Cambridge University Press et al v. Patton et al

Filing 160

MOTION for Summary Judgment with Brief In Support by J. L. Albert, Kenneth R. Bernard, Jr, James A. Bishop, Robert F. Hatcher, Felton Jenkins, W. Mansfield Jennings, Jr, James R. Jolly, Donald M. Leebern, Jr, William NeSmith, Jr, Doreen Stiles Poitevint, Willis J. Potts, Jr, Wanda Yancey Rodwell, Kessel Stelling, Jr, Benjamin J. Tarbutton, III, Richard L. Tucker, Allan Vigil, Mark P. Becker, Nancy Seamans, Risa Palm, Frederick E. Cooper, Larry R. Ellis, Larry Walker. (Attachments: # 1 Brief, # 2 Exhibit A, # 3 Statement of Material Facts, # 4 Exhibit A to SOF, # 5 Exhibit B to SOF, # 6 Exhibit C to SOF, # 7 Exhibit D to SOF, # 8 Exhibit E to SOF, # 9 Exhibit F to SOF, # 10 Exhibit G to SOF, # 11 Exhibit H to SOF, # 12 Exhibit I to SOF)(Quicker, Katrina) Modified on 3/1/2010 in order to accurately reflect e-filed pleading (ank).

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION CAMBRIDGE UNIVERSITY PRESS, et al., Plaintiffs, v. MARK P. BECKER, in his official capacity as Georgia State University President, et al., Defendants. § § § § § § § § § § §

Case No. 1:08-CV-1425-ODE

MEMORANDUM IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

OFFICE OF THE ATTORNEY GENERAL, STATE OF GEORGIA Thurbet E. Baker R. O. Lerer Denise E. Whiting-Pack Mary Jo Volkert 40 Capitol Square, SW Atlanta, Georgia 30334 [phone] (Telephone) [phone] (Facsimile)

KING & SPALDING LLP Anthony B. Askew. Stephen M. Schaetzel Katrina M. Quicker Kristen A. Swift 1180 Peachtree Street Atlanta, Georgia 30309 [phone] (Telephone) [phone] (Facsimile)

ATTORNEYS FOR DEFENDANTS

TABLE OF CONTENTS Page I. FACTUAL BACKGROUND .............................................................................2 A. SAGE Publications................................................................................5 1. Summer 2009 Semester ..............................................................7 2. Fall 2009 Semester......................................................................7 3. Spring 2010 Semester .................................................................8 B. Cambridge University Press..................................................................8 1. Summer 2009 Semester ............................................................10 2. Fall 2009 Semester....................................................................11 3. Spring 2010 Semester ...............................................................11 C. Oxford University Press ......................................................................11 1. Summer 2009 Semester ............................................................13 2. Fall 2009 Semester....................................................................13 3. Spring 2010 Semester ...............................................................13

II. LEGAL STANDARD.......................................................................................14 III. ARGUMENT ....................................................................................................15 A. Sovereign Immunity Dictates That Only Acts Under The New Copyright Policy Are Relevant ...........................................................15 B. The Allegedly Infringed Works ..........................................................17 1. Infringement of SAGE Copyrights ...........................................21 (i) SAGE 1 ...........................................................................22 (ii) SAGE 2 ...........................................................................22 (iii) SAGE 3 ...........................................................................23 (iv) SAGE 4 ...........................................................................23 2. Infringement of Cambridge Copyrights....................................23 3. Infringement of Oxford Copyrights ..........................................24 (i) Oxford 1..........................................................................25 (ii) Oxford 2..........................................................................25 (iii) Oxford 3..........................................................................26 (iv) Oxford 4..........................................................................26 C. Direct Infringement .............................................................................27 D. Contributory Infringement ..................................................................31 E. Vicarious Infringement .......................................................................37 F. Claim for Injunctive Relief .................................................................42 i

IV. CONCLUSION .................................................................................................45

ii
ATL_IMANAGE-6736273.4

TABLE OF AUTHORITIES CASES A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001) ......................................................................37, 41 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)......................................................................................13, 38 Arista Records LLC v. Usenet.com, Inc., 633 F. Supp. 2d 124 (S.D.N.Y. 2009) .................................................... 38, 40-41 Beal v. Paramount Pictures Corp., 20 F.3d 454 (11th Cir. 1994) .............................................................................. 14 Blackwell Publishing, Inc. v. Excel Research Group, LLC, 07-12731, 2009 WL 3287403 (E.D. Mich. Oct. 14, 2009) ........................ Passim Burdick v. Koerner, 988 F. Supp. 1206 (E.D. Wis. 1998) .................................................................. 29 Burton v. City of Belle Glade, 178 F.3d 1175 (11th Cir. 1999) .......................................................................... 43 by, Greenberg v. Nat'l Geographic Soc., 488 F.3d 1331 (11th Cir. 2007) .......................................................................... 31 by, N.Y. Times Co., Inc. v. Tasini, 533 U.S. 483, 121 S. Ct. 2381 (2001).................................................................31 Cable/Home Commc'n Corp. v. Network Prods., Inc., 902 F.2d 829 (11th Cir. 1990) ...................................................................... 31-32 Celotex Corp. v. Catrett, 477 U.S. 317 (1986)......................................................................................13, 39 Comm. for the First Amendment v. Campbell, 962 F.2d 1517 (10th Cir. 1992) .......................................................................... 16 i

Ellison v. Robertson, 357 F.3d 1072 (9th Cir. 2004) ......................................................................37, 41 Ex parte Young, 209 U.S. 123 (1908)............................................................................................15 Farnsworth v. Procter & Gamble Co., 758 F.2d 1545 (11th Cir. 1985) .......................................................................... 16 Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991)............................................................................................26 Fisher v. Ciba Specialty Chems. Corp., 238 F.R.D. 273 (S.D. Ala. 2006) ........................................................................ 19 Green v. Mansour, 474 U.S. 64 (1985)..............................................................................................15 Greenberg v. Nat'l Geographic Soc., 244 F.3d 1267 (11th Cir. 2001) .......................................................................... 31 Heidelberg Harris, Inc. v. Mitsubishi Heavy Indus., LTD., No. 95C0673, 1996 WL 680243.........................................................................17 King Records, Inc. v. Bennett, 438 F. Supp. 2d 812 (M.D. Tenn. 2006) ............................................................ 38 King v. Kennesaw State Univ., No. 1:05-CV-3169-TWT, 2007 WL 2713252 (N.D. Ga. Sept. 13, 2007) ......... 19 Lifetime Homes, Inc. v. Residential Development Corp., 510 F. Supp. 2d 794 (M.D. Fla. 2007)...................................................... 8, 35-36 Marcavage v. W. Chester Univ., No. 06-CV-910, 2007 WL 789430 (E.D. Pa. Mar. 15, 2007) ............................ 16 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)...................................................................................... 13-14 Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005).................................................................................... Passim ii

