Cambridge University Press, et al v. J.L. Albert, et al

Filing 34

MOTION to dismiss appeal for lack of appellate jurisdiction., to consolidate appeals 12-14676 and 12-15147 filed by Appellees J. L. Albert, Mark P. Becker, Kenneth R. Bernard, Jr., Robert F. Hatcher and W. Mansfield Jennings, Jr.. Motion is Opposed [6689964-1] (ECF: Stephen Schaetzel)

EXHIBIT D

Case 1:08-cv-01425-ODE Document 462 Filed 09/30/12 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
CAMBRIDGE UNIVERSITY PRESS;
OXFORD UNIVERSITY PRESS, INC.j
SAGE PUBLICATIONS, INC.,
Plaintiffs,

v.

CIVIL ACTION NO.
1:08-CV-142S-0DE

MARK P. BECKER, in his official
capacity as President of
Georgia State UniversitYi RISA
PALM, in her official capacity
as Senior Vice President for
Academic Affairs and Provost of
Georgia State University; J.L.
ALBERT, in his official
capacity as Georgia State
University Associate Provost
for Information Systems and
Technology; NANCY SEAMANS, in
her official capacity as Dean
of Libraries at Georgia State
University; ROBERT F. HATCHER,
in his official capacity as
Vice Chair of the Board of
Regents of the University
System of Georgia; KENNETH R.
BERNARD, JR., LARRY R. ELLIS,
W. MANSFIELD JENNINGS, JR.,
JAMES R. JOLLY, DONALD M.
LEEBERN, JR., WILLIAM NESMITH,
JR., DOREEN STILES POITEVINT,
WILLIS J. POTTS, JR., C. DEAN
ALFORD, KESSEL STELLING, JR.,
BENJAMIN J. TARBUTTON, III,
RICHARD L. TUCKER, LARRY
WALKER, RUTLEDGE A. GRIFFIN,
JR., C. THOMAS HOPKINS, JR.,
NEIL L. PRUITT, JR., and PHILIP
A. WILHEIT, SR.! in their
official capacities as members
of the Board of Regents of the
University System of Georgia!
Defendants.

Case 1:08-cv-01425-ODE Document 462 Filed 09/30/12 Page 2 of 12

ORDER
This copyright infringement case is currently before the Court
on Defendants' Motion for Leave to Supplement the Detailed Request
for

Attorneys'

Fees

and

determination of attorneys'
August

10,

2012

Order,

Other

Costs

[Doc.

455]

and

for

a

fees and costs following this Court's

which

found

Defendants

reasonable attorneys' fees and costs [Doc. 441].

are

entitled

to

On August 24, 2012,

Defendants filed their Memorandum in Support of Defendants' Detailed
Request for an Award of Attorneys' Fees and Other Costs [Doc. 444].
Defendants subsequently filed three supplemental statements
446; Doc. 448; Doc. 453].

Plaintiffs filed objections to Defendants'

request on September 10, 2012 [Doc. 451].
Defendants

request

a

total

of

As of September 11, 2012,

$3,039,240.10

$2,953,493.71

attorneys' fees and $85,746.39 in costs [Doc. 453 at 3].1
held a

hearing on this

[Doc.

matter on September 14,

2012.

in

The Court
At

this

hearing, Defendants moved to submit a supplemental filing, to which
Plaintiffs objected.

The Court delayed ruling on this matter, and

instructed Defendants to file a motion.

On September 17, Defendants

filed their Motion for Leave to Supplement the Detailed Request for

lIn Defendants' third supplemental filing [Doc. 453], Defendants
agreed with one of Plaintiffs' objections [Doc. 451 at 10] and
withdrew their request for attorneys' fees in the amount of
$16,577.25 [Doc. 453 at 2]. This amount represented additional time
entries related to Defendants' sovereign immunity defense [Id.].
Because both parties agree this amount should be withdrawn, the Court
grants Defendants' request, and recognizes that Defendants now
request $2,953,493.71 in attorneys' fees and $85,746.39 in costs [Id.
at 3] .
-2-

Case 1:08-cv-01425-ODE Document 462 Filed 09/30/12 Page 3 of 12

Attorneys'

Fees and Other Costs

response on September 27, 2012
The Court,

[Doc.

455].

