Cambridge University Press et al v. Patton et al

Filing 290

RESPONSE in Opposition re 274 MOTION in Limine To Preclude the Admission of Recently Created Fair Use Checklists filed 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, Neil L. Pruitt, 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 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Bates, Mary)

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.
_______________________________/

Videotaped deposition of
DENIS CHARLES GAINTY, Ph.D., taken on behalf of the
defendants, pursuant to the stipulations contained
herein, before Carole E. Poss, RDR, CRR, Certified
Court Reporter, at 1180 Peachtree Street, NE, Atlanta,
Georgia, on the 20th day of April, 2011, commencing at
the hour of 10:13 a.m.
_______________________________________________________
SHUGART & BISHOP
Certified Court Reporters
13 Corporate Square
Suite 140
Atlanta, Georgia 30329
[phone]

CAMBRIDGE vs. BECKER

1

DENIS GAINTY

APRIL 20, 2011

INDEX TO EXAMINATIONS

2
3
Examination

Page

4
5

Direct Examination by Ms. Moffitt
Cross-Examination by Mr. Bloom
Redirect Examination by Ms. Moffitt

5
41
60

6
7

INDEX TO EXHIBITS

8
9
10

Defendants' Exhibit
Gainty TX
1

Syllabus, Cross-Cultural Encounters in
World History

11

Fair use checklist

21

11
2
12
13
14

Plaintiffs' Exhibit
Gainty PX
1

Policy on the Use of Copyrighted Works in
Education and Research

44

Excerpt from The Cambridge History of China,
volume 8, part 2

56

Portion of e-reserve report relating to
Dr. Gainty's HIST 4820 course

58

15
2
16
17

3

18
19
20
21
22
23
24
25

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CAMBRIDGE vs. BECKER

DENIS GAINTY

1

APPEARANCES OF COUNSEL:

2

APRIL 20, 2011

On behalf of the Plaintiffs:

3
4

JONATHAN BLOOM, ESQ.
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153-0119

5
On behalf of the Defendants:

6
7
8
9
10

NATASHA H. MOFFITT, ESQ.
King & Spalding LLP
1180 Peachtree Street, NE
Atlanta, Georgia 30309-3521
Also Present:
Elizabeth Kemp, Videographer

11
-

12

-

-

13
14

THE VIDEOGRAPHER:

We're now on the video

15

record.

16

This is the videotaped deposition of Denis Gainty

17

taken by the defendants in the matter of Cambridge

18

University Press, Oxford University Press,

19

Incorporated, and Sage Publications, Incorporated,

20

versus Mark P. Becker, in his official capacity as

21

Georgia State University president, et al.

22
23

This is the beginning of tape number 1.

Madam Court Reporter, would you please swear
in the witness.

24

(Witness sworn.)

25

MR. BLOOM:

I'd like to make an objection on

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CAMBRIDGE vs. BECKER

1

DENIS GAINTY

APRIL 20, 2011

that particular work?

2

A

Yes.

3

Q

What informs you on this checklist that this

4

checklist, in particular, relates to that particular

5

work?

6

A

I can read my name, the name of the course,

7

the author and publisher and portions to be used, the

8

page numbers.

9

Q

When -- did you fill out this checklist?

10

A

I did.

11

Q

When did you fill out this fair use

12
13
14
15
16

All of those match the work in question.

checklist?
A

I filled out this fair use checklist in the

last few months.
Q

Now, in the upper right-hand corner it's

dated August 1, 2009.

Do you see that?

17

A

Yes.

18

Q

What does that date reflect?

19

A

I tried, as best I could, to the best of my

20

ability, to recreate the fair use checklist that I

21

would have filled out and I believe I did fill out for

22

the fall 2009 semester.

23
24
25

Q

You stated that you recreated the checklist.

Can you explain why you recreated the checklist?
A

I did not have any longer a copy of the fair

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CAMBRIDGE vs. BECKER

1
2
3

DENIS GAINTY

APRIL 20, 2011

use checklist that I completed for 2009.
Q

And why not?

Why did you no longer have a

copy of that checklist?

4

A

I discarded it.

5

Q

Why?

6

A

I believed that because the course was

7

canceled after one class meeting, it was not necessary

8

to retain the fair use checklist.

9
10
11

Q

And can you explain why you went about

recreating this checklist?
A

I was informed that there was a lawsuit and

12

asked by the Office of Legal Affairs at Georgia State

13

to recreate this checklist.

14

Q

And when you recreated the checklist, did you

15

make an effort to fill it out in the same way that you

16

filled it out in the office -- or in the 2009 time

17

frame before the course started?

18

A

Yes.

19

Q

When you originally filled this particular

20

checklist out in the 2009 time frame, did you make a

21

good faith effort to conduct a fair use analysis in

22

accordance with the checklist?

23

A

Yes.

24

Q

And this particular checklist, Gainty TX 2,

25

relates to which pages of the "Sino-Korean Tributary

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