Cambridge University Press, et al v. J. Albert, et al
CIVIL APPEAL DOCKETED. Notice of appeal filed by Appellants Cambridge University Press, Oxford University Press, Inc. and Sage Publications, Inc. on 10/02/2012. Fee Status: Fee Paid.
U.M \ r
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
CAMBRIDGE UNIVERSITY PRESS;
OXFORD UNIVERSITY PRESS, INC.;
SAGE PUBLICATIONS, INC.,
SEP 3 0 2012
CIVIL ACTION NO.
MARK P. BECKER, in his official
capacity as President of
Georgia State University; RISA
PALM, in her official capacity
as Senior Vice President for
Academic Affairs and Provost of
Georgia State University; J.L.
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.
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.,
official capacities as members
of the Board of Regents of the
University System of Georgia,
•f;c (..lino,, .',._«,.:
Case l:08-cv-0i .5-ODE Document 462 Filed 09/3l i
Page 2 of 12
This copyright infringement case is currently before the Court
on Defendants' Motion for Leave to Supplement the Detailed Request
determination of attorneys'
fees and costs following this Court's
reasonable attorneys' fees and costs [Doc. 441] . 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
446; Doc. 448; Doc. 453] . Plaintiffs filed objections to Defendants'
request on September 10, 2012 [Doc. 451] . As of September 11, 2012,
a total of $3,039,240.10
attorneys' fees and $85,746.39 in costs [Doc. 453 at 3] .*
held a hearing on
hearing, Defendants moved to submit a supplemental filing, to which
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
xIn Defendants' third supplemental filing [Doc. 453], Defendants
agreed with one of Plaintiffs'
451 at 10]
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 fld.1 .
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] .
Case l:08-cv-0i .5-ODE Document 462 Filed 09/3v. .1 Page 3 of 12
and Other Costs
response on September 27, 2012 [Doc. 458], opposing the motion.
Supplement the Detailed Request
attorneys' fees and $85,746.39 in costs.
Motion for Leave to Supplement
Defendants' Motion for Leave to Supplement the Detailed Request for
Fees and Other Costs
[Doc. 455] .
Defendants seek to file an invoice for the
from August 4, 2008
through March 31, 2009
Through this motion,
fees and costs incurred
prior exhibits for the same time frame, this invoice shows the number
of hours billed for each billing entry [Doc. 455 at 2; e.g. . Doc.
455-3 at 2] , not just the descriptions of the work, the dollar amount
inadvertently omitted this
from prior filings
[Doc. 455 at 3].
Plaintiffs complain that Defendants have already supplemented
their filings three prior times.
on the number
Plaintiffs put too much
Two of these prior filings were actually in Plaintiffs'
in that Defendants withdrew their request for certain fees
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
Case l:08-cv-o( i-ODE Document 462 Filed 09/3v 2 Page 4of 12
the motion to
supplement would be unfair in relation to prior rulings disallowing
Supplement the Detailed Request for Attorneys' Fees and Other Costs
Defendants' Award of Attorneys' Fees and Other Costs
The Court proceeds with awarding attorneys' fees and other costs
to Defendants, even though a notice of appeal has been filed in this
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, may defer its ruling on the
motion, or may deny the motion without prejudice . . . .") (emphasis
Because the details in this voluminous case are still fresh,
it is appropriate to deny Plaintiffs' request for a delayed ruling on
this matter [Doc. 451].
Anheuser-Busch. Inc. v. Schnorf, No. 10-CV-
adjudication of attorneys'
fees motions is preferable,
district court is still familiar with 'the merits of the parties'
the reasonableness of the attorneys'
competence of the attorneys, etc.'" (quoting Terket v. Lund. 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.
Case l:08-cv-0l ,5-ODE Document 462 Filed 09/3l .z Page 5 of 12
Plaintiffs' objections [Doc. 451]3 to Defendants' request [Doc. 444] .
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, 2 009. 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
fee award by $333,519.09.
As previously held,
Defendants are the prevailing parties in
Only one side can be a prevailing party.
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,
3Plaintiffs do not argue that defense counsel's hourly rates or
hours expended are unreasonable. Henslev 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.").
Case l:08-cv-0i o-ODE Document 462 Filed 09/3u 1 Page 6of 12
performed considerable work before then which was pertinent to the
After reviewing Defendants'
supplemental filing [Doc. 455-3],
$62,145 for time spent formulating the 2009 copyright policy.
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
Most of the hours worked had carry-over value,
filing the answer to the complaint, preparation of the discovery plan
(the preliminary report and scheduling order), and the first round of
which did not
The Court estimates the dollar value of the time
carry forward at
request of $2,953,493.71 is reduced by $92,145.
Fees and Costs Associated with Dr.
