Cambridge University Press et al v. Patton et al

Filing 323

DEPOSITION of Denis Charles Gainty, Ph.D. taken on April 20, 2011 by Cambridge University Press, Oxford University Press, Inc., Sage Publications, Inc.. (Attachments: # 1 Exhibit D-1, # 2 Exhibit D-2, # 3 Exhibit P-1, # 4 Exhibit P-2, # 5 Exhibit P-3)(Rains, John)

CAMBRIDGE vs. BECKER

DENIS GAINTY

APRIL 20, 2011

Page 1
1

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

2
3

4

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

5

Plaintiffs,
6

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

-v.7

8

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

9

10

Defendants.
_______________________________/

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20
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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]
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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

11

2

Fair use checklist

21

12

13
14

Plaintiffs' Exhibit
Gainty PX
1
Policy on the Use of Copyrighted Works in
Education and Research

44

15

2
16
17

3

Excerpt from The Cambridge History of China,
volume 8, part 2
Portion of e-reserve report relating to
Dr. Gainty's HIST 4820 course

18
19
20
21
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23
24
25

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APRIL 20, 2011

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APPEARANCES OF COUNSEL:

2

On behalf of the Plaintiffs:

3

JONATHAN BLOOM, ESQ.
Weil, Gotshal & Manges LLP

4

767 Fifth Avenue
New York, New York 10153-0119

5

On behalf of the Defendants:
6

NATASHA H. MOFFITT, ESQ.
7

King & Spalding LLP
1180 Peachtree Street, NE

8
9
10

Atlanta, Georgia 30309-3521
Also Present:
Elizabeth Kemp, Videographer

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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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APRIL 20, 2011

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the record before we begin the questioning.

2

Plaintiffs object to this deposition to the extent

3

it's intended to be offered as trial testimony.

4

The witness resides within the United States

5

District Court for the Northern District of

6

Georgia and is represented by counsel for the

7

defendants, and presumably the defendants could

8

subpoena the witness to appear at trial and

9

provide live testimony.

10

Accordingly, plaintiffs expressly reserve and

11

do not waive the right to object to any attempt by

12

the defendants to introduce this deposition

13

testimony of Professor Gainty at trial because he

14

or she is certainly not unavailable within the

15

Federal Rules of Evidence and the Federal Rules of

16

Civil Procedure and the applicable rules of this

17

federal district.

18

the deposition will go forward subject to those

19

objections.

20

So the parties have agreed that

I'd also like to put on the record an

21

objection to defendants' withdrawal of Professor

22

Gainty's -- Professor Gainty for purposes of a

23

discovery deposition.

24

that issue with the Court, but I wanted to be

25

clear on the record that we don't waive any rights

And we will be pursuing

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in that regard by proceeding with the deposition

2

here this morning.

3

MS. MOFFITT:

Thank you, and I'll just note

4

simply for the record that we acknowledge your

5

reservation, your right to object at a later time

6

with respect to our use of this deposition at

7

trial, and also with respect to our withdrawal of

8

our offer to make Professor Gainty available for a

9

discovery deposition.

And we will, of course,

10

respond to your arguments and objections when

11

they're made, at a later time.

12

This will be the deposition of Dr. Denis

13

Gainty, taken by agreement of the parties.

14

deposition is being taken for use at trial and for

15

any other purpose permitted under the Federal

16

Rules.

17

This

DENIS CHARLES GAINTY, Ph.D.,

18

being first duly sworn, was deposed and testified as

19

follows:

20
21
22
23

DIRECT EXAMINATION
BY MS. MOFFITT:
Q

Professor Gainty, could you please state your

name for the record?

24

A

Denis Charles Gainty.

25

Q

And do you understand, Professor Gainty, that
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you are here to provide testimony today under oath in

2

connection with a copyright infringement case brought

3

by Cambridge University Press, Oxford University Press,

4

and Sage Publications against the president of Georgia

5

State University, certain members of the Board of

6

Regents of the University System of Georgia, and

7

others?

8

A

Yes.

9

Q

And do you understand that this case is

10

scheduled for trial starting on May 13, 2011?

11

A

Yes.

12

Q

Do you plan to be in the Atlanta area in the

13

May-June time frame?

14

A

No.

15

Q

Why not?

16

A

My wife, our children, and I are going on a

17

family vacation that we've planned for some time.

18

We're going to be in upstate New York, in the Finger

19

Lakes area, visiting my elderly mother and in the

20

Baltimore area visiting my in-laws.

21

some time at Bethany Beach.

22

if that's Delaware or Maryland.

23

planned for some time, for several months, including

24

having made payments on a rental house.

25

Q

There will also be

And I honestly don't know
But that's also been

And do you know approximately when you will
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2
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be leaving on your trip to New York and Baltimore?
A
exactly.

It's sometime early May.

I don't know

That's -- my wife knows.

4

Q

And how long do you plan to be away?

5

A

Until early July, July 1 or 2 or something

6
7
8
9

like that.
Q

Again, my wife knows.
And how long did you say that you believe

this trip has been planned?
A

Oh, for several months.

I know that my

10

mother-in-law needed particularly to lock in the rental

11

of the property some time ago.

12

Q

Who do you work for?

13

A

Georgia State University.

14

Q

And what do you do for Georgia State

15

University?

16

A

I'm an assistant professor of history.

17

Q

Are you associated with any particular

18

department at Georgia State University?

19

A

I am.

20

Q

When did you start teaching at Georgia State

21
22

The history department.

University?
A

In the fall of 2007.

I was hired as a

23

visiting lecturer.

24

lecturer, and then I was hired in a tenure track

25

capacity in the fall of 2009.

I had two years as a visiting

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Q

Can you describe for us generally what types

2

of courses you've been teaching at Georgia State

3

University since the fall of 2007?

4

A

As a visiting lecturer, I taught almost

5

exclusively lower-level survey courses in world

6

history, either from 1500 to the present or from, I

7

guess, the beginning of time to 1500.

8

2009 specifically as a world historian.

9

undergraduate courses tend to focus on world history,

I was hired in
So my

10

which emphasizes transnational and transregional

11

contact processes, modes of communication, that sort of

12

thing.

13

and in pedagogy.

14

I also teach graduate courses in world history

15

Q

Have you ever taught a course called

Cross-Cultural Encounters in World History?

16

A

Yes.

17

Q

Is the course number associated with that

18

course H-I-S-T or HIST 4820?

19

A

Yes.

20

Q

Can you tell us generally what that course is

21
22

about?
A

Generally, the -- and I have a description on

23

the course syllabus but -- which says it probably in a

24

more eloquent way than I can now, but generally the

25

course is concerned with looking at contact between and
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among different cultures as a way to think about

2

different narratives in world history.

3

contact among and between cultures before Columbus,

4

before the age of European exploration, to emphasize

5

the connectivity of different cultures before that

6

time, and it also looks at contact after the sort of

7

Columbian moment, especially focusing on non-European

8

kind of centers of power or cultural exchange.

9

Q

It focuses on

How do you go about teaching your students in

10

that particular course, HIST 4820, the subject matter

11

of the course?

12

A

Well, we -- I assign readings, including

13

several monographs, or typically single-authored

14

scholarly works, books, basically, and also excerpts or

15

articles that are shorter in length that address one

16

facet or another of intercultural contact and even the

17

definition of what cultures are.

18

then discuss those readings with students.

19

to write papers based on those readings and other --

20

other work that they may do and their own kind of

21

thoughts on the matter.

22

Q

23

fall of 2009?

24

A

I did not.

25

Q

Why not?

And I lecture and
I ask them

Did you teach the History 4820 course in the

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2

A

underenrollment.

3
4

The course was canceled due to

Q

Do you know approximately when it was

canceled due to underenrollment?

5

A

The -- I don't remember specifically.

The --

6

we met for one day.

7

at which I think eight or nine students showed up.

8

believe nine or ten students were registered at that

9

point for the course.

There was only one class meeting,
I

That was under the number that

10

was required for the course to make, we say, to

11

continue.

12

hoped that more students might register, but they did

13

not.

14

to cancel, to cancel quickly so that those students who

15

were enrolled would have a chance to enroll in another

16

course before those courses filled up.

17
18
19
20
21
22

And I know we waited for a day or two.

I

And at the same time I wanted, if we were going

Q

So is it the case then that you met only

A

We met only one time, for the introductory

once?

class meeting.
Q

There were no other class meetings.