Plaintiffs

[Doc. 458], opposing the motion.

as set forth below,

GRANTS Defendants' Motion for

Leave to Supplement the Detailed Request for Attorneys'
Other

Costs

[Doc.

455],

filed a

and AWARDS

Defendants

Fees and

$2,861,348.71

in

attorneys' fees and $85,746.39 in costs.
I.

Defendants' Motion for Leave to Supplement
Despite Plaintiffs'

objections

[Doc.

458],

the Court grants

Defendants' Motion for Leave to Supplement the Detailed Request for
Attorneys'

Fees and Other Costs

[Doc.

455]

Through this motion,

Defendants seek to file an invoice for the fees and costs incurred
from August 4,

2008 through March 31,

2009

[Doc.

455-3].

Unlike

prior exhibits for the same time frame, this invoice shows the number
of hours billed for each billing entry [Doc. 455 at 2;

~,

Doc.

455-3 at 2], not just the descriptions of the work, the dollar amount
billed

for

the

work

and

the

identity of

Defendants inadvertently omitted this

the

exhibit

billing

attorney.

from prior filings

[Doc. 455 at 3] .
Plaintiffs complain that Defendants have already supplemented
their filings three prior times.
emphasis
contents.
favor,

on the

number of

However, Plaintiffs put too much

supplements,

and not

enough on their

Two of these prior filings were actually in Plaintiffs'

in that Defendants withdrew their request for certain fees

[Doc. 448; Doc. 453].

The Court is not persuaded that Defendants'

motion to supplement should be denied just because this will be the
fourth supplemental filing.

Likewise, the Court is not persuaded by

-3-

Case 1:08-cv-01425-ODE Document 462 Filed 09/30/12 Page 4 of 12

Plaintiffs

various

1

other

arguments

that

granting

the motion

to

supplement would be unfair in relation to prior rulings disallowing
parts

Plaintiffs l

of

AccordinglYI

the

arguments

Court

grants

in

certain

Defendants

Motion

1

Supplement the Detailed Request for Attorneys

motions

1

in

for

limine.
Leave

to

Fees and Other Costs

[Doc. 455].
II.

Defendants

1

Award of Attorneys

1

Fees and Other Costs

The Court proceeds with awarding attorneysl fees and other costs
to Defendants l even though a notice of appeal has been filed in this
case. 2 See Advisory Committee Notes to the 1993 Amendment to Fed. R.
Civ. P. 54 (d) (2)

("If an appeal on the merits of the case is taken

the court may rule on the claim for fees

l

l

may defer its ruling on the

motion l or may deny the motion without prejudice .

.11)

(emphasis

added).

Because the details in this voluminous case are still fresh l
it is appropriate to deny Plaintiffs l request for a delayed ruling on

this matter [Doc. 451]
1601 /

2011

WL

9798

1

Anheuser-Busch, Inc. v. Schnorfl No. 10-CVat

adjudication of attorneys

*2

(N.D.

Ill.

fees motions

1

Jan.

3

1

2011)

is preferable

("[P]rompt
1

while the

district court is still familiar with 'the merits of the parties l
positions

1

the reasonableness of the attorneys

competence of the attorneys

1

etc.

1 II

1

time sheets

1

the

(quoting Terket v. Lund l 623 F. 2d

2The Court did not intend its Order of August 10 2012 [Doc. 441]
to be a final order. Regardless it is appropriate to adjudicate the
request for an award of attorneys fees at this time.
1

1

1

-4-

Case 1:08-cv-01425-ODE Document 462 Filed 09/30/12 Page 5 of 12

29,

34

(7th Cir.

1980))).

Accordingly,

the

Court will

address

Plaintiffs' objections [Doc. 451]3 to Defendants' request [Doc. 444] .
A.

Pre-February 17, 2009 Work

This lawsuit was filed on April 15, 2008.

Plaintiffs object to

awarding Defendants the fees and costs incurred between that date
and the effective date of the Defendants' new copyright policy, which
was effective February 17, 2009. Plaintiffs state that "Defendants
clearly are not prevailing parties

in relation to a policy they

scrapped during the litigation. The trial concerned the legality of
the 2009 policy and the practices pursuant to that policy .
[Doc. 451 at 6]

"

Plaintiffs seek a reduction in Defendants' request

of 82.9% which is the percentage of the request covering the period
up through February 17,

2009,

in relation to the entire request.

