Cambridge University Press et al v. Patton et al

Filing 278

Proposed Pretrial Order by J. L. Albert, Mark P. Becker, Kenneth R. Bernard, Jr, Cambridge University Press, 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, Oxford University Press, Inc., Risa Palm, Doreen Stiles Poitevint, Willis J. Potts, Jr, Neil L. Pruitt, Jr, Wanda Yancey Rodwell, Sage Publications, Inc., Nancy Seamans, Kessel Stelling, Jr, Benjamin J. Tarbutton, III, Richard L. Tucker, Larry Walker, Philip A. Wilheit, Sr. (Attachments: # 1 Exhibit C, # 2 Exhibit D, # 3 Exhibit E, # 4 Exhibit F-1, # 5 Exhibit F-2, # 6 Exhibit G-1, # 7 Exhibit G-2, # 8 Exhibit G-3, # 9 Exhibit H-1, # 10 Exhibit I)(Rains, John)

ATTACHMENT H-1

874935.1

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

CAMBRIDGE UNIVERSITY PRESS,
OXFORD UNIVERSITY PRESS, INC.,
and SAGE PUBLICATIONS, INC.,
Plaintiffs,

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

- v. MARK P. BECKER, in his official
capacity as Georgia State University
President, et al.,
Defendants.

Plaintiffs’ Pretrial Memorandum of Law

Edward B. Krugman
Georgia Bar No. 429927
John H. Rains IV
Georgia Bar No. 556052
BONDURANT, MIXSON &
ELMORE, LLP
3900 One Atlantic Center
1201 West Peachtree Street, N.W.
Atlanta, Georgia 30309
Telephone [phone]
Facsimile [phone]

874935.1

R. Bruce Rich (pro hac vice)
Randi Singer (pro hac vice)
Jonathan Bloom (pro hac vice)
Todd D. Larson (pro hac vice)
WEIL, GOTSHAL & MANGES LLP
767 Fifth Avenue
New York, New York 10153

TABLE OF CONTENTS
Page
INTRODUCTION ......................................................................................... 1
FACTUAL BACKGROUND...................................................................... 10
A.

Plaintiffs and the Licensing of Their Copyrighted Works...... 10

B.

Defendants............................................................................... 12

C.

ERes and uLearn ..................................................................... 13

D.

The Representative Works Copied by GSU ........................... 14

E.

GSU’s New Copyright Policy................................................. 15

F.

Harm to Plaintiffs.................................................................... 19

ARGUMENT AND CITATION OF AUTHORITIES ............................... 20
I.

ACTIONABLE COPYING .................................................... 20

II.

DEFENDANTS’ ONLINE COURSE MATERIAL
PRACTICES ARE NOT FAIR USE ...................................... 20
A.

Overview....................................................................... 21

B.

Application of the Statutory Fair Use Factors to
Defendants’ Activities .................................................. 22
1. The Purpose and Character of the Use .................... 23
2. The Effect of the Use on the Potential Market
for or Value of the Copyrighted Works................... 28
3. The Nature of the Copyrighted Work...................... 33
4. The Amount and Substantiality of the Use.............. 33

RELIEF SOUGHT....................................................................................... 35
CONCLUSION............................................................................................ 36

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TABLE OF AUTHORITIES
Page(s)
CASES
Am. Geophysical Union v. Texaco Inc., 60 F.3d 913
(2d Cir. 1994)...............................................................................................passim
Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F. Supp. 1522
(S.D.N.Y. 1991)......................................................................................25, 34, 36
Cable News Network v. Video Monitoring Servs. of Am., 949 F.2d 378
(11th Cir. 1991) ..................................................................................................36
Cable News Network v. Video Monitoring Servs. of Am., 959 F.2d 188
(11th Cir. 1992) ..................................................................................................36
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)...............................passim
Harper & Row v. Nation Enters., 471 U.S. 539 (1985) ................................4, 21, 34
Peter Letterese & Assocs., Inc. v. World Inst. of Scientology Enters.,
Int’l, 533 F.3d 1287 (11th Cir. 2008) ..........................................................passim
Pac. & S. Co, Inc. v. Duncan, 744 F.2d 1490 (11th Cir. 1984) .................. 33, 35-36
Pac. & S. Co. v. Duncan, 618 F. Supp. 469 (N.D. Ga. 1985) .................................36
Princeton Univ. Press v. Mich. Document Servs., Inc., 99 F.3d 1381
(6th Cir. 1996) .............................................................................................passim
SunTrust Bank v. Houghton Mifflin Co., 268 F.3d 1257 (11th Cir.
2001) ............................................................................................................ 21, 28
STATUTES, RULES, AND OTHER AUTHORITIES
17 U.S.C. § 101........................................................................................................20
17 U.S.C. § 104(b)(2) ..............................................................................................20
17 U.S.C. § 107.................................................................................................. 22-23
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TABLE OF AUTHORITIES
(CONTINUED)
Page(s)
17 U.S.C. § 502........................................................................................................35
H.R. Rep. No. 90-83, 90th Cong., 1st Sess. (1967)........................................... 31-32
Agreement on Guidelines for Classroom Copying in Not-For-Profit
Educational Institutions with Respect to Books and Periodicals,
H.R. Rep. No. 94-1476, 94th Cong., 2d Sess. (1976) .................................. 31-33

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INTRODUCTION
In this action, three prominent academic publishers, Cambridge
University Press, Oxford University Press, Inc., and SAGE Publications,
Inc. (collectively, “Plaintiffs”), seek to enjoin Defendants from enabling and
allowing the continued unlawful copying, display, and distribution of
substantial portions of their copyrighted works by faculty and other
employees of Georgia State University (GSU) for use as digital course
readings.

Since at least 2003, under the control and/or supervision of

Defendants,1 significant excerpts from hundreds of Plaintiffs’ works, and
thousands of works of other book publishers, have been digitally scanned,
distributed, displayed, downloaded and copied multiple times via one or
more GSU online systems. The net effect has been to create customized
digital anthologies of assigned readings for hundreds of courses with no
permission from or payment to the publishers for use of their book excerpts
– even after the adoption in 2009 of a revised copyright policy in response to
this lawsuit.

1

Defendants (sometimes referred to collectively herein as “GSU”) are sued
on the basis of their own conduct and that of the GSU librarians and faculty
who are agents of GSU and whose infringing conduct falls under the
supervisory authority of each of the Defendants.
874969.1

This conduct exceeds the boundaries of any reasonable conception of
fair use. Although Defendants have readily available to them efficient and
cost-effective means for procuring licenses that would enable GSU to
continue to use these works while at the same time preserving Plaintiffs’ and
other publishers’ incentives to continue to publish them, the foregoing
activity has, as noted, been undertaken without permission from, or
customary payment to, the publishers of the works used in reliance on an
insupportable interpretation of fair use.

This ongoing infringement,

exemplified by the evidence identified on the parties’ March 15, 2011 Joint
filing, Docket No. 266, should be enjoined.
The law is clear that when students at GSU and elsewhere obtain
course reading materials collated into paper “coursepacks” – which serve as
substitutes for purchases of textbooks and other reading materials –
permissions payments are required to be (and are) made to the publishers of
the component contributions. Yet Defendants operate under the assumption
that providing students with collections of course reading materials
electronically does not implicate the same copyright concerns as do
coursepacks and does not require commensurate licensing. That assumption
is incorrect.