Microsoft Corp. v. Silver Star Micro, Inc., No. 1:08-CV-1350-WSD, 2008 U.S. Dist. LEXIS 1526 (N.D. Ga. Jan. 9, 2008) .............................................................................................................32, 37 Mills v. Green, 159 U.S. 651 (1895)............................................................................................42 Nat'l Ass'n of Bds. of Pharmacy v. Bd. of Regents of the Univ. Sys. of Ga., No. 3:07-CV-084, 2008 WL 1805439................................................................14 Oppenheimer Fund. Inc. v. Sanders, 437 U.S. 340 (1978)............................................................................................18 Oravec v. Sunny Isles Luxury Ventures L.C., 469 F. Supp. 2d 1148 (S.D. Fla. 2006) .........................................................32, 38 Payne v. Travenol Labs., Inc., 565 F.2d 895 (5th Cir. 1978) .............................................................................. 43 Perez v. Miami-Dade County, 297 F.3d 1255 (11th Cir. 2002) .......................................................................... 17 Phipps v. Blakeney, 8 F.3d 788 (11th Cir. 1993) ................................................................................ 17 Port Terminal & Warehousing Co. v. John S. James Co., 695 F.2d 1328 (11th Cir. 1983) .......................................................................... 18 Prieto v. Malgor 361 F.3d 1313 (11th Cir. 2004) .......................................................................... 18 Rizzo v. Goode, 423 U.S. 362 (1976)............................................................................................44 Schmidt v. Lessard, 414 U.S. 473 (1974)............................................................................................43 Stambler v. RSA Sec., Inc., 212 F.R.D. 470 (D. Del. 2003) ........................................................................... 17

iii

Students for a Conservative Am. v. Greenwood, 378 F.3d 1129 (9th Cir. 2004) ......................................................................15, 28 Summit Med. Assocs., P.C. v. Pryor, 180 F.3d 1326 (11th Cir. 1999) .............................................................. 14-15, 39 United States v. Koziy, 728 F.2d 1314 (11th Cir. 1984) .......................................................................... 19 United States v. Procter & Gamble Co., 356 U.S. 677 (1958)...................................................................................... 16-17 STATUTES 17 U.S.C. §§ 101 et seq.......................................................................................... 1-2 17 U.S.C. § 106........................................................................................................26 17 U.S.C. § 501(a) ................................................................................................... 26 OTHER AUTHORITIES 2006 and Fall 2007 "Introduction to Community Psychology" ....................6, 22, 25 2009 Semester, Professor Esposito's "Anthropology of Education" .................... 7-8 7 MOORE'S................................................................................................................18 "Action" column ...................................................................................................... 29 Allwright & Bailey, Focus on the Language Classroom (1991) ............................... 9 and Fall 2007 "Political Economy of East Asia".......................................................9 Awakening Children's Minds (2001) ...................................................................... 11 Cox & McCubbins, Legislative Leviathan (1993) .................................................... 9 Democracy Without Competition in Japan: Opposition Failure in a OneParty Dominant State (2006) ................................................................................ 8

iv

Dluhy, Changing the System: Political Advocacy for Disadvantaged Groups (1981)....................................................................................................................5 Eleventh Amendment....................................................................................... 4-5, 15 Fall 2006 "Baroque Music." ...................................................................................... 9 Fall 2007 "Qualitative Methods in Sociology.".......................................................21 Fall 2007 "The Psychology of Young Children."........................................ 12-13, 25 Fall 2007 "Applied Linguistics Practicum".............................................................10 FED. R. CIV. P. 37(c)(1)............................................................................................18 Federal Rule of Civil Procedure 65(d).....................................................................43 Rule 37(c)(1) of the Federal Rules of Civil Procedure............................................18 Rule 56(c) of the Federal Rules of Civil Procedure...........................................13, 39 MOORE'S FEDERAL PRACTICE ¶ 37.60 (3d ed. 1997 & Supp. 2008)........................18 Professor Belcher's Fall 2007 "Qualitative Methods in Sociology."........................6 Professor Belcher's Spring 2007 "Qualitative Research" ......................................... 6 Professor Blumi's Spring 2007 "Survey of World History Since 1500" ................ 11 Professor Bunting's "Material Design, Development, and Publication" .................. 9 Professor Kaufman's "Qualitative Research in Education II" .................................. 7 Professor Kruger's "Learning and the Learner" ................................................12, 25 Professor Reimann's Fall 2006 "The Political Economy of Japan"..........................9 Rule 26(e)(1) ............................................................................................................ 16 Rule 56(c).................................................................................................................13 Skocpol, States and Social Revolutions: A Comparative Analysis of France, Russia and China (1979).......................................................................................9 v

Spring 2008 "American Legislative Process." ........................................................ 10 The Cambridge Companion to the Organ (1997) ...................................................... 8 The Cambridge Companion to the Organ (1998) ...................................................... 8 The Slave Community: Plantation Life in the Antebellum South (1979) .............. 11 van Zoonen, Feminist Media Studies (1994).............................................................5 White Supremacy: A Comparative Study in American & South African History (1981).....................................................................................................11

vi

NOW COME Defendants Mark P. Becker, in his official capacity as Georgia State University President, et al. (collectively, "Defendants"), and submit this Memorandum in Support of Defendants' Motion for Summary Judgment. support of their Motion, Defendants respectfully show the Court as follows: I. INTRODUCTION This is an action for copyright infringement under 17 U.S.C. §§ 101 et seq., in which Cambridge University Press ("Cambridge"), Oxford University Press, Inc. ("Oxford"), and SAGE Publications, Inc. ("SAGE") (collectively, "Plaintiffs") seek a declaration of copyright infringement, permanent injunctive relief, and attorneys' fees and costs from and against Defendants. Plaintiffs are publishers that sell or license various works to college libraries, university libraries, and students throughout the United States. Defendants are university administrators that In

provide oversight to professors, librarians, and others at Georgia State University ("GSU"), a university member of the Board of Regents of the University System of Georgia ("University System"), that provides educational services to students. Pursuant thereto, students are provided electronic access to course materials. First, the GSU library facilitates GSU professors in making excerpts of reading materials available to students via GSU's electronic reserve system ("ERes"). Only students who are given a specific password can access the excerpts on ERes. 1

Second, GSU facilitates professors in making course information available via a course management system known as uLearn (also known as Blackboard/WebCT Vista) ("uLearn"), course web pages and faculty web pages. Such electronic course management tools may provide syllabi, reading materials, and other courserelated information. Only students who are given a specific password and are registered for an affected course can access course information on uLearn. Plaintiffs allege in their Complaint that Defendants or individuals in their employ or control are infringing Plaintiffs' copyrights by providing students access to certain copyrighted materials, pursuant to the University System's former guidelines on copyright and fair use, through ERes, uLearn, and course and faculty web pages. In all of the foregoing, Defendants believe and understand that the University System's current policy on copyright and fair use is followed. That policy is grounded upon the statutory doctrine of fair use as set forth in the Copyright Act, 17 U.S.C. §§ 101 et seq. or permission granted by the copyright holder. I. FACTUAL BACKGROUND In their First Amended Complaint filed on December 15, 2008, Plaintiffs accused nineteen individuals (in their official capacities as administrators and policy-makers for GSU and the University System) of direct copyright 2
ATL_IMANAGE-6736273.4

infringement (First Claim), contributory copyright infringement (Second Claim), and vicarious copyright infringement (Third Claim) based on the posting of excerpts from copyrighted works by electronic means on the ERes and uLearn systems. See Amended Complaint, D.E. 39, ¶¶ 13-16D; 47-62. The nineteen individuals are: Mark P. Becker; Risa Palm; Nancy Seamans; J.L. Albert; Kenneth R. Bernard, Jr.; James A. Bishop; Frederick E. Cooper; Larry R. Ellis; Robert F. Hatcher; Felton Jenkins; W. Mansfield Jennings, Jr.; James R. Jolly; Donald M. Leebern, Jr.; Larry Walker; Williams NeSmith, Jr.; Doreen Stiles Poitevint; Willis J. Potts, Jr.; Wanda Yancey Rodwell; Kessel Stelling, Jr.; Benjamin J. Tarbutton, III; Richard L. Tucker; and Allan Vigil. Id. Defendants are not actively involved in the daily operation of GSU's electronic reserves and course management systems. Their administrative positions do not involve facilitating access to course materials or monitoring faculty requests for providing such access. The copyrights the Defendants are accused of infringing are described in Exhibit 1 to the Complaint and in Plaintiffs' Response to Interrogatory No. 2: Interrogatory No. 2 Identify each of Plaintiffs' copyrights that you allege GSU has infringed, including, but not limited to, indicating each certificate of registration by registration number for each such copyright. Response to Interrogatory No. 2

