Cambridge University Press et al v. Patton et al

Filing 324

DEPOSITION of Daphne Greenberg, Ph.D. taken on April 21, 2011 by Cambridge University Press, Oxford University Press, Inc., Sage Publications, Inc.. (Attachments: # 1 Exhibit D-1, # 2 Exhibit D-2, # 3 Exhibit D-3 - part1, # 4 Exhibit D-3 - part 2, # 5 Exhibit D-4, # 6 Exhibit D-5, # 7 Exhibit P-1)(Rains, John)

1

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
CAMBRIDGE UNIVERSITY
PRESS, OXFORD UNIVERSITY
PRESS, INC., and SAGE
PUBLICATIONS, INC.,
Plaintiffs,

CIVIL ACTION FILE
NO. 1:08-CV-1425-ODE

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

VIDEOTAPE DEPOSITION OF
DAPHNE GREENBERG, Ph.D.

April 21, 2011
1:41 p.m.

Conference Room 16-M
1180 Peachtree Street, N.E.
Atlanta, Georgia

S. Julie Friedman, CCR-B-1476

Toll Free: 877.495.0777
Facsimile: 404.495.0766
2700 Centennial Tower
101 Marietta Street
Atlanta, GA 30303
www.esquiresolutions.com

Daphne Greenberg, Ph.D.

April 21, 2011
2

1
2
3

APPEARANCES OF COUNSEL
On behalf of the Plaintiffs:
WEIL, GOTSHAL & MANGES
JONATHAN BLOOM, ESQ.

4

767 Fifth Avenue
New York, New York

5

10153

212.310.8775
212.310.8007 Fax

6
7
8

[e-mail]
On behalf of the Defendants:
KING & SPALDING LLP
JOHN W. HARBIN, ESQ.

9

1180 Peachtree Street, N.E.
Atlanta, Georgia

10

30309-3521

404.572.2595
404.572.5100 Fax

11

[e-mail]

12
Also Present:
13

Henry Stewart, Videographer

14
15
16
17
18
19
20
21
22
23
24
25
Toll Free: 877.495.0777
Facsimile: 404.495.0766
2700 Centennial Tower
101 Marietta Street
Atlanta, GA 30303
www.esquiresolutions.com

Daphne Greenberg, Ph.D.

April 21, 2011
3

1
2
3
4

INDEX OF EXAMINATIONS
WITNESS:
Daphne Greenberg, Ph.D.
Page
6

DIRECT EXAMINATION
By Mr. Harbin

5
6
7
8

CROSS-EXAMINATION
By Mr. Bloom

26

INDEX TO EXHIBITS

9
10
11
12

Defendant's
Exhibit
Description
1
Syllabus for Educational Psychology
8070, Understanding and
Facilitating Adult Learning, Fall
Semester 2009, GaState0066231-241

Page
9

13
2

Title Page, Table of Contents,
Index for "Handbook of Adult
Development and Learning"

10

3

Chapter 3, Research Design and
Methodological Issues for Adult
Development and Learning, by Caskie
and Willis; Chapter 20, Advanced
Avenues in Adult Development and
Learning: The Role of Doctoral
Study, by Stevens-Long and Barner

12

4

7-1-09 Fair Use Checklist, EPY
8070, Understanding and
Facilitating Adult Learning Fall 09

16

5

Curriculum Vitae

26

14
15
16
17
18
19
20
21
22
23
24
25

Toll Free: 877.495.0777
Facsimile: 404.495.0766
2700 Centennial Tower
101 Marietta Street
Atlanta, GA 30303
www.esquiresolutions.com

Daphne Greenberg, Ph.D.

April 21, 2011
4

INDEX TO EXHIBITS

1
2

Plaintiff's
Exhibit

Description

Page

3
1

4

Policy On the Use of Copyrighted

39

Works in Education and Research

5
6
(Original Defendant's Exhibits 1 through 5 and

7

Original Plaintiff's Exhibit 1 have been attached to
the original transcript.)

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Toll Free: 877.495.0777
Facsimile: 404.495.0766
2700 Centennial Tower
101 Marietta Street
Atlanta, GA 30303
www.esquiresolutions.com

Daphne Greenberg, Ph.D.

April 21, 2011
5

1

Videotape Deposition of Daphne Greenberg, Ph.D.
April 21, 2011

2
3
4

(Reporter disclosure made pursuant to

5

Article 10.B. of the Rules and Regulations of

6

the Board of Court Reporting of the Judicial

7

Council of Georgia.)

