Cambridge University Press et al v. Patton et al

Filing 384

RESPONSE to 361 Plaintiffs' Revised List of Works at Issue filed by J. L. Albert, Mark P. Becker, Kenneth R. Bernard, Jr, Larry R. Ellis, Rutledge A. Griffin, Jr, Robert F. Hatcher, C. Thomas Hopkins, Jr, W. Mansfield Jennings, Jr, James R. Jolly, Donald M. Leebern, Jr, William NeSmith, Jr, Risa Palm, Doreen Stiles Poitevint, Willis J. Potts, Jr, Neil L. Pruitt, Jr, Wanda Yancey Rodwell, Nancy Seamans, Kessel Stelling, Jr, Benjamin J. Tarbutton, III, Richard L. Tucker, Larry Walker, Philip A. Wilheit, Sr. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Bates, Mary) Modified on 6/8/2011 in order to update docket text (ank).

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION CAMBRIDGE UNIVERSITY PRESS, et al., Plaintiffs, Civil Action No. 1:08-CV-1425-ODE -vMARK P. BECKER, in his official capacity as President of Georgia State University, et al., Defendants. DEFENDANTS’ SUBMISSION IN RESPONSE TO PLAINTIFFS’ REVISED LIST OF WORKS AT ISSUE During the trial, Plaintiffs filed their reduced list of the number of works at issue and a summary what Plaintiffs contend are the relevant facts about those remaining works. (Plaintiffs now claim 75 acts of infringement over the three relevant semesters in 2009, by 23 professors concerning 64 works.) This Submission by Defendants is to respond to Plaintiffs’ revised listing and to summarize Defendants’ contentions as to the remaining works -- in addition to Defendants’ contention that the professors’ actual or alleged uses of the works at issue constituted fair uses. (Defendants refer to the “actual or alleged” infringements because, while Plaintiffs have cut the number of alleged infringements, Plaintiffs are still over-stating the number of alleged uses, in light of the evidence adduced at trial. For example, Plaintiffs are still claiming infringement by Professor Murphy as to seven works, even though Professor Murphy required students to purchase two of the books and did not use the other five excerpts in class; he merely apprised the students that the remaining excerpts were available on ERes. Similarly, Plaintiffs still claim that Professor Kaufmann used a work that she did not use.) Attached as Exhibits “A,” “B,” and “C” are lists reflecting, by semester, the reduced number of works about which Plaintiffs presently complain, including the title of the work, the publisher, the total numbers of chapters and pages, the number of chapters and pages allegedly used, and Plaintiffs’ and Defendants’ respective contentions as to the amounts (in terms of percentages) used. In addition, the list identifies instances in which a significant number of the excerpt pages at issue are plainly not protectable under copyright law, either because the pages contain public domain material or the publisher has specifically stated the pages can be copied for classroom use, and calculates the percentage used net of the pages that are plainly not protectable. 2 Finally, the lists in Exhibits “A,” “B,” and “C” set forth the contentions by Defendants as to each excerpt (in addition to the contention that the actual or claimed use of the excerpt was fair use). In addition to indentifying the excerpt pages that plainly constitute unprotectable matter, the list summarizes the lack of proof of ownership regarding the works as to which ownership is still an issue. Additionally, the list identifies the works as to which Defendants contend Plaintiffs are not entitled to any presumptions, such as a presumption of originality, either because of the status of the work as a foreign work or because Plaintiffs did not register the work until more than five years after first publication. Respectfully submitted this 7th day of June, 2011. SAMUEL S. OLENS Georgia Bar No. 551540 Attorney General R. O. LERER Georgia Bar No. 446962 Deputy Attorney General DENISE E. WHITING-PACK Georgia Bar No. 558559 Senior Assistant Attorney General MARY JO VOLKERT Georgia Bar No. 728755 Assistant Attorney General 3 /s/ Mary Katherine Bates Mary Katherine Bates Georgia Bar No. 384052 John W. Harbin Georgia Bar No. 324130 Stephen M. Schaetzel Georgia Bar No. 628653 KING & SPALDING LLP 1180 Peachtree Street, N.E. Atlanta, GA 30309 Telephone: (404) 572-4600 Facsimile: (404) 572-5100 Email: kbates@kslaw.com Anthony B. Askew Special Assistant Attorney General Georgia Bar No. 025300 McKeon, Meunier, Carlin & Curfman, LLC 817 W. Peachtree Street NW, Suite 900 Atlanta, GA 30308 Phone: 404-645-7709 Fax: 404-645-7707 taskew@m2IPlaw.com Katrina M. Quicker Georgia Bar No. 590859 BALLARD SPAHR LLP 999 Peachtree Street, Suite 1000 Atlanta, GA 30309-3915 Telephone: (678) 420-9300 Facsimile: (678) 420-9301 Email: quickerk@ballardspahr.com Attorneys for Defendants 4 CERTIFICATE OF COMPLIANCE Pursuant to Rule 7.1D of the Local Rules of the Northern District of Georgia, counsel for Defendants certifies that the foregoing DEFENDANTS’ SUBMISSION IN RESPONSE TO PLAINTIFFS’ REVISED LIST OF WORKS AT ISSUE was prepared in a font and point selection approved by this Court and authorized in Local Rule 5.1C. /s/ Mary Katherine Bates Mary Katherine Bates UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION CAMBRIDGE UNIVERSITY PRESS, et al, Plaintiffs, Civil Action No. 1:08-CV-1425-ODE -vs.MARK P. BECKER, in his official capacity as Georgia State University President, et al., Defendants. CERTIFICATE OF SERVICE The undersigned hereby certifies that on this 7th day of June, 2011, I have electronically filed the foregoing DEFENDANTS’ SUBMISSION IN RESPONSE TO PLAINTIFFS’ REVISED LIST OF WORKS AT ISSUE with the Clerk of the Court using the CM/ECF system, which will automatically send email notification of such filing to the following attorneys of record: Edward B. Krugman krugman@bmelaw.com Georgia Bar No. 429927 Corey F. Hirokawa hirokawa@bmelaw.com Georgia Bar No. 357087 John H. Rains IV rains@bmelaw.com Georgia Bar No. 556052 R. Bruce Rich Jonathan Bloom Randi Singer Todd D. Larson WEIL, GOTSHAL & MANGES LLP 767 Fifth Avenue New York, NY 10153 Telephone: (212) 310-8000 Facsimile: (212) 310-8007 BONDURANT, MIXSON & ELMORE, LLP 1201 West Peachtree Street N.W. Suite 3900 Atlanta, GA 30309 Telephone: (404) 881-4100 Facsimile: (404) 881-4111 /s/ Mary Katherine Bates Mary Katherine Bates Georgia Bar No. 384052 KING & SPALDING LLP 1180 Peachtree Street, N.E. Atlanta, GA 30309 Telephone: (404) 572-4600 Facsimile: (404) 572-5100 Email: kbates@kslaw.com 2