Cambridge University Press et al v. Patton et al

Filing 274

MOTION in Limine To Preclude the Admission of Recently Created Fair Use Checklistsby Cambridge University Press, Oxford University Press, Inc., Sage Publications, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L)(Rains, John)

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E X H I B I T G IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION CAMBRIDGE UNIVERSITY PRESS, et al., Plaintiffs, vs. MARK P. BECKER, in his official capacity as Georgia State University President, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) Civil Action File No. 1:08-CV-1425-ODE - - Videotaped deposition of JOHN M. MURPHY, taken on behalf of the plaintiffs, pursuant to the stipulations contained herein, before Teresa Bishop, RPR, RMR, CCR No. B-307, at 1180 Peachtree Street, 16th Floor, Atlanta, Georgia, on Friday, April 22, 2011, commencing at the hour of 10:03 a.m. _______________________________________________________ Shugart & Bishop Certified Court Reporters Suite 140 13 Corporate Square Atlanta, Georgia 30329 (770) 955-5252 EXHIBIT G - 1 CAMBRIDGE vs. BECKER 1 JOHN MURPHY APRIL 22, 2011 as to why there are hits reflected on this document? 2 MS. QUICKER: Objection. Foundation. 3 THE WITNESS: I really have no idea 4 about the definition of a hit in this case. 5 For example, I might have accessed -- I 6 could have -- one of the hits could be 7 mine. 8 9 10 11 I don't know. BY MR. BLOOM: Q. Do you have a recollection of personally accessing those materials on ERes during this semester? A. I remember thinking, oh, this is a pretty cool 12 accessibility, and I very likely accessed a couple just 13 to see what it was like and see what they would look 14 like. 15 Q. And prior to placing these materials on ERes, 16 did you fill out the fair use checklist for each 17 reading? 18 19 20 A. When you said fill out, I'm not sure. I don't remember. Q. I'll get to that in a moment. Let me just 21 direct your attention briefly to the second page of the 22 syllabus. 23 A. Uh-huh. 24 Q. Specifically to items 3 and 4 under the 25 required text. SHUGART & BISHOP Page 39 EXHIBIT G - 2 CAMBRIDGE vs. BECKER JOHN MURPHY APRIL 22, 2011 1 varies from the original source, but it is something 2 that they use as an inspiration and for ideas for what 3 to do in the classroom. So the reason I use these books is it provides 4 5 students with a starting point and then they implement 6 language activities based upon ideas presented in those 7 texts. 8 Q. 9 10 Okay. So you regard that text as a tool for purposes of this course? A. Yeah. MR. BLOOM: 11 Okay. Why don't we go off 12 the record. 13 we'll have our last little portion of the 14 examination thereafter. THE VIDEOGRAPHER: 15 (Brief recess.) 17 THE VIDEOGRAPHER: 18 This is tape 2. We're back on the video record at 11:12. 19 21 Off the video record at 11:01. 16 20 We'll change the tape and then BY MR. BLOOM: Q. Professor Murphy, I'm going to show you a 22 series of documents. First one is Murphy Plaintiff's 23 Exhibit 7. 24 Exhibit 8, Murphy Plaintiff's Exhibit 9, Murphy 25 Plaintiff's Exhibit 10, Murphy Plaintiff's Exhibit 11, And Murphy -- sorry. Murphy Plaintiff's SHUGART & BISHOP Page 44 EXHIBIT G - 3 CAMBRIDGE vs. BECKER JOHN MURPHY APRIL 22, 2011 1 Murphy Plaintiff's Exhibit 12, Murphy Plaintiff's 2 Exhibit 13, Murphy Plaintiff's Exhibit 14 and Murphy 3 Plaintiff's Exhibit 15. 4 Professor Murphy, I just ask you to look at 5 these documents and tell me if these appear to be -- 6 well, why don't you tell me what these are. 7 A. So it's titled fair use checklist and there 8 seems to be one for however many texts are here, I think 9 you said nine earlier. 10 11 Right. So there's nine separate ones. Q. And do these correspond to the readings that 12 you placed on EReserve for the course AL 8480 from 13 Maymester 2009? 