Thus Plaintiffs argue Defendants should get 17.1% of their requested
amount.

Plaintiffs

assert

that

this

methodology

would

reduce

Defendants' fee award by $333,519.09.
As previously held,
this litigation.
does believe,

Defendants are the prevailing parties in

Only one side can be a prevailing party.

however,

The Court

that it is appropriate to consider whether

some of the work done by defense counsel did not assist in bringing
about the favorable outcome. In the Court's view that would include
the work done on formulating the new policy. This would not exclude
all work done before February 17,

2009,

however,

because counsel

3Plaintiffs do not argue that defense counsel's hourly rates or
hours expended are unreasonable. Hensley v. Eckerhart, 461 U.S. 424,
433 (1993) ("The most useful starting point for determining the
amount of a reasonable fee is the number of hours reasonably expended
on the litigation multiplied by a reasonable hourly rate.") .
-5-

Case 1:08-cv-01425-ODE Document 462 Filed 09/30/12 Page 6 of 12

performed considerable work before then which was pertinent to the
eventual outcome.
After reviewing Defendants'
the

Court

concludes

that

supplemental filing

Defendants'

fees

[Doc. 455-3],

should be

reduced by

$62,145 for time spent formulating the 2009 copyright policy.

Also,

the Court estimates that some small amount of time was for work which
had no value once the claims under the old policy dropped out of the
case.

Most of the hours worked had carry-over value, for example,

filing the answer to the complaint, preparation of the discovery plan
(the preliminary report and scheduling order), and the first round of
paper discovery.

The Court estimates the dollar value of the time

which did not carry forward at

$30,000.

Hence,

Defendants'

fee

request of $2,953,493.71 is reduced by $92,145.
B.

Fees and Costs Associated with Dr. Crews

Plaintiffs object to Defendants' request for fees incurred by
defense counsel's work with and use of Dr. Kenneth Crews, an expert
witness called by Defendants at trial.

Plaintiffs argue Defendants'

award should be reduced by a total of $194,944.94 -- $142,038.54 for
Dr. Crews' fees and $52,906.40 for related attorneys' fees and costs
[Doc.

451 at

8-9].

For the reasons

set

forth below,

the Court

overrules Plaintiffs' objections.
Section 505 of the Copyright Act provides:
In any civil action under this title, the court in its
discretion may allow the recovery of full costs by or
against any party other than the United States or an
officer thereof.
Except as otherwise provided by this
title, the court may also award a reasonable attorney's fee
to the prevailing party as part of the costs.
17 U.S.C.

§

505 (emphasis added).
-6-

Case 1:08-cv-01425-ODE Document 462 Filed 09/30/12 Page 7 of 12

Courts have held that an award under 17 U.S.C.
"litigation

costs,"

such

as

"reasonable

§

505 includes

out-of-pocket

expenses

incurred by the attorney and which are normally charged to fee-paying
clients, so long as these costs are incidental and necessary to the
litigation." Lil' Joe Wein Music, Inc. v. Jackson, No. 06-20079-CIV,
2008 WL 2688117, at *14
see

also

Arthur

96 CI V . 7 9 7 3 (HB) ,

(S.D. Fla. July 1, 2008)

Kaplan

19 9 9

WL

Co.

2 53 64 6 ,

v.

Panaria

at

*2

(emphasis added)

Int'l,

(S.D.N.Y.

Inc.,

Apr.

29,

i

No.
1999)

("[W]hen a court makes an award of attorney's fees, it can also award
the prevailing party 'reasonable out-of-pocket expenses incurred by
the attorney and which are normally charged fee-paying clients,' so
long

as

these

litigation.'"

costs

are

'incidental

(quoting Reichman v.

and

necessary

Bonsignore,

P.C., 818 F.2d 278, 283 (2d Cir. 1987))).

Brignati

to
&

the

Mazzota

In other words, the award

of attorneys' fees can include necessary, out-of-pocket costs, which
are incidental to the litigation.

See generally Lil' Joe Wein Music,

Inc., 2008 WL 2688117.
The Court finds all costs associated with Dr. Crews, including
defense

counsel's

related

fees

and

costs,

were

incidental

and

necessary to the litigation, and thus can be included as part of the
award of attorneys'

fees.