8
9
10

(Defendant's Exhibits 1 through 4 were
marked for identification.)
THE VIDEOGRAPHER:

This is Tape No. 1 to

11

the videotape deposition of Professor Daphne

12

Greenberg, in the matter of Cambridge University

13

Press versus Mark Becker.

14

This deposition is being held at King &

15

Spalding, 1180 Peachtree Street in Atlanta,

16

Georgia on April 21st, 2011.

17

1:41 p.m.

18

The time is now

We're on the record.

My name is Henry Stewart.

19

videographer.

20

I'm the

Friedman.

21

The court reporter is Julie

Counsel, will you please introduce

22

yourselves and affiliations; and the witness

23

will be sworn.

24
25

MR. BLOOM:

Jonathan Bloom, Weil,

Gotshal & Manges, LLP, for the plaintiffs.
Toll Free: 877.495.0777
Facsimile: 404.495.0766
2700 Centennial Tower
101 Marietta Street
Atlanta, GA 30303
www.esquiresolutions.com

Daphne Greenberg, Ph.D.

April 21, 2011
6

MR. HARBIN:

1

And John Harbin with King &

Spalding for the defendants.

2

DAPHNE GREENBERG, Ph.D., having been first

3
4

duly sworn, was examined and testified as

5

follows:

6

DIRECT EXAMINATION

7

BY MR. HARBIN:

8

Q.

9

Professor Greenberg, would you state your

full name for the Court, please.

10

A.

Daphne Greenberg.

11

Q.

Great.

12

Thank you.

And you're a professor

at Georgia State University?

13

A.

Yes, sir.

14

Q.

And how long approximately have you taught

15

at Georgia State?

16

A.

Since 2001.

17

Q.

Could you tell the Court what your

18

undergraduate degree is in and where you obtained it?
A.

19
20

University.
Q.

23

And what postgraduate education do you

A.

21
22

It's in psychology from Brandeis

A master's degree in general psychology

have?

24

from Yeshiva University, Ferkauf School, graduate

25

school, of Psychology.
Toll Free: 877.495.0777
Facsimile: 404.495.0766
2700 Centennial Tower
101 Marietta Street
Atlanta, GA 30303
www.esquiresolutions.com

Daphne Greenberg, Ph.D.

April 21, 2011
7

And then a Ph.D. from the graduate center

1
2

of the City University of New York in educational

3

psychology.

4
5

Q.

And we'll mark a copy of your CV as an

exhibit so the -- for the Court's reference.
But have you published several articles

6
7

and --

Well, first, you published several articles

8

in your field?

9

A.

Yes, sir.

10

Q.

And what department do you teach in at

11
12
13

Georgia State?
A.

Educational psychology and special

education.
MR. BLOOM:

14

John, I'm sorry.

15

interrupt for a sec.

16

you off.

17

objection on the record.

18

the --

20
21

Sorry to throw

Let me just, if I could, just get my

MR. HARBIN:

19

This --

If I can

I think compared to

Oh, yeah.

That's fine.

Yes,

yes.
MR. BLOOM:

Just for the record,

22

plaintiffs object to the deposition of -- of

23

Professor Greenberg to the extent it's intended

24

to be offered as trial testimony.

25

The witness resides within the subpoena
Toll Free: 877.495.0777
Facsimile: 404.495.0766
2700 Centennial Tower
101 Marietta Street
Atlanta, GA 30303
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Daphne Greenberg, Ph.D.

April 21, 2011
8

1

range of the United States District Court for

2

the Northern -- Northern District of Georgia and

3

is represented by counsel for the defendants,

4

who presumably could subpoena the witness to

5

appear at trial to provide live testimony.
And on that basis, plaintiffs expressly

6
7

reserve and do not waive the right to object to

8

any attempt by defendants to introduce Professor

9

Greenberg's testimony at trial on the grounds

10

that she's unavailable within the meaning of the

11

Federal Rules of Evidence, the Federal Rules of

12

Civil Procedure, or the applicable rules of the

13

Northern District of Georgia.

14

Thank you.

15

MR. HARBIN:

16
17
18
19
20
21

Q.

Sorry to interrupt.
Sure.

(By Mr. Harbin)

In that regard, what are

your plans during the second half of May this year?
A.

The --

Between May 8th and May 24th, I'll

be in Australia.
Q.

Okay.

And is that something that's been

scheduled for some time?

22

A.

Yes.