New technological means for disseminating copyrighted

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materials do not in and of themselves alter the obligation to pay for the
copying, display, and distribution of the materials.
Operating from this erroneous premise, since at least May 2003,
Defendants – according to their own records – have not paid a single penny
to any publisher (plaintiffs included) for use of thousands of separate
copyrighted book excerpts on the ERes and uLearn systems. GSU has
neither budgeted any funds for permissions fees nor assessed any student
copyright fees for these uses (in contrast to the imposition of, inter alia,
student activity, athletics, and technology fees). Nothing has changed in this
regard since GSU’s revised copyright policy went into effect in February
2009.
At trial, Plaintiffs will demonstrate the significant adverse
consequences for their businesses if this rampant copyright infringement at
GSU is allowed to continue. They will show that they make substantial
investments in – and play an important role in the development of –
scholarly books that serve the teaching needs of colleges and universities,
that advance scholarship, and that enable faculty authors to advance their
careers. They will show that these investments are underwritten by two
sources of income: (1) sales and licensing of the works and (2) permissions
income for uses of excerpts from them. When students purchase books from
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the university bookstore or licensed coursepacks, Plaintiffs’ publishing
efforts are sustained. But when non-trivial portions of these same works are
taken for free, and are combined into unlicensed digital course reading
collections – as occurs routinely at GSU – the viability of Plaintiffs’
businesses is jeopardized.
The impact on Plaintiffs’ businesses of the infringement occurring at
GSU cannot properly be assessed solely on a work-by-work basis. Instead,
the law considers systematic unauthorized copying of the type occurring at
GSU in its totality and, moreover, requires the Court to evaluate the impact
on Plaintiffs’ continued ability to publish leading works of scholarship were
the challenged conduct to become widespread. See Princeton Univ. Press v.
Mich. Document Servs., Inc., 99 F.3d 1381, 1387 (6th Cir. 1996) (noting
potential impact on plaintiff publisher if unlicensed coursepacks were
offered nationwide); Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 590
(1994) (stating that courts must consider “‘whether unrestricted and
widespread conduct of the sort engaged in by the defendant . . . would result
in a substantially adverse impact on the potential market’ for the original”)
(quoting Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539,
569 (1985)).

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The trial testimony will demonstrate unequivocally that if consumers
in Plaintiffs’ primary market – academia – are provided with significant
portions of Plaintiffs’ works for free, Plaintiffs cannot possibly stay in
business. For this reason the pervasive copyright infringement at GSU is
ultimately self-defeating: if allowed to continue, it will deprive faculty and
students of scholarly publications that are the foundation of the academic
enterprise.
Defendants will likely profess that they responded to Plaintiffs’
complaint by promulgating a legally sufficient new copyright policy in 2009.
But good faith does not convert infringement into fair use, and the trial
record will reveal that the new policy, however well intentioned, is an utter
failure. It is deeply flawed in both conception and implementation, and it
has not meaningfully curtailed infringing conduct at GSU.

Defendants

cannot evade their responsibility for assuring GSU’s compliance with
federal copyright law by simply promulgating a new policy and leaving its
implementation to untrained faculty members without exercising any
oversight over their routinely erroneous fair use decisions.

See Order,

Docket No. 235, at 17 (stating that Defendants cannot encourage instructors
to make fair use decisions and then claim to be immune from liability for
those decisions).
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The continuing, widespread copyright infringement occurring at GSU
is the predictable result of (i) Defendants’ having delegated responsibility
for applying the fair use doctrine to faculty members who are unschooled in
copyright law and (ii) their provision to the faculty of a deeply-flawed “Fair
Use Checklist” as the principal tool for making fair use determinations. The
design of the checklist, coupled with demonstrably inadequate faculty
training in fair use, leads copyright-novice professors almost without
exception to affirmative fair use findings that are contrary to law.
By ascribing equal weight to every listed factor and by listing
multiple, redundant “weighs in favor of fair use” factors that invariably are
satisfied by the mere fact that the instructor has selected the work as reading
material for a class, the checklist virtually preordains a finding of fair use.
Thus, for example, the critically important fact that the uses at issue are not
transformative (which Defendants have conceded) is outweighed on the
checklist by the fact that the copying is occurring in a course taught at a nonprofit educational institution (which is good for at least two “checks”).
Similarly, proper assessment of the crucial fourth fair use factor – potential
market harm – is precluded by the typical instructor’s asserted (legally
irrelevant) conclusion that he or she would not have assigned the work in

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question if the instructor or students were required to purchase it or pay a
permissions fee.
Given the foregoing, it is no surprise that every one of the 174
completed checklists produced by Defendants to date has resulted in a
conclusion that the proposed use was a fair use. This result has come about
notwithstanding takings as extensive as eight chapters, 187 pages, and 35.6
percent of various works – and the combination of as many as 27 separate
takings into a digital anthology for a single class. This is not primarily the
faculty’s fault: the checklist is constructed to produce this unlawful outcome.
Further undermining the legitimacy of the new policy is the fact that
some faculty members who had works posted on ERes in 2009 did not fill
out checklists at all or did so only more than a year later at the request of
Defendants’ counsel for purposes of this litigation, even though filling out
and retaining the checklists is required by – indeed, is the heart of – the new
policy.
In contrast to the fundamentally flawed conception of fair use
reflected in GSU’s copyright policy and practice, Plaintiffs’ entitlement to
prospective injunctive relief follows from straightforward application of
established fair use principles to the facts to be adduced at trial. It is clear
from the case law and from the legislative history of the Copyright Act that
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the unauthorized, non-transformative, literal copying (as well as display and
distribution) of qualitatively and quantitatively significant portions of
Plaintiffs’ scholarly works, semester after semester, at GSU – which, if it
were to become widespread, would seriously impair the primary market for
Plaintiffs’ works – is not fair use.
As we discuss (and contrary to Defendants’ misleading checklist), this
conclusion is not altered by the fact that the copying activity is occurring in
a non-profit educational setting. Nor does the self-serving argument that if
students were unable to use the works for free, they would not have been
assigned avoid the market harm to Plaintiffs were the challenged activity to
continue and spread. This is an easy (and untestable) claim for Defendants
to make after the takings have actually occurred and the materials have been
used in the classroom. It reflects a legally baseless conception of market
harm that would logically enable anyone to justify taking any copyrighted
material for free so long as he or she is (or claims to be) unwilling to pay for
it. It also reflects the implausible proposition that GSU instructors would
forego using any work for which any publisher sought compensation,
including seminal works in their respective fields.
The binary choice with which GSU faculty seem to believe they are
presented under the new policy between either using excerpts of Plaintiffs’
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works for free or making students buy the entire book (even if only a chapter
or two is assigned) is a false one, missing as it does the third option: paying
a modest permission fee for use of the selected excerpts. The Court will
hear that most GSU instructors are not even aware of the existence of a
functioning market for licensing use of Plaintiffs’ works and therefore fail to
consider this salient fact in completing the checklists. Yet the availability of
Plaintiffs’ works for licensing either directly from the publisher or through
one or more efficient and affordable licensing mechanisms offered by their
agent the Copyright Clearance Center (CCC) causes Defendants’ “if we
cannot use it for free we would not buy it” defense to ring hollow.
In sum, the straightforward application of settled fair use principles to
the facts to be adduced at trial will demonstrate that an injunction that brings
GSU’s practice in line with what Congress and the courts have viewed as the
permissible scope of fair use in connection with classroom teaching is
appropriate and necessary. Such an injunction will impose modest costs on
GSU and its students while protecting Plaintiffs from the certain, substantial,
and continuing threat of the loss of revenues that are the lifeblood of the
publishing businesses on which the academic enterprise ultimately depends.

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FACTUAL BACKGROUND
A.

Plaintiffs and the Licensing of Their Copyrighted Works
Plaintiffs are the publishers and owners or exclusive licensees of the

copyright rights in thousands of works, many of which are marketed
primarily for academic use. These works lie at the heart of the educational
enterprise, reflecting leading scholarship by university faculty (including at
GSU) as well as by renowned experts in myriad subjects of vital importance
to society. The thousands of textbooks, monographs, journal articles, and
handbooks Plaintiffs publish each year form the backbone of college and
university teaching in the full range of fields of study offered at GSU.
As the Court will hear at trial, the creation and promotion of scholarly
works is the reason Plaintiffs exist. They are deeply involved in all aspects
of creating and selling the books they publish: soliciting and working with
authors to shape manuscripts; arranging for peer review by experts in the
field; editing, designing, illustrating, producing, promoting, and distributing
the works; and administering payments to authors and third-party
contributors. The importance of academic publishers to higher education
will be illustrated by, inter alia, the testimony of SAGE’s witness, who will
explain that SAGE was instrumental in the creation of new academic
disciplines after perceiving a need for publications on research methodology.
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In addition to supplying the texts used for university teaching, Plaintiffs’
publishing activities also help to establish the academic credentials of the
college and university instructors who author these works. The record will
demonstrate, in short, that Plaintiffs play a key role in the higher education
“ecosystem.”
Although income from direct sales of book and online products
constitutes Plaintiffs’ largest revenue stream, licensing and other
permissions fees for the use of portions of their books also represent
important sources of income for publishers and authors. It is, therefore,
Plaintiffs’ mission to make works available by ensuring that permissions are
readily obtainable by institutions like GSU as an alternative to requiring
students to purchase books, and they do so both directly and through CCC, a
not-for-profit licensing organization.