"The fair use doctrine

issue in this case"

[Doc.

121 at 2 i

see also id.

[wa] s
at 3],

at
and Dr.

Crews, through his report and testimony, dealt with this issue and
also provided "a review of the history and development of university
electronic reserves systems and a discussion of copyright policies at
other uni versi ties"

[Id.

at 4] .

Thus, as the Court has previously

-7-

Case 1:08-cv-01425-ODE Document 462 Filed 09/30/12 Page 8 of 12

stated,

Dr.

Crews'

infringement
Plaintiffs'

case

testimony

[see,

e. g.,

was

helpful
(noting,

id.

in
in

this

copyright

an Order denying

motion to exclude the expert testimony of Dr.

Crews,

"[t]his information will be helpful to the Court in understanding the
evidence presented, determining the facts,
appropriate")

234

at

6

(stating,

in

an

if

Order

denying

Plaintiffs' motion to exclude the testimony of Dr. Crews,

"[t]hese

i

Doc.

and crafting relief,

qualifications are more than sufficient to establish that Dr. Crews
has useful knowledge and experience that will assist the Court in
evaluating the issues in this case")

i

see also Doc. 423 at 42, 109

(citing Dr. Crews' testimony)]
It is fair to say that the Court did not accept all of Dr.
Crews'

testimony.

For example,

the part of Dr.

Crews'

"Fair Use

Checklist" which calls for professors to estimate the effect of use
of a copyrighted excerpt on the potential market value of a work is
unworkable.

Also, correct outcomes using the checklist are certainly

not a lead pipe cinch.

Nonetheless, his testimony was helpful and

defense counsel's work with Dr. Crews was also clearly necessary, as
consulting with an expert witness and preparing him for trial and/or
depositions are naturally part of litigation.

Lastly, there is no

doubt that the fees defense counsel incurred by working with Dr.
Crews were out-of-pocket expenses, generally charged to the client
defense counsel
Defendants

[~,

even included these costs
Doc. 444-1 at 63-71,

in an invoice sent to

81-92].

See Lil'

Joe Wein

Music, Inc., 2008 WL 2688117, at *14 (holding the award of attorneys'
fees to include litigation expenses, while noting " [d]efendants have

-8-

Case 1:08-cv-01425-ODE Document 462 Filed 09/30/12 Page 9 of 12

included these expenses in their bills to clients").
content

of

Dr.

Crews'

testimony,

his

costs

and

Because of the
the

associated

attorneys' fees were not only necessary, but incidental to the trial,
and thus are included as part of the Defendants' award of attorneys'
fees.
Plaintiffs argue that the United States Court of Appeals for the
Eleventh Circuit's ruling in Artisan Contractors Ass'n of America,
Inc. v. Frontier Insurance Co., dictates a denial of such costs and
fees.

275 F.3d 1038

misconstrued this

(11th Cir.

case.

2001)

In Artisan,

However,

Plaintiffs have

the Court of Appeals held:

"costs that may be assessed to reimburse a prevailing party for its
expert witness fees are limited to the $40 limit provided for in 28
U.S.C.

§

1821."

Id.

at

1040.

However,

attorneys' fees involved in Artisan.
was

discussing

an

award under

concerns travel expenses,
and the like.

28

there was no award of

Instead, the Court of Appeals
U. S. C.

§

1821.

subsistence allowances,

Section

1821

attendance fees,

At issue in this case, are the costs associated with

an expert witness preparing a report and preparing for depositions
and trial, and attorneys' fees that naturally flow from the use of an
expert witness.

The costs at issue here thus are different from

those discussed in Artisan. Because the costs and fees Defendants
seek are necessary and incidental, and are part of the "full costs"
of the case,

the Court finds they are compensable, as part of the

award of attorneys' fees.

Thus, the Court denies Plaintiffs' request

for

costs

a

reduction

of

the

and

fees

associated with

counsel's use of Dr. Crews as an expert witness.

-9-

defense

Case 1:08-cv-01425-ODE Document 462 Filed 09/30/12 Page 10 of 12

c.

Order

Comp~iance

Fees

Plaintiffs also object to three time entries totaling $2,317.50
[Doc.