3
ATL_IMANAGE-6736273.4

... Subject to and without waiving said objections, Plaintiffs refer Defendants to Exhibit 1 to their Complaint of April 15, 2008, which provides the requested information for those infringements Plaintiffs have complained of to date, and to their response to Interrogatory No. 1. Plaintiffs reserve the right to amend their complaint, and their response to this interrogatory, if the discovery process reveals additional works owned or controlled by Plaintiffs that have been distributed to students at GSU without authorization. See Statement of Facts ("SOF") at Ex. D, at No. 2. With respect to Exhibit 1, because some entries exaggerate the amount of material that was actually posted electronically, Defendants have summarized the entirety of the works from which copying is alleged and the accurate amount of material posted in Exhibit A. On February 17, 2009, the University System adopted a new copyright policy ("New Copyright Policy") as an update to the former guidelines referenced in Plaintiffs' Complaint. See D.E. 58 at 6; SOF 177. Although Defendants

suggested postponing the litigation to allow the parties to evaluate the impact of the New Copyright Policy, Plaintiffs refused. See D.E. 58 at Ex. C. On June 19, 2009, the Court issued a Protective Order in accordance with Eleventh Amendment principles of sovereign immunity limiting discovery to "ongoing and continuous activity" under the New Copyright Policy and prohibiting further inquiry into past practices under the former guidelines. See D.E. 111 at 5-6. In particular, evidence related to practices in existence before the adoption of the New Copyright Policy in February 17, 2009, is only permitted to show: (1) the circumstances surrounding 4
ATL_IMANAGE-6736273.4

the adoption of the New Copyright Policy, (2) the membership of the committee that adopted the New Copyright Policy, (3) the resources consulted by the committee in adopting the New Copyright Policy, and (4) the differences between the New Copyright Policy and the previous guidelines. Id. Three semesters of course offerings, with required and supplemental reading assignments, have occurred since the adoption of the New Copyright Policy: Summer 2009, Fall 2009, and Spring 2010. Following the University System's adoption of the New Copyright Policy, the amount of Plaintiffs' copyrighted material used by professors at GSU was reduced dramatically. A. SAGE Publications

Plaintiff SAGE Publication ("SAGE") accuses Defendants in the Complaint of unlawfully copying from two collective works and two individual works: (1) Handbook of Qualitative Research, 2nd. ed. (2000) (157 pgs. or 14.7%) (see Ex. A at ##1-6 and SOF 1, 5, 9, 13, 17, 21-22) ("SAGE 1"); The SAGE Handbook of Qualitative Research, 3rd. ed. (2005) (152 pgs. or 13.5%) (see Ex. A at ##7-14 and SOF 26-27, 31-32, 36-37, 41-42, 46-47, 51-54, 58-59, 63) ("SAGE 2"); Dluhy, Changing the System: Political Advocacy for Disadvantaged Groups (1981) (28 pgs. or 23.9%) (see Ex. A at #15 and SOF 67-68, 72-73) ("SAGE 3"); and van Zoonen, Feminist Media Studies (1994) (55 pgs. or 35.5%) (see Ex. A at #16 and SOF 77, 81, 85) ("SAGE 4"). 5
ATL_IMANAGE-6736273.4

(2)

(3)

(4)

With respect to SAGE 1, SAGE asserts that Professor Belcher's Spring 2007 "Qualitative Research" course materials included copied Chapters 6, 16, 17, 19, 24, and 25. See Ex. A at ##1-6; SOF 1, 5, 9, 13, 17, 21. It also alleges that Chapter 25 was copied for Professor Belcher's Fall 2007 "Qualitative Methods in Sociology." See Ex. A at #6; SOF 22. With respect to SAGE 2, SAGE alleges that Professor Kaufman copied Chapters 5, 12, 14, 17, 22, 25, 36, and 38 for various courses offered in Fall 2007 and Spring 2008. See Ex. A at ##7-14; SOF 26-27, 31-32, 36-37, 41-42, 46-47, 51-54, 58-59, 63. With respect to SAGE 3, SAGE alleges that Professor Emshoff copied Chapter 2 for use in the Fall 2006 and Fall 2007 "Introduction to Community Psychology" course. See Ex. A at #15; SOF 67-68, 72-73. With respect to SAGE 4, SAGE alleges that Chapters 2, 3, and 4 were purportedly copied for use in "Women and Media." See Ex. A at #16; SOF 77, 81, 85. The professor who taught this course and the semester during which the materials were allegedly copied have never been specified. With reference to these works, the undisputed evidence shows the following after adoption of the New Copyright Policy.

6
ATL_IMANAGE-6736273.4

1.

Summer 2009 Semester

In the Summer 2009 Semester, no material was used from SAGE 1, SAGE 3, and SAGE 4.1 See SOF 2, 6, 10, 14, 18, 23, 69, 74, 78, 82, 86. Access was provided to twenty-six pages of SAGE 2 as part of Professor Kaufman's "Qualitative Research in Education II" (EPRS8510) class--about 1%. See SOF 64. 2. Fall 2009 Semester

In the Fall 2009 Semester, no material was used from SAGE 1, SAGE 3, and SAGE 4. See SOF 3, 7, 11, 15, 19, 24, 70, 75, 79, 83, 87. While access to material from SAGE 2 was provided, the use was reduced by two chapters. See SOF 29, 34, 39, 44, 49, 56, 61, 65. With respect to SAGE 2, Chapters 12 and 25 were not included in Professor Kaufman's course reading materials. See SOF 34, 56. The reading materials did include Chapters 5 (pgs. 109-138), 14 (pgs. 357-73), 17 (pgs. 443-65), 22 (pgs. 547-57), 36 (pgs. 915-32), and 38 (pgs. 959-78), for a total of 88 pages from the 1126 pages of SAGE 2 (7.8%). See SOF 29, 39, 44, 49, 61, 65.

1

Defendants acknowledge that in the Summer 2009 Semester, Professor Esposito's "Anthropology of Education" (EPS8280) included thirty-pages from SAGE 1, or about 1%. See SOF, Ex. A, at 316. SAGE has never asserted Professor Esposito's use violated its copyright. 7

ATL_IMANAGE-6736273.4

3.

Spring 2010 Semester

In the Spring 2010 Semester, no material was used from SAGE 1 and SAGE 3. See SOF 4, 8, 12, 16, 20, 25. While access to material from SAGE 2 was provided by Professor Kaufman, the use was significantly and further reduced--by four chapters. See SOF 30, 35, 40, 45, 50, 57, 62, 66. Likewise, SAGE 4 was reduced by one chapter. See SOF 80, 84, 88. With respect to SAGE 2, Chapters 12, 25, 36, and 38 were not included in Professor Kaufman's course reading materials. See SOF 35, 57, 62, 66. The course did include Chapters 5, 14, 17, and 22. See SOF 30, 40, 45, 50. With respect to SAGE 4, Chapter 4 was not used; only Chapters 2 (pgs. 1128) and 3 (pgs. 29-42) were included. See SOF 80, 84, 88. B. Cambridge University Press

Plaintiff Cambridge University Press ("Cambridge") accuses Defendants of unlawfully copying from three collective works and four individual works: (1) Democracy Without Competition in Japan: Opposition Failure in a One-Party Dominant State (2006) (33 pgs. or 14.2%) (see Ex. A at #17; SOF 89-90) ("Cambridge 1"); The Cambridge Companion to the Organ (1998) (32 pgs. or 10.0%) (see Ex. A at ##18-19; SOF 94, 98) ("Cambridge 2"); The Cambridge Companion to the Organ (1997) (37 pgs. or 11.0%) (see Ex. A at ##20-21; SOF 102, 106) ("Cambridge 3");

(2) (3)

8
ATL_IMANAGE-6736273.4

(4)

Materials Development in Language Teaching (1998) (30 pgs. or 17.6%) (see Ex. A at ##22-24; SOF 110, 114, 118) ("Cambridge 4"); Skocpol, States and Social Revolutions: A Comparative Analysis of France, Russia and China (1979) (106 pgs. or 30.3%) (see Ex. A at #25; SOF 122, 126) ("Cambridge 5"); Allwright & Bailey, Focus on the Language Classroom (1991) (36 pgs. or 16.1%) (see Ex. A at #26; SOF 130, 134) ("Cambridge 6"); and Cox & McCubbins, Legislative Leviathan (1993) (96 pgs. or 29.3%) (see Ex. A at #27; SOF 138, 142, 146) ("Cambridge 7").

