Cambridge University Press et al v. Patton et al

Filing 300

RESPONSE re 279 Order, Proposed Injunctive Relief filed by Cambridge University Press, Oxford University Press, Inc., Sage Publications, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Rains, John)

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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
CAMBRIDGE UNIVERSITY PRESS,
et al,
Plaintiffs,

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

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

[PROPOSED] INJUNCTIVE RELIEF
This action having been tried by the Court without a jury, the Honorable
Orinda D. Evans, District Judge, presiding, on May 16, 2011 – _____, 2011, and
the Court having duly entered an opinion dated ________, 2011, with findings of
fact and conclusions of law, it is ORDERED AND ADJUDGED that:
I.

As used in this Order:
A.

B.

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The term “GSU” includes each and every Defendant, and all their
agents, servants, employees, representatives, and successors, all other
persons acting under their direction, control, or supervision, including
all part-time or full-time faculty employed by, and students enrolled
at, GSU, and all those in active concert or participation with them.
The term “Work” includes any work of authorship for which Plaintiffs
hold or may hereafter hold a copyright, whether said work has been

EXHIBIT 1 - 1

heretofore published or shall, in the future, be published, and whether
a registration of the copyright thereto has been heretofore granted or
shall in the future be granted.
II.

Subject only to the provisions of Paragraph III hereof, GSU shall be and is
permanently enjoined and restrained from creating, reproducing,
transmitting, selling, or in any manner distributing, or assisting, participating
in, soliciting, encouraging, or facilitating the creation, reproduction,
download, display, sale, or distribution in any manner of, copies, whether in
hard copy format, digital or electronic computer files, or any other format, of
any and all Works without permission.

III.

Nothing in this Order shall be deemed to enjoin or restrain GSU from
making or distributing copies of any Works or portions thereof, including,
without limitation, by uploading, downloading and/or creating digital copies,
where:
A.

GSU or the individual faculty member or instructor has obtained
permission or authorization to make and distribute such copies from
the owner or owner’s authorized agent (such as the Copyright
Clearance Center, Inc.) of the appropriate rights of copyright; or

B.

Notwithstanding the absence of permission or authorization pursuant
to paragraph III.A hereof:
1.

The copies are made or distributed by, or at the request of, a
faculty member or instructor who certifies that the copies to be
made or distributed are in full compliance with the conditions
of brevity and cumulative effect set forth in Paragraph II and
the provisions of Paragraph III (A)-(C) of the March 19, 1976
“Agreement on Guidelines for Classroom Copying in Not-ForProfit Educational Institutions with Respect to Books and
Periodicals,” H.R. Rep. No. 94-1476, 94th Cong., 2nd Sess. 6870, reprinted in [1976] U.S. Code Cong. & Ad. News 5659,
5682-83 (the “Guidelines for Educational Fair Use”) (the
relevant portions of which are annexed hereto as Exhibit A), it
being understood that condition (iii) relating to cumulative
effect and the provisions of Paragraph III (A)-(C) shall be

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construed in conjunction with GSU’s uses of other copyrighted
works of authorship; and
2.

C.

The copies, whether in hard copy format, digital or electronic
computer files, or any other format, that are made or distributed
without permission or authorization do not, when combined
with other copyrighted works of authorship, collectively
comprise more than 10% of the total reading (whether assigned,
required, suggested, supplemental, or otherwise) for a particular
course.

All certifications required by Paragraph III.B.1 shall be in the form set
forth in Exhibit B and shall be collected by designated GSU
representatives before copies are made or distributed and stored by
GSU for at least two years.

IV.

Unless otherwise agreed to by the parties or ordered by the Court, any
copying, posting, uploading, downloading, or other distribution done on
EReserves, uLearn, faculty websites, course websites, or any other system
now in existence or hereinafter developed on any computer or system owned
or controlled by GSU, whether in hard copy format, digital or electronic
computer files, or any other format, and whether done by Defendants or by
any other person, shall be attributed to and be considered done by GSU and
shall be subject to the proscriptions herein and to the provisions of the
copyright law.

V.

GSU shall promptly provide a copy of this Order and relevant portions of the
Guidelines for Educational Fair Use to all faculty and instructors, as well as
to all other administrative and technical personnel who have to date been, or
may in the future be, involved in the development, operation, or
maintenance of EReserves, uLearn, faculty websites, course websites, or any
other system now in existence or hereinafter developed on any computer or
system owned or controlled by GSU. In addition:
A.