In one of your previous answers you

referenced a syllabus for the course?

23

A

I did.

24

Q

Did you prepare a syllabus for that course?

25

A

I did.
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MS. MOFFITT:

2

(Defendants' Exhibit Gainty TX 1 marked for

3
4
5

Mark this exhibit for me.

identification.)
BY MS. MOFFITT:
Q

Professor Gainty, the court reporter has

6

handed you a document that has been marked Gainty TX 1,

7

and it bears production numbers in the bottom

8

right-hand corner Georgia State 0066084 through

9

0066090.

Do you recognize this document?

10

A

I do.

11

Q

What is it?

12

A

This is my syllabus for the HIST 4820

13

Cross-Cultural Encounters in World History course.

14

Q

Did you prepare this document?

15

A

I did.

16

Q

And does this syllabus relate to a particular

17

semester the course was taught?

18

A

This relates to fall 2010.

19

Q

How does the fall two thousand -- well, let

20

me start by asking, when did you prepare this

21

particular syllabus dated fall 2010?

22

A

This particular syllabus -- I don't -- maybe

23

the best way to answer is to say I prepared much of the

24

text of this syllabus for the fall 2009 course.

25

the fall 2009 course was canceled, subsequently -- I
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can't remember exactly when -- I changed the dates, as

2

appropriate, and the classroom and the meeting time.

3

In the upper left-hand corner of the first page you'll

4

see the CRN.

5

believe that's different.

6

So there are details like that that were changed.

7

for the most part, the content of the syllabus, with

8

the exception of those details, is the same as it was

9

for the fall 2009 course.

10

Q

That's some kind of computer number.

I

My office, I believe, moved.
But

When did you prepare the fall 2009 syllabus

11

with respect to the 4820 course you were going to teach

12

in the fall 2009?

13

A

I can't recall exactly.

I would imagine at

14

some point after finding out that I was hired as a

15

tenure track professor and finding out that I would be

16

teaching this course and before the course actually

17

began.

18

Q

Okay.

19

A

So it's -- perhaps over the summer of 2009.

20

Q

Do you still have a copy of the actual

21

syllabus that was used or intended to be used for the

22

fall 2009 4820 course?

23

A

I do not.

24

Q

Why not?

25

A

When the course was canceled, I didn't see
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any reason to keep paper copies of the syllabus, and I

2

changed in the electronic version the dates and the

3

details that I mentioned earlier and then saved over

4

that file.

5

Q

So other than perhaps the CRN number and your

6

classroom information and the time that the course was

7

being offered, do you believe that in substance the

8

syllabus is identical to the syllabus you used for the

9

fall 2009 course?

10

A

The dates are also different.

11

Q

Which dates are you referring to?

12

A

I'm sorry.

The schedule -- under schedule of

13

class meetings and assignments, the dates reflect 2010

14

dates, but otherwise I believe -- I believe the content

15

is the same.

16
17

Q

And the dates you're referring to are those

depicted on Georgia State 66087 through 90?

18

A

Correct.

19

Q

On the first page of Gainty TX 1, Georgia

20

State 66084, you have a section entitled "Course

21

Description"?

22

A

Yes.

23

Q

Earlier when I asked you to provide a general

24

overview of what the course was about, you referenced a

25

description in your syllabus; is that correct?
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A

Yes.

2

Q

Is this the course description that you were

3

referring to in the substance of your answer to my

4

previous question?

5

A

Yes.

6

Q

Turning to page 2 of your -- the second page

7

of your syllabus, marked 66085, you have a section

8

entitled "Course Readings."

Do you see that?

9

A

Yes.

10

Q

There are five numbered paragraphs within

11

that section.

12

A

Yes.

13

Q

What are those five items that are listed in

14

Do you see that?

that paragraph under "Course Readings"?

15

A

They are collectively the monographs that I

16

assigned as required reading for the course.

17

were directed to purchase and read them in their

18

entirety or at least overwhelming portions of them.

19
20

Q

A

25

Because I wanted them to read all or almost

all of each monograph.

23
24

Why did you require students to purchase

these monographs?

21
22

Students

Q

And can you explain again what a monograph

A

I'm sorry.

is?
A monograph, as I understand it,

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is a book-length scholarly work that constructs and

2

supports a single core argument or a sort of cluster of

3

arguments that all revolve around a central issue.

4

It's different from a textbook in that it's designed to

5

put an argument forward rather than, I guess,

6

communicate data with less of an overt argument.

7

Q

Turning to the fourth page of your syllabus,

8

which is marked Georgia State 66087, you have a section

9

there entitled, "Schedule of Class Meetings and

10

Assignments."

11

A

I do.

12

Q

What does this particular section in your

13
14

Do you see that?

syllabus reflect?
A

This section of the syllabus, pages 66087

15

through 66090, gives a list of dates on which the class

16

will meet and then tells the student on which date they

17

are asked to do readings and/or submit written work.

18

Essentially it tells them what the assignments are and

19

when they must complete the assignments.

20

Q

And with respect to the readings that you

21

have assigned in this section, were those required

22

readings?

23

A

Yes.

24

Q

On the page marked Georgia State 66088 of

25

Gainty TX 1 there's an entry for Tuesday, October 5.
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Do you see that?

2

A

I do.

3

Q

What are the two items that you have -- or

4

what are the items that you have essentially listed for

5

that date?

6

A

The first item is a short paper that is due,

7

which is a student paper that was assigned to them on

8

readings in the previous unit.

9

you'll see different short paper assignments in bold.

Throughout the syllabus

10

The other two parts are two readings that I assigned to

11

the students.

12

in the Chinese Dynastic Histories," which is excerpted

13

from a book called Sources of Japanese Tradition,

14

volume 1.

15

"Sino-Korean Tributary Relations Under the Ming," which

16

is excerpted from The Cambridge History of China,

17

volume 8, part 2.

18

Q

The first is a reading entitled, "Japan

And the second is a reading entitled,

With respect to The Cambridge History of

19

China entry listed there, can you describe for me

20

generally, what is The Cambridge History of China?

21

A

The Cambridge History of China is a

22

multivolume, multipart scholarly work that contains, as

23

I understand it, many different writings by different

24

authors, all of which relate in some way to the history

25

of China.
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2

Q

Cambridge History of China?

3
4

Do you know how many volumes make up The

A

Honestly, I know that there are at least

eight, but I don't know how many in total.

5

Q

How do you know there are at least eight?

6

A

The excerpt that I chose to assign to my

7

students comes from volume 8.

8

I'm sorry.

9

assume also means that there is a volume 8, part 1.

10
11

Q

It also comes from --

It comes from volume 8, part 2, which I

What pages did you assign for the particular

excerpt you assigned for this reading?

12

A

272 through 300.

13

Q

What was the title of that work again that

14

you assigned as a reading for this particular class?

15
16
17

A

"Sino-Korean Tributary Relations Under the

Ming."
Q

Do you understand that plaintiffs in this

18

case have alleged that the use of this particular

19

excerpt infringes on one or more of their copyrights?

20

A

I do.

21

Q

What was the subject matter of the class that

22

you intended to teach where you were using this reading

23

or where you planned to use this reading?

24
25

A

The subject matter of the class was an

introduction to a historical examination of the
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phenomenon, I guess, of Chinese history and its

2

connections to other East Asian and Asian cultures or

3

states or polities.

4

to introducing that idea, presented two examples of

5

contact between China and another -- another such Asian

6

culture or state.

7

Q

This particular class, in addition

And what were the other -- the one or more

8

other Asian cultures or states that you were presenting

9

in this particular class?

10

A

In this particular class one of them is

11

Japan, and the other is Korea.

12

historically, Korea and Japan both at different points

13

in history have meant different things.

14

have gone by the name of "Japan" or "Korea."

15

convenience what I'm referring to is the group of

16

people that lived at that point in the place that we

17

now refer to as Japan or, similarly, the group of

18

people that live in the place that we now refer to as

19

Korea.

20

Q

To be clear

They may not
So for

With respect to your reading "Sino-Korean

21

Tributary Relations under the Ming," why did you select

22

that particular reading for this class?

23

A

This class dealt with Chinese interactions

24

with other Asian states or peoples or cultures, and the

25

reading "Sino-Korean Tributary Relations Under the
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Ming" deals directly with the question of how China

2

interacted with one other such state or people or

3

polity or what have you.

