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)

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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 (770) 955-5252 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 SHUGART & BISHOP Page 2 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 SHUGART & BISHOP Page 3 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 SHUGART & BISHOP Page 22 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 SHUGART & BISHOP Page 23

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