(5)

(6)

(7)

With respect to Cambridge 1, Cambridge alleges that Professor Reimann's Fall 2006 "The Political Economy of Japan" and Fall 2007 "Political Economy of East Asia" course reading materials included 33 pages of Chapter 2. See Ex. A at #17; SOF 89-90. With respect to Cambridge 2, Cambridge alleges Professor Orr copied Chapters 14 and 15 for "Baroque Music" offered in Fall 2006. See Ex. A at ##1819; SOF 94, 98. With respect to Cambridge 3, Cambridge alleges Professor Orr also included Chapters 10-11 for use in Fall 2006 "Baroque Music." See Ex. A at ##20-21; SOF 102, 106.

9
ATL_IMANAGE-6736273.4

With respect to Cambridge 4, Cambridge alleges sixty pages were copied for use in Professor Bunting's "Material Design, Development, and Publication" course in Fall 2007. See Ex. A at ##22-24; SOF 110, 114, 118. With respect to Cambridge 5, Cambridge alleges Chapters 1 and 2 were copied for use in "Comparative Political Analysis" in Fall 2007. See Ex. A at #25; SOF 122, 126. The professor who taught the course has never been specified. With respect to Cambridge 6, Cambridge alleges that four different sections of Fall 2007 "Applied Linguistics Practicum" included 36 pages of Chapters 9 and 10. See Ex. A at #26; SOF 130, 134. With respect to Cambridge 7, Cambridge alleges Professor Lazurus copied three chapters for use in Spring 2008 "American Legislative Process." See Ex. A at #27; SOF 138, 142, 146. 1. Summer 2009 Semester

In the Summer 2009 Semester, no material was used from Cambridge 1, Cambridge 2, Cambridge 3, Cambridge 4, Cambridge 5, Cambridge 6, and Cambridge 7. See SOF 91, 95, 99, 103, 107, 111, 115, 119, 123, 127, 131, 135, 139, 143, 147.

10
ATL_IMANAGE-6736273.4

2.

Fall 2009 Semester

In the Fall 2009 Semester, no material was used from Cambridge 1, Cambridge 2, Cambridge 3, Cambridge 4, Cambridge 5, Cambridge 6, and Cambridge 7. See SOF 92, 96, 100, 104, 108, 112, 116, 120, 124, 128, 132, 136, 140, 144, 148. 3. Spring 2010 Semester

In the Spring 2010 Semester, no material was used from Cambridge 1, Cambridge 2, Cambridge 3, Cambridge 4, Cambridge 5, Cambridge 6, and Cambridge 7. See SOF 93, 97, 101, 105, 109, 113, 117, 121, 125, 129, 133, 137, 141, 145, 149. C. Oxford University Press

Plaintiff Oxford University Press ("Oxford") accuses Defendants of unlawfully copying from four individual works: (1) White Supremacy: A Comparative Study in American & South African History (1981) (51 pgs. or 15%) (see Ex. A at #28; SOF 150) ("Oxford 1"); Science of Coercion: Communication Research & Psychological Warfare 1945-1960 (1994) (28 pgs. or 14.5%) (see Ex. A at #29; SOF 154, 158) ("Oxford 2"); The Slave Community: Plantation Life in the Antebellum South (1979) (78 pgs. or 20.4%) (see Ex. A at #30; SOF 162-64, 168-69) ("Oxford 3"); and Awakening Children's Minds (2001) (39 pgs. or 13.2%) (see Ex. A at #31; SOF 173) ("Oxford 4"). 11
ATL_IMANAGE-6736273.4

(2)

(3)

(4)

With respect to Oxford 1, Oxford alleges that Professor Blumi's Spring 2007 "Survey of World History Since 1500" reading course materials included Chapter 1. See Ex. A at #28; SOF 150. With respect to Oxford 2, Oxford alleges that Professor Darsey copied Chapters 1 and 2 for "Theories of Public" offered in Fall 2006. See Ex. A at #29; SOF 154, 158. With respect to Oxford 3, Oxford alleges that Professor Dixon copied Chapter 4 for use in classes offered in Fall 2007 and Spring 2008. See Ex. A at #30; SOF 162-64, 168-69. Additionally, Oxford alleges Chapter 7 was copied for a course in Spring 2008. See Ex. A at #30; SOF 162-64, 168-69. With respect to Oxford 4, Oxford alleges that Chapter 6 was copied for use in three different sections of Fall 2007 "The Psychology of Young Children." See Ex. A at #31; SOF 173. (The professors(s) who taught the courses have never been specified.) Once again, a review following adoption of the New Copyright Policy is instructive.

12
ATL_IMANAGE-6736273.4

1.

Summer 2009 Semester

In the Summer 2009 Semester, no material was used from Oxford 1, Oxford 2, and Oxford 3. See SOF 151, 155, 159, 165, 170. A small percentage of Oxford 4 was used. See SOF 174. With respect to Oxford 4, 20 pages of Chapter 6 were included in Professor Kruger's "Learning and the Learner" course. See id. Oxford 4 has a total of 296 pages (6.76%). See Ex. A at #31. 2. Fall 2009 Semester

In the Fall 2009 Semester, no material was used from Oxford 1, Oxford 2, or Oxford 4. See SOF 152, 156, 160, 175. The use of Oxford 3 was decreased from two chapters to one. See SOF 166, 171. With respect to Oxford 3, Chapter 4 was not used. See SOF 166, 171. Chapter 7 was included in Professor Dixon's African-American Family course. See SOF 166, 171. 3. Spring 2010 Semester

In the Spring 2009 Semester, no material was used from Oxford 1, Oxford 2, or Oxford 4. See SOF 153, 157, 161, 176. The use of Oxford 3 was decreased from two chapters to one. See SOF 167, 172.

13
ATL_IMANAGE-6736273.4

With respect to Oxford 3, Chapter 4 was not used. See SOF 167, 172. Chapter 7 was included in Professor Dixon's African-American Family course. See SOF 167, 172. II. LEGAL STANDARD Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue of material fact is presented only when there is "evidence on which the jury could reasonably find for the [nonmoving party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Rule 56(c) of the Federal Rules of Civil Procedure does not allow the non-moving party to rely solely on the pleadings or mere arguments of counsel. Rather, Rule 56(c) "requires the nonmoving party to go beyond the pleadings" in order to prove "specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324. The nonmoving party must produce evidence that shows a genuine issue of material fact--and "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). If the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue of material fact. Id. 14
ATL_IMANAGE-6736273.4

III.