Whether in conjunction with such communication or otherwise, GSU
shall make clear the importance of compliance with the terms of the
Order and that violations will be subject to disciplinary sanctions; and

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B.

GSU shall post the Order and relevant portions of the Guidelines for
Educational Fair Use on the GSU website in an appropriately
prominent manner, including but not limited to causing the provisions
of the Order to appear before a faculty member, library employee, or
other GSU personnel is able to upload, post, or otherwise make
available any copyrighted material via EReserves, uLearn, faculty
webpages, course webpages, or any other system now in existence or
hereinafter developed on any computer or system owned or controlled
by GSU; and

C.

GSU shall incorporate reference to this Order, including either by
reproducing its text or otherwise providing advice on how the reader
can easily locate it, in all university-wide handbooks or the like setting
forth codes of faculty, student, or employee conduct.

VI.

GSU shall develop and promptly implement appropriate educational
programs for the purpose of promoting compliance with the terms of the
Order and shall designate one or more university personnel with appropriate
training in copyright to be reasonably available to answer questions and to
provide guidance about complying with the Order.

VII.

GSU shall take all appropriate steps either to ensure that existing copyright
policies, including checklists, governing the activities of GSU comport with
all aspects of this Order or to discontinue use of and reliance on such
policies.

VIII.

Within forty-five (45) days of the entry of the Order, GSU shall certify to the
Court, and shall serve on plaintiffs, a report detailing the measures it has
taken to comply with the Order. Said report shall include a certification,
signed by the president of GSU, that all Works that heretofore have been
resident on one or more computer systems operated by GSU and that are
subject to the other terms of the Order have been brought into compliance
with this Order. In addition, for each academic term for three (3) years
following the effective date of this Order, GSU’s Provost shall certify to the
Court, with a copy to plaintiffs’ counsel, that based on diligent monitoring
efforts, GSU is in compliance with the terms of the Order, including but not
limited to, with respect to the ERes and uLearn systems or their equivalents.

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A.

B.

IX.

Such certification shall be accompanied by a standard ERes report (or
the report from any equivalent system) listing all reading materials
present on the ERes system during that semester, the course-reserves
page for which the materials are listed, and the number of “hits” for
each reading materials during that semester.
Upon request made no more frequently than once each semester, GSU
shall provide such access to its computer systems, including the
uLearn system (or its equivalent), and to the certifications referred to
in Paragraph III(C) above to a designated representative of Plaintiffs
as will enable Plaintiffs to ascertain GSU’s compliance with the terms
of the Order. Access shall be afforded at reasonable times during
GSU’s business hours upon fifteen (15) days’ advance notice.

The Court shall retain jurisdiction of this case and over judgment
compliance issues and shall entertain such requests for modification of its
terms as may be warranted based upon technological or other future
developments.

SO ORDERED this ____ day of ____, 2011.
_____________________________
Hon. Orinda D. Evans
United States District Judge

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EXHIBIT A
Agreement on Guidelines for Classroom Copying in Not-For-Profit
Educational Institutions with Respect to Book and Periodicals†
I.

Single Copying for Teachers
A single copy may be made of any of the following by or for a teacher at his
or her individual request for his or her scholarly research or use in teaching
or preparation to teach a class:
A.
B.

An article from a periodical or newspaper;

C.

A short story, short essay or short poem, whether or not from a
collective work;

D.

II.

A chapter from a book;

A chart, graph, diagram, drawing, cartoon or picture from a book,
periodical, or newspaper;

Multiple Copies for Classroom Use
Multiple copies (not to exceed in any event more than one copy per pupil in
a course) may be made by or for the teacher giving the course for classroom
use or discussion; provided that:
A.

The copying meets the tests of brevity and spontaneity as defined
below; and,

B.

Meets the cumulative effect test as defined below; and,

C.

Each copy includes a notice of copyright

Definitions
Brevity
(i)

Poetry: (a) A complete poem if less than 250 words and if printed on
not more than two pages or, (b) from a longer poem, an excerpt of not
more than 250 words.

H.R. Rep. No. 94-1476, 94th Cong., 2d Sess. 68-70, reprinted in 1976 U.S. Code
Cong. & Ad. News 5659, 5682-83.
†

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(ii)

Prose: (a) Either a complete article, story or essay of less than 2,500
words, or (b) an excerpt from any prose work of not more than 1,000
words or 10% of the work, whichever is less, but in any event a
minimum of 500 words.
[Each of the numerical limits stated in “i” and “ii” above may be
expanded to permit the completion of an unfinished line of a poem or
of an unfinished prose paragraph.]

