're off (Whereupon, the deposition was concluded at 2:43 p.m.) (Pursuant to Rule 30(e) of the Federal 8 Rules of Civil Procedure and/or O.C.G.A. 9 9-11-30(e), neither a party nor the deponent 10 having requested right of review of the 11 deposition, the reading and signing of the 12 deposition is waived.) 13 14 15 16 17 18 19 20 21 22 23 24 25 Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 58   C E R T I F I C A T E 1 2 3 STATE OF GEORGIA: 4 COUNTY OF FULTON: 5 I hereby certify that the foregoing 6 7 transcript was taken down, as stated in the 8 caption, and the questions and answers thereto 9 were reduced to typewriting under my direction; 10 that the foregoing pages 1 through 57 represent 11 a true, complete, and correct transcript of the 12 evidence given upon said hearing, and I further 13 certify that I am not of kin or counsel to the 14 parties in the case; am not in the regular 15 employ of counsel for any of said parties; nor 16 am I in anywise interested in the result of said 17 case. 18 This, the 25th day of April, 2011. 19 20 S. JULIE FRIEDMAN, CCR-B-1476 21 22 23 24 25 Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com Daphne Greenberg, Ph.D. April 21, 2011 59   1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COURT REPORTER DISCLOSURE Pursuant to Article 10.B of the Rules and Regulations of the Board of Court Reporting of the Judicial Council of Georgia which states: "Each court reporter shall tender a disclosure form at the time of the taking of the deposition stating the arrangements made for the reporting services of the certified court reporter, by the certified court reporter, the court reporter's employer or the referral source for the deposition, with any party to the litigation, counsel to the parties, or other entity. Such form shall be attached to the deposition transcript," I make the following disclosure: I am a Georgia Certified Court Reporter. I am here as a representative of Esquire Deposition Solutions. Esquire Deposition Solutions was contacted to provide court reporting services for the deposition. Esquire Deposition Solutions will not be taking this deposition under any contract that is prohibited by O.C.G.A. 9-11-28(c). Esquire Deposition Solutions has no contract/agreement 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. Esquire Deposition Solutions 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. S. Julie Friedman, CCR-1476 Toll Free: 877.495.0777 Facsimile: 404.495.0766 2700 Centennial Tower 101 Marietta Street Atlanta, GA 30303 www.esquiresolutions.com