451

at

9].
2012

September 5,

These entries,
[Doc.

451-4],

included in the
correspond to

invoice dated

defense

counsel's

consultation with Defendants on how to comply with this Court's prior
Order.

Specifically, in their invoice, defense counsel describes the

activities at issue as:

" [r]eview decision and consider outline of

injunction to be adopted by [Georgia State UniversitY]"i

"[r]eview

orders and consider notices to faculty and administrators to comply"
and

"[r]eview

court

administratorsi
[Doc.

application"

regarding

notices

conference call with Ms.

451-4].

compensable

orders

Plaintiffs

because

it

argue

"do [es]

[Doc. 451 at 9].

that

not

to

faculty

i

and

Heyward and Ms.

Spratt"

this

is

not

Defendants'

fee

relate

$2,317.50
to

The Court disagrees with Plaintiffs.

The Court finds that instructing clients on how to comply with a
court

ordered inj unction is

litigation.

a

necessary acti vi ty,

incidental

to

Finding otherwise, and thus discouraging such efforts,

would defeat

the

purpose

overrules Plaintiffs'

of

issuing

obj ection,

such an order.

and will

not

The

Court

reduce Defendants'

award by $2,317.50 as requested by Plaintiffs.
III. Conclusion
For the reasons set forth above, the Court GRANTS Defendants'
Motion for Leave to Supplement the Detailed Request for Attorneys'
Fees and Costs

[Doc. 455].

Pursuant to 17 U.S.C.

§

505, the Court

awards Defendants $2,861,348.71 in attorneys' fees and $85,746.39 in
costs.

The Court finds there are no remaining issues to be decided.

-10-

Case 1:08-cv-01425-ODE Document 462 Filed 09/30/12 Page 11 of 12

In accordance with the foregoing, the Court DIRECTS the Clerk to
enter final judgment, as follows:
1.

As is more fully detailed in this Court's Orders entered
May 11,

2012

[Doc.

423]

and August 10,

2012

[Doc.

441],

Plaintiff Oxford University Press, Inc. shall have judgment
in its favor on its claim that Defendants infringed its
copyright in The Power Elitei Plaintiff Sage Publications,
Inc. shall have judgment in its favor on its claims that
Defendant infringed its copyrights in The Sage Handbook of
Qualitative Research (Second Edition), The Sage Handbook of
Qualitative

Research

(Third

and

Edition)

Focused Evaluation: The New Century Text

As

to

all

of

Plaintiffs'

other

Utilization-

(Third Edition) .

claimed

copyright

infringements, as are referenced in the Court's Order of
May 11,

2012,

judgment shall be entered in Defendants'

favor.
2.

Injunctive relief is entered as follows:

Defendants are

hereby ORDERED and DIRECTED to maintain copyright policies
for Georgia State University which are not inconsistent
with the Court's Orders of May 11,
2012.
to

2012 and August 10,

Defendants are ORDERED and DIRECTED to disseminate

faculty

and

relevant

staff

at

Georgia

State

essential points of this Court's aforesaid rulings.

the
The

Court will retain jurisdiction for the sole purpose of
enforcing these Orders.

-11-

Case 1:08-cv-01425-ODE Document 462 Filed 09/30/12 Page 12 of 12

3.

Declaratory relief is entered as follows:
(1)

The requirement that excerpts be "decidedly small" to
tip factor three in Defendants' favor applies to the
aggregate

of

all

excerpts

from

a

book

which

are

assigned during the term of the course;
(2)

The

holdings

of

this

case

do

not

apply

to

books

intended solely for instruction of students enrolled
in a class.

These books would need to be evaluated by

a different fair use analysis;
(3)

The fair use protection outlined in the Court's Order
of May 11, 2012 is conditioned on strict reliance with
measures calculated to protect copyright of excerpts
from unwarranted distribution; and

(4)

Although in limited fact situations fair use may apply
even where an unpaid excerpt is not "decidedly small, "
as

explained

in

the

Order

of

August

10,

2012,

significant caution is called for before determining
that such a use is fair use.
Defendants, as prevailing parties, are AWARDED their reasonable
attorneys'

fees

in the amount of

$2,861,348.71 and costs

amount of $85,746.39.

SO ORDERED, this 30th day of September, 2012.

-12-

in the