23

Q.

Okay.

24
25

And I think you describe --

You've

named the department you teach in.
A.

Yes.
Toll Free: 877.495.0777
Facsimile: 404.495.0766
2700 Centennial Tower
101 Marietta Street
Atlanta, GA 30303
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Daphne Greenberg, Ph.D.

April 21, 2011
9

1

Q.

And are you presently the director for

2

Georgia State University's Coalition for the Study of

3

Adult Literacy?

4

A.

Yes, sir.

5

Q.

Was that previously the Center for the

6

Study of Adult Literacy?

7

A.

Yes.

8

Q.

Okay.

9
10

Did you teach a course in the fall

of 2009 entitled "Understanding and Facilitating
Adult Learning"?

11

A.

Yes.

12

Q.

Let me show you what's been marked as

13

Defendant's Exhibit Greenberg 1 and ask if that is --

14

I think you have a copy of it -- the syllabus for

15

your course that -- in fall of 2009?

16

A.

Yes, sir.

17

Q.

Can you summarize what is covered in this

18

course?

19

A.

Sure.

It --

It's basically to introduce

20

students to the whole field of adult learning.

We

21

talk about the heterogeneity of adult learners.

22

talk about development of adults.

23

theory of adult learning, and we talk about all types

24

of adult learners and research issues in terms of

25

adults.

We

We talk about

Toll Free: 877.495.0777
Facsimile: 404.495.0766
2700 Centennial Tower
101 Marietta Street
Atlanta, GA 30303
www.esquiresolutions.com

Daphne Greenberg, Ph.D.

April 21, 2011
10

1
2
3
4
5
6

Q.

Okay.

And approximately how many students

were in the class, if you recall?
A.

The --

The classes are capped at about

20, so give or take a few.
Q.

Do you recall if there was approximately

15 in the fall of '09?

7

A.

It would probably be between 15 and 20.

8

Q.

Okay.

9

A.

Yeah.

10

Q.

And if you look at the syllabus on the

11

second page, were there books that the students were

12

required to purchase in the course?

13
14
15

A.

Yes.

Those two books, the Merriam text

and the King text.
Q.

Okay.

The plaintiffs are challenging your

16

use of one excerpt of a publication in that class,

17

and I want to ask you in this course in the fall of

18

2009, did you use an excerpt of a book called "The

19

Handbook of Adult Development and Learning"?

20

A.

Yes.

21

Q.

And let me hand you what's been marked as

22

I believe so.

Defendant's Exhibit Greenberg 2 --

23

A.

Yeah.

24

Q.

-- and ask if you recognize that as the

25

title page of that book -Toll Free: 877.495.0777
Facsimile: 404.495.0766
2700 Centennial Tower
101 Marietta Street
Atlanta, GA 30303
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Daphne Greenberg, Ph.D.

April 21, 2011
11

1

A.

Uh-huh.

2

Q.

-- and some of the contents, including

3

particularly the table of content -- contents and the

4

index of what's in the book.

5

A.

Yes.

I'm familiar with this.

6

Q.

So is this --

Is it correct this book is

7

approximately over -- over 563 pages long if you

8

include the author and subject indexes?

9

A.

That's what it says.

Yes.

10

Q.

And it's about 536 pages of material

11

overall if you exclude the author and subject index;

12

is that right?

13

A.

That looks like that's correct.

14

Q.

Okay.

15
16

Yes.

And can you briefly describe what

this handbook is.
A.

Sure.

It's --

At the time that it was

17

written, it would be the -- represent the different

18

researchers at that time in terms of different areas

19

of adult learning, both development and learning, in

20

fact, and different chapters regarding different

21

aspects of adult learning and -- and development.

22
23
24
25

Q.

Okay.

And is it a compilation of articles

or essays by different authors?
A.

Yes.

It's a compilation of different

chapters by different authors.
Toll Free: 877.495.0777
Facsimile: 404.495.0766
2700 Centennial Tower
101 Marietta Street
Atlanta, GA 30303
www.esquiresolutions.com

Daphne Greenberg, Ph.D.

April 21, 2011
12

1
2

Q.

Okay.

And it looks like there are 22

chapters; is that right?

3

A.

I believe so.

4

Q.

And did you use two chapters -- all or

5

Yes.

part of two chapters of this book, if you recall?

6

A.

Yeah.

7

Q.

Okay.

And let me hand you what's been

8

marked together as Defendant's Exhibit Greenberg 3

9

and ask you if this comprises the excerpts that you

10

used.