4

Q

How does that particular reading compare to

5

the other reading you assigned that day, "Japan in the

6

Chinese Dynastic Histories"?

7

A

Well, "Japan in the Chinese Dynastic

8

Histories" deals particularly with how China was

9

interacting with Japan, and "Sino-Korean Tributary

10

Relations Under the Ming" deals specifically with how

11

China dealt with Korea or the peoples or cultures or

12

states in Korea, especially through tributary

13

relations.

14

Q

Understanding that the class in the fall of

15

2009 or the course in the fall of 2009 was canceled,

16

how did you intend for your students of that course,

17

had it not been canceled, to obtain a copy or access a

18

copy of the "Sino-Korean Tributary Relations Under the

19

Ming" reading?

20

A

Had the class not been canceled, I would have

21

tried to make it available.

22

have expected them to find it through the university's

23

e-reserve system.

I would have -- I would

24

Q

And what is the e-reserve system?

25

A

It's based in the library.
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understand it, it's a mechanism by which some readings

2

are made available in electronic form to students.

3

Those students in a particular class must have a

4

password provided to them so that only the students in

5

that class can access the material.

6

through the library website and are able to see those

7

readings and then read them.

8
9
10

Q

And they go

Do you recall whether you requested in

advance of the course in fall 2009 that this excerpt be
loaded to the e-reserve system?

11

A

I believe I did.

12

Q

What steps did you take to request that this

13

excerpt, "Sino-Korean Tributary Relations Under the

14

Ming," be loaded to e-reserve prior to your fall 2009

15

course being offered?

16

A

At some point before 2009 the university

17

changed the manner in which they asked faculty to make

18

e-reserve requests.

19

e-mail with a list of all of the readings, with

20

identifying information, such as title, author, page

21

numbers, to the library, as one document.

22

then switched over, before this point, to a system of

23

submitting on the library website an individual request

24

through a library form for each individual reading in

25

order to -- or we are prompted by the library website

Previously we would simply send an

SHUGART & BISHOP

However, we

CAMBRIDGE vs. BECKER

DENIS GAINTY

APRIL 20, 2011

Page 21
1

to complete a fair use checklist to determine whether

2

the reading that we're requesting may fairly be used.

3

Q

And in connection with this particular work,

4

"Sino-Korean Tributary Relations Under the Ming," did

5

you complete a fair use checklist prior to requesting

6

that this work be loaded into e-res?

7

A

8
9

MS. MOFFITT:

12
13

Can I have you mark this

document Gainty TX 2?

10
11

I believe I did.

(Defendants' Exhibit Gainty TX 2 marked for
identification.)
BY MS. MOFFITT:
Q

Professor Gainty, the court reporter has

14

handed you what's been marked as Gainty TX 2.

15

recognize this document?

Do you

16

A

I do.

17

Q

And what is it?

18

A

This is a fair use checklist that I completed

19

for -- although it's very hard to read, unfortunately,

20

on this copy, but it -- as I make it out, for the work

21

"Sino-Korean Tributary Relations Under the Ming."

22

Q

And given that this particular checklist

23

appears to be somewhat illegible, are you able to

24

ascertain from other information contained in this

25

checklist that it is, in fact, the checklist related to
SHUGART & BISHOP

CAMBRIDGE vs. BECKER

DENIS GAINTY

APRIL 20, 2011

Page 22
1

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

CAMBRIDGE vs. BECKER

DENIS GAINTY

APRIL 20, 2011

Page 23
1
2
3

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

CAMBRIDGE vs. BECKER

DENIS GAINTY

APRIL 20, 2011

Page 24
1

Relations Under the Ming"?

2

A

Pages 272 through 300.

3

Q

And were those the pages that you intended to

4

assign your students to read in the History 4820 course

5

had it not been canceled?

6

A

Yes.

7

Q

I'm going to direct your attention to page 1,

8

the first page, marked Georgia State 66119, of the fair

9

use checklist, Gainty TX 2.

Are you there?

10

A

Yes.

11

Q

Page 1 -- or this first page of Gainty TX 2

12

refers to a "Factor 1:

13

Use."

Purpose and Character of the

Do you see that?

14

A

Yes.

15

Q

Did you complete this section of the fair use

16

checklist?

17

A

Yes.

18

Q

And I should -- so upon completing that

19

section of factor 1, did you reach a conclusion about

20

whether factor 1 weighed in favor of fair use?

21

A

I did.

22

Q

And what was your conclusion with respect to

23
24
25

factor 1?
A

My conclusion was that the subfactors in

factor 1 weighed in favor of fair use.
SHUGART & BISHOP

CAMBRIDGE vs. BECKER

DENIS GAINTY

APRIL 20, 2011

Page 25
1

Q

Why?

2

A

I checked one, two, three boxes under "Weighs

3

in Favor of Fair Use."

4

column "Weighs Against Fair Use."

5

that a preponderance of factors in favor of fair use

6

existed, and therefore the entire section weighed in

7

favor of fair use.

8
9
10

Q

I checked no boxes in the
So it seemed to me

Which factors did you select that weighed in

favor of fair use?
A

The first subfactor, I guess, "nonprofit

11

educational," the second subfactor, "teaching,

12

including multiple copies for classroom use," and the

13

final subfactor, "use is necessary to achieve your

14

intended educational purpose."

15
16
17

Q

Why did you select "nonprofit educational"

for this particular work?
A

Because Georgia State University is a

18

nonprofit -- or a not-for-profit institution and

19

because a university is engaged in education, and I was

20

teaching in a classroom and engaged in education.

21

Q

And you also selected "teaching, including

22

multiple copies for classroom use."

23

that subfactor for this particular work?

24
25

A
teaching.

Why did you select

Because I planned to use the work for
I planned to discuss the work with students
SHUGART & BISHOP

CAMBRIDGE vs. BECKER

DENIS GAINTY

APRIL 20, 2011

Page 26
1

in the classroom.

2

Q

And you also selected "use is necessary to

3

achieve your intended educational purpose."

4

you select that particular subfactor for this

5

particular work?

6

A

Why did

I believed that the use of this reading was

7

necessary in order to illuminate the educational

8

purpose of that class, which was presenting Chinese

9

relations with other cultures or states or peoples in

10

Asia.

11

Q

And why did you believe that the use of this

12

reading was necessary to illuminate that educational

13

purpose of the class?

14

A

Well, this reading touches directly on the

15

question of Chinese relationships with another East

16

Asian or, more broadly, Asian state or peoples or

17

culture.

18

larger question of how China interacted in its history

19

with other peoples or cultures.

20

Q

And, as such, it speaks directly to the

I want to direct your attention now to factor

21

2, which appears on Georgia State 66120 of Gainty TX 2.

22

Did you complete the section under factor 2 entitled,

23

"Nature of Copyrighted Work" in the fall of 2009 time

24

frame?

25

A

I -- yes.
SHUGART & BISHOP

CAMBRIDGE vs. BECKER

DENIS GAINTY

APRIL 20, 2011

Page 27
1

Q

Upon completing that section for factor 2,

2

did you reach a conclusion about whether factor 2

3

weighed in favor of fair use?

4

A

I did.

5

Q

What was that conclusion?

6

A

My conclusion was that the factor, the nature

7

of copyrighted work, weighed completely in favor of

8

fair use.

9

Q

And how did you reach that conclusion?

10

A

I read the subfactors on both sides, both in

11

favor of fair use and against fair use, and in each

12

case I selected the subfactor in favor of fair use.

13
14

Q

And specifically which subfactors did you

select in favor of fair use?

15

A

I selected the first subfactor, "published

16

work."

17

nonfiction work," and I selected the third subfactor,

18

"important to educational objectives."

19

I selected the second subfactor, "factual or

Q

With respect to the first subfactor,

20

"published work," why did you select that subfactor for

21

this particular work?

22
23
24
25

A

Because this particular work is -- is

published.
Q

With respect to the second subfactor,

"factual or nonfiction work," why did you select that
SHUGART & BISHOP

CAMBRIDGE vs. BECKER

DENIS GAINTY

APRIL 20, 2011

Page 28
1

particular subfactor for this particular work?

2

A

Because -- I selected that because this is

3

not a work of fiction and -- because it's a nonfiction

4

work.

