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 I 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 PATRICIA DIXON, taken on behalf of the plaintiffs, pursuant to the stipulations contained herein, before Teresa Bishop, RPR, RMR, CCR No. B-307, at 104 Marietta Street, 3rd floor, Executive Conference Room, Atlanta, Georgia, on Wednesday, February 2, 2011, commencing at the hour of 11:03 a.m. _______________________________________________________ Shugart & Bishop Certified Court Reporters Suite 140 13 Corporate Square Atlanta, Georgia 30329 (770) 955-5252 EXHIBIT I - 1 1 that you use when you submit them to the library? 2 A. Yes. 3 Q. You filled them out electronically again? 4 A. Yes. 5 Q. And when you did that, did you attempt to 6 remember what you had done before and like literally 7 recreate what you had done before or did you basically 8 just fill them out again, you know, using your judgment 9 at the time you filled them out? 10 A. Probably a little bit of both. 11 Q. So you were attempting in some ways to 12 13 Probably both. remember what you did the first time and duplicate it? A. Yes. Yeah. But you know, making sure -- 14 because when you read it, you know, you may -- you have 15 to read it again just to make sure kind of did you 16 interpret it correctly and that. So I'm sure you can't tell what you did 17 18 more of. 19 filled it out. 20 other completely. 21 Q. I'm sure both of those played into how I I mean, I can't say I did one or the You can't say that the checklist you filled 22 out just this past November is identical to the 23 checklist you filled out at the beginning of the fall 24 2009 semester, correct? 25 A. Yeah, I can't say that. SHUGART & BISHOP Page 84 EXHIBIT I - 2 1 Q. I'll give you what's been marked as Dixon 14. 2 Do you recognize this as a checklist that you -- one of 3 these checklists that you recreated and it looks like 4 November 22 of 2010? 5 A. Yes. 6 Q. And this is for the Blassingame chapter, is 7 that right? 8 A. Yes. 9 Q. Take a look, if you would, down at the factor 10 1, purpose and character of the use. And I see here 11 that you checked nonprofit educational, and teaching 12 including multiple copies for classroom use. Do you see that? 13 14 A. Yes. 15 Q. Just tell me why did you check those two 16 boxes? 17 A. Because I'm assuming Georgia State is 18 nonprofit, but I'm not sure. 19 nonprofit department. 20 for teaching. 21 22 Q. I know they have a And then teaching, well, I use it And is there -- is there a difference between those two boxes in your mind? 23 A. Yeah. 24 Q. What's the difference? 25 A. I mean, there could be a difference. SHUGART & BISHOP Page 85 EXHIBIT I - 3 1 A. No, we can keep going. MR. LARSON: 2 Tape change. We'll take 3 just a couple minutes for him to change the 4 tape. THE VIDEOGRAPHER: 5 1:25. 6 (Discussion off the record.) 7 THE VIDEOGRAPHER: 8 This is tape 3. We're back on the record at 1:30. 9 10 Off the record at BY MR. LARSON: 11 Q. 12 I'm going to give you what's been marked as Dixon 15. 13 MR. ASKEW: Exhibit 15? 14 MR. LARSON: Yeah. 15 16 BY MR. LARSON: Q. This appears to be a checklist for the 17 Blassingame work that we were just discussing in Dixon 18 14, although the date here is November 29 rather than 19 November 22nd. 20 A. Can you tell me what this document is? What happened -- is that the same -- yeah, 21 what happened was I had sent the -- I think to Ms. Pratt 22 the first one, I gave her the checklist, I tried to 23 combine them into one file, and she only got -- somehow 24 the file got screwed up and she only got the first page 25 of this one, I think. SHUGART & BISHOP Page 109 EXHIBIT I - 4 Okay, yeah. 1 I tried to combine all the forms 2 into one PDF file, but for some reason she only got the 3 first chapter, the first page or the first two pages and 4 so I had to go back. 5 PDF file you can't go back in and change them. 6 you? 7 thinking I thought that I had to fill it out again. 8 just don't remember rather. Because once you save them as a Or could I can't remember why I went back and -- I'm I 9 Q. In any event, you actually filled out -- 10 A. I recreated it again. 