As particularly pertinent here,

Plaintiffs offer efficient and affordable procedures for licensing the right to
copy and distribute portions of their works to students electronically.
Plaintiffs partner with CCC to administer comprehensive permissions
coverage so that third parties can use portions of Plaintiffs’ works in
hardcopy or digital format, including as a part of coursepacks and digital
course reading anthologies, for prices typically ranging from 12 to 15 cents
per page.
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The ease with which low-cost permissions for digital uses of
Plaintiffs’ works can be obtained from Plaintiffs or from CCC belies any
claim of undue cost or burden to secure these rights. Indeed, Plaintiffs will
show that many academic institutions obtain permission to use portions of
the works at issue for teaching purposes without apparent disruption to their
mission.
B.

Defendants
Georgia State University, located in Atlanta, Georgia, is a public

university and a unit of the Regents of the University System of Georgia.
Answer, Docket No. 42 ¶ 13. It has approximately 1,000 full-time faculty
members and more than 27,000 full-time students.
Defendants are responsible for the adoption and implementation of
GSU’s current copyright policy, and they all hold and have exercised
supervisory authority over the operation of the ERes and uLearn systems at
GSU. The record will establish that each of the defendant officials of GSU
and/or USG is responsible in part for the infringement of Plaintiffs’ works;
that each has participated in, facilitated, encouraged, and/or overseen the
process and/or policy by which Plaintiffs’ works have been digitally copied,
displayed, and distributed on the GSU campus; and that each has the
authority to effect a change in the relevant practices.
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C.

ERes and uLearn
Since 2003, GSU has enabled instructors to distribute course materials

in digital form via Internet-based tools rather than in the form of paper
coursepacks. Foremost among these tools at GSU are ERes and uLearn,
which have become increasingly popular as a means of giving students
access to assigned and recommended course readings. That these online
systems serve the same purpose as coursepacks is stated explicitly on the
Fall 2009 syllabus for Professor Gabler-Hover’s course English 4200
“Cyborgs in American Culture,” which instructs students that many of the
course readings “are on library e-reserve for you to print out immediately,
forming a course packet for yourself.” Plaintiffs’ Exhibit 534, attached
hereto as Exhibit A.
Whereas GSU’s written policy requires payment of permissions fees
to the publishers whose works are incorporated into paper coursepacks, the
record contains no evidence (other than a single instance in 2003) of
permissions fees having been paid for the use of copyrighted book excerpts
made available through the ERes and uLearn systems – whether under
GSU’s prior copyright policy or its current one.

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D.

The Representative Works Copied by GSU
The Court has ordered that the lawfulness of Defendants’ practices

under the ERes and uLearn systems is to be determined based on alleged
infringements of Plaintiffs’ works during three 2009 academic terms (only
one of which – Fall 2009 – was a traditional full term). Although Plaintiffs
have been harmed by infringements that occurred both before and after those
terms, evidence as to infringements of more than 80 of Plaintiffs’ works
during those three terms, as detailed on the parties’ March 15, 2011 Joint
Filing, Docket No. 266, more than suffices to demonstrate the ongoing
nature of GSU’s infringing practices.
The evidence will demonstrate the extensiveness of the infringing
excerpts – many a full chapter or more of an original scholarly book, with
several takings exceeding 20 percent of the work – under the new policy. It
also will show how these takings have been combined with unauthorized
takings of as many as 27 other published works to create digital course
anthologies akin to coursepacks. Fall 2009 ERes Report, Joint Exhibit 3, an
excerpt of which is attached hereto as Exhibit B. Digital copies of excerpts
from Plaintiffs’ and other publishers’ books are distributed for display,
downloading, and copying by entire classes of students.

Plaintiffs will

testify as to how the professor-created anthologies available on ERes
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substitute for sales and licensing of their textbooks, customized course
readings, and other published offerings.
E.

GSU’s New Copyright Policy
Until February 2009, the University System of Georgia’s official

position on copyright law as applied to its member institutions was
embodied in a 1997 “Regents’ Guide to Understanding Copyright &
Educational Fair Use.” This policy, which was in effect when this lawsuit
was filed, invited – and led to – massive unauthorized takings of copyrighted
materials under an interpretation of fair use so broad that even Defendants’
expert Dr. Crews could not and would not defend it.
In December 2008, eight months after this suit was filed, the Board of
Regents convened a committee composed of representatives of various State
of Georgia educational institutions to “revisit” the Regents’ existing
copyright policy. Regrettably, the hastily crafted new copyright policy has
left the practices that prompted this lawsuit essentially intact.
The current copyright policy, which GSU implemented in February
2009, delegates the responsibility for determining whether copyrighted
course materials may be copied and distributed without permission entirely
to faculty members, who must determine whether their contemplated use
constitutes fair use or whether, instead, permission must be obtained and any
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necessary license fees paid. The committee chairman termed this delegation
a “fundamental element” of the policy, based on the assumption that faculty
will “do the right thing given the right tools and the right information.”
Deposition of William Potter, Docket No. 170, at 145:14-146:9.

This

sentiment was echoed by GSU’s head librarian. See Deposition of Nancy
Seamans, Docket No. 174, at 115:13-16 (“The faculty member is the person
who best understands . . . how they’re going to use it and whether there’s a
fair use determination that can be made.”). Unfortunately, the faculty are
given neither the right tools nor the right information to make accurate fair
use determinations.

Plaintiffs will demonstrate – including through the

testimony of GSU faculty – that GSU’s new policy is severely flawed in
both design (being heavily biased in favor of erroneous affirmative fair use
determinations) and execution (as, among other things, it fails accurately to
instruct faculty members in basic precepts of copyright law or to institute
oversight and compliance procedures).
The principal tool with which faculty members have been furnished to
evaluate the legality of contemplated electronic course readings is a “Fair
Use Checklist.” The checklist is a form, divided into two columns (entitled
“weighs in favor of fair use” and “weighs against fair use”), that presents
users with lists of purportedly relevant criteria under four separate headings
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that correspond to each of the four statutory fair use factors. The policy
requires instructors to complete the checklist for each work they propose to
distribute digitally to students and to decide in doing so which of the listed
criteria apply to the proposed use.
The checklist is designed so that if there are more checks in the
“weighs in favor of fair use” column than in the “weighs against fair use”
column, the factor cuts in favor of fair use. Following this rote numeric
computation, if the factors favoring fair use outnumber those against it, GSU
policy authorizes instructors to use the work in question without obtaining
publisher permission. The checklist contains no indication that some criteria
(such as whether the use is transformative) are legally more important than
others. Indeed, with its listing of several redundant “favoring fair use”
criteria that focus on the nonprofit educational/teaching purpose of the use,
the checklist virtually dictates a “favors fair use” conclusion as to Factors 13, a result that effectively renders the all-important Factor 4 – addressing
potential market harm – superfluous.
In light of the foregoing, it is no surprise that every checklist produced
to Plaintiffs, no matter the size or content of the excerpt at issue, concludes
that each of the four factors “weighs in favor of fair use,” and most contain
between 10 and 15 checks on the left (pro-fair-use) side. By contrast, not a
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single checklist contains more than four checks on the “weighs against fair
use” side, and most contain none or only one. No checklist provided to
Plaintiffs concludes that the proposed taking is not fair use.
The trial testimony will show how faculty members placed in the
untenable position of being experts in copyright law struggled to make sense
of the checklist. For example, most faculty simply left blank both the
transformative and non-transformative boxes because GSU failed to instruct
them as to what these centrally important terms mean or how they matter to
the fair use analysis.2 The checklists also reflect a pervasive failure to
investigate or give any weight to whether licenses (or “permissions”) are
available for the intended use, which is critical to the Factor 4 analysis. In
fact, most faculty members had never even heard of CCC, let alone accorded
its services proper weight under Factor 4.
The inevitability of “favors fair use” determinations under the new
policy is reinforced by GSU’s failure to budget, collect fees from students,
or establish any procedures for obtaining permission to post electronic
course materials on ERes or uLearn. This leaves faculty members in a
2

Even when faculty have exhibited some grasp of these concepts, such as
their acknowledgement that ERes postings are not transformative, few of the
checklists completed in 2009 contain checks in the box for “nontransformative.”
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quandary as to what they can do should a contemplated reading not be fair
use, and it contrasts sharply with the practice at many other schools and with
GSU’s own practice with respect to paper coursepacks.
F.

