Cambridge University Press et al v. Patton et al

Filing 301

REPLY to Response to Motion re 272 MOTION in Limine IRRELEVANT EVIDENCE IN ACCORDANCE WITH ORDER OF SEPTEMBER 30, 2010 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 Errata D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Bates, Mary)

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

CAMBRIDGE UNIVERSITY PRESS,
et al.,
Plaintiffs,

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

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

DEFENDANTS’ REPLY BRIEF IN SUPPORT OF THEIR
MOTION IN LIMINE TO EXCLUDE IRRELEVANT EVIDENCE IN
ACCORDANCE WITH ORDER OF SEPTEMBER 30, 2010
Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion In
Limine to Exclude Irrelevant Evidence in Accordance with Order of September 30,
2010 (Dkt. 287) (“Plaintiffs’ response”) attempts to take this case back to its
position prior to summary judgment over six months ago. (See, e.g., Dkt. 287 at 67 (focusing on language from this Court’s June 22, 2009 protective order, which
was consistent with, but not as definitive as this Court’s summary judgment ruling
over a year later); see also, e.g., Defs.’ Mot. for Summ. J., Dkt. 160 (dated Feb. 26,
2010).)

Prior to summary judgment briefing, and this Court’s subsequent orders,
Plaintiffs made broad and often unspecified claims of infringement of countless
works owned by them and other publishers. (See Sept. 30, 2010 Or., Dkt. 235 at 25 (describing Plaintiffs’ sweeping and ever-growing allegations of “‘unauthorized
copying and distribution of a vast amount of copyrighted works’” “the great
majority of which occurred before the 2009 Copyright Policy was enacted” and
most of which “[did] not contain full information”).)
Recognizing the impossibility of defending against such claims and the
limitations imposed on injunctive relief by principles of sovereign immunity, this
Court’s summary judgment order of September 30. 2010 (Dkt. 235) focused the
case. There, this Court held “that only the 2009 Copyright Policy is relevant to
Plaintiffs’ claims, which are for injunctive and declaratory relief only” and that
“only claimed infringements occurring after February 17, 2009 will be
considered.” (Dkt. 235 at 5.) Reiterating this point, this Court then placed the
following limitation on “Further Proceedings”: “Going forward, in order to show
that Defendants are responsible for the copyright infringements alleged in this
case, Plaintiffs must show that the 2009 Copyright Policy resulted in ongoing and
continuous misuse of the fair use defense.” (Dkt. 235 at 30 (emphasis added).)
Furthermore, the Court determined that “[b]oth sides will be limited to the list of

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claimed infringements produced in response to the Court’s August 11, 2010 and
August 12, 2010 orders” (id.), which included only allegations of infringements
that occurred after implementation of the 2009 Copyright Policy. Plainly, uses of
works prior to implementation of the 2009 Copyright Policy and uses of works that
exceed the limits imposed by the Court cannot show the result of the 2009
Copyright Policy. Plaintiffs’ response defies this logic, stating: “Plaintiffs do not
understand the Court to have intended to preclude them from adducing evidence
demonstrating that the ongoing practice [from the relevant semesters in 2009]
represents a continuation of conduct pre-dating GSU’s new copyright policy.”
(Dkt. 287 at 6 .)
Further, on August 11, 2010 and August 12, 2010, and again on November
5, 2010, and March 3, 2011, this Court ordered the parties to prepare an accurate
and complete list of all alleged infringements from the 2009 Maymester, Summer
2009 term, and Fall 2009 term. (Dkt. 265 at 1; Dkt. 240 at 3; Dkt. 227; Dkt. 226.)
On March 15, 2011, the parties jointly filed a list of approximately 99 alleged
infringements of works purportedly owned by a Plaintiff. (Dkt. 266.) In Plaintiffs’
Opposition to Defendants’ Motion In Limine to Exclude Evidence of Alleged
Infringement of Improperly-Asserted Copyrights (Dkt. 288), filed only two days
ago, Plaintiffs voluntarily dropped ten percent of the 99 alleged infringements.

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(Dkt. 288 at 13 & n.11 (“Plaintiffs will not present evidence related to [4
identified] works or their [alleged] infringement at GSU.”), Dkt. 266-4 at 28, 37,
69, 70-72, 92-93, 95 (identifying 9 alleged uses of these 4 works in the parties’
joint filing).)

Plaintiffs’ voluntary exclusion of these works from this case

demonstrates why Plaintiffs also, in accordance with this Court’s prior rulings,
should be prohibited from presenting evidence of Defendants’ alleged uses of other
works during periods other than the three identified semesters of 2009: They are
not relevant to Plaintiffs’ claims of infringement and Defendants should not be
forced to defend against such alleged uses.
Under the guise of providing purportedly necessary “context,” Plaintiffs
propose to cloud the record and confuse the issues in this case with evidence of
uses of other works, in other classes, with other students, in other semesters, for
potentially other purposes, in some cases owned by other publishers, and under the
previous copyright policy. Plaintiffs say they are not contemplating “mini-fair use
trials” (Dkt. 287 at 3; see also id. at 7) for these “other” uses, yet every one of
these other alleged uses (if they occurred)1 may have been licensed2 or have been a
1

Some contemplated uses of copyrighted works may be reflected on
EReserves even though the work was never used. For example, an instructor may
initially plan to use a particular reading excerpt and proceed with requesting it be
posted (prompting the library to start a “document page” for the work in
EReserves), but then (a) not provide the excerpt to the library for copying and
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fair use under the law.
injunction.