5

Q

And with respect to the third subfactor in

6

favor of fair use, "important to educational

7

objectives," why did you select that subfactor?

8
9

A

Similar to my previous answer regarding

factor 1 subfactor, "use is necessary to achieve your

10

intended educational purpose," I believe that this work

11

was important to my educational objectives, those

12

objectives being to introduce students to different --

13

different examples of Chinese interaction with other

14

Asian states or peoples or cultures.

15
16
17

Q

And can you explain why this particular

reading was important to that objective?
A

This particular reading deals with China and

18

its interactions with Korea, which is a neighboring

19

state or a neighboring cultural region, or whatever you

20

would like to call it, through the tributary system,

21

which was an important component of Chinese

22

relationships with other Asian states or peoples or

23

cultures.

24

in introducing those ideas to students.

25

Q

So I felt that presenting this was important

On page 66120 of Gainty TX 2 there's a factor
SHUGART & BISHOP

CAMBRIDGE vs. BECKER

DENIS GAINTY

APRIL 20, 2011

Page 29
1

3 entitled, "Amount and Substantiality of Portion

2

Used."

Did you complete that portion of the checklist?

3

A

I did.

4

Q

And upon completing that section of the

5

checklist relating to factor 3, did you reach a

6

conclusion about whether factor 3 weighed in favor of

7

fair use?

8

A

I did.

9

Q

And what was that conclusion?

10

A

I concluded that the factor weighed in favor

11
12
13
14

of fair use.
Q

And why did you conclude that factor 3

weighed in favor of fair use?
A

I read all of the subfactors, both in favor

15

of fair use and against fair use, and I checked two of

16

the three subfactors in favor of fair use and none of

17

the subfactors against fair use.

18
19
20

Q

What were the factors that you selected in

favor of fair use?
A

The first is "small portion of work used,"

21

and the second is "amount taken is narrowly tailored to

22

educational purpose, such as criticism, comment,

23

research, or subject being taught."

24
25

Q

Why did you select, for this particular work,

"small portion of work used"?
SHUGART & BISHOP

CAMBRIDGE vs. BECKER

DENIS GAINTY

APRIL 20, 2011

Page 30
1

A

Because I -- in -- I deemed this to be a

2

small portion of the entire work, certainly a very

3

small portion of the entire Cambridge History of China,

4

which is, although a multivolume set, one title, as I

5

understand it, but it's also a small portion of even

6

that volume 8, part 2, of The Cambridge History of

7

China.

8
9
10

Q

assigned, with respect to this excerpt, from The
Cambridge History of China?

11
12

A

I assigned 29 pages, if I am counting

correctly.

13
14

Do you know roughly how many pages you

Q

Do you recall how many pages are contained

within that volume 8, part 2, from which you assigned?

15

A

I do not, but I believe it has at least 300

16

pages, given that my selection is from page 272 through

17

page 300.

18

Q

You also selected that the amount taken is

19

narrowly tailored to educational purpose, such as

20

criticism, comment, research, or subject being taught.

21

Why did you select that subfactor for this particular

22

work?

23

A

I thought carefully about how much of both

24

The Cambridge History of China and of this particular

25

volume and, in fact, of this article was necessary for
SHUGART & BISHOP

CAMBRIDGE vs. BECKER

DENIS GAINTY

APRIL 20, 2011

Page 31
1

educational purpose.

2

judgment, that pages 272 through 300 were necessary for

3

my educational purpose regarding the subject being

4

taught and the general construction of a historical

5

argument.

6

Q

And I determined, in my best

Was any portion of the excerpt that you

7

selected, 272 through 300, unrelated to the subject

8

matter that you were teaching that day in class or that

9

you intended to teach that day in this particular

10

class?

11

A

No, not -- not -- not to my knowledge.

12

Q

Turning to the fourth factor entitled,

13

"Effect on Market for Original" on that same page,

14

66120 of Gainty TX 2, did you complete that section on

15

the checklist?

16

A

I did.

17

Q

Upon completing the section, did you reach a

18

conclusion about whether factor 4 weighed in favor of

19

fair use?

20

A

I did.

21

Q

What was that conclusion?

22

A

I concluded that factor 4 weighed in favor of

23

fair use.

24

Q

How did you reach that conclusion?

25

A

I, as in the other factors, read all of the
SHUGART & BISHOP

CAMBRIDGE vs. BECKER

DENIS GAINTY

APRIL 20, 2011

Page 32
1

subfactors and used my best judgment to determine which

2

accurately described my use of the material in this

3

class.

4

use and one subfactor against fair use.

5

to be silly, but because three is greater than one, I

6

felt that there were more factors in favor of fair use,

7

and therefore the aggregate outcome of factor 4 weighed

8

in favor of fair use.

9
10
11

I selected three subfactors in favor of fair

Q

Because -- not

Which three factors did you select that

weighed in favor of fair use?
A

I selected "no significant effect on market

12

or potential market for copyrighted work" and "use

13

stimulates market for original work" and "restricted

14

access to students or other appropriate group."

15
16

Q

And which factors did you select under factor

4 that did not weigh in favor of fair use?

17

A

"Required classroom reading."

18

Q

I want to step through each of these

19

subfactors, as we have before.

20

first subfactor under "Weighs in Favor of Fair Use,"

21

"no significant effect on market or potential market

22

for copyrighted work," can you explain why you selected

23

that particular subfactor?

24
25

A

With respect to the

I believe that whether a student reads this

excerpt or not will not have a significant negative
SHUGART & BISHOP

CAMBRIDGE vs. BECKER

DENIS GAINTY

APRIL 20, 2011

Page 33
1

effect on the potential market for the copyrighted

2

work.

3

Q

Why not?

4

A

The copyrighted work contains much more and,

5

as I understand it, very diverse writing on the history

6

of China.

7

specifically with one small component of the

8

multimillennia history of China.

9

felt the work I selected in no way exhausted the entire

This particular excerpt from the work deals

Because of this, I

10

range of ideas or scholarship contained in the larger

11

work.

12

Q

You also selected that the use stimulates the

13

market for the original work.

14

selected that subfactor?

15

A

Yes.

Can you explain why you

The -- selecting "use stimulates market

16

for original work" reflects my belief and -- at least

17

my hope but my belief that exposing students to a small

18

portion of this sort of scholarship will encourage

19

students to continue to be excited by and seek out

20

readings and other scholarship on Chinese history and

21

on history in general.

22

I think a reasonable belief that students who are

23

excited by this particular excerpt would then, on their

24

own, potentially try to find more from this particular

25

work.

It was my hope, therefore, and

SHUGART & BISHOP

CAMBRIDGE vs. BECKER

DENIS GAINTY

APRIL 20, 2011

Page 34
1

Q

You also selected the subfactor "restricted

2

access to students or other appropriate group."

3

did you select that subfactor?

4

A

Why

It's my understanding that the e-reserve

5

system, which is password protected, only allows

6

students who have the password from the course to have

7

access to that particular course's page and to read

8

those materials.

9

Q

This restricts access.

Do you have any understanding of what happens

10

to the materials posted to e-res once a course has

11

concluded?

12

A

I do.

13

Q

And what is that understanding?

14

A

My understanding is that the materials are no

15

longer available through e-reserve, even to students

16

with the password.

17

personal experience when I have gone on the library's

18

e-reserve website.

19

searched in a number of ways.

20

instructor name.

21

only my current courses for that semester are visible,

22

and courses from previous semesters are not visible.

23

Q

This understanding is based on my

The e-reserve system can be
One of them is by

When I search by instructor name,

On the right-hand side of the section under

24

factor 4, you selected "required classroom reading."

25

Can you explain why you selected "required classroom
SHUGART & BISHOP

CAMBRIDGE vs. BECKER

DENIS GAINTY

APRIL 20, 2011

Page 35
1

reading"?

2

A

I required my students to read this work.

3

Q

So once you completed the checklist for all

4

four of these factors that we just discussed, did you

5

arrive at an overall conclusion about whether your use

6

of this excerpt constituted a fair use?

7

A

I did.

8

Q

And what was your overall conclusion with

9

respect to fair use for this particular excerpt that

10

you assigned?

11

A

My overall conclusion was that all of the

12

factors weighed in favor of fair use and that my use of

13

this reading, this excerpt, in this class was a fair

14

use of this copyrighted work.

