Cambridge University Press et al v. Patton et al

Filing 272

MOTION in Limine to Exclude Irrelevant Evidence in Accordance with Order of September 30, 2010 with Brief In Support by J. L. Albert, Mark P. Becker, Kenneth R. Bernard, Jr, Larry R. Ellis, Rutledge A. Griffin, Jr, Robert F. Hatcher, C. Thomas Hopkins, Jr, W. Mansfield Jennings, Jr, James R. Jolly, Donald M. Leebern, Jr, William NeSmith, Jr, Risa Palm, Doreen Stiles Poitevint, Willis J. Potts, Jr, Wanda Yancey Rodwell, Nancy Seamans, Kessel Stelling, Jr, Benjamin J. Tarbutton, III, Richard L. Tucker, Larry Walker, Philip A. Wilheit, Sr. (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Quicker, Katrina) Modified on 4/29/2011 in order to update docket text (ank).

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
CAMBRIDGE UNIVERSITY PRESS,
et al.,
Plaintiffs,

Civil Action No.
1:08-CV-1425-ODE

-vMARK P. BECKER, in his official
capacity as President of Georgia State
University, et al.,
Defendants.
DEFENDANTS’ MOTION IN LIMINE TO EXCLUDE IRRELEVANT
EVIDENCE IN ACCORDANCE WITH ORDER OF SEPTEMBER 30, 2010,
WITH INCORPORATED MEMORANDUM OF LAW
Defendants, pursuant to this Court’s rulings on the scope of activities
relevant to Plaintiffs’ claims and Federal Rules of Evidence 401 and 402, move
this Court to exclude all evidence regarding the acts of Defendants, Defendants’
employees, independent contractors working for Defendants, and Defendants’
predecessors that do not fall within the scope of relevant uses of published works
identified by this Court in its September 30, 2010 summary judgment order (the
“2010 Summary Judgment Order”) or subsequent rulings dated November 5, 2010,
and March 3, 2011. In particular, Defendants move to have excluded evidence

related to allegations of infringing use of published works in conjunction with
teaching or research activities (a) in semesters outside of the May 2009 through
December 2009 time frame, (b) in courses or regarding works not identified in
Plaintiffs’ August 20, 2010 filing (Dkt. 228) or the parties’ joint March 15, 2011
filing (Dkt. 266), and (c) regarding works to which no Plaintiff has any relevant
copyright.
BACKGROUND
This is a copyright infringement case brought under 17 U.S.C. §§ 101 et seq.
by three publishing houses against officials of the University System of Georgia
and Georgia State University. Plaintiffs allege Defendants are responsible for
infringement of their copyrighted works. In particular, Plaintiffs complain about
instructors’ practice of using electronic systems to reproduce and distribute
excerpts from copyrighted works for academic use by Georgia State University
students.
In the 2010 Summary Judgment Order, this Court held that “in order to show
that Defendants are responsible for the copyright infringements alleged in this
case, Plaintiffs . . . must put forth evidence of a sufficient number of instances of
infringement of Plaintiffs’ copyrights to show . . . ongoing and continuous
misuse.” (Sept. 30, 2010 Or., Dkt. 235 at 30.) This Court held that in making this

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showing (and in Defendants’ making their showings that the alleged uses amount
to fair uses), “[b]oth sides will be limited to the list of claimed infringements
produced in response to the Court’s August 11, 2010 and August 12, 2010 orders.”
(Id.) The August orders required Plaintiffs to file with the Court as claimed
infringements only alleged uses of works (i) the copyright for which is owned by
one of the Plaintiffs and (ii) that occurred during one or more of the three
semesters immediately following adoption of the 2009 Copyright Policy:
Maymester 2009, Summer 2009, and Fall 2009. (Dkt. 226; Dkt. 227.) In response,
Plaintiffs enumerated approximately 126 uses of works purportedly owned or
controlled by them across the three semesters. (Dkt. 228.)
On November 5, 2010, and March 3, 2011, this Court again indicated that
Plaintiffs’ infringement evidence would be limited to claimed infringements from
the 2009 Maymester, Summer 2009, and Fall 2009 terms. (Dkt. 265 at 1-2; Dkt.
240 at 3.) Therein, the Court ordered that the parties jointly develop “an accurate
and complete list of all alleged infringements from the 2009 Maymester, Summer
2009 term, and Fall 2009 term.” (Dkt. 265 at 1; Dkt. 240 at 3.) In response, the
parties jointly filed on March 15, 2011, a list of approximately 99 alleged
infringements during the three relevant semesters. (Dkt. 266.)