11

And I'll show you here that you have --

12

The first page is chapter -- is the title page for

13

Chapter 3 and the first page of Chapter 3, and then

14

here there's a first page and continuing thereafter

15

of Chapter 20?

16

A.

Uh-huh.

17

Q.

You see that?

18
19
20

So do you recall that's the excerpt of
this book that you used?
A.

I believe --

21

MR. BLOOM:

22

THE WITNESS:

23

MR. BLOOM:

24
25

Object.
-- so.
Object to the form of the

question.
MR. HARBIN:

Sorry?
Toll Free: 877.495.0777
Facsimile: 404.495.0766
2700 Centennial Tower
101 Marietta Street
Atlanta, GA 30303
www.esquiresolutions.com

Daphne Greenberg, Ph.D.

April 21, 2011
13

1

MR. BLOOM:

2

You can answer.

3

THE WITNESS:

4

MR. HARBIN:

5

THE WITNESS:

6

MR. BLOOM:

8

THE WITNESS:

10

Oh.
Okay.
So I ignore that objection?

Oh.

7

9

I just objected to the form.

Q.

Yes.
Okay.

(By Mr. Harbin)

So yeah.

Okay.

So if you look at

the pages, did you use Pages 52 to 70 of Chapter 3?

11

A.

Uh-huh.

12

Q.

And Pages 455 to 475 of Chapter 20?

13

A.

Yes.

14

Q.

So you used approximately 39 pages

15

total --

16

A.

Uh-huh.

17

Q.

-- of that publication?

18

A.

Yes.

19

Q.

So is it correct that you used something

20

less than 8 percent of the book by pages?

21

A.

Uh-huh.

22

Q.

And what was your purpose in using these

23
24
25

chapters?
A.

Well, the Chapter 3 was a nice

introduction to the students for learning about
Toll Free: 877.495.0777
Facsimile: 404.495.0766
2700 Centennial Tower
101 Marietta Street
Atlanta, GA 30303
www.esquiresolutions.com

Daphne Greenberg, Ph.D.

April 21, 2011
14

1

methodological issues when you Windows research in

2

adult learning.
And the second chapter on the doctoral, I

3
4

believe -- what was it, Chapter 20 --

5

Q.

20.

6

A.

-- yeah, was an example of adult

7

learners -- of a type of adult learner, which would

8

be doctoral students.
Q.

9

Okay.

Did you view --

Did you view

10

either chapter as the heart or critical part of the

11

book?

12

A.

No.

13

Q.

And why do you say that?

14

A.

Because this is a handbook of many

15

different aspects of adult learning.

It was just two

16

out of many chapters, and it definitely was not

17

the heart.

18

and -- and development.

The heart of it is really learning theory

And the two chapters that I picked was,

19
20

one, introduction to research; and the other one was

21

just one aspect of adult learning, of learners, a

22

type of adult learner, which was the doctoral

23

students.

24

of the book in my opinion.

25

Q.

Those are considered pretty minor aspects

Okay.

Did you own a copy of this book?
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Facsimile: 404.495.0766
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Daphne Greenberg, Ph.D.

April 21, 2011
15

1

A.

Yes, sir.

2

Q.

And do you know if the library also owned

3

a copy?

4

A.

Yes, sir.

5

Q.

In --

In making your decision to use this

6

excerpt in the class, there -- these two excerpts in

7

the class in fall of 2009, did you utilize the fair

8

use checklist provided by Georgia State University?

9

A.

Yes, sir.

10

Q.

At the time you were preparing the reading

11

list for the class, the fall 2009 class, had you been

12

trained in the university's copyright policy that

13

encompasses the use of the checklist?

14

A.

Yes.

15

Q.

So did you attend a training session, one

16

or more training sessions about that?
A.

17

You know, I don't remember completely.

18

I --

I know that there was, I believe, a training

19

session at the library and a training session in my

20

department.

21

they're kind of fuzzy in my memory.

I believe I actually went to both, but

But I know that I must have -- that

22
23

received training, 'cause I wouldn't have known how

24

to do it.

25

it.

I wouldn't have even known anything about

Toll Free: 877.495.0777
Facsimile: 404.495.0766
2700 Centennial Tower
101 Marietta Street
Atlanta, GA 30303
www.esquiresolutions.com

Daphne Greenberg, Ph.D.

April 21, 2011
16

1

Q.

Okay.