15

Q

After you completed this checklist, Gainty TX

16

2, for the excerpt that you intended to assign in this

17

course, History 4820, what steps did you take to

18

request that the excerpt be loaded to the e-reserve

19

system?

20

MR. BLOOM:

Object to the form of the

21

question.

22

"intended to assign."

23

assign.

24
25

The objection just is you said
I think he actually did

You can go ahead and answer.
A

I'm sorry.

I'm a little bit confused by that

SHUGART & BISHOP

CAMBRIDGE vs. BECKER

DENIS GAINTY

APRIL 20, 2011

Page 36
1

exchange, but I -- could you please repeat the

2

question?

3

Q

I'll repeat the question, sure.

4

A

I'm sorry.

5

Q

After you completed this fair use checklist,

6

Gainty TX 2, what steps did you take to request that

7

this excerpt be loaded to the e-reserve system?

8
9

A

There is a form on the library website that

is to be completed by the faculty member for each

10

course in order to submit a request for a document or a

11

reading to be placed on e-reserve.

12

completed this form and requested that this be loaded

13

onto the e-reserve site.

14

Q

I believe I

And what type of information are you

15

requested to submit in connection with this form that

16

you completed?

17

A

I -- I don't remember exactly, but it would

18

be some kind of identifying data about that work so

19

that librarians know what it is that I'm requesting,

20

such as author or edition or page numbers or that sort

21

of thing.

22

Q

Are you -- does the form prompt you to say

23

anything about your completion of the fair use

24

checklist?

25

A

It does.
SHUGART & BISHOP

CAMBRIDGE vs. BECKER

DENIS GAINTY

APRIL 20, 2011

Page 37
1
2
3

Q

And specifically what does it prompt you to

submit with respect to the form?
A

This is only my paraphrasing.

I don't

4

remember exactly, but I believe there are boxes to be

5

checked, one of which says something like, to the

6

effect of, this -- the use of this reading constitutes

7

fair use according to a fair use checklist that I

8

completed.

9

Q

I believe it's something like that.
And do you recall whether you submitted any

10

information with respect to that prompt in the form,

11

for this particular work?

12

A

I believe, again, that I checked that box.

13

Q

And had you, in fact, completed a fair use

14

checklist for that particular work that you were

15

requesting to be posted for the fall 2009 course, the

16

work that we've been discussing from The Cambridge

17

History of China?

18

A

19
20

MR. BLOOM:

23

I'm sorry.

Could I have that

question and answer read back, please?

21
22

As I recall, yes.

(Last question and answer read.)
BY MS. MOFFITT:
Q

If it is determined that your use of the

24

"Sino-Korean Tributary Relations Under the Ming" work

25

excerpt that you intended to assign from The Cambridge
SHUGART & BISHOP

CAMBRIDGE vs. BECKER

DENIS GAINTY

APRIL 20, 2011

Page 38
1

History of China was not a fair use, what would you do

2

with respect to your use of this excerpt?

3

MR. BLOOM:

4

MS. MOFFITT:

5

MR. BLOOM:

Basis?

Just so I understand

your objection.

6

Object to the form.

7

Again, you just said "intended to

assign."

8

MS. MOFFITT:

9

MR. BLOOM:

10
11
12

Okay.
And I believe the testimony is

that he did assign the reading.
BY MS. MOFFITT:
Q

Let me ask the question then.

With respect

13

to the fall 2009 course, History 4820, that you

14

testified earlier was canceled due to underenrollment,

15

is it your belief that you assigned the "Sino-Korean

16

Tributary Relations Under the Ming" excerpt from The

17

Cambridge History of China to your students that were

18

enrolled in that course for that particular semester?

19
20
21
22

A

I'm sorry.

Now, do I correctly understand

your question to be did I assign it?
Q

I think that's what I'm asking, but if my

question isn't clear, I can try again.

23

A

Could you please try again?

24

Q

Sure.

25

A

I'm sorry.

Thank you.

SHUGART & BISHOP

CAMBRIDGE vs. BECKER

DENIS GAINTY

APRIL 20, 2011

Page 39
1

Q

With respect to this History 4820 course

2

that -- in the fall of 2009 that was canceled due to

3

underenrollment, did you assign to your students the

4

"Sino-Korean Tributary Relations Under the Ming"

5

excerpt from The Cambridge History of China?

6

A

I placed it on the syllabus that -- I'm now

7

feeling slightly unsure about the definition of

8

"assignment."

9

I mean --

MR. BLOOM:

10

interrupt you.

11

A

Maybe -- I don't want to

I apologize for that.

I -- one might say

12

that one only assigns a work on that given day.

13

certainly placed it on the syllabus with the intention

14

that students would read it.

15
16

MR. BLOOM:

Maybe we can just stipulate that

he selected this reading for that course --

17

MS. MOFFITT:

18

MR. BLOOM:

19

Yeah.
-- which was subsequently

canceled.

20

MS. MOFFITT:

21

MR. BLOOM:

22
23
24
25

I

Okay.
I just wanted the record to be

precise.
Is that a fair characterization?
selected this reading for that course?
THE WITNESS:

Yes.

SHUGART & BISHOP

You

CAMBRIDGE vs. BECKER

DENIS GAINTY

APRIL 20, 2011

Page 40
1
2

BY MS. MOFFITT:
Q

I can ask the question for you so you feel

3

comfortable about our exchange.

4

Professor Gainty, that with respect to the History 4820

5

course that was scheduled to be taught in the fall of

6

2009, that you selected the "Sino-Korean Tributary

7

Relations Under the Ming" excerpt from The Cambridge

8

History of China as a reading for that particular

9

course?

10

A

Yes.

11

Q

All right.

Would you say,

So if it is determined that your

12

use of this excerpt, "Sino-Korean Tributary Relations

13

Under the Ming," was not a fair use, what would you do

14

with respect to your use of this checklist in this

15

course?

16

A

If it were determined, according to the fair

17

use checklist, that it was not, in fact, fair use, I --

18

I suppose -- I can only speculate, but I suppose I

19

would either find a different reading -- I don't know

20

what that reading would be; I would look for one, I

21

suppose -- or I would speak with the Office of Legal

22

Affairs.

23

Q

I don't know.
Would you continue to assign the excerpt to

24

your students if it were determined that your use of

25

that excerpt was not a fair use?
SHUGART & BISHOP

CAMBRIDGE vs. BECKER

DENIS GAINTY

APRIL 20, 2011

Page 41
1

A

If -- if in its current form it were not fair

2

use, then I would not assign it.

3

say, I guess, is that I would not assign a reading in a

4

form that was specifically determined not to be fair

5

use.

6
7

MS. MOFFITT:

Those are all the questions I

have for now.

8

MR. BLOOM:

9

MS. MOFFITT:

Okay.
Your witness.

10

MR. BLOOM:

11

MS. MOFFITT:

12

MR. BLOOM:

13

THE VIDEOGRAPHER:

14

What I'm trying to

Can we just take two minutes?
Sure.
Go off the record?
Off the video record at

11:18.

15

(Discussion off the record.)

16

THE VIDEOGRAPHER:

17

record.

18

We're back on the video

The time is 11:23 a.m.
CROSS-EXAMINATION

19

BY MR. BLOOM:

20

Q

Professor Gainty, my name is Jonathan Bloom.

21

I'm with the law firm Weil, Gotshal & Manges in

22

New York, and I'll be asking you some questions on

23

behalf of the plaintiffs in this action.

24

won't keep you all that long.

25

Hopefully I

You testified that sometime prior to the
SHUGART & BISHOP

CAMBRIDGE vs. BECKER

DENIS GAINTY

APRIL 20, 2011

Page 42
1

start of the fall semester in 2009 you completed a fair

2

use checklist for the Clark reading; is that correct?

3

A

I believe so.

4

Q

Okay.

Now, do you have a specific

5

recollection of completing a fair use checklist back in

6

2009 with respect to that reading?

7

A

I believe that I completed one.

I -- I can't

8

recall specifically, for example, sitting at my desk

9

and filling out a checklist.

10
11
12

Q

And given that, why is it that you believe

you did complete a checklist?
A

The university, as I understood it, asked us

13

to complete checklists for materials that we wanted to

14

place on e-reserve.

15

prompt on the e-reserve submission system which directs

16

us again to the fair use checklist.

17
18

Q

And there, as I mentioned, is a

So it's your belief that you would have

followed that instruction; is that correct?

19

A

That's correct.