ARGUMENT This Court should grant summary judgment in favor of Defendants on

Plaintiffs' claim of direct infringement, contributory infringement, and vicarious infringement because, as discussed below, it is undisputed that these Defendants have not violated any of Plaintiffs' exclusive rights under the Copyright Act. Courts have been willing to grant summary judgment in copyright infringement cases when it is clear that the moving party is entitled to judgment as a matter of law. Beal v. Paramount Pictures Corp., 20 F.3d 454, 459 (11th Cir. 1994) (citing cases). A. Sovereign Immunity Dictates That Only Acts Under The New Copyright Policy Are Relevant

A suit against state officials in their official capacity may only seek prospective equitable relief to end ongoing and continuous violations of federal law. Summit Med. Assocs., P.C. v. Pryor, 180 F.3d 1326, 1336 (11th Cir. 1999). Defendants are arms of the State of Georgia. See O.C.G.A. § 20-3-36; Nat'l Ass'n of Bds. of Pharmacy v. Bd. of Regents of the Univ. Sys. of Ga., No. 3:07-CV-084, 2008 WL 1805439, at * 3 (M.D. Ga. Apr. 18, 2008). Since Defendants are sued in their official capacities, they are entitled to full sovereign immunity under the Eleventh Amendment.

15
ATL_IMANAGE-6736273.4

Under the doctrine of sovereign immunity, Plaintiffs are only entitled to prospective injunctive relief as to the "ongoing and continuous conduct" of Defendants. See Ex parte Young, 209 U.S. 123 (1908). Accordingly, at issue here is whether the "ongoing and continuous" conduct by Defendants under the New Copyright Policy constitutes "systematic infringement" and a violation of federal law. "In other words, a plaintiff may not use the doctrine to adjudicate the legality of past conduct." Summit Med. Assocs., P.C. 180 F.3d at 1337 (emphasis added). Any award of declaratory relief based on past conduct "would be a partial `end-run' around" the Eleventh Amendment, since it would have the same effect as an award of money damages. See Green v. Mansour, 474 U.S. 64, 73 (1985). For that reason, only claims regarding Defendants' ongoing and continuous conduct under the New Copyright Policy are appropriate for relief. Plaintiffs' claims regarding the legality of practices and procedures under the former guidelines, which have been superseded and no longer instruct the practices and procedures used by Defendants, are moot. See, e.g., Students for a Conservative Am. v. Greenwood, 378 F.3d 1129, 1130-31 (9th Cir. 2004) (affirming district court decision that defendant's changes to challenged university election code mooted claims for declaratory and injunctive relief); Comm. for the First Amendment v. Campbell, 962 F.2d 1517, 1525-26 (10th Cir. 1992) (upholding 16
ATL_IMANAGE-6736273.4

district court's determination that plaintiff's claims for injunctive relief based on University's old policy were rendered moot when the University adopted a new policy concerning prior restraint and content-based discrimination); Marcavage v. W. Chester Univ., No. 06-CV-910, 2007 WL 789430, at *3-5 (E.D. Pa. Mar. 15, 2007) (concluding that, because a university's new policy on expressive activities on campus was more permissive than original policy, plaintiff's claims for equitable relief based on the old policy were moot). B. The Allegedly Infringed Works

The Federal Rules of Civil Procedure "strongly favor full discovery whenever possible." Farnsworth v. Procter & Gamble Co., 758 F.2d 1545, 1547 (11th Cir. 1985). Rule 26(e)(1) requires a party to timely supplement its discovery responses "if the party learns that in some material respect the information disclosed is incomplete or incorrect," presuming that the information has not otherwise been made known to the parties. FED. R. CIV. P. 26(e)(1). The purpose of this requirement is to prevent trial by ambush. See United States v. Procter & Gamble Co., 356 U.S. 677, 682 (1958) (citing Hickman v. Taylor, 329 U.S. 495, 501 (1947)) (holding that the Federal Rules were intended to "make a trial less a game of blind man's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent."). 17
ATL_IMANAGE-6736273.4

Courts recognize that "[i]n every trial there comes a time when discovery must be closed for the issues to be resolved through summary judgment and/or trial." See Stambler v. RSA Sec., Inc., 212 F.R.D. 470, 472 (D. Del. 2003). "If a party is allowed to withhold the supplementation of its discovery responses until after fact discovery is closed, the purpose of the Rule is effectively frustrated because the opposing party is denied the opportunity to conduct discovery on the supplemented responses." Heidelberg Harris, Inc. v. Mitsubishi Heavy Indus., LTD., No. 95C0673, 1996 WL 680243 at *8, 42 U.S.P.Q.2d 1369 (N.D. Ill. Nov. 21, 1996). As such, district courts are afforded broad discretion and authority in controlling and managing pretrial discovery matters to ensure that cases move to a reasonable, timely, and orderly conclusion. Perez v. Miami-Dade County, 297 F.3d 1255, 1263 (11th Cir. 2002); Phipps v. Blakeney, 8 F.3d 788, 790 (11th Cir. 1993). Under the Federal Rules, the overall purpose of discovery is to require the disclosure of all relevant information so that the ultimate resolution of disputed issues may be based on a full and accurate understanding of the true facts, and therefore embody a fair and just result. See United States v. Proctor & Gamble Co., 356 U.S. 677, 682 (1958); see also Oppenheimer Fund. Inc. v. Sanders, 437

18
ATL_IMANAGE-6736273.4

U.S. 340, 351 (1978) (discovery "is designed to help define and clarify the issues"). Rule 37(c)(1) of the Federal Rules of Civil Procedure states: If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. FED. R. CIV. P. 37(c)(1) (emphasis added). The burden of establishing substantial justification or harmlessness is on the party who failed to make the required disclosure. See Prieto v. Malgor 361 F.3d 1313, 1318 (11th Cir. 2004); 7 JAMES WM. MOORE
ET AL.,

MOORE'S FEDERAL PRACTICE ¶ 37.60 (3d ed. 1997 & Supp.

2008) (citing Nguyen v. IBP, Inc., 162 F.R.D. 675, 679-680 (D. Kan. 1995). "The purpose of this sanction is to provide parties with an incentive to timely disclose all material evidence in support of their positions that they intend to use at any point during the course of the litigation, thus attacking the temptation some parties might feel to try to gain a tactical advantage at trial by exposing for the first time at that stage evidence that is favorable to their position." 7 MOORE'S, at ¶ 37.60 (citing FED. R. CIV. P. 37(c) advisory committee's note (1993)); see also Port Terminal & Warehousing Co. v. John S. James Co., 695 F.2d 1328, 1335 (11th Cir. 1983) ("firm deadlines for discovery are more than helpful to the Court 19
ATL_IMANAGE-6736273.4

in promoting the just and efficient administration of justice, they are essential"). In fact, courts in the Eleventh Circuit have regularly excluded from trials and hearings evidence not disclosed during discovery where the party who failed to disclose cannot satisfy its burden of proving substantial justification or harmless error. See, e.g., United States v. Koziy, 728 F.2d 1314, 1321 (11th Cir. 1984) (affirming exclusion of two witnesses for failure to disclose on witness list, despite having previously deposed them); King v. Kennesaw State Univ., No. 1:05-CV-3169TWT, 2007 WL 2713252, at *9 (N.D. Ga. Sept. 13, 2007) (finding that plaintiff's failure to disclose certain witnesses and other evidence in initial disclosures, responses to document requests, and interrogatories warranted exclusion); Fisher v. Ciba Specialty Chems. Corp., 238 F.R.D. 273, 283 (S.D. Ala. 2006) (excluding sampling data at certification phase because late production violated spirit of discovery obligations, needlessly ushered confusion into class certification hearing, and prejudiced company). Plaintiffs have never specified any acts of infringement by Defendants after adoption of the New Copyright Policy. See Ex. A (providing summary of