14 A. You said do they correspond to the what? 15 Q. Do they correspond to the readings that you 16 placed on EReserves for the course AL 8480 in the 17 Maymester 2009? 18 19 A. The readings, I would use the word supplemental readings. 20 Q. With that modification -- 21 A. Yes. 22 Q. -- is that what they are? When did you complete these checklists? 23 24 25 Okay. A. Yeah, what we're looking at is the checklists as I completed them when I was at the TCEA conference in SHUGART & BISHOP Page 45 EXHIBIT G - 4 CAMBRIDGE vs. BECKER JOHN MURPHY APRIL 22, 2011 1 New Orleans about -- I don't know if it was six weeks 2 ago or a month ago. 3 4 Q. Okay. You see there's a date on -- I'm looking at the first one. 5 A. Right. 6 Q. There's a date that says drop off date? 7 A. Uh-huh. 8 Q. 4/27/209. 9 A. Yes. 10 Q. What does that refer to? 11 A. That refers to my best estimate of when I 12 13 14 15 16 17 Do you see that? dropped them off with EReserves in 2009. Q. And when you say them, what do you mean, dropped them off? A. Oh, dropped the excerpts from these various books to EReserves. Q. Okay. And prior -- strike that. In 2009 did you fill out a fair use checklist 18 19 for -- let's talk about this reading, "Pronunciation 20 Games" pages 8 to 27. 21 A. Your question was did I -- 22 Q. Back in 2009 before this reading was placed on 23 24 25 EReserves, did you fill out a fair use checklist? A. I'm only paying attention right there to the word fill out. I remember -- SHUGART & BISHOP Page 46 EXHIBIT G - 5 CAMBRIDGE vs. BECKER JOHN MURPHY 1 A. I don't remember if they asked me that. 2 Q. Okay. APRIL 22, 2011 Did you prior to your placing this 3 reading on EReserves in 2009, did you refer to the fair 4 use checklist? 5 A. Yes. 6 Q. Did you fill in the boxes in the fair use 7 checklist at that time? A. 8 9 I don't remember specifically what the procedure was in 2009. Q. 10 11 In other words, let me -- So you don't remember physically completing a checklist in 2009, is that right? 12 A. I don't remember that. 13 Q. Okay. 14 A. Is it possible, yes. 15 Q. Do you recall analyzing this reading in Is it possible that you did? 16 accordance with the criteria that are listed on the 17 checklist back in 2009? 18 A. I recall examining the checklist. 19 Q. Okay. And when you completed this document 20 six weeks or a month ago, what were you attempting to 21 do? 22 23 24 25 A. I was attempting to complete it as I would have completed it in 2009. Q. Okay. And in doing so, did you have any specific recollection of what you did back in 2009? SHUGART & BISHOP Page 48 EXHIBIT G - 6 CAMBRIDGE vs. BECKER 1 JOHN MURPHY APRIL 22, 2011 so it's the "Keep Talking" text. 2 Q. And what are you referring to specifically on 3 Exhibit 8? 4 A. Yeah, that's -- my testimony is that I believe 5 that I handled those -- I think it was three actually, 6 there were four in the course but I think three are 7 included here of the ones that were required for 8 students to purchase that they owned a copy of, and I 9 believe I handled them differently when I filled out 10 this checklist in retrospect in 2011 knowing that when 11 the course was offered these were materials that 12 students actually owned. 13 that they were on EReserves. So it was kind of a moot point Now that I'm looking at them I'm not noticing 14 15 that they were handled differently. 16 checked all the same items for those as well. 17 Q. Okay. I seem to have Looking at these nine documents, is 18 there any difference in your thinking about fair use in 19 connection with any of these readings that you would 20 identify from one to the other, other than what you just 21 mentioned? 22 A. I don't think so. 23 Q. Okay. 24 25 So you concluded that each of these nine readings was fair use, is that correct? A. Yes. SHUGART & BISHOP Page 59 EXHIBIT G - 7

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