20

Q

But you don't specifically recall doing so?

21

A

That's correct.

22

Q

And just to confirm, you testified that you

23

did not retain that checklist -- we'll assume that you

24

actually completed a checklist -- when you learned that

25

the course was canceled; is that correct?
SHUGART & BISHOP

CAMBRIDGE vs. BECKER

DENIS GAINTY

APRIL 20, 2011

Page 43
1

A

That is correct.

2

Q

But you don't have any specific recollection

3

of discarding it?

Is that also correct?

4

A

That's also correct.

5

Q

And Ms. Moffitt walked you through the fair

6

use checklist that you testified that you completed in,

7

I think you said, the last few months with respect to

8

the Clark reading.

9

A

Yes.

10

Q

Okay.

Is that -- you recall that?

11

And you concluded that the reading was

fair use, correct?

12

A

That's correct.

13

Q

Okay.

And do you have an understanding, one

14

way or the other, as to whether that reading that you

15

selected and completed -- or I believe you completed

16

the checklist for actually was placed on the e-reserve

17

system?

18

A

I do not.

19

Q

So you never checked that?

20

A

I certainly don't recall checking it.

21

Q

Okay.

22

way or the other?

So you just don't know for sure one
Is that accurate?

23

A

That's correct.

24

Q

Okay.

25

And are you -- you testified about a

change in the university's copyright policy in 2009.
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CAMBRIDGE vs. BECKER

DENIS GAINTY

APRIL 20, 2011

Page 44
1

Do you recall that?

2

A

I do.

3

Q

Okay.

4

And can you explain how you became

aware of that change in policy?

5

A

Honestly, I don't recall specifically.

6

Q

Do you recall when you became aware of it?

7

A

No.

8

Q

And do you recall a sort of larger document

9

of which this checklist is a portion?

10
11

Honestly, I do not.

MS. MOFFITT:
A

Object.

I -- no, I do not.

Assumes facts.

I'm trying to recall if

12

there is -- if this is a portion of the document, and

13

that doesn't -- I don't recall.

14

Q

Let me just -- I'm going to show you what I'm

15

going to mark as Gainty Plaintiffs' Exhibit 1 and just

16

ask you if you recall having seen that document before.

17
18

(Gainty Plaintiffs' Exhibit 1 marked for
identification.)

19
20

MS. MOFFITT:

I'm going to object on the

grounds it goes beyond the scope of direct.

21

Can you read the question back, please?

22

(Last question read.)

23
24
25

A

I don't recall specifically seeing this

document.
Q

Okay.

Well, that answers the question.
SHUGART & BISHOP

CAMBRIDGE vs. BECKER

DENIS GAINTY

APRIL 20, 2011

Page 45
1

Okay.

You can put that aside.

2

Professor Gainty, when you were answering

3

Ms. Moffitt's questions about the fair use checklist

4

and how you completed it, you, you know, referenced

5

using your judgment as to the factors listed on the

6

exhibit.

7

testimony?

Is that a fair characterization of your

8

A

Yes.

9

Q

Okay.

Did you receive any kind of

10

instruction from anyone at the university that sort of

11

informed the judgment that you exercised in completing

12

this checklist?

13

MS. MOFFITT:

14

You can answer it if you understand it.

15
16
17

A

Object.

The question is vague.

I -- I don't remember a specific instance of

instruction.
Q

Did you intend -- did you attend any kind of

18

class offered by the university with respect to how to

19

fill out the checklist?

20

A

Not that I recall.

21

Q

And did you seek any guidance from anyone at

22

the university with respect to how to complete the

23

checklist?

24
25

A

Do you mind if I ask you to be specific?
MR. BLOOM:

Can you read the question back,

SHUGART & BISHOP

CAMBRIDGE vs. BECKER

DENIS GAINTY

APRIL 20, 2011

Page 46
1

please?

2

(Last question read.)

3

BY MR. BLOOM:

4

Q

Did you have any discussions with anyone in

5

the legal affairs office with respect to how to

6

complete the checklist?

7
8
9

A

The -- just to clarify, to be sure that I

understand, do you mean generally how to use this form?
Q

10

Okay.

Yeah, I understand your confusion.

Let me just ask, generally, at any time, did

11

you have any conversations with anyone in the legal

12

affairs department about how fair use checklists in

13

general, not with respect to this specific work

14

necessarily, should be completed?

15

A

Not that I recall.

16

Q

Okay.

Not that I recall.

And so then I assume you didn't have

17

any conversations with anyone in the legal affairs

18

department about this specific checklist; is that

19

correct?

20

A

To be clear, I believe I made mention before

21

about having a conversation with the legal affairs

22

department about reproducing this checklist.

23

Q

Okay.

And let me ask you about that, that

24

testimony.

25

say, recreating the checklist, did you -- do you recall

When you were in the process of, as you

SHUGART & BISHOP

CAMBRIDGE vs. BECKER

DENIS GAINTY

APRIL 20, 2011

Page 47
1

rethinking any of the factors as you went through that

2

exercise?

3
4

A
sorry.

I read the factors carefully.

I'm -- I'm

Can you --

5

Q

Let me ask another question.

6

A

Thank you.

7

Q

Maybe it will be easier for you to answer.

8
9

When you were completing this checklist, did
you -- do you recall, with respect to any of the

10

factors, questioning whether you had thought about it

11

correctly back in 2009?

12

A

I don't recall any such example.

13

Q

But you testified earlier, I believe, and

14

correct me if I'm wrong, that you don't specifically

15

recall completing the checklist in 2009, correct?

16
17

MS. MOFFITT:

The question has been asked and

answered.

18

BY MR. BLOOM:

19

Q

You can answer again.

20

A

Correct.

21

Q

Okay.

Let me direct your attention to page 1

22

of the checklist.

23

reasons why you checked the three boxes on the

24

left-hand side, "Weighs in Favor of Fair Use."

25

recall that?

You testified earlier as to the

SHUGART & BISHOP

You

CAMBRIDGE vs. BECKER

DENIS GAINTY

APRIL 20, 2011

Page 48
1

A

Yes.

2

Q

Okay.

And those are the "nonprofit

3

educational," "teaching," and "use is necessary to

4

achieve your intended educational purpose," correct?

5

A

Yes.

6

Q

Is it fair to say that -- or do you agree

7

with the proposition that you would complete or fill

8

out each of those boxes for any reading that you had

9

decided you wanted to assign to your class?

10

MS. MOFFITT:

11

MR. BLOOM:

Object.

Calls for speculation.

Let me ask the question

12

differently, if I could.

13

one.

14

BY MR. BLOOM:

15

Q

So I'll withdraw that

Can you imagine a situation in which you

16

would select a reading as appropriate for one of your

17

classes where you would not check all three of those

18

boxes?

19
20

A

May I -- may I ask a clarification or -- can

you tell me what you mean by "appropriate"?

21

MR. BLOOM:

22

(Last question read.)

23

BY MR. BLOOM:

24

Q

Can you read the question back?

25

So let me just try one more time.

Can you

imagine identifying a reading as one that you wish to
SHUGART & BISHOP

CAMBRIDGE vs. BECKER

DENIS GAINTY

APRIL 20, 2011

Page 49
1

use with one of your classes, such as the Clark

2

reading, for which you would not check each of those

3

three boxes?

4

A

I -- honestly, I don't know.

I'm trying to

5

imagine -- I'm trying to imagine what sort of reading I

6

would want for a class that would not be necessary to

7

achieve my intended purpose or that I would -- I don't

8

have any occasion to -- that I can think of right now,

9

to engage in for-profit activities in the course of my

10
11

teaching.
Q

I -- I don't know.

I'm sorry.

So is it fair to say that you cannot imagine

12

specifically a scenario in which you would not fill all

13

three of those out?

14

MS. MOFFITT:

15

answered.

16

A

The question has been asked and

I'm sorry.

I really -- I -- the whole realm

17

of conjecture is getting a little bit sort of tricky

18

for me.

19

Q

I apologize.
Any reading that you are contemplating

20

assigning to your students would be nonprofit

21

educational, right --

22

A

Uh-huh.

23

Q

-- if you're doing this at GSU, correct?

24

A

Correct.

25

Q

And every one would be for the teaching
SHUGART & BISHOP

CAMBRIDGE vs. BECKER

DENIS GAINTY

APRIL 20, 2011

Page 50
1

purpose, correct?