Plaintiffs' allegations against Defendants, which only span Fall 2006 to Spring 2008). Defendants requested an identification of works for which copying is alleged. Plaintiffs have only described the 31 works encompassed in Exhibit A. 20
ATL_IMANAGE-6736273.4

Following adoption of the New Copyright Policy, only those described works are at issue. A brief review of those works under the New Copyright Policy is in order. 1. Infringement of SAGE Copyrights

SAGE alleges that three named professors (Professors Belcher, Kaufman, and Emshoff) and one unnamed professor copied portions of four of its copyrighted works (SAGE 1, SAGE 2, SAGE 3, and SAGE 4) at various times during Fall 2006 until Spring 2008. See Ex. A at ##1-16. As shown, SAGE 1 and SAGE 3 are no longer used; only SAGE 2 and SAGE 4 have been used since the adoption of the New Copyright Policy. See SOF 1-88. Notably, the amount of material used from SAGE 2 and SAGE 4 has also been reduced since the New Copyright Policy was implemented. For instance, before the adoption of the New Copyright Policy, Professor Kaufman provided access to eight chapters of SAGE 2. See Ex. A at ##7-14; SOF 26-27, 31-32, 3637, 41-42, 46-47, 51-54, 58-59, 63. After adoption, Professor Kaufman provided access to only five chapters in Fall 2009 (Chapters 14, 17, 22, 36, and 38) and four chapters in Spring 2010 (Chapters 5, 14, 17, and 22). See SOF 29, 34, 39, 44, 49, 56, 61, 65; SOF 30, 35, 40, 45, 50, 57, 62, 66. Similarly, before the adoption of the New Copyright Policy, three chapters of SAGE 4 were used. See Ex. A at #16; 21
ATL_IMANAGE-6736273.4

SOF 77, 81, 85.

In Spring 2010, access was provided to only two chapters

(Chapters 3 and 4). See SOF 80, 84, 88. (i) SAGE 1

As alleged by Plaintiffs, Professor Belcher provided access to 157 pages of SAGE 1's 1065 pages for her course "Qualitative Research" in Spring 2007, see Ex. A at ##1-6, and 30 pages of SAGE 1 in materials for her Fall 2007 "Qualitative Methods in Sociology." See id. at #6; SOF 1, 5, 9, 13, 17, 21-22. Professor Belcher, however, did not include any pages from SAGE 1 in either course taught in Summer 2009, Fall 2009, or Spring 2010. See SOF 2-4, 6-8, 10-12, 14-16, 1820, 23-25. Defendants are thus entitled to judgment as a matter of law of no ongoing and continuous copying of SAGE 1. (ii) SAGE 2

Professor Kaufman allegedly copied eight chapters--5, 12, 14, 17, 22, 25, 36, and 38--for various courses offered in Fall 2007 and Spring 2008. See Ex. A at ##7-14; SOF 26-27, 31-32, 36-37, 41-42, 46-47, 51-54, 58-59, 63. In Summer 2009, twenty-five pages of a previous edition of SAGE 2 were used by Professor Kaufman. See SOF 64. In Fall 2009, only six of the eight chapters were used: Chapters 5, 14, 17, 22, 36, and 38, which amounted to 88 pages of the 1126 page book. See SOF 29, 39, 44, 49, 61, 65. Then in Spring 2010, Professor Kaufman

22
ATL_IMANAGE-6736273.4

again narrowed the works copied, and included only four: Chapters 5, 14, 17, and 22, totaling 81 pages. See SOF 30, 40, 45, 50. (iii) SAGE 3

SAGE claims that Professor Emshoff copied Chapter 2 for use in the Fall 2006 and Fall 2007 "Introduction to Community Psychology" course. See Ex. A at #15; SOF 67-68, 72-73. Professor Emschoff, however, did not include any pages from SAGE 3 in any course taught in Summer 2009, Fall 2009, or Spring 2010. See SOF 69-71, 74-76. Defendants are therefore entitled to judgment as a matter of law of no ongoing and continuous copying of SAGE 3. (iv) SAGE 4

For the "Women and Media" course offered before the adoption of the New Copyright Policy, three chapters of SAGE 4 were used: Chapters 2, 3, and 4. See Ex. A at #16; SOF 77, 81, 85. Although SAGE 4 was never used in Summer 2009 or Fall 2009, in Spring 2010, only Chapters 2 (pgs. 11-28) and 3 (pgs. 29-42) were included. See SOF 78-80, 82-84, 86-88. 2. Infringement of Cambridge Copyrights

Cambridge asserts that four named professors (Professors Reimann, Orr, Bunting, and Lazarus) and two unnamed professor copied portions of seven of its copyrighted works (Cambridge 1, Cambridge 2, Cambridge 3, Cambridge 4,

23
ATL_IMANAGE-6736273.4

Cambridge 5, Cambridge 6, and Cambridge 7) at various times during Fall 2006 until Spring 2008. See Ex. A at ##17-27; SOF 89-90, 94, 98, 102, 106, 110, 114, 118, 122, 126, 130, 134, 138, 142, 146. None of the Cambridge works Plaintiffs accuse Defendants of copying have been used since the adoption of the New Copyright Policy. See SOF 91-93, 95-97, 99-101, 103-105, 107-109, 111-113, 115-117, 119-121, 123-125, 127-129, 131-133, 135-137, 139-141, 143-145, 147149. Because Cambridge's infringement claims are dependent upon the copying of Cambridge 1-7, Defendants are entitled to judgment as a matter of law of no ongoing and continuous infringement of Cambridge's copyrights. 3. Infringement of Oxford Copyrights

Oxford alleges that three named professors (Blumi, Darsey, and Dixon) and one unnamed professor copied portions of four of its copyrighted works (Oxford 1, Oxford 2, Oxford 3, and Oxford 4) at various times from Fall 2006 until Spring 2008. See Ex. A at ##28-31; SOF 150, 154, 158, 162-164, 168-169. As described below, Oxford 1 and Oxford 2 are no longer used. See SOF 151-153, 155-157, 159-161. Only Oxford 3 and Oxford 4 have been used since the adoption of the New Copyright Policy. See SOF 165-167, 170-172, 174-176. Like SAGE, the amount of use of Oxford 3 and Oxford 4 has been reduced since the New Copyright Policy was implemented. See id. For instance, before the 24
ATL_IMANAGE-6736273.4

adoption of the New Copyright Policy, Professor Dixon used two chapters of Oxford 3. See Ex. A at #30; SOF 162-164, 168-169. After the adoption, Professor Dixon only used one. See SOF 165-167, 170-172. With respect to Oxford 4, before and for the Summer and Fall 2009 Semesters, one chapter was used. See Ex. A at #31; SOF 173-175. Yet in Spring 2010, no pages were used. See SOF 176. (i) Oxford 1

As described by Plaintiffs, Professor Blumi included 51 pages of Oxford 1's 339 pages for his course "Survey of World History" in Spring 2007. See Ex. A at #28; SOF 150. Professor Blumi, however, did not include any pages from Oxford 1 in any course taught in Summer 2009, Fall 2009, or Spring 2010. See SOF 151153. In light of the undisputed record evidence and the applicable law, Oxford cannot demonstrate, as a matter of law, that it can prevail on any of its claims of ongoing and continuous copying of Oxford 1. Judgment in Defendants' favor should therefore be granted with respect to Oxford 1. (ii) Oxford 2

Professor Darsey allegedly copied Chapters 1 and 2 of Oxford 2 for "Theories of Public" offered in Fall 2006. See Ex. A at ##29; SOF 154, 158. Professor Darsey, however, did not include any pages from Oxford 2 in any course