(iii)

Illustration: One chart, graph, diagram, drawing, cartoon or picture
per book or per periodical issue.

(iv)

“Special” works: Certain works in poetry, prose or in “poetic prose”
which often combine language with illustrations and which are
intended sometimes for children and at other times for a more general
audience fall short of 2,500 words in their entirety.
Paragraph “ii” above notwithstanding such “special works” may not
be reproduced in their entirety; however, an excerpt comprising not
more than two of the published pages of such special work and
containing not more than 10% of the words found in the text thereof,
may be reproduced.

Spontaneity
(i)

The copying is at the instance and inspiration of the individual
teacher, and

(ii)

the inspiration and decision to use the work and the moment of its use
for maximum teaching effectiveness are so close in time that it would
be unreasonable to expect a timely reply to a request for permission.

Cumulative Effect
(i)

The copying of the material is for only one course in the school in
which the copies are made.

(ii)

Not more than one short poem, article, story, essay or two excerpts
may be copied from the same author, nor more than three from the
same collective work or periodical volume during one class term.

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(iii)

There shall not be more than nine instances of such multiple copying
for one course during one class term.
[The limitations stated in “ii” and “iii” above shall not apply to current
news periodicals and newspapers and current news sections of other
periodicals.]

III.

Prohibitions as to I and II Above
Notwithstanding any of the above, the following shall be prohibited:
(A) Copying shall not be used to create or to replace or substitute for
anthologies, compilations or collective works. Such replacement or
substitution may occur whether copies of various works or excerpts
therefrom are accumulated or reproduced and used separately.
(B) There shall be no copying of or from works intended to be “consumable”
in the course of study or of teaching. These include workbooks,
exercises, standardized tests and test booklets and answer sheets and like
consumable material.
(C) Copying shall not:
(a) substitute for the purchase of books, publishers’ reprints or
periodicals;
(b) be directed by higher authority;
(c) be repeated with respect to the same item by the same teacher from
term to term.
(D) No charge shall be made to the student beyond the actual cost of the
photocopying.

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EXHIBIT B
FACULTY/INSTRUCTOR CERTIFICATION CONCERNING
ELECTRONIC COURSE MATERIAL
Name:
Date:
Course and Term:
Title of Copyrighted Work:
Author and Publisher:
Portion(s) to be used (e.g., pages, chapters):
Conditions of brevity and cumulative effect set forth in the “Agreement on
Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with
Respect to Books and Periodicals”:
Brevity
(i)

Poetry: (a) A complete poem if less than 250 words and if printed on
not more than two pages or, (b) from a longer poem, an excerpt of not
more than 250 words.

(ii)

Prose: (a) Either a complete article, story or essay of less than 2,500
words, or (b) an excerpt from any prose work of not more than 1,000
words or 10% of the work, whichever is less, but in any event a
minimum of 500 words.
[Each of the numerical limits stated in “i” and “ii” above may be
expanded to permit the completion of an unfinished line of a poem or
of an unfinished prose paragraph.]

(iii)
(iv)

878502.1

Illustration: One chart, graph, diagram, drawing, cartoon or picture
per book or per periodical issue.
“Special” works: Certain works in poetry, prose or in “poetic prose”
which often combine language with illustrations and which are

EXHIBIT 1 - 9

intended sometimes for children and at other times for a more general
audience fall short of 2,500 words in their entirety.
Paragraph “ii” above notwithstanding such “special works” may not
be reproduced in their entirety; however, an excerpt comprising not
more than two of the published pages of such special work and
containing not more than 10% of the words found in the text thereof,
may be reproduced.
Cumulative Effect
(i)

The copying of the material is for only one course in the school in
which the copies are made.

(ii)

Not more than one short poem, article, story, essay or two excerpts
may be copied from the same author, nor more than three from the
same collective work or periodical volume during one class term.

(iii)

There shall not be more than nine instances of such multiple copying
for one course during one class term.
[The limitations stated in “ii” and “iii” above shall not apply to current
news periodicals and newspapers and current news sections of other
periodicals.]

I hereby certify that, with respect to the work or portion(s) thereof described
above:
□

I have written permission or authorization from the owner of the appropriate
copyright or the owner’s authorized agent to make or distribute such copies
(whether in print or in digital form).
[attach copy of written permission or authorization]

□

I have reviewed the conditions of brevity and cumulative effect set forth
above and the copies of the copyrighted work to be made or distributed in
print or in digital form are in full compliance with both the condition of
brevity and the condition of cumulative effect.

Signed:
Date:
878502.1

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