2

A

Correct.

3

Q

And you would have decided, if you were

4

contemplating using it for your class, that the use was

5

necessary to achieve your educational purpose, correct?

6

A

I'm trying to imagine, in respect to the

7

third subfactor, whether I would think it was funny or

8

silly to assign something that didn't have an intended

9

educational purpose.

Then I'm driven to imagine, well,

10

perhaps silliness is its own educational purpose.

11

is why I'm sort of confused about -- and I do

12

apologize.

13

honestly as possible.

14

This

Q

I'm trying to answer as completely and

I understand.

That's fine.

Let me ask you

15

about the -- one of the factors on the other side of

16

the ledger, "non-transformative."

17

understanding one way or the other as to whether this

18

particular reading -- the placement of this particular

19

reading on e-res would be transformative or

20

non-transformative?

21

A

Do you have an

I honestly was not sure what "transformative"

22

might mean.

23

should have checked "transformative," thinking now

24

about it.

25

I suppose that's a new utility or purpose.

On the one hand, the work -- maybe I

The work was not intended for my class.

SHUGART & BISHOP

I don't

So

CAMBRIDGE vs. BECKER

DENIS GAINTY

APRIL 20, 2011

Page 51
1
2

know.
Q

Turning to the next page, Professor Gainty,

3

Ms. Moffitt asked you a number of questions about the

4

factor 3 subfactors, and you testified as to whether a

5

small portion was used, that you deemed this particular

6

reading to be a small portion of the entire work.

7

that an accurate characterization of your testimony?

Is

8

A

Yes.

9

Q

And you testified that you deemed it a small

10

portion of the work conceived of as all of the volumes,

11

as well as the work conceived of as this particular

12

volume, correct?

13

A

Yes.

14

Q

Okay.

Did you consider whether it was a

15

small portion of the work used in relation to this

16

particular chapter by Donald Clark?

17

A

My understanding was that "work" referred to

18

a single published work, and I understood that Clark's

19

work was not published individually.

20

Q

So you didn't conceive of a chapter within a

21

book as being a separate work.

22

characterization of your thinking?

Is that an accurate

23

A

Yes.

24

Q

Looking down at factor 4, you testified, as

25

to your overall evaluation of this factor, that you
SHUGART & BISHOP

CAMBRIDGE vs. BECKER

DENIS GAINTY

APRIL 20, 2011

Page 52
1

checked three boxes in the left-hand column and one box

2

in the right-hand column and that three was greater

3

than one, as you stated, and that led you to conclude

4

that the factor, as a whole, weighed in favor of fair

5

use.

Do you recall that testimony?

6

A

I do.

7

Q

Okay.

When you say three is greater than

8

one, does that reflect an understanding that each of

9

the subfactors is to be treated equally in terms of its

10

weight in the analysis?

11

A

It does.

12

Q

Okay.

And do you have an understanding, with

13

respect to the factors, 1 through 4, not the subfactors

14

but factors 1 through 4, do you have an understanding

15

as to whether they are also to be treated equally in

16

the analysis?

17

A

Honestly, I do not.

18

Q

You don't have an understanding one way or

19

the other?

Is that your testimony?

20

A

That's correct.

21

Q

Looking at the right-hand column under factor

22

4, the second box is "licensing or permission

23

reasonably available."

Do you see that?

24

A

I do.

25

Q

Is that -- did you give any thought to that
SHUGART & BISHOP

CAMBRIDGE vs. BECKER

DENIS GAINTY

APRIL 20, 2011

Page 53
1

subfactor when you were completing this form?

2

A

I did.

3

Q

And can you tell me what your thinking was?

4

A

I was not sure what licensing or permission

5

would constitute.

6
7

Q

Does it mean that you

don't understand what those terms refer to?

8

A

9
10

What does that mean?

Essentially, yes.
I -- I'm sorry.

I also was not sure what

"reasonably" meant.

11

Q

So is it -- do you have an understanding one

12

way or the other as to whether it is possible to get

13

permission to use a portion of a book in connection

14

with the e-res system?

15

A

My understanding is that fair use is exactly

16

fair use and that either permission or the

17

determination of fair use would justify the use of a

18

work.

19
20

Q

Have you ever heard of the Copyright

Clearance Center?

21

A

I have not.

22

Q

And I believe you testified when Ms. Moffitt

23

asked you whether -- if you undertook -- if a work that

24

you -- well, if this work were -- strike the question.

25

If your use of this chapter were determined
SHUGART & BISHOP

CAMBRIDGE vs. BECKER

DENIS GAINTY

APRIL 20, 2011

Page 54
1

not to be fair use, that you would find a different

2

reading was one possibility, or you weren't sure what

3

else you might do.

4

your testimony?

5

Is that a fair characterization of

MS. MOFFITT:

Object to the extent that I

6

think it mischaracterizes the testimony.

7

A

I think it is -- in some respects that's

8

accurate.

9

now I can't recall exactly, I'm sorry.

10
11

Q

I believe I said something else, although

Well, you said you might speak to the legal

affairs department.

12

A

I do.

13

Q

Okay.

Do you recall that?

14

But you -- if you were -- if -- strike

that.

15

If -- hypothetically, if you were told that

16

it were possible to obtain permission from the

17

publisher, for a fee, to use the chapter in the manner

18

that you contemplated, is that something that you would

19

consider in that scenario?

20

A

Honestly, I don't know.

21

Q

And that was not something that you

22

considered at the time because you concluded that this

23

was fair use, correct?

24

A

That's correct.

25

Q

Professor Gainty, you also testified that you
SHUGART & BISHOP

CAMBRIDGE vs. BECKER

DENIS GAINTY

APRIL 20, 2011

Page 55
1

believed that the assignment of this chapter to your

2

students might stimulate the market for the work.

3

you recall that?

4

A

I do.

5

Q

Okay.

Do

And you checked that factor on the

6

left-hand column under factor 4 of that subfactor,

7

correct?

8

A

That's correct.

9

Q

Okay.

And I believe you testified that you

10

hoped it would encourage students to seek out such

11

readings.

Do you recall that?

12

A

I do.

13

Q

You have no basis other than your sort of

14

aspiration for making that conclusion; is that -- is

15

that fair to say?

16

MS. MOFFITT:

I'm going to object on the

17

grounds that it mischaracterizes and misstates his

18

prior testimony.

19

MR. BLOOM:

20

BY MR. BLOOM:

21

Q

I'm asking -- strike that.

Is it fair to say that that is a hope on your

22

part but that you have no other basis for concluding

23

that the assignment would stimulate students to seek

24

out and purchase the work?

25

MS. MOFFITT:

Again, I'm going to object

SHUGART & BISHOP

CAMBRIDGE vs. BECKER

DENIS GAINTY

APRIL 20, 2011

Page 56
1

because it mischaracterizes his prior testimony.

2

A

Could you repeat the question?

3

Q

Other than your hope as to the effect that

4

assigning the work would have on your students, do you

5

have any other basis for believing that your using this

6

excerpt on e-reserves would stimulate the market for

7

the work?

8

A

Yes.

9

Q

And what is that?

10

A

It occurs to me that a student who has never

11

been made aware of The Cambridge History of China would

12

be less likely to pursue The Cambridge History of China

13

than a student who has had a limited exposure to The

14

Cambridge History of China.

15
16

MR. BLOOM:

Can we go off the record for a

moment?

17

MS. MOFFITT:

18

THE VIDEOGRAPHER:

19

Sure.
Going off the video record

at 11:54.

20

(Discussion off the record.)

21

THE VIDEOGRAPHER:

22
23
24
25

We're back on the record

at 11:55.
(Gainty Plaintiffs' Exhibit 2 marked for
identification.)
BY MR. BLOOM:
SHUGART & BISHOP

CAMBRIDGE vs. BECKER

DENIS GAINTY

APRIL 20, 2011

Page 57
1

Q

Professor Gainty, we've been discussing at

2

length the Donald Clark chapter from The Cambridge

3

History of China.

4

show you Garity (sic) Plaintiff's Exhibit 2, which --

5

and ask you to look at that and tell me if that is the

6

table of contents for that volume?

7

MS. MOFFITT:

8

MR. BLOOM:

9

MS. MOFFITT:

10

I just, for the record, wanted to

Do you have a copy?
Yeah (handing).
Thank you.