Harm to Plaintiffs
GSU’s systematic, ongoing, and widespread practice of copying and

distributing Plaintiffs’ works as digital course readings or anthologies
without securing permission and paying customary license fees strikes at the
heart of Plaintiffs’ businesses. A single copy of a Plaintiff’s work acquired
by the library or by a professor at GSU forms the basis for providing entire
classes of students, semester after semester, with their own copies for free,
i.e., with no income generated for the publisher.
In addition to depriving Plaintiffs of book sales, GSU’s practice
avoids permissions payments to Plaintiffs for uses of scanned excerpts.
Plaintiffs will show that permissions income is crucial to maintaining their
businesses on sound financial footing. Contrary to the assumption of many
GSU instructors, the record will show that Plaintiffs and CCC offer efficient
licensing mechanisms that authorize the very uses at issue in this case and
that cost mere pennies per page. Defendants will be hard-pressed to argue
that such a modest incremental fee would jeopardize GSU’s educational
mission. For Plaintiffs, on the other hand, the continued loss of sales and
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permissions revenue from GSU, and potentially from schools across the
country if the Court were to endorse GSU’s practices, would be devastating
and ultimately would curtail their ability to publish the works on which
academic institutions such as GSU depend.
ARGUMENT AND CITATION OF AUTHORITIES
I.

ACTIONABLE COPYING
Each of the works on which the trial will center, identified in the Joint

Filing, is an original work of authorship owned or exclusively licensed by
one of the Plaintiffs. Each work is registered with the U.S. Copyright Office
or is protected under U.S. copyright law as a foreign work first published in
a country that is a signatory to the Berne Convention without the need for
registration. 17 U.S.C. §§ 104(b)(2), 101.3
II.

DEFENDANTS’ ONLINE COURSE MATERIAL PRACTICES
ARE NOT FAIR USE
Defendants’ principal merits defense is that the unauthorized copying

Plaintiffs seek to enjoin is fair use. As discussed below, application of
settled law to the facts to be adduced at trial will demonstrate the clear
deficiency of this defense.

3

We refer the Court to our in limine motion addressing Defendants’
challenges to certain of the works that appear on the Joint Filing.

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A.

Overview

Our nation’s copyright law seeks to “promote[] the public access to
new ideas and concepts.” SunTrust Bank v. Houghton Mifflin Co., 268 F.3d
1257, 1262 (11th Cir. 2001). It does so by “suppl[ying] the economic
incentive to create and disseminate ideas,” Harper & Row, 471 U.S. at 558,
including in the form of works of scholarship. Copyright law “rewards the
individual author in order to benefit the public,” id. at 546 (citation omitted),
because “[w]ithout this limited monopoly, authors would have little
economic incentive to create and publish their work,” which would
undermine the goal of copyright. SunTrust Bank, 268 F.3d at 1262. The
incentive rationale also applies to the publishers responsible for
disseminating copyrighted works.
Built into the fabric of copyright law is a judicially crafted fair use
privilege that “permits courts to avoid rigid application of the copyright
statute when, on occasion, it would stifle the very creativity which that law
is designed to foster.” Campbell, 510 U.S. at 577 (citation omitted)
(emphasis added). The fair use privilege is a limited exception to the
exclusive rights of copyright owners. It is intended to accommodate socially
productive “transformative” uses that serve purposes different from the
original, as opposed to merely supplanting or superseding the original. As
874969.1

21

Plaintiffs explain below, takings that are not transformative by their nature
deprive the copyright owner of the compensation necessary to stimulate the
creation and dissemination of copyrighted works and do not qualify as fair
use even when the use occurs in a non-profit educational setting.
The challenged practices at GSU – systematic literal copying and
distribution of significant portions of thousands of copyrighted works, year
after year, without any compensation to Plaintiffs or other copyright owners
– directly threaten the long-term viability of academic publishers such as
Plaintiffs by substituting for purchases of books or licensed excerpts, thereby
usurping their primary market. The fair use doctrine is not intended – and
has never been found – to shield such conduct.
B. Application of the Statutory Fair Use Factors to Defendants’
Activities
The Supreme Court has expressly rejected reliance on “categories of
presumptively fair use.” Peter Letterese & Assocs., Inc. v. World Inst. of
Scientology Enters., Int’l, 533 F.3d 1287, 1309 (11th Cir. 2008) (quoting
Campbell, 510 U.S. at 584). Rather, whether a particular use is “fair”
depends primarily on consideration of the four factors set forth in section
107 of the Copyright Act, 17 U.S.C. § 107:

874969.1

22

(1) the purpose and character of the use, including whether
such use is of a commercial nature or is for nonprofit
educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation
to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value
of the copyrighted work.
We briefly discuss each factor below as applied to the anticipated trial
record.
1.

The Purpose and Character of the Use (Factor 1)

The “central purpose” of the first-factor inquiry is to determine
“whether the new work merely ‘supersede[s] the objects’ of the original
creation . . . or instead adds something new, with a further purpose or
different character, altering the first with new expression, meaning, or
message; it asks, in other words, whether and to what extent the new work is
‘transformative.’” Campbell, 510 U.S. at 579 (citations omitted).
Transformative works “lie at the heart of the fair use doctrine[].” Id. See
also Am. Geophysical Union v. Texaco Inc., 60 F.3d 913, 923 (2d Cir. 1994).
The centrality of transformative value to the fair use doctrine stems from its
relationship to the constitutional objective of promoting the progress of

874969.1

23

science and the useful arts, which is “generally furthered by the creation of
transformative works.” Campbell, 510 U.S. at 579.
Whereas a transformative work furthers the purposes of copyright, “an
untransformed copy is likely to be used simply for the same intrinsic
purpose as the original, thereby providing limited justification for a finding
of fair use.” Am. Geophysical Union, 60 F.3d at 923. See also Letterese,
533 F.3d at 1310 (“[A] work that is not transformative . . . is less likely to be
entitled to the defense of fair use because of the greater likelihood that it will
‘supplant’ the market for the copyrighted work. . . .”) (citation omitted).
Photocopying or other exact duplication is a paradigmatic
nontransformative use. In Princeton University Press, 99 F.3d 1381, the
leading fair use decision involving university course readings, the court
stated:
[T]he degree to which the challenged use has
transformed the original copyrighted works . . . is
virtually indiscernible. If you make verbatim copies of
95 pages of a 316-page book, you have not transformed
the 95 pages very much – even if you juxtaposed them to
excerpts from other works and package everything
conveniently. This kind of mechanical “transformation”
bears little resemblance to the creative metamorphosis
accomplished by the parodists in the Campbell case.
Id. at 1389. American Geophysical Union, which involved photocopying
and archiving copies of scientific journal articles by Texaco scientists, held
874969.1

24

that the photocopying “merely transforms the material object embodying the
intangible article that is the copyrighted original work. . . . Texaco’s making
of copies cannot properly be regarded as transformative use of the
copyrighted material.” 60 F.3d at 923 (emphasis in original).
In Princeton University Press, the court found that even though
coursepack anthologies allowed professors to create readings perfectly
tailored to their courses, the anthologies nevertheless were

not

transformative. See 99 F.3d at 1384. Similarly, in Basic Books, Inc. v.
Kinko’s Graphics Corp., 758 F. Supp. 1522 (S.D.N.Y. 1991), the court
found that the “excerpts in suit were merely copied, bound into a new form,
and sold.” The copying “had productive value only to the extent that it put
an entire semester’s resources in one bound volume for students.” Id. at
1531.
The copying and distribution of Plaintiffs’ works in connection with
ERes is not materially different from the copying and distribution of the
plaintiffs’ works in Princeton University Press or in Basic Books. As with
coursepacks, ERes postings entail exact mechanical reproduction without
any repurposing of the material. GSU witnesses (including the chairman of
the committee that developed the current policy, GSU’s head librarian, and

874969.1

25

individual faculty members) have acknowledged that the use of electronic
course materials is not transformative.
The ERes system is not a digital analog to physical library reserves, as
Defendants may argue. For one thing, only one copy (usually the original)
of a copyrighted work is placed by the library on physical reserve. That
single copy is available for borrowing by only one student at a time, and for
a limited period of time. In contrast, after GSU scans a given work and
uploads it to ERes, multiple copies of the material are supplied to every
student in a course for simultaneous viewing. Students can freely display,
download, print, and save copies of ERes course readings, and they regularly
bring printed copies of downloaded ERes course readings to class.
Defendants also will rely heavily on the non-profit educational
context of the copying. But nonprofit educational use is “only one element
of the first factor enquiry,” and it “does not insulate [the use] from a finding
of infringement.” Campbell, 510 U.S. at 584. Where, as here, there is a
total absence of transformative benefit, the mere fact that the takings may
have occurred without the immediate purpose of monetary gain does not
even tip the Factor 1 analysis in Defendants’ favor, let alone automatically
result in an overall finding of fair use.