25
ATL_IMANAGE-6736273.4

taught in Summer 2009, Fall 2009, or Spring 2010. See SOF 155-157, 159-161. Judgment in Defendants' favor is therefore appropriate with respect to Oxford 2 since Oxford cannot demonstrate any ongoing and continuous copying of Oxford 2. (iii) Oxford 3

Oxford claims that Professor Dixon taught "African-American Male/Female Relationships" in Fall 2007 and Spring 2008 and "African-American Family" in Spring 2008. See Ex. A at #30; SOF 162-164, 168-169. With respect to Oxford 3, Professor Dixon provided access to Chapter 4 (pgs. 149-191) in the Fall 2007 and Spring 2008 and Chapter 7 (pgs. 249-283) in Spring 2008. See id. After the adoption of the New Copyright Policy, Professor Dixon decreased the use from two chapters to only one: Chapter 7. See SOF 165-167, 170-172. (iv) Oxford 4

Chapter 6 of Oxford 4 was used in three different sections of Fall 2007 "The Psychology of Young Children." See Ex. A at #31; SOF 173. Twenty pages of Chapter 6 were included in Professor Kruger's "Learning and the Learner" course taught in the Summer 2009 and Fall 2009. See SOF 174-175. Yet in Spring 2010, none of Oxford 4's 296 pages have been used. See SOF 176. Thus Oxford is

26
ATL_IMANAGE-6736273.4

unable to demonstrate any ongoing and continuous copying of Oxford 4 and Defendants are therefore entitled to judgment in their favor as to Oxford 4. C. Direct Infringement

As described above, only SAGE 2 (used by Professor Kaufman), SAGE 4 (unknown user), Oxford 3 (used by Professor Dixon), and Oxford 4 (used by Professor Kruger) are at issue. With respect to those works (or any of the other works as originally alleged), Plaintiffs have not and cannot show that Defendants themselves have directly infringed Plaintiffs' exclusive purported copyright because Defendants themselves have not reproduced, distributed or used the copyrighted works-at-issue. To prevail on their claim for direct copyright infringement, Plaintiffs must prove (1) ownership of the copyrights at issue2 and (2) that Defendants, without authorization, reproduced, distributed or otherwise used the copyrighted works in violation of Plaintiffs' exclusive rights under 17 U.S.C. § 106. See Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991); see also 17 U.S.C. § 501(a) (explaining that infringement occurs when alleged infringer engages in any activity listed in § 106).
2

For purposes of this motion alone, Defendants do not dispute Plaintiffs' ownership of valid copyrights in the works-at-issue in this case. Defendants reserve the right to challenge ownership at trial. 27

ATL_IMANAGE-6736273.4

Plaintiffs cannot point to any evidence that shows these Defendants--that is the President, Provost, University Dean of Libraries, Associate Provost, the members of the Board of Regents, and the Chair of the Board of Regents--actually reproduced, distributed, or used the works-at-issue for which Plaintiffs hold the copyrights. There is no evidence: that these Defendants ever made copies of any copyrighted works; that these Defendants ever distributed any copyrighted works; that these Defendants ever improperly used any copyrighted works; what works these Defendants allegedly copied; what works these Defendants allegedly distributed; what works these Defendants allegedly used; where these Defendants made the alleged copies; where these Defendants distributed the alleged copies; where these Defendants used the alleged copies; how these Defendants allegedly made the copies; how these Defendants allegedly distributed the copies; how these Defendants allegedly used the copies; when these Defendants allegedly made the copies;3 when these Defendants allegedly distributed the copies; and when these Defendants allegedly used the copies.

To the extent Plaintiffs' allegations of direct infringement by these Defendants extend to these Defendants' activities prior to February 17, 2009, their claim necessarily fails because of this Court's June 19, 2009 Order granting Defendants' Motion for Protective Order. See D.E. 111. 28
ATL_IMANAGE-6736273.4

3

See SOF 178-192. Indeed, the asserted reproduction, distribution, or improper use was never performed by any of the Defendants. See id. Rather, any alleged unlawful reproduction, distribution, or improper use was actually done by instructors, professors, students, or library employees. See SOF 193-204. For example, the parties stipulated that "[i]nstructors at GSU may post Electronic Course Materials on the uLearn system," and "[a]s part of the process of posting Electronic Course Materials to uLearn, professors at GSU or their authorized representatives save copies of such materials to their computers to facilitate the upload of these files to the uLearn system." See D.E. 118, Jt. Notice of Filing Stip., Ex. A at 10, Nos. 28-29 (emphasis added). Defendants admitted that "the GSU library makes the ERes system available for faculty to place excerpts of course material that satisfy a fair use analysis in accordance with the USG Policy on Copyright in Education and Research." See SOF, Ex. F at Nos. 5, 24, 41, attached hereto as Ex. G (emphasis added). As for the actual posting of such material, employees of GSU's library post and save any material made available via ERes. See D.E. 118, Jt. Notice of Filing Stip., Ex. A at 5-6, Nos. 1-2. Very simply, Defendants cannot be held liable for direct copyright infringement because no Defendant performed any act of alleged unlawful copying. See SOF 178-192. Defendants are entitled to summary judgment that no 29
ATL_IMANAGE-6736273.4

named Defendant performed any act of direct copyright infringement. Burdick v. Koerner, 988 F. Supp. 1206, 1209 (E.D. Wis. 1998).

See

Undoubtedly, Plaintiffs will cite to Blackwell Publishing, Inc. v. Excel Research Group, LLC, 07-12731, 2009 WL 3287403 (E.D. Mich. Oct. 14, 2009), in an effort to support their allegations of liability for direct infringement by the Defendants. That case, however, is neither controlling nor analogous. The case clearly involved a commercial photocopying company that provided coursepacks for University of Michigan students consisting of portions of copyrighted works reproduced without obtaining the necessary permissions. See id. at *1-2.

Specifically, a professor brought to the copyshop photocopies of the contents of the coursepack--which then became the master copy. See id. The copyshop then directed students to make a photocopy of the master copy and the copyshop would then bind the photocopying into a coursepack. See id. Importantly, the copyshop activity was a commercial enterprise that generated revenue from the improper copying. See id. In granting summary judgment to a group of publishers, the court relied on the Sixth Circuit's 1996 ruling in a similar case involving a commercial copyshop's sales of course-packs to students at the University of Michigan. See id. It found that the fact that the students pushed a button on a copier at the direction 30
ATL_IMANAGE-6736273.4

of the copyshop was of no significance because the photocopying company was using those customers as proxies to reproduce the publishers' materials on a commercial basis. See id. The copyshop also admitted that, by not paying the copyright fees to publishers, it was able to charge the students a lower fee than if the students had tried to copy the materials at a permission-obtaining copyshop or on campus. See id. D. Contributory Infringement

The Copyright Act does not specifically provide for secondary liability, but contributory copyright infringement is an established principle derived from common law. Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930-31 (2005). "[T]he well-settled test for a contributory infringer [is] `one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another.'" Cable/Home Commc'n Corp. v. Network Prods., Inc., 902 F.2d 829, 845 (11th Cir. 1990) (internal quotation marks omitted) (citing, inter alia, Casella v. Morris, 820 F.2d 362, 365 (11th Cir. 1987); Gershwin Publ'g Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir. 1971); Columbia Pictures Indus., Inc. v. Redd Horne, Inc., 749 F.2d 154, 160 (3d Cir. 1984)); see also Greenberg v. Nat'l Geographic Soc., 244 F.3d 1267, 1271 n.6 (11th Cir. 2001), abrogated on other grounds by, N.Y. Times Co., Inc. v. Tasini, 31
ATL_IMANAGE-6736273.4