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Contrary to this Court’s September 30, 2010 ruling, and in contrast to the
parties’ joint filing on March 15, 2011, however, Plaintiffs have indicated that they
intend to introduce at trial evidence of uses by Georgia State University employees
or contractors not included in the August filings or March list of alleged
infringements. For example, Plaintiffs’ proposed exhibit list includes purported
evidence of use of published works as far back as 2006. (Pls.’ Ex. List, attached
hereto as Exhibit A, at 154-181, 184, 190-197, 329-336, 488-491, 507, 776-781,
803-810, 813-818, 836-851, 869-876, 889, 917 (referencing works used prior to
adoption of the 2009 Copyright Policy; for example, White Supremacy used in
2006).) Plaintiffs’ proposed stipulated facts similarly include statements regarding
use of works owned or licensed by other publishers, uses outside the relevant time
frame, and uses of works not named in the August 2010 filings or the joint March
2011 filing, including uses in courses not referenced in those documents. (See,
e.g., Pls.’ Proposed Stipulated Facts ¶¶ 134-141 (identifying uses of works prior to
adoption of the 2009 Copyright Policy, including uses in Fall 2006, Fall 2007,
Spring 2007, Spring 2008, and Spring 2009); 149 (asserting that “thousands of
copyrighted works were placed on ERes” “[u]nder the pre-2009 guidelines”); 160
(identifying uses of works not owned by Plaintiffs, uses of works not listed in the
August or March filings, and uses in courses not identified in the August or March

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filings, for example, Handbook of Theories of Aging; Suburban Alchemy: 1960’s
New Towns and the Transformation of the American Dream for course HIST 8655;
Fearon’s American Government published by Fearon/Janus/Quercus; The Varieties
of History: From Voltaire to the Present published by Vintage).)
ARGUMENT AND CITATION OF AUTHORITY
Only relevant evidence is admissible, and evidence is only relevant if it has
the tendency to make the existence of a fact more or less probable than it would be
without the evidence. Fed. R. Evid. 401, 402. The relief Plaintiffs seek is subject
to principles of sovereign immunity, limiting relevant evidence to that of “ongoing
and continuous” activity. This Court acknowledged that limitation in its June 19,
2009 Protective Order, which prohibited Plaintiffs’ further inquiry into practices
prior to adoption of the 2009 Copyright Policy except to show:

(1) the

circumstances surrounding the adoption of the Policy, (2) the membership of the
committee that adopted the Policy, (3) the resources consulted by the committee in
adopting the Policy, and (4) the differences between the Policy and the previous
guidelines. (Dkt. 111 at 5-6.)
After evaluating both sides’ motions for summary judgment, this Court held
that in making their showings relevant to the remaining claims in this case “[b]oth
sides will be limited to the list of claimed infringements produced in response to

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the Court’s August 11, 2010 and August 12, 2010 orders.” (Dkt. 235 at 10.) In
other words, consistent with principles of sovereign immunity, “[b]oth sides will
be limited to” the list of alleged infringements of named works purportedly owned
by Plaintiffs and used by the identified instructors in particular courses during the
2009 Maymester, Summer 2009, and Fall 2009 terms. This Court re-emphasized
in its November 5, 2010 and March 3, 2011 orders that the only relevant uses of
published works by any of Defendants or Defendants’ employees, contractors, or
predecessors are those specifically identified in the parties’ filings responsive to
the Court’s August 11 and 12, 2010 orders, as narrowed in the parties’ joint March
15, 2011 filing (Dkt. 266).
The Court’s September 2010 ruling also acknowledged the impossibility of
defending against nebulous and sweeping allegations of infringement in a case that
requires that Defendants be able to assert the fair use defense for each separate
alleged infringement. (Dkt. 235 at 4.) A similar point was made in the protective
order granted on June 19, 2009 (Dkt. 111), which stopped Plaintiffs’ burdensome
and seemingly endless inquiries into practices pre-dating the 2009 Copyright
Policy. Accordingly, this Court required in its September 30, 2010, November 5,
2010, and March 3, 2011 orders that Plaintiffs identify with specificity—for

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Defendants and for the Court—those allegations of use properly at issue in this
case.
The discovery that has taken place since the September 2010 ruling has been
limited to the three-semester, Maymester 2009, Summer 2009, and Fall 2009, time
period, and the list of alleged infringements filed by Plaintiffs in August,
supplemented slightly during the extended discovery period.