874969.1

26

The Fair Use Checklist reflects none of these governing legal
principles. To the contrary, it effectively nullifies the significance of nontransformativeness by according each statutory factor and each of the criteria
within each factor equal weight. Thus, even if the concession by GSU
witnesses that the copying involved is not transformative were reflected in
the completed checklists (which it almost never is), it is “balanced out” (and
in practice cancelled out) by a determination under Factor 1 as to any of six
other considerations given equal weight, such as that the use is “nonprofit
educational,” “teaching,” and/or “necessary to achieve your educational
purpose.” Each of these three overlapping/duplicate considerations will be
(and is) checked almost by definition for faculty-selected GSU course
materials. The checklist therefore preordains an outcome that is contrary to
a core teaching of the case law as to Factor 1.
Defendants will strenuously assert that the mere promulgation of the
new policy and the requirement that faculty fill out the Fair Use Checklist
should by themselves give them a free pass under the fair use doctrine,
insofar as these efforts reflected a well-intentioned effort to promote
copyright compliance. But, as the Eleventh Circuit stated in Letterese, such
professions of good faith “do[] not insulate a defendant from liability” and
constitute “merely a ‘presupposition’ of a defendant’s claim to the [fair use]
874969.1

27

defense.” 533 F.3d at 1312 n.27. What is relevant are the results of the
application of the policy, since it is those results, not statements of good
intention, that impact Plaintiffs’ businesses.
For all these reasons, Factor 1 weighs against fair use.
2.

The Effect of the Use on the Potential Market for or
Value of the Copyrighted Works (Factor 4)

The fourth and perhaps most important statutory fair use factor
requires the court to consider “not only the extent of market harm caused by
the particular actions of the alleged infringer” but also “‘whether
unrestricted and widespread conduct of the sort engaged in by the defendant
. . . would result in a substantially adverse impact on the potential market’
for the original.” Campbell, 510 U.S. at 590 (citation omitted). The inquiry
focuses not on provable actual damages but on predictable future market
harm if the challenged conduct were to be deemed legal.
The first and the fourth fair use factors harmonize in that “a work that
merely supplants or supersedes another is likely to cause a substantially
adverse impact on the potential market of the original,” whereas a
transformative work “is less likely to do so.” SunTrust, 768 F.3d at 1274
n.28 (citation omitted). The mere duplication of an original serves as a
market replacement for it, “making it likely that cognizable market harm to
874969.1

28

the original will occur.” Campbell, 510 U.S. at 591. See also Letterese, 533
F.3d at 1315 (“the adverse effect with which fair use is primarily concerned
is that of market substitution”). This case involves direct market substitution
– free digital copies instead of purchased or licensed ones in class after class,
semester after semester – in Plaintiffs’ primary market, which is exactly
what copyright law forbids.
Market harm is not limited to lost book sales; lost permissions fees are
a recognized form of market harm, especially where, as here, the copyright
holder is already successfully exploiting the licensing market. See Princeton
Univ. Press, 99 F.3d at 1387; Am. Geophysical Union, 60 F.3d at 930
(noting that “since there currently exists a viable market for licensing the[]
rights for individual journal articles, it is appropriate that potential licensing
revenues for photocopying be considered in a fair use analysis”).
In Princeton University Press, the court discussed the potential
ramifications for permissions revenue if the defendant’s photocopying were
to be deemed fair use:
[M]ost of the copyshops that compete with MDS in the
sale of coursepacks pay permission fees for the privilege
of duplicating and selling excerpts from copyrighted
works. . . . If copyshops across the nation were to start
doing what the defendants have been doing here, this
revenue stream would shrivel and the potential value of
874969.1

29

the copyrighted works of scholarship published by the
plaintiffs would be diminished accordingly.
99 F.3d at 1387. The unauthorized copying at GSU will have the same
adverse effect on Plaintiffs if endorsed by the Court, regardless of the
copying being done by the university rather than by a copyshop and
regardless of the copies being in digital rather than paper form.
The Court will hear that there is an established, widely used, userfriendly system for licensing excerpts from academic books for fees in the
range of 12-15 cents per page through the CCC for the very type of
educational use engaged in by GSU: the customized assembly by faculty of
numerous excerpts from copyrighted works into comprehensive electronic
course readings. Plaintiffs will show that the per-student cost of obtaining
permission for such uses is extremely modest and that the destruction of the
multimillion-dollar market for licensing reproduction rights for academic
use would materially harm Plaintiffs’ incentive to continue to publish
academic works.
GSU’s lack of regard for Plaintiffs’ economic interests is striking.
Notwithstanding the indisputable relevance of lost permissions fees to the
Factor 4 analysis, the GSU instructors deposed in this case failed even to
take licensing fees (as distinct from lost sales) into account in their

874969.1

30

evaluation of market harm – one of the most egregious examples of GSU’s
failure to equip its faculty with an adequate understanding of fair use.
Worse, because the checklist implements a “majority rules” approach to the
four-factor test, an instructor need not evaluate Factor 4 at all if he or she
has already determined that the other three factors weigh in favor of fair use.
The Agreement on Guidelines for Classroom Copying in Not-forProfit Educational Institutions that accompanied the 1976 Copyright Act (the
“Classroom Guidelines”), while not binding, do “evoke a general idea, at
least, of the type of educational copying Congress had in mind,” Princeton
University Press, 99 F.3d at 1390, and they speak directly to market
substitution in a way that underscores the divergence of GSU’s ERes
practices from Congress’s conception of fair use.

Not only are most

individual excerpts posted to ERes much longer than the lesser of ten pages
or 1,000 words permitted by the Classroom Guidelines, but the use of
excerpts from multiple works to make up a significant portion of the total
readings for a class is contrary to the admonition in the Guidelines that
copying “shall not be used to create or to replace or substitute for
anthologies, compilations or collective works.” Agreement on Guidelines
for Classroom Copying in Not-For-Profit Educational Institutions with

874969.1

31

Respect to Books and Periodicals, H.R. Rep. No. 94-1476, 94th Cong., 2d
Sess. (1976) § III(A).
The Classroom Guidelines make clear that “replacement or
substitution”

can

occur

when

excerpts

from

various

works

are

“accumulated.” Id. They state that the copying shall not “substitute for the
purchase of books, publishers’ reprints, or periodicals” and shall not “be
repeated with respect to the same item by the same teacher from term to
term.” Id. § III(C)(a)(c). The House Report explained:
Where the unauthorized copying displaces what
realistically might have been a sale, no matter how
minor the amount of money involved, the interests
of the copyright owner need protection. Isolated
instances of minor infringements, when multiplied
many times, become in the aggregate a major
inroad on copyright that must be prevented.
H.R. Rep. No. 90-83, 90th Cong., 1st Sess. (1967), at 35 (cited approvingly
in H.R. Rep. No. 94-1476, 94th Cong., 2d Sess. (1976), at 67). Plaintiffs
will show systematic, non-transformative appropriation of their copyrighted
works at GSU that is far removed from Congress’s conception of fair use.
They will thus establish that what the court found in Princeton University
Press is no less present at GSU: copying that “goes well beyond anything
envisioned by the Congress that chose to incorporate the guidelines in the
legislative history.” 99 F.3d at 1391.
874969.1

32

In sum, Factor 4 should weigh heavily in Plaintiffs’ favor.
3.

The Nature of the Copyrighted Work (Factor 2)

Under the second fair use factor, Plaintiffs will establish that their
books, while nonfiction, are creative, literary works that are quite different
from the factual compilations that courts have held are entitled to relatively
little protection against fair use.