Such legal use cannot support Plaintiffs’ case for

So while Plaintiffs say they are not contemplating “mini-fair use

trials,” in order to avoid prejudice to Defendants, that is precisely what such a
showing would require.
Plaintiffs’ response in essence returns to Plaintiffs’ pre-summary judgment
rhetoric that any use of any owner’s work is an infringement that warrants an
injunction. (Id. at 7 (“Plaintiffs are not seeking to engage in a work-by-work
adjudication of instances of prior unauthorized copying . . . , merely to make a

uploading, (b) drop the assignment from the class, or (c) not ever teach the course.
Dr. Jennifer Esposito, for example, has explained that if she learns after submitting
her request to have material posted on EReserves that the library does not have a
copy of the necessary work, she may not take her own copy to the library for
EReserve posting. (Esposito Dep., attached hereto as Exhibit A, at 30:18-31:2,
31:14-32:8, 32:16-33:3, 33:18-23.) The result is a “document page” for the excerpt
in EReserves without any associated copy of a work. Dr. Lee Orr has explained
that if he runs out of time during the semester, he may not require that students
read a work previously required on his syllabus. (Orr Dep., attached hereto as
Exhibit B, at 32:20-33:2.) Other instructors may intend to use material for a given
course, and proceed with the EReserves posting process, but never end up teaching
the course. For example, Defendants have raised objections to many of Plaintiffs’
alleged infringements on the ground that the courses were not taught. (Dkt. 266-4;
see also Decls. attached here to as Exhibits C-G (explaining that these courses
were not taught).)
2
Individual licenses may have been obtained in accordance with the 2009
Copyright Policy (see Dkt. 235-1 at 3 (“If the instructor determines that the reading
is not fair use, he or she must obtain permission from the copyright holder in order
to place the reading on ERes.”) or the work may be one of the hundreds of works
in an electronic journal to which the university has a license (see Burtle Decl., Dkt.
212 (listing electronic journals licensed by GSU).
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showing of the widespread distribution of unauthorized course readings prior to
2009 and its continuation . . . .”), Or. Sept. 30, 2010, Dkt. 235 at 4-5 (describing
Plaintiffs’ sweeping allegations).) The letter of the law defies such an assertion.
See 17 U.S.C. § 107 (stating “the fair use of a copyrighted work . . . is not an
infringement of copyright.”). As postured, this case is in accord. As this Court has
indicated, where Defendants demonstrate that a use properly established by
Plaintiffs to be infringing was in fact a fair use, that use does not weigh in favor of
an injunction. (Dkt. 235 at 30.)
Finally, Plaintiffs claim that this supposed “proper context” of other uses
will demonstrate “digital anthologizing” that itself has an adverse market impact.3
(Dkt. 287 at 6-7.) Contrary to Plaintiffs’ creative description, EReserves is nothing
more than an electronic bookshelf, mimicking the Reserved Books section of a
brick-and-mortar library.

Like “the traditional library reserve system where

instructors place a hard copy of a course reading on reserve at the library so that
students can check it out for a period of time to complete the reading assignment,
make photocopies, and take notes for classroom use,” “Georgia State’s ERes
3

Defendants note that even were the Court to entertain the suggestion that
EReserves or uLearn have been used to “anthologize,” and that such use would
bear on the market harm to any individual work at issue in this case, the evidence
related to such “anthologizing” must be limited to works used by the same
instructor for the same course in the same semester, as these parameters are
indicated in the parties joint March 15, 2011 filing (Dkt. 266).
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system allows instructors to place an electronic copy of the reading on a
centralized website that students in the course can access in order to complete the
reading.” (App. A to Statement of Undisputed Facts, Summ. J. Or., Sept. 30, 2010
at 1.) The general function of uLearn is the same. (Or. Sept. 30, 2010, Statement
of Undisputed Facts, Dkt. 235 at 7.)

Students can go to these electronic

bookshelves, give the proper credentials (i.e., password(s) or identification
information), and pull the particular reading off the “shelf.” (See App. A to
Statement of Undisputed Facts, Summ. J. Or., Sept. 30, 2010 at 1-2.)
The various readings assigned for a course are not—and Plaintiffs do not
allege that they are—collated into a single file. They are not bound together into a
new “book” like a coursepack4 and are not sold like a coursepack.5 (See Summ. J.
Or., Sept. 30, 2010 at 21-24 (describing coursepacks and finding no financial
benefit to GSU for use of ERes or uLearn).) The electronic “course pages” on
ERes and uLearn merely organize the material onto separate shelves to which
4

This Court defined coursepacks in its Summary Judgment Order as “printed
anthologies composed of all the required readings for a particular course, which are
typically designed by the instructor and brought to a commercial copyshop for
printing. Students then purchase the coursepacks . . . .” (Dkt. 235 at 21 n.5.)
5
Neither does Plaintiffs’ strained analogy address the “significantly greater
capabilities” of ERes and uLearn previously recognized by this Court, “such as
video, audio, and web links.” (Summ. J. Or., Sept. 30, 2010 at 23.) In contrast,
audio and video material can be placed on hard copy reserve in the library on a
reserved-works shelf next to course readings.
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students go to pull a particular reserved item.