Plaintiffs now

profess the intent to present at trial evidence of additional uses of published works,
both within and outside of the Court’s identified time frame, without having
provided Defendants with the opportunity for further discovery on those
allegations and in direct conflict with this Court’s 2010 Summary Judgment Order.
Furthermore, if Plaintiffs were permitted to introduce such evidence, Defendants
would be required to defend against allegations of use for which Plaintiffs cannot
be granted relief and alleged infringements previously ruled irrelevant by this
Court. To require such a defense would run counter to this Court’s rulings, Federal
Rules of Evidence 401 and 402, and principles of sovereign immunity.
Because Plaintiffs have demonstrated an intent to introduce extensive
evidence of (i) use of works not owned by Plaintiffs, (ii) use of works not
identified in the August or March filings, (iii) use of works in courses not
identified in the August or March filings, and (iv) use of works outside of the

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relevant time frame as defined by the Court, all counter to this Court’s 2010
Summary Judgment Order and the intent of the parties’ joint March 15, 2011
filing, Defendants respectfully request that the Court grant this motion in limine
expressly prohibiting the admission of such evidence.

A proposed order is

attached for the Court’s convenience.
Respectfully submitted, this 28th day of April, 2011.
SAMUEL S. OLENS
Georgia Bar No. 551540
Attorney General
R. O. LERER
Georgia Bar No. 446962
Deputy Attorney General
DENISE E. WHITING-PACK
Georgia Bar No. 558559
Senior Assistant Attorney General
MARY JO VOLKERT
Georgia Bar No. 728755
Assistant Attorney General

/s/ Katrina M. Quicker
Katrina M. Quicker
Georgia Bar No. 590859
BALLARD SPAHR LLP
999 Peachtree Street, Suite 1000
Atlanta, GA 30309-3915
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
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Stephen M. Schaetzel
Georgia Bar No. 628653
KING & SPALDING LLP
1180 Peachtree Street, N.E.
Atlanta, GA 30309
Telephone: [phone]
Facsimile: [phone]

Anthony B. Askew
Special Assistant Attorney General
Georgia Bar No. 025300
211 Townsend Place
Atlanta, GA 30327
Telephone: [phone]

Attorneys for Defendants

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CERTIFICATE OF COMPLIANCE
Pursuant to Rule 7.1D of the Local Rules of the Northern District of
Georgia, counsel for Defendants certifies that the foregoing DEFENDANTS’
MOTION IN LIMINE TO EXCLUDE IRRELEVANT EVIDENCE IN
ACCORDANCE WITH ORDER OF SEPTEMBER 30, 2010, WITH
INCORPORATED MEMORANDUM OF LAW was prepared in a font and
point selection approved by this Court and authorized in Local Rule 5.1C.

/s/ Katrina M. Quicker
Katrina M. Quicker

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
CAMBRIDGE UNIVERSITY PRESS,
et al,
Plaintiffs,

Civil Action No.
1:08-CV-1425-ODE

-vs.MARK P. BECKER, in his official
capacity as Georgia State University
President, et al.,
Defendants.
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this 28th day of April, 2011, I have
electronically filed the foregoing DEFENDANTS’ MOTION IN LIMINE TO
EXCLUDE IRRELEVANT EVIDENCE IN ACCORDANCE WITH ORDER
OF SEPTEMBER 30, 2010, WITH INCORPORATED MEMORANDUM OF
LAW with the Clerk of the Court using the CM/ECF system, which will
automatically send e-mail notification of such filing to the following attorneys of
record:

Edward B. Krugman
[e-mail]
Georgia Bar No. 429927
Corey F. Hirokawa
[e-mail]
Georgia Bar No. 357087
John H. Rains IV
[e-mail]
Georgia Bar No. 556052

R. Bruce Rich
Jonathan Bloom
Randi Singer
Todd D. Larson
WEIL, GOTSHAL & MANGES LLP
767 Fifth Avenue
New York, NY 10153
Telephone: [phone]
Facsimile: [phone]

BONDURANT, MIXSON &
ELMORE, LLP
1201 West Peachtree Street N.W.
Suite 3900
Atlanta, GA 30309
Telephone: [phone]
Facsimile: [phone]

/s/ Katrina M. Quicker
Katrina M. Quicker
Georgia Bar No. 590859
BALLARD SPAHR LLP
999 Peachtree Street, Suite 1000
Atlanta, GA 30309-3915
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

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