The Eleventh Circuit has expressly

disapproved of allowing too wide a berth for fair use of factual works,
noting that courts should “take care not to discourage authors from
addressing important topics for fear of losing their copyright protections.”
Pac. & S. Co. v. Duncan, 744 F.2d 1490, 1497 (11th Cir. 1984).
The creative works of original scholarship and analysis at issue in this
case are of the same nature and thus are entitled to the same weight under
Factor 2 as the academic books at issue in the coursepack cases. As the
Sixth Circuit noted in Princeton University Press, academic coursepacks are
“certainly not telephone book listings” but, instead, “contain[] creative
material, or ‘expression’” warranting awarding Factor 2 to the plaintiff
publishers in that case. 99 F.3d at 1389.
4.

The Amount and Substantiality of the Use (Factor 3)

The third fair use factor looks at the amount and substantiality of the
portion used in relation to the copyrighted work as a whole. In applying this
874969.1

33

factor, courts “evaluate the qualitative aspects as well as the quantity of
material copied.” Basic Books, 758 F. Supp. at 1533. Verbatim copying
(such as the digital reproduction at issue here) “is evidence of the qualitative
value of the copied material.” Harper & Row, 471 U.S. at 565.
The appropriate parameters for this analysis were delineated by the
Sixth Circuit in Princeton University Press, where the court compared the
extent of the copying – 8,000 words in the case of the shortest excerpt in that
case – to the 1,000-word “safe harbor” in the Classroom Guidelines and
found that it was “not insubstantial.” 99 F.3d at 1389. The record will show
verbatim copying by GSU that is substantial in both the quantitative and
qualitative senses and that any change in practice under the new policy has
been marginal at best.
The routine surpassing at GSU of what is even arguably a permissible
amount of copying is attributable, at least in part, to the design of the
checklist (to the extent it is followed). The checklist is constructed so that
even if the instructor determines that a large percentage of a work would be
used or that the excerpt constitutes the “heart of the work,” it will be offset
by a subjective determination that the amount taken “is narrowly tailored to
educational purpose” – a “check” that will be made almost by definition for
GSU course readings.
874969.1

34

The Factor 3 analysis is further impaired by the fact the checklist
provides no guidance as to how “small” is to be interpreted, leaving faculty
members to guess, to revert to the twenty percent guideline from GSU’s
prior policy, or to rely on what they have picked up anecdotally over their
careers. In at least one instance, more than thirty-five percent of an entire
work was deemed to be “small” and, hence, permissible. Exhibit C-5 to
Joint Filing, Docket No. 266.
***
Because each of the statutory fair use factors weighs in Plaintiffs’
favor, the Court should conclude that Defendants’ current copyright practice
does not constitute fair use.
RELIEF SOUGHT
Section 502(a) of the Copyright Act, 17 U.S.C. § 502(a), authorizes
the Court to enter an injunction that awards relief not just as to the specific
works sued upon but also as to future infringements of those and other works
owned or controlled by Plaintiffs. See, e.g., Am. Geophysical Union, 60
F.3d at 915 (granting relief based on the copying from one representative
journal by one representative employee); Pac. & S. Co, Inc., 744 F.2d at
1499 n.17 (rejecting defendant’s argument that injunction could not sweep
more broadly than the single work named in the suit and upholding court’s
874969.1

35

authority to issue an injunction addressing all plaintiff works, including
“unregistered works” and “works that have not been created”); Pac. & S. Co.
v. Duncan, 618 F. Supp. 469, 471 (N.D. Ga. 1985) (Evans, J.) (subsequently
enjoining the copying of any of the plaintiff’s broadcast news programs);
Cable News Network v. Video Monitoring Servs. of Am., 949 F.2d 378 (11th
Cir. 1991) (vacating panel decision limiting injunction to single infringing
example); Cable News Network v. Video Monitoring Servs. of Am., 959 F.2d
188 (11th Cir. 1992) (allowing reinstated injunction covering all of
plaintiff’s newscasts).
In Basic Books, the court enjoined the defendant “from future
anthologizing and copying of plaintiffs’ works without permission” and
extended the prohibition to “works not currently existing but which may in
the future be owned by plaintiffs and as to which plaintiffs have not
consented.” 758 F. Supp. at 1542.
Plaintiffs will demonstrate that Defendants’ current policies and
practices present a “threat of continuing violation,” Basic Books, 758 F.
Supp. at 1542, thus warranting an injunction that covers existing and future
works owned or controlled by Plaintiffs.
CONCLUSION
The applicable legal authorities, when applied to the facts to be
874969.1

36

adduced at trial, will clearly establish Plaintiffs’ entitlement to the injunctive
relief they seek.
Respectfully submitted, this 29th day of April, 2011.
/s/ John H. Rains IV
Edward B. Krugman
Georgia Bar No. 429927
John H. Rains IV
Georgia Bar No. 556052
BONDURANT, MIXSON & ELMORE, LLP
1201 West Peachtree Street NW
Suite 3900
Atlanta, GA 30309
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
R. Bruce Rich (pro hac vice)
Randi Singer (pro hac vice)
Jonathan Bloom (pro hac vice)
Todd D. Larson (pro hac vice)
WEIL, GOTSHAL & MANGES LLP
767 Fifth Avenue
New York, New York 10153
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Plaintiffs

874969.1

37

EXHIBIT A

Professor Gabler-Hover
Fall 2009
Office: 938 G
Hours: MW 12:15-1:15

[e-mail]
English 4200 Cyborgs in American Culture
327 General Classroom
1:30-2:45 MW
FICTION TEXTS FROM GEORGIA BOOKSTORE ONLY. The only page numbers used
in class will come from the editions listed below, available at the
Georgia Bookstore
Course Texts
Issac Asimov I, Robot Bantam 0-553-29438-5
Philip K. Dick Do Androids Dream of Electric Sheep? Del Rey 978-0-34540446-3
William Gibson Neuromancer Penguin 0-441-56959-5
Pat Cadigan Tea from An Empty Cup Tor 0-812-54197-9
Octavia Butler Lilith’s Brood Hachette 0-446-67610-1
E-Reserves. Although I will provide several of my own handouts, many
of the prose and fiction items you will need for the course are on
library e-reserve for you to print out immediately, forming a course
packet for yourself. If you’ve never accessed e-reserve, go on the
library site to e-reserve, then plug in the instructor’s name, and
access the texts. You will need the course password, which is
96yqy4fwF The list of e-reserves ia attached to the end of your
syllabus.
2 8 ½ by 11 bluebooks for course exam.

Course Description
This course explores what fascinates American popular culture about the
concept of the cyborg. This plumbs the area of myth—those stories a
culture tells itself to understand what being “human” means in
relationship to other forces in the universe and to unconscious fears
and desires that fuel human identity, and that elevate “human” above
nature, above machines, and above “lesser” categories of humans. There
is, also, of course, the “reality” of cyborgs—one in which the boundary
between human and machine is quite complex and trangressive. From
prosthetic limbs, to artificial hearts, to meat/metal fusions that bind
human to machine, “real” cyborgic existence could be said to define
each and every one of us. As one scholar of cyborg technology, Stacy
Gillis notes, “The point of contact between the inanimate object—
whether a computer keyboard or a prosthetic limb—and the body does, at
some indefinable point, become a cyborgic one.”

EXHIBIT A - 1

GaState0065800

In this course, we will examine selective American film and literature
that features the cyborg as both a threat to and provocateur of setting
the baseline upon which humanity defines itself. The fiction we read
will usually render a more complex and problematic sense of the
division between human and machine, and the ethical implications of
such divisions. Our films—I, Robot, Terminator, Blade Runner, AI, and
Sarah Connor Chronicles—are much more archetypal and delve into the
psychology of the unconscious with the reductive melodrama of dreams,
and nightmares. You will see that both the fiction and film key in to
central American male myths that focus on the heroic journey—the
hunter, the cowboy, the hard-boiled detective, the Utopian/dystopian
dreamer--and set up the cyborg as the antagonist of that journey. We
will also see, later in the semester, what happens when gender and race
interact with this male myth in the realm of the cyborg.
There is no way to remotely cover the proliferation of film and pop
culture manifestations that relate to the cyborg or to its predecessor,
the robot. You are welcome to explore any cyborg representation in the
American medium to include in class discussion, when relevant, and to
examine for your course paper.
Course Policy
Regular attendance is an important aspect of this course, and
attendance could become a part of your grade if you do not meet the
minimum days required of class attendance. If you miss more than 7
class days assigned on the syllabus, your grade in this class will be
lowered by one grade, regardless of the reason for the absence.
Plagiarism: ESSAY PLAGIARISM, WHETHER FROM PRINTED SOURCES OR FROM THE
INTERNET, WILL RECEIVE AN F GRADE.
If you have any doubt about what
constitutes plagiarism, either ask me or go to the English Department
Writing Center (976G). Plagiarism is lack of citation of sources that
you use. This constitutes academic dishonesty in that without citation
you take someone else’s work as your own. Plagiarism is not just word
for word copying. It can also be “cut and paste”—that is, taking part
of one sentence, using a few of your own words, taking another phrase
or part of a sentence, etc.
Obviously, using someone else’s work
entirely is also plagiarism.
Course Requirements
You will choose two out of the five listed film response essays and
submit typed film responses using one of the response question options
handed out prior to film response due dates. Film responses will
contain an opening thesis taking an argumentative point of view which
will be supported by specific film details. There are a number of
short answer quizzes that you will note on the Weekly schedule. These
will typically contain 5 short questions that ask for textual recall
and hence prove that you are doing your reading assignments. The exam
will be a two-day event covering id, short answer, and essay on the
film and literature you have read this semester. Taking good notes and
reading all the assignments/films is the best way you can prepare for
the exam. You will get a study guide suggesting relevant subjects of
study prior to the exam. The essay, 6 to 10 typed pages, is due in 327