(See App. A to Statement of

Undisputed Facts, Summ. J. Or., Sept. 30, 2010, Dkt. 235-1 at 4-5 (describing
course pages); Or., Sept. 30, 2010, Dkt. 235 at 23.) It is hard to imagine that
anyone (other than Plaintiffs) would argue that books, videos, and music
recordings on a library shelf next to one another, selected for reading by a
professor who has listed them together on a syllabus, are “anthologies,” or
certainly the “anthologies” contemplated in the coursepack cases cited by
Plaintiffs.

Thus, EReserves is nothing more than an electronic bookshelf,

providing students with periodic access to supplemental reading materials, just as
with hard copy library reserves.
Because Plaintiffs have demonstrated an intent to introduce extensive
irrelevant and prejudicial evidence that would require Defendants to defend against
allegations of use for which Plaintiffs cannot, under principles of sovereign
immunity, be granted relief and alleged infringements previously ruled irrelevant
by this Court, Plaintiffs respectfully request that the Court grant this motion in
limine expressly prohibiting the admission of such evidence.

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Respectfully submitted, this 11th day of May, 2011.
SAMUEL S. OLENS
Georgia Bar No. 551540
Attorney General
R. O. LERER
Georgia Bar No. 446962
Deputy Attorney General
DENISE E. WHITING-PACK
Georgia Bar No. 558559
Senior Assistant Attorney General
MARY JO VOLKERT
Georgia Bar No. 728755
Assistant Attorney General

/s/ Mary Katherine Bates
Stephen M. Schaetzel
Georgia Bar No. 628653
Mary Katherine Bates
Georgia Bar No. 384250
KING & SPALDING LLP
1180 Peachtree Street, N.E.
Atlanta, GA 30309
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

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Anthony B. Askew
Special Assistant Attorney General
Georgia Bar No. 025300
MCKEON, MEUNIER, CARLIN &
CURFMAN, LLC
817 W. Peachtree Street, NW
Suite 900
Atlanta, GA 30308
Telephone: [phone]
Facsimile: [phone]
Katrina M. Quicker
Georgia Bar No. 590859
BALLARD SPAHR LLP
999 Peachtree Street, Suite 1000
Atlanta, GA 30309-3915
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorneys for Defendants

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CERTIFICATE OF COMPLIANCE
Pursuant to Rule 7.1D of the Local Rules of the Northern District of
Georgia, counsel for Defendants certifies that the foregoing DEFENDANTS’
REPLY BRIEF IN SUPPORT OF THEIR MOTION IN LIMINE TO
EXCLUDE IRRELEVANT EVIDENCE IN ACCORDANCE WITH ORDER
OF SEPTEMBER 30, 2010 was prepared in a font and point selection approved
by this Court and authorized in Local Rule 5.1C.

/s/ Mary Katherine Bates
Mary Katherine Bates

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

CAMBRIDGE UNIVERSITY PRESS,
et al,
Plaintiffs,

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

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

CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this 11th day of May, 2011, I have
electronically filed the foregoing DEFENDANTS’ REPLY BRIEF IN
SUPPORT OF THEIR MOTION IN LIMINE TO EXCLUDE IRRELEVANT
EVIDENCE IN ACCORDANCE WITH ORDER OF SEPTEMBER 30, 2010
with the Clerk of the Court using the CM/ECF system, which will automatically
send e-mail notification of such filing to the following attorneys of record:

DMSLIBRARY01-16485352.1

Edward B. Krugman
[e-mail]
Georgia Bar No. 429927
Corey F. Hirokawa
[e-mail]
Georgia Bar No. 357087
John H. Rains IV
[e-mail]
Georgia Bar No. 556052

R. Bruce Rich
Jonathan Bloom
Randi Singer
Todd D. Larson
WEIL, GOTSHAL & MANGES LLP
767 Fifth Avenue
New York, NY 10153
Telephone: [phone]
Facsimile: [phone]

BONDURANT, MIXSON &
ELMORE, LLP
1201 West Peachtree Street N.W.
Suite 3900
Atlanta, GA 30309
Telephone: [phone]
Facsimile: [phone]

/s/ Mary Katherine Bates
Mary Katherine Bates
Georgia Bar No. 384250
KING & SPALDING LLP
1180 Peachtree Street, N.E.
Atlanta, GA 30309
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

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DMSLIBRARY01-16485352.1