533 U.S. 483, 121 S. Ct. 2381 (2001), as recognized by, Greenberg v. Nat'l Geographic Soc., 488 F.3d 1331 (11th Cir. 2007). Contributory infringement must follow a finding of direct or primary infringement. Cable/Home Commc'n Corp. v. Network Prods., Inc., 902 F.2d 829, 846 (11th Cir. 1990); see also Oravec v. Sunny Isles Luxury Ventures L.C., 469 F. Supp. 2d 1148, 1179 (S.D. Fla. 2006) ("Because there is no direct infringement, there can be no contributory or vicarious infringement as a matter of law."). "[T]he standard of knowledge is objective: Know, or have reason to know." Cable/Home Commc'n Corp., 902 F.2d at 845

(internal quotation marks omitted); see also Microsoft Corp. v. Silver Star Micro, Inc., No. 1:08-CV-1350-WSD, 2008 U.S. Dist. LEXIS 1526 (N.D. Ga. Jan. 9, 2008). Plaintiffs have failed to produce any evidence on the basis of which a finder of fact could conclude that Defendants have induced, caused, or materially contributed to the direct infringement alleged in this case. See SOF 205. To the contrary, all of the evidence in this case points to Defendants' efforts to discourage and prevent copyright infringement by users of its electronic course reserves systems. See SOF 206-207. As a result, summary judgment in favor of

Defendants on Plaintiffs' Second Claim is warranted.

32
ATL_IMANAGE-6736273.4

Defendants' provision of the uLearn and ERes systems through which the alleged infringement purportedly took place alone is not enough to establish contributory liability. Liability for contributory copyright infringement may not be imposed by presuming or imputing intent to cause infringement solely from the design or distribution of a product capable of substantial lawful use. MetroGoldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 919 (2005). Liability is limited "to instances of more acute fault." Id. at 932-33. The Supreme Court has held that "one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties." Id. at 919 (emphasis added). Here, as opposed to "fostering" or "promoting," see id., use of Defendants' electronic reserves systems for copyright infringement, Defendants have undertaken numerous efforts to ensure that their electronic systems are not used for infringing purposes, including: empanelling a committee of stakeholders and experts to develop an updated, comprehensive, and legally-effective copyright policy, see generally SOF, Ex. E; D.E. 104-2; SOF 215 (adoption of the New Copyright Policy, education of professors regarding the New Copyright Policy and copyrights in general, and empowerment of library staff to review and, when necessary, reject professors' submissions to the electronic 33
ATL_IMANAGE-6736273.4

reserves systems. These efforts are in stark contrast to the acts courts have found that demonstrate an unlawful objective of promoting and profiting from copyright infringement. For example, in Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005), the distributor of file sharing software (Grokster) was found to have contributorily infringed not purely because it distributed software used for an infringing purpose, but because it had promoted unlawful use of the software by targeting its advertisements to users who were known infringers (demonstrating an intent to infringe), and it had failed to develop tools or mechanisms that could reduce infringing use. 545 U.S. at 939-40. Unlike Grokster, Defendants have gone to great lengths to discourage use of their electronic systems for infringing purposes. They have created a

comprehensive copyright policy, have educated faculty regarding that policy, and have established support systems whereby users can seek legal counsel. SOF 216. The New Copyright Policy makes instructors "responsible for evaluating, on a case-by-case basis, whether the use of a copyrighted work on electronic reserves requires permission or qualifies as a fair use." SOF, Ex. E at 8; see also D.E. 1042 at 54. The policy also requires that if an instructor is "relying upon the fair use exception, [the instructor] must complete a copy of the fair use checklist before 34
ATL_IMANAGE-6736273.4

submitting material for electronic reserves." SOF, Ex. E at 9, 4-8; see also D.E. 104-2 at 55. Library staff are empowered to examine requests that appear to be beyond fair use, and since the New Copyright Policy was adopted, library staff have rejected at least one request to copy material. SOF 217. Thus, while

Defendants have, like Grokster, provided alleged infringers with a forum through and with which they may infringe, unlike Grokster, Defendants do not induce, cause, or encourage the alleged infringers to infringe. See Grokster, 545 U.S. at 937-40. Instead, Defendants have developed "tools or other mechanisms to

diminish the infringing activity using their software." See id. at 939. Lifetime Homes, Inc. v. Residential Development Corp., 510 F. Supp. 2d 794 (M.D. Fla. 2007), also is instructive. In Lifetime Homes, the court held that defendants that sold land to a builder who built infringing homes on the land were not contributorily liable. 510 F. Supp. 2d at 808-09. The Plaintiff alleged that the sellers of the land were liable for contributory infringement because they provided the infringer with (in the court's words) "a forum in which [the infringer] engages in infringing construction." Id. at 808 (emphasis added). The court indicated that without more than "buying and selling land" to the copyright infringer, the sellers could not be held accountable for the infringement. Id. at 808-09. Even if the sellers knew of the infringing activity, merely selling the land did not evidence that 35
ATL_IMANAGE-6736273.4

the sellers had "induced, caused or materially contributed to" construction of the allegedly infringing homes. Id. at 809. The court indicated that without evidence that the defendants "only sold land to [the infringer] for construction of the allegedly infringing design" or that the sale of the land was more than a "passive land deal[] completed prior to the construction of homes on the land," the contributory infringement claim failed. Id. Like the land sold to the infringing home builder in Lifetime Homes, the ERes and uLearn systems merely provide the "forum" wherein the allegedly infringing activity took place. GSU has provided these systems "to assure that students and teachers will have timely access to course-related library resources." (Ex. C at 9; D.E. 104-2 at 54 (quoting New Copyright Policy "Additional Guidelines for Electronic Reserves").) There is no evidence that creation of the forum itself ever was intended to facilitate copyright infringement. Cf. Lifetime Homes, 510 F. Supp. 2d at 809 (finding it significant that there was no evidence the defendants sold the forum to infringe "only . . . for construction of the allegedly infringing design"). "Without more" than providing this forum, there is no

authority to support holding Defendants accountable for the alleged infringement. See Lifetime Homes, 510 F. Supp. 2d at 809.

36
ATL_IMANAGE-6736273.4

Because Plaintiffs have produced no evidence indicating that Defendants induce, cause, or materially contribute to direct infringement of their copyrights, and because Defendants have amply demonstrated that they in fact actively advocate for the protection of copyrights and have instituted numerous mechanisms to discourage and prevent use of their electronic reserves systems for infringing purposes, summary judgment in favor of Defendants on Plaintiffs' claim for contributory infringement is warranted. E. Vicarious Infringement

To prevail on their claim of vicarious liability for copyright infringement, D.E. 39 ¶¶ 58-62, Plaintiffs must show that Defendants "profit[ed] directly from the infringement and [had] a right and ability to supervise the direct infringer." Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 931 n.9 (2005); see also Microsoft Corp. v. Silver Star Micro, Inc., No. 06-1350, 2008 U.S. Dist. LEXIS 1526, at *23 (N.D. Ga. Jan. 9, 2008) (citing standard from MetroGoldwyn-Mayer Studios, Inc. v. Grokster, Ltd.). Plaintiffs cannot make this

showing. Summary judgment on Plaintiffs' vicarious liability claim is appropriate because Plaintiffs have not and cannot establish the required second element of a vicarious liability claim--profit from the infringing activities.

37
ATL_IMANAGE-6736273.4

In order to determine if the defendant profited, the relevant inquiry is "whether the infringing activity constitutes a draw for subscribers," not whether the infringing activity is "just an added benefit." Ellison v. Robertson, 357 F.3d 1072, 1079 (9th Cir. 2004). In A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1023 (9th Cir. 2001), for example, the court explained that there was ample evidence that the infringing party's "fu