2
EXHIBIT A - 2

GaState0065801

G on Exam Day Wednesday December 9. I will accept your paper from
12:30-1:00. Late papers will not be accepted. The essay should be
thesis driven, clearly argumentative and analytical, addressing one or
more of the cyborg texts we have used this semester, or any that you
might want to select that we didn’t cover. I’ll hand out directions
for the essay later in the semester.
Assignment Percentages

2 Film response essays
Quizzes:
Exam:
Course Paper (6-10 pp.)

(2pp.)

20%
10$
30%
40%

Grading System:
I grade on a 4.0 scale and translate each letter grade that you
receive into its numerical equivalent when calculating grades, then
multiply that number by the percentage it represents. Hence, you may
calculate your grade at any point. The only exception to the grade
letter component is quiz grades, which will receive a number grade that
will be averaged with other quiz grades. Here are the numerical
equivalents for each letter grade you receive:
4.0
3.7
3.5
3.3
3.0
2.7
2.5

= A
= A= A-B+
= B+
= B
= B= B-C+
and so forth.

Example:
Film response 1
Film response 2
Quizzes
Exam:
Course Paper
Final Grade

(10%)
(10%)
(10%)
(30%)
(40%)

A .40
B .30
B .30
A 1.20
B-1.08
3.28 B+

3
EXHIBIT A - 3

GaState0065802

List of Weekly Readings. Make sure to bring your books and photocopies
to class and be sure to bring the right ones. On a Wednesday, be sure
to look ahead to Monday to prepare for Monday’s class, and etc. If
class events change because of an unforeseen development or more time
needed for a particular test, the schedule is subject to change, so be
sure to follow announcements in class. Dates that absolutely will not
change are the exam dates and the paper due date.

Week One August 17-19
Monday: Syllabus
Wednesday: Lecture, “the Cyborg”
Week Two August 24-26
Monday: I, Robot – xi-29; 56-81 Pop Quiz. Pop Quiz on Robot. Handout
Althusser for Wednesday
Wednesday:

Handout discussion.

I, Robot – 136-205; 240-272

Week Three August 31-September 2
Monday:

Film I, Robot

Wednesday: Discussion film. Film I, Robot
E-reserve Projecting the Shadow 1-8; 11-27 for Wednesday September 9
Week Four September 7-9
Monday:

Labor Day holiday.

Wednesday: Film Response Paper 1. Discussion Projecting Handout.
Class handouts on “Cowboy” and “Detective” for Monday September 14
Week Five September 14-16
Monday: Discussion handouts “Cowboy” and “Detective.” Handout on
Utopia for Wednesday, September 16
Wednesday: Utopia handout and Terminator
Week Six September 21-26
Monday: Class Discussion Terminator
Wednesday: Terminator - conclusion

4
EXHIBIT A - 4

GaState0065803

Week Seven September 28-30
Monday: Film Response 2 due.
96. Pop quiz on Androids

Do Androids Dream of Electric Sheep –

Wednesday: Androids – conclusion. Blade Runner E-reserve Projecting
the Shadow 142-163 for Monday October 3
Week Eight October 5-7
Monday: Film Response Paper 3 due.
Bruno Bettelheim, 15-24
Wednesday: Astro Boy.

Blade Runner Handouts Astro Boy and

Bettleheim.

Week Nine October 12-14
Monday: AI
Wednesday: Film Discussion AI
Week Ten October 19-21
Monday:

AI

Wednesday:

AI Film Response Paper 4 due.

Week Eleven October 26-28
Monday: Neuromancer
Wednesday:

1-53.

Pop Quiz

Neuromancer 54-156

Week Twelve November 2-4
Monday: Neuromancer – conclusion. Pop Quiz on Neuromancer E-Reserve
from History of Feminist Literary Theory 322-335 for Wednesday November
4
Wednesday: Discussion feminist literary theory
Week Thirteen November 9-11
Monday: Tea from an Empty Cup -140 Pop Quiz
Wednesday: Tea from an Empty Cup – conclusion Exam Study Guide handed
out
Week Fourteen November 16-18
Monday: Exam Day One
Wednesday: Exam Day Two Handout Freud for Monday November 23

5
EXHIBIT A - 5

GaState0065804

Week Fifteen November 23-25
Monday: Sarah Connor Chronicles
Wednesday: Thanksgiving holiday
Week Sixteen November 30-December 2
Monday: Film response 5 due.
355

Lilith’s Brood) From Adulthood Rites 253-

Wednesday: Adulthood Rites 356-439
Paper Due Classroom 327 G on Exam day and time Wednesday December 9
from 12:30-1:00. LATE PAPERS NOT ACCEPTED.

6
EXHIBIT A - 6

GaState0065805

EXHIBIT B

Excerpt from Joint Exhibit 5 (Fall 2009 ERes Report)

Document

Course Reserves Page

Althusser, Louis. Ideology and Ideological
State Apparatuses (Notes Towards an
Investigation). [from Durham and Kellner
FILM4750 - Film Theory and Criticism (Fall
(ed.) Media and Cultural Studies]
2010) Barker
Arnheim, Rudolf. The Complete Film. [from
Braudy, Leo, and Marshall Cohen. Film
Theory and Criticism: Introductory Readings.
New York: Oxford University Press, 1999. pp. FILM4750 - Film Theory and Criticism (Fall
212-215.]
2010) Barker
Barthes, Roland "The Death of the Author"
In John Caughie ed. Theories of Authorship:
A Reader. Routledge: 1981. pp. 208-213.
Barthes, Roland, and Stephen Heath. Image,
Music, Text. New York: Hill and Wang, 1977.
pp. 155-164.
Barthes, Roland. "The Reality Effect." The
Rustle of Language. vols. New York: Hill and
Wang, 1986. 141-48.

Date Range

Hit Count % of Total

8/17/2009 - 12/19/2009 33

0.05%

8/17/2009 - 12/19/2009 10

0.02%

FILM4750 - Film Theory and Criticism (Fall
2010) Barker

8/17/2009 - 12/19/2009 26

0.04%

FILM4750 - Film Theory and Criticism (Fall
2010) Barker

8/17/2009 - 12/19/2009 13

0.02%

FILM4750 - Film Theory and Criticism (Fall
2010) Barker

8/17/2009 - 12/19/2009 40

0.07%

8/17/2009 - 12/19/2009 14

0.02%

8/17/2009 - 12/19/2009 1

0.00%

8/17/2009 - 12/19/2009 14

0.02%

Baudry, Jean-Louis. Ideological Effects of the
basic Cinematographic Apparatus. [from
Braudy, Leo, and Marshall Cohen. Film
Theory and Criticism: Introductory Readings.
New York: Oxford University Press, 1999. pp. FILM4750 - Film Theory and Criticism (Fall
345-355.]
2010) Barker
Bazin, Andre "The Myth of Total Cinema" In
What is Cinema? Vol. 1. Univ of California: FILM4750 - Film Theory and Criticism (Fall
1967. pp. 17-22.
2010) Barker
Bazin, Andre. What is Cinema? Essays
selected and translated by Hugh Gray.
Berkeley : University of California Press,
1974. "The Evolution of the Language of
FILM4750 - Film Theory and Criticism (Fall
Cinema."
2010) Barker