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 -- $142,03 8.54 for
Dr. Crews' fees and $52,906.40 for related attorneys' fees and costs
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
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).
Case 1:08-cv-0!l .5-ODE Document 462 Filed 09/3\. 1 Page 7 of 12
Courts have held that an award under 17 U.S.C.
§ 505 includes
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
(S.D. Fla. July 1, 2008)
96CIV.7973(HB) , 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
(quoting Reichman v.
P.C.. 818 F.2d 278, 283 (2d Cir. 1987))).
Brignati & 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.
2008 WL 2688117.
The Court finds all costs associated with Dr. Crews, including
necessary to the litigation, and thus can be included as part of the
award of attorneys'
issue in this case"
"The fair use doctrine
[wa] s ... at
121 at 2; see also id. at 3],
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
rid, at 4].
Thus, as the Court has previously
Case l:08-cv-01 5-ODE Document 462 Filed 09/3^ 1 Page 8of 12
testimony of Dr.
"[t]his information will be helpful to the Court in understanding the
evidence presented, determining the facts,
and crafting relief,
Plaintiffs' motion to exclude the testimony of Dr. Crews,
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"); see also Doc. 423 at 42, 109
(citing Dr. Crews' testimony)].
fair to say that the Court did not accept
the part of Dr.
all of Dr.
Checklist" which calls for professors to estimate the effect of use
of a copyrighted excerpt on the potential market value of a work is
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.
doubt that the fees defense counsel
there is no
incurred by working with Dr.
Crews were out-of-pocket expenses, generally charged to the client -defense
[e.g. . Doc.
Music. Inc. . 2008 WL 2688117, at *14 (holding the award of attorneys'
fees to include litigation expenses, while noting "[d]efendants have
Case l:08-cv-0i. -o-ODE Document 462 Filed 09/3^ i
Page 9 of 12
included these expenses in their bills to clients").
Because of the
attorneys' fees were not only necessary, but incidental to the trial,
and thus are included as part of the Defendants' award of attorneys'
Plaintiffs argue that the United States Court of Appeals for the
Eleventh Circuit's ruling in Artisan Contractors Ass'n of America.
Frontier Insurance Co..
275 F.3d 1038
misconstrued this case.
dictates a denial of such costs and
the Court of Appeals
"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
attorneys' fees involved in Artisan.
Instead, the Court of Appeals
concerns travel expenses, subsistence allowances, attendance fees,
and the like.
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
The costs at issue here thus are different
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
counsel's use of Dr. Crews as an expert witness.
j-ODE Document 462 Filed 09/3C. .' Page 10 of 12
Order Coicpliance Fees
Plaintiffs also object to three time entries totaling $2,317.50
consultation with Defendants on how to comply with this Court's prior
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]";
orders and consider notices to faculty and administrators to comply";
administrators; conference call with Ms.
Heyward and Ms.
application" [Doc. 451 at 9].
The Court disagrees with Plaintiffs.
The Court finds that instructing clients on how to comply with a
court ordered injunction is a necessary activity,
Finding otherwise, and thus discouraging such efforts,
would defeat the purpose of issuing such an order.
award by $2,317.50 as requested by Plaintiffs.
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
The Court finds there are no remaining issues to be decided.
j-ODE Document 462 Filed 09/31
J Page 11 of 12
In accordance with the foregoing, the Court DIRECTS the Clerk to
enter final judgment, as follows:
As is more fully detailed in this Court's Orders entered
May 11, 2012
and August 10, 2012
Plaintiff Oxford University Press, Inc. shall have judgment
in its favor on its claim that Defendants infringed its
copyright in The Power Elite; 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
Focused Evaluation: The New Century Text (Third Edition).
infringements, as are referenced in the Court's Order of
judgment shall be
entered in Defendants'
Injunctive relief is entered as follows:
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 and August 10,
Defendants are ORDERED and DIRECTED to disseminate
essential points of this Court's aforesaid rulings.
Court will retain jurisdiction for the sole purpose of
enforcing these Orders.
..-ODE Document 462 Filed 09/3C. . Page 12 of 12
Declaratory relief is entered as follows:
The requirement that excerpts be "decidedly small" to
tip factor three in Defendants' favor applies to the
assigned during the term of the course;
of this case
intended solely for instruction of students enrolled
in a class.
These books would need to be evaluated by
a different fair use analysis;
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
Although in limited fact situations fair use may apply
even where an unpaid excerpt is not "decidedly small,"
significant caution is called for before determining
that such a use is fair use.
Defendants, as prevailing parties, are AWARDED their reasonable
amount of $2,861,348.71 and costs in the
amount of $85,746.39.
SO ORDERED, this 30th day of September, 2012.
UNITED STATES DISTRICT JUDGE
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