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

Filing 1

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.

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WCHAMtfcno t U.M \ r IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION CAMBRIDGE UNIVERSITY PRESS; OXFORD UNIVERSITY PRESS, INC.; SAGE PUBLICATIONS, INC., Mmte SEP 3 0 2012 m, Clerk TfWGBfr'- Plaintiffs, CIVIL ACTION NO. 1:08-CV-1425-ODE 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. 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., A. WILHEIT, SR., and PHILIP in their official capacities as members of the Board of Regents of the University System of Georgia, Defendants. •f;c (..lino,, .',._«,.: Case l:08-cv-0i .5-ODE Document 462 Filed 09/3l i 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 are entitled to 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 statements [Doc. 446; Doc. 448; Doc. 453] . Plaintiffs filed objections to Defendants' request on September 10, 2012 [Doc. 451] . As of September 11, 2012, Defendants request a total of $3,039,240.10 -- $2,953,493.71 attorneys' fees and $85,746.39 in costs [Doc. 453 at 3] .* held a hearing on this 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 xIn 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 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 Attorneys' Fees and Other Costs [Doc. 455] . Plaintiffs filed a response on September 27, 2012 [Doc. 458], opposing the motion. The Court, Leave to Other Costs as set forth below, GRANTS Defendants' Supplement the Detailed Request [Doc. 455], and AWARDS Motion for for Attorneys' Defendants Fees $2,861,348.71 and 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] . Defendants seek to file an invoice for the from August 4, 2008 through March 31, 2009 Through this motion, fees and costs incurred [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; e.g. . Doc. 455-3 at 2] , not just the descriptions of the work, the dollar amount billed for Defendants the work and the identity inadvertently omitted this of the exhibit billing attorney. from prior filings [Doc. 455 at 3]. Plaintiffs complain that Defendants have already supplemented their filings three prior times. emphasis on the number contents. favor, However, of supplements, Plaintiffs put too much 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 l:08-cv-o( i-ODE Document 462 Filed 09/3v 2 Page 4of 12 Plaintiffs' various other arguments that granting the motion to supplement would be unfair in relation to prior rulings disallowing parts of Plaintiffs' Accordingly, the arguments Court grants in certain Defendants' motions Motion in for limine. Leave to Supplement the Detailed Request for Attorneys' Fees and Other Costs [Doc. II. 455] . 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 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, may defer its ruling on the motion, or may deny the motion without prejudice . . . .") (emphasis added). 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]. 1601, 2011 WL 9798, Anheuser-Busch. Inc. v. Schnorf, No. 10-CV- at *2 adjudication of attorneys' (N.D. 111. Jan. 3, 2011) fees motions is preferable, (w[P]rompt while the district court is still familiar with 'the merits of the parties' positions, the reasonableness of the attorneys' time sheets, the 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 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, 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 amount. Plaintiffs Defendants' assert that this methodology would reduce 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. 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 eventual outcome. After reviewing Defendants' the Court concludes that supplemental filing [Doc. 455-3], Defendants' fees 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. which did not The Court estimates the dollar value of the time 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. Plaintiffs object to Defendants' Crews 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 [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- Ci 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. "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 (S.D. Fla. July 1, 2008) Kaplan 96CIV.7973(HB) , 1999 WL Co. 253646, v. Panaria at *2 (emphasis added); Int'l. (S.D.N.Y. Apr. Inc.. 29, 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))). to the Brignati & Mazzota In other words, the award of attorneys' fees can include necessary, out-of-pocket costs, which are incidental to the litigation. Inc.. See generally Lil' Joe Wein Music. 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. issue in this case" [Doc. "The fair use doctrine [wa] s ... at 121 at 2; see also id. at 3], 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 universities" 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 stated, Dr. infringement Plaintiffs' Crews' case testimony fsee, motion to was e.g.. id. exclude the helpful (noting, expert in in this copyright an Order denying testimony of Dr. Crews, "[t]his information will be helpful to the Court in understanding the evidence presented, determining the facts, and crafting relief, if Order denying Plaintiffs' motion to exclude the testimony of Dr. Crews, "[t]hese appropriate"); Doc. 234 at 6 (stating, in an 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)]. It Crews' is fair to say that the Court did not accept testimony. For example, the part of Dr. all 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. doubt that the fees defense counsel Lastly, there is no incurred by working with Dr. Crews were out-of-pocket expenses, generally charged to the client -defense counsel Defendants even [e.g. . Doc. included 444-1 at these costs 63-71, in 81-92] . an invoice See Lil' sent to Joe Wein 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"). 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. fees. Frontier Insurance Co.. 275 F.3d 1038 (11th Cir. misconstrued this case. dictates a denial of such costs and 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." IcL at 1040. However, attorneys' fees involved in Artisan. was discussing an award under 28 there was no award of Instead, the Court of Appeals U.S.C. § 1821. Section 1821 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 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. for a reduction of Thus, the Court denies Plaintiffs' request the costs and fees associated with counsel's use of Dr. Crews as an expert witness. •9- defense Case l:08-cv-01 j-ODE Document 462 Filed 09/3C. .' Page 10 of 12 Order Coicpliance Fees C. Plaintiffs also object to three time entries totaling $2,317.50 [Doc. 451 September at 9] . 5, 2012 These [Doc. entries, 451-4], included in the correspond to invoice defense dated 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]"; "[r]eview orders and consider notices to faculty and administrators to comply"; and "[r] eview court orders regarding notices to faculty and administrators; conference call with Ms. Heyward and Ms. Spratt" [Doc. this is not Defendants' fee 451-4] . compensable Plaintiffs because it argue "do[es] application" [Doc. 451 at 9]. that not relate $2,317.50 to The Court disagrees with Plaintiffs. The Court finds that instructing clients on how to comply with a court ordered injunction is a necessary activity, litigation. incidental to Finding otherwise, and thus discouraging such efforts, would defeat the purpose of issuing such an order. overrules Plaintiffs' objection, and will not The Court reduce Defendants' award by $2,317.50 as requested by Plaintiffs. Ill. 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 l:08-cv-01 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: 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 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 Qualitative Research (Third Edition) and Utilization- Focused Evaluation: The New Century Text (Third Edition). As to all of Plaintiffs' other 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 and August 10, 2012. to 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- ..-ODE Document 462 Filed 09/3C. . 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 in the amount of $85,746.39. SO ORDERED, this 30th day of September, 2012. EVANS UNITED STATES DISTRICT JUDGE -12-

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