EXHIBIT B - 1

Excerpt from Joint Exhibit 5 (Fall 2009 ERes Report)

Bordwell, David. The Art Cinema as a Mode
of Film Practice. [from Braudy, Leo, and
Marshall Cohen. Film Theory and Criticism:
Introductory Readings. New York: Oxford
FILM4750 - Film Theory and Criticism (Fall
University Press, 1999. pp. 716-724]
2010) Barker

8/17/2009 - 12/19/2009 22

0.04%

Bordwell, David; Janet Staiger; and Kristin
Thompson. Classical narration. [from The
Classical Hollywood Cinema. New York :
FILM4750 - Film Theory and Criticism (Fall
Columbia University Press, 1985. pp. 24-41.] 2010) Barker

8/17/2009 - 12/19/2009 61

0.10%

Browne, Nick. Cahiers Du Cinéma 19691972: The Politics of Representation.
Harvard film studies. Cambridge, Mass:
Harvard University Press, 1990. pp. 58-67

8/17/2009 - 12/19/2009 10

0.02%

8/17/2009 - 12/19/2009 8

0.01%

8/17/2009 - 12/19/2009 1

0.00%

FILM4750 - Film Theory and Criticism (Fall
2010) Barker

8/17/2009 - 12/19/2009 3

0.00%

FILM4750 - Film Theory and Criticism (Fall
2010) Barker

8/17/2009 - 12/19/2009 35

0.06%

Hall, Stuart. Cultural Identity and Cinematic
Representation. [from Baker, Houston A.,
FILM4750 - Film Theory and Criticism (Fall
ed. et al. Black British Cultural Studies.]1996. 2010) Barker

8/17/2009 - 12/19/2009 12

0.02%

FILM4750 - Film Theory and Criticism (Fall
2010) Barker

Chion, Michel "Projections of Sound on
Image" In Audio-Vision: Sound on Screen.
Columbia Univ Press: 1984. pp.3-24.

FILM4750 - Film Theory and Criticism (Fall
2010) Barker
FILM4750 - Film Theory and Criticism (Fall
Cinema 16 (Call #: DVD PN1997.A1 E9 2007) 2010) Barker
Conboy, Katie, Nadia Medina, and Sarah
Stanbury. Writing on the Body: Female
Embodiment and Feminist Theory. A Gender
and culture reader. New York: Columbia
University Press, 1997. pp. 176-194
Foucault, Michel "What is an Author?" In
Language, counter-memory, practice:
selected essays and interviews. Cornell:
1977. pp. 113-138.

EXHIBIT B - 2

Excerpt from Joint Exhibit 5 (Fall 2009 ERes Report)

Jones, Amelia. The Feminism and Visual
Culture Reader. In sight. London: Routledge,
2003. Ch. 14: Hooks, "The Oppositional
FILM4750 - Film Theory and Criticism (Fall
Gaze". pp. 94-105
2010) Barker

8/17/2009 - 12/19/2009 4

0.01%

Kester, Grant H. Art, Activism, and
Oppositionality: Essays from Afterimage.
Durham [NC]: Duke University Press, 1998.
pp. 60-75: Coco Fusco

8/17/2009 - 12/19/2009 3

0.00%

FILM4750 - Film Theory and Criticism (Fall
2010) Barker

Lacan, Jacques. The Mirror Stage. [from Du
Gay, Paul, Jessica Evans, and Peter Redman.
2000. Identity: a reader. London: SAGE
Publications in association with The Open
FILM4750 - Film Theory and Criticism (Fall
University. pp. 44-50]
2010) Barker
FILM4750 - Film Theory and Criticism (Fall
2010) Barker
Lady Eve (Call #: DVD PN1997.L32 2001)

8/17/2009 - 12/19/2009 3

0.00%

8/17/2009 - 12/19/2009 1

0.00%

Metz, Christian. "The Imaginary Signifier."
From Film and Theory: An Anthology, edited
by Robert Stam and Toby Miller. Malden MA FILM4750 - Film Theory and Criticism (Fall
: Blackwell, 2000.
2010) Barker

8/17/2009 - 12/19/2009 10

0.02%

Metz, Christian. Film Language; A Semiotics
of the Cinema. New York: Oxford University
Press, 1974. Chapter 5: Problems of
FILM4750 - Film Theory and Criticism (Fall
denotation in the Fiction Film
2010) Barker

8/17/2009 - 12/19/2009 16

0.03%

Metz, Christian. Some Points in the
Semiotics of Cinema. [fromBraudy, Leo, and
Marshall Cohen. Film Theory and Criticism:
Introductory Readings. New York: Oxford
FILM4750 - Film Theory and Criticism (Fall
University Press, 1999. pp. 68-74]
2010) Barker

8/17/2009 - 12/19/2009 14

0.02%

EXHIBIT B - 3

Excerpt from Joint Exhibit 5 (Fall 2009 ERes Report)

Mulvey, Laura. Visual and Other Pleasures.
Bloomington: Indiana University Press, 1989.
“Visual Pleasure and Narrative
FILM4750 - Film Theory and Criticism (Fall
Cinema  (pp. 14-26).
2010) Barker
Munsterberg, Hugo. The Photoplay: A
Psychological Study. New York : Arno Press
& The New York Times, 1970. Ch. 5.
FILM4750 - Film Theory and Criticism (Fall
"Memory and Imagination."
2010) Barker
Nichols, Bill. Movies and Methods. Vol 2, An
Anthology. University of California Press,
FILM4750 - Film Theory and Criticism (Fall
1985. pp. 303-315
2010) Barker
FILM4750 - Film Theory and Criticism (Fall
Perfect Film (Call #: DVD MC-3103)
2010) Barker
Ray, Satyajit "The Question of Reality" In
Lewis Jacobs' The Documentary Tradition.
W.W. Norton: 1979. pp.381-382
Sarris, Andrew "Notes on the Auteur Theory
in 1962" In P. Adams Sitney ed. Film Culture
Reader. Praeger: 1970. pp. 121-135.
Schatz, Thomas. Hollywood Genres:
Formulas, Filmmaking, and the Studio
System. 1981. [Chapters 1 & 2].
Schatz, Thomas. The Genius of the System:
Hollywood Filmmaking in the Studio Era.
New York : Henry Holt & Co., 1996. Chapters
1 & 2.
Sobchack, Vivian "Phenomenology" In
Routledge Companion to Philosophy and
Film. Eds. Paisley Livingston, Carl R.
Plantinga. Routledge: 2009. pp. 435-445

8/17/2009 - 12/19/2009 17

0.03%

8/17/2009 - 12/19/2009 11

0.02%

8/17/2009 - 12/19/2009 2

0.00%

8/17/2009 - 12/19/2009 1

0.00%

FILM4750 - Film Theory and Criticism (Fall
2010) Barker

8/17/2009 - 12/19/2009 2

0.00%

FILM4750 - Film Theory and Criticism (Fall
2010) Barker

8/17/2009 - 12/19/2009 24

0.04%

FILM4750 - Film Theory and Criticism (Fall
2010) Barker

8/17/2009 - 12/19/2009 5

0.01%

FILM4750 - Film Theory and Criticism (Fall
2010) Barker

8/17/2009 - 12/19/2009 1

0.00%

FILM4750 - Film Theory and Criticism (Fall
2010) Barker

8/17/2009 - 12/19/2009 7

0.01%

EXHIBIT B - 4

Excerpt from Joint Exhibit 5 (Fall 2009 ERes Report)

Wollen, Peter "The Auteur Theory" In John
Caughie ed. Theories of Authorship: A
Reader. Routledge: 1981. pp. 138-151.

FILM4750 - Film Theory and Criticism (Fall
2010) Barker

8/17/2009 - 12/19/2009 19

0.03%

Wollen, Peter "The Auteur Theory" In Signs
and Meaning in the Cinema. Indiana Univ
FILM4750 - Film Theory and Criticism (Fall
Press: 1969. chp 2, pp. 74-115.
2010) Barker

8/17/2009 - 12/19/2009 2

0.00%

Wood, Robin. "Ideology, Genre, Auteur."
From Film Theory and Criticism, edited by
Leo Braudy and Marshall Cohen. New York : FILM4750 - Film Theory and Criticism (Fall
Oxford University Press, 2004.
2010) Barker

8/17/2009 - 12/19/2009 15

0.02%

EXHIBIT B - 5