I just object on the grounds that this is an

11

incomplete copy, obviously, of The Cambridge

12

History of China but also that it doesn't include,

13

for example, copyright-related information

14

relating to this particular version of this

15

particular book.

16

But other than that, you can answer the

17

question, Professor Gainty, to the extent you can.

18

A

I can't say for sure.

19

Q

Can you locate on here the chapter that we

20

were discussing that you selected for your students in

21

History 4820?

22

A

I -- assuming this is the same edition, of

23

which I have no way of knowing, certainly the same

24

title and author are here as chapter 5, and the page

25

numbers are the same.
SHUGART & BISHOP

CAMBRIDGE vs. BECKER

DENIS GAINTY

APRIL 20, 2011

Page 58
1

Q

2
3

as Gainty Plaintiffs' Exhibit 3.
(Gainty Plaintiffs' Exhibit 3 marked for
identification.)

6
7

MS. MOFFITT:

I have a question.

What was

the prior exhibit number?

8
9

You can put that aside.

Let me just show you what I'm going to mark

4
5

Okay.

MR. BLOOM:

That was Plaintiffs' Exhibit --

Gainty Plaintiffs' Exhibit 2.

10

MS. MOFFITT:

11

Q

Thanks.

Sorry.

BY MR. BLOOM:

12

Okay.

13

Professor Gainty, is this a document

you've -- you recognize?

14

A

No.

15

Q

I will represent to you that this is a

16

portion of an e-res report that was provided to us by

17

the defendants in this action, and this is the portion

18

that relates to your course History 4820.

19

that course reference there under the second column?

20

A

I do.

21

Q

Okay.

Do you see

And that's your -- that's the class

22

that you intended to offer in the fall of 2009 that

23

we've been discussing?

24
25

MS. MOFFITT:

I'm going to object to form on

grounds of foundation, and it's not clear to me
SHUGART & BISHOP

CAMBRIDGE vs. BECKER

DENIS GAINTY

APRIL 20, 2011

Page 59
1

based on what's in this particular document that

2

that's what that reflects.

3

BY MR. BLOOM:

4

Q

You see the third row down on the left-hand

5

side?

6

"Sino-Korean Tributary Relations Under the Ming"?

It says, "Donald Clark."

7

A

I do.

8

Q

Okay.

It identifies the text

9
10

And is that the reading that we were

discussing for which you filled out an e-res -- a fair
use checklist?

11

A

Yes.

12

Q

Okay.

13

And do these pages correspond to the

pages listed on the checklist?

14

A

I'm sorry.

15

Q

Yeah.

16

A

I'm so sorry.

17

Q

On Gainty TX 2.

18

A

In the -- oh, Gainty TX.

19

Q

It's okay.

20

A

Yes.

21

Q

And do those correspond to the pages that are

Listed on the checklist?

I'm so sorry.

22

identified in the table of contents that we just marked

23

a minute ago?

24

A

25

They do.
MR. BLOOM:

I have no further questions.

SHUGART & BISHOP

CAMBRIDGE vs. BECKER

DENIS GAINTY

APRIL 20, 2011

Page 60
1
2

MS. MOFFITT:

redirect, Professor Gainty.

3
4
5

I just have a few questions on

REDIRECT EXAMINATION
BY MS. MOFFITT:
Q

I believe you indicated in response to one of

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Mr. Bloom's questions that the university asked

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professors to complete checklists for materials that

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they wanted to place on e-reserves; is that correct?

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A

I believe so, yes.

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Q

And is it your practice, Professor Gainty, to

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complete checklists for works that you intend to place

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on e-reserve, further to the request of the university?

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A

Yes.

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Q

And do you have any reason to believe that

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you did not complete a checklist for the Clark work

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identified in your syllabus, TX 1, as "Sino-Korean

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Tributary Relations Under the Ming" from The Cambridge

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History of China in the fall 2009, sometime prior to

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when the History 4820 course started?

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A

I have no reason to believe that I didn't

complete a checklist.
Q

And when you recreated the checklist that we

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marked Gainty TX 2 a few months ago, as you testified,

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did you use your best efforts to recreate the checklist

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as you believed you had filled it out in the 2009 time
SHUGART & BISHOP

CAMBRIDGE vs. BECKER

DENIS GAINTY

APRIL 20, 2011

Page 61
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frame?
A

Yes.

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MS. MOFFITT:

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Did you have any -- can we go off the record

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I have no further questions.

for just a second?
THE VIDEOGRAPHER:

Going off the video record

at 12:03.

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(Discussion off the record.)

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THE VIDEOGRAPHER:

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MS. MOFFITT:

Mr. Bloom, did you have any

further questions?

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MR. BLOOM:

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THE VIDEOGRAPHER:

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We're back on the record.

No further questions.
Going off the video record

at 12:03 p.m.
(Deposition concluded at 12:03 p.m.)
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SHUGART & BISHOP

CAMBRIDGE vs. BECKER

DENIS GAINTY

APRIL 20, 2011

Page 62
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E R R A T A
P A G E
Pursuant to Rule 30 (e) of the Federal
Rules of Civil Procedure and/or Georgia Code
Annotated 9-11-30(e), any changes in form or
substance which you desire to make to your
deposition testimony shall be entered upon the
deposition with a statement of the reasons given
for making them. To assist you in making any such
corrections, please use the form below. If
supplemental or additional pages are necessary,
please furnish same and attach them to this errata
sheet.
I, the undersigned,
DENIS CHARLES GAINTY, Ph.D., do hereby certify
that I have read the foregoing deposition and
that, to the best of my knowledge, said deposition
is true and accurate with the exception of the
following corrections below.

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CAMBRIDGE vs. BECKER

DENIS GAINTY

APRIL 20, 2011

Page 63
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____ / ____ / _____________________ / _________________

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____ / ____ / _____________________ / _________________

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________________________________
DENIS CHARLES GAINTY, Ph.D.

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Sworn to and subscribed before me
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this _____ day of _______________, 2011.
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________________________________________
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Notary Public.
My commission expires___________________

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SHUGART & BISHOP

CAMBRIDGE vs. BECKER

DENIS GAINTY

APRIL 20, 2011

Page 64
1

C E R T I F I C A T E

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STATE OF GEORGIA:

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DEKALB COUNTY:

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I hereby certify that the foregoing transcript

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was taken down, as stated in the caption, and the

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proceedings were reduced to typewriting under my

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direction; that the foregoing pages 1 through 61

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represent a true and correct transcript of the evidence

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given upon said hearing.

I further certify that I am

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not of kin or counsel to the parties in this case, am

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not in the regular employ of counsel for any of said

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parties, nor am I in anywise interested in the result

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of said case.

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Disclosure pursuant to OCGA 9-11-28:

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party taking this deposition will receive the original

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and one copy based on our standard and customary per

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page charges.

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furnished at our standard and customary per page

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charges.

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be charged to any party where applicable.

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The

Copies to other parties will likewise be

Incidental direct expenses of production may

This the 25th day of April, 2011.

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_______________________________
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CAROLE E. POSS
GA CCR B-1182

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SHUGART & BISHOP

CAMBRIDGE vs. BECKER

DENIS GAINTY

APRIL 20, 2011

Page 65
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DISCLOSURE
STATE OF GEORGIA:
COUNTY OF DEKALB:

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Deposition of DENIS CHARLES GAINTY, Ph.D.

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Pursuant of Article 10.B. of the Rules and
Regulations of the Board of Court Reporting of the
Judicial Council of Georgia, I make the following
disclosure:

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I am a Georgia Certified Court Reporter.
as a representative of Shugart & Bishop.

I am here

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I am not disqualified for a relationship of
interest under the provisions of OCGA 9-11-28.
Shugart & Bishop was contacted by the offices of
Bondurant, Mixson & Elmore to provide court reporting
services for this deposition.
Shugart & Bishop will not be taking this deposition
under any contract that is prohibited by O.C.G.A.
15-14-37 (a) and (b).
Shugart & Bishop has no exclusive contract to
provide reporting services with any party to the case,
any counsel in the case, or any reporter or reporting
agency from whom a referral might have been made to
cover this deposition.
Shugart & Bishop will charge its usual and
customary rates to all parties in the case, and a
financial discount will not be given to any party to
this litigation.

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CAROLE E. POSS, GA CCR B-1182

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SHUGART & BISHOP

DATE:

4-25-11