11 Q. You did it a second time? 12 A. Right. 13 Q. Or a third time I guess. 14 A. Right. 15 Q. So taking a look down if you would for me on 16 Dixon 15, that factor 1 under the second box, teaching 17 here is not checked whereas it was checked in Dixon 14. 18 A. Uh-huh. 19 Q. Can you tell me why you didn't check it when 20 21 22 you did this the second time? A. I'm thinking that -- I think when I looked at it again I interpreted it differently. 23 Q. How so? 24 A. Because I think because it said multiple 25 copies. And it could have been that or it could have SHUGART & BISHOP Page 110 EXHIBIT I - 5 1 been -- I think I went back and forth with this one. 2 just knew I wasn't making multiple copies, so I thought 3 that was inclusive, meaning it included that question. 4 Q. I So that if you were -- in other words, meaning 5 you had to be making multiple copies in order to check 6 that box? 7 A. 8 9 Right, I think that's how I interpreted it the second time I looked at it. Q. And what caused the change in interpretation 10 from the first checklist in Dixon 14 to the second one 11 in Dixon 14? 12 A. It could be reading it over and over again, 13 the more you read and the more you interpret and that's 14 what happens when you keep reading something. 15 Q. If you could turn over to the next page. And 16 here looking under factor 4, the third box on the left, 17 no similar products marketed by the copyright holder. 18 You see that? 19 A. Uh-huh. 20 Q. In the Dixon 15 version you've checked that 21 box whereas you didn't check it in the Dixon 14 version. 22 Can you tell me why? 23 A. Again, it could be, you know, again, as you 24 read this stuff you get more -- you put more into it and 25 you start thinking more. And it may have been -- it SHUGART & BISHOP Page 111 EXHIBIT I - 6 1 could have been an oversight with this one. 2 Q. With this one, which one do you mean? 3 A. I'm not sure if it was oversight or if it 4 was -- I'm not sure. 5 was an oversight on this one. 6 Q. I know that -- I'm not sure if it Well, let me ask it. Sitting here now which 7 one do you think is proper, with no similar product 8 checked or not checked? 9 A. I can't say. Let me just tell you why. Okay. You can research and research and you can -- 10 11 sometimes you find things and sometimes you don't. All 12 right. 13 on the first one that there's no -- I don't know where, 14 but my thinking is how do you know there's not another 15 product. So I may have thought that, well, how do I know You can search and not find it or -- 16 So I may have thought that there was nothing 17 else based on my research, based on what I've already 18 done, based on the research that I've done that I didn't 19 see anything that was similar to it as to why I checked 20 this. 21 Q. And my question isn't why you checked it on 22 November 29th. My question is given one time you filled 23 out the form you didn't check it and one time you filled 24 out the form and you did check it, which one do you 25 believe sitting here right now is the proper version? SHUGART & BISHOP Page 112 EXHIBIT I - 7 1 Should it be checked or not? 2 A. It should be checked. 3 Q. It should be. Okay. And then looking down to the second to the 4 5 last box on the left, user lawfully acquired or 6 purchased copy of original work. 7 the November 22nd version Dixon 14 but not checked on 8 the November 29th version, Dixon 15. That was checked on 9 A. That should be checked. 10 Q. And just oversight that you didn't check it on 11 the 29th? 12 A. Uh-huh. Yes. 13 Q. And sitting here you can't say whether either 14 of the November 22nd or the November 29th version is 15 identical to the original version you created back at 16 the beginning of the semester in 2009, correct? 17 A. Correct. 18 Q. I'll give you Dixon 16, 17 and 18. You'll be 19 happy to know we're not going to go through these in 20 excruciating detail. I just want to confirm, Dixon 16, can you 21 22 confirm for me that this is the checklist, recreated 23 checklist you did for the Tatum chapter of "Black 24 Families"? 25 A. Yes. SHUGART & BISHOP Page 113 EXHIBIT I - 8

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