Did you understand there were

2

resources available, if you had questions, you could

3

look at on-line?

4

A.

Yes.

5

Q.

And did you understand there were

6

And I did.

personnel available --

7

A.

Absolutely.

8

Q.

-- to consult if you had questions?

9

A.

Absolutely.

10

Q.

Let me hand you what's been marked as

11

Defendant's Exhibit Greenberg No. 4 and ask you if

12

you could identify what this document is.

13
14
15

A.

It's the fair use checklist that I

used for -- for this book for this class.
Q.

Okay.

And it says --

16

print, but it says portions.

17

total of --

18

It's kind of small

can't read it.

19
20
21
22

You say two chapters

I think you said 38 or 39 pages.

I

Do you see that?
A.

Yeah.

It's hard to say.

Maybe 38

but it's -Q.

You say the entire book has 20-something

23

chapters and 537 pages, I think you wrote; is that

24

right?

25

A.

Right.

I obviously did not include the
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Daphne Greenberg, Ph.D.

April 21, 2011
17

1

subject index.

2

Q.

Right.

3

A.

Yeah.

4
5

MR. BLOOM:

John.

I'm sorry.

Did you

mark this?

6

MR. HARBIN:

7

4, Greenberg Exhibit 4.

8

Q.

9

Yes.

(By Mr. Harbin)

It's --

It's Exhibit

And when did you fill

this out?

10

A.

11

fall --

12

Q.

Was --

13

A.

-- 'cause that's when I prepare my

14
15
16

It would have been the summer before the

classes.
Q.

Okay.

Was it on or about July 1, 2009,

the date up at the top --

17

A.

Oh.

18

Q.

-- first page?

19

A.

There you go.

20
21
22

I did do it.

Okay.

July

1st, yeah, 2009.
Q.

And the handwriting at the top of the

first page, is that your handwriting?

23

A.

Yes, sir.

24

Q.

What does that say?

25

A.

It was a note to myself that I should not
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Daphne Greenberg, Ph.D.

April 21, 2011
18

1

throw this out; and I should just basically keep

2

forever because it was something I was supposed to

3

keep forever; and I was worried that I would throw it

4

out, so I wrote that little note to myself.

5
6

Q.

Okay.

And that's what it says, keep

forever?

7

A.

Yes.

8

Q.

And it was your understanding from the

9
10

instructions from GSU you were to retain the
checklist that you filled out?

11

A.

Yes, sir.

12

Q.

Okay.
MR. BLOOM:

13
14

Q.

Just object to the form of the

last question.

15

That's why I wrote that.

16

(By Mr. Harbin)

And I'm not going to go

through every factor, but just a couple of them.
If you look at the second page, the third

17
18

factor, you checked a small portion of the work

19

used -- of work used?

20

A.

Yes.

21

Q.

And you checked --

You checked portion

22

used is not central or significant to entire work as

23

a whole?

24

A.

Yes.

25

Q.

And was that for the reason you testified
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Daphne Greenberg, Ph.D.

April 21, 2011
19

1

to earlier?
A.

2

Yes.
MR. HARBIN:

3

Excuse me.

Let's go off the

record one second.

4

THE VIDEOGRAPHER:

5

1:54 p.m.

Off the

record.

6
7

(Discussion ensued off the record.)

8

(Defendant's Exhibit 5 was marked for
identification.)

9

THE VIDEOGRAPHER:

10
11

Q.

Back on the

record.

12

1:55 p.m.

(By Mr. Harbin)

And you checked the box

13

under that amount taken as narrowly tailored to

14

educational purpose, et cetera?

15

A.

Uh-huh.

16

Q.

And what was your thinking about that?

17

A.

Well, the specific chapters that I picked,

18

they were directly related to -- to a few points that

19

I wanted them to get from the course.
Q.

20

And then under Factor 4, just a couple

21

questions.

You checked use stimulates market for

22

original work.

23

A.

Uh-huh.

24

Q.

What was your thinking in checking that

25

box?
Toll Free: 877.495.0777
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Daphne Greenberg, Ph.D.

April 21, 2011
20

A.

1

That if students found the chapters

2

interesting, they may want to purchase the book to

3

read the other chapters.
Q.

4

Okay.

And the handwriting on -- lower

5

down on the Factor 4 on that second page, what

6

appears to say "mistake" beside supplemental

7

classroom reading and then checked required classroom

8

reading --

9

A.

Yes.

10

Q.

-- is that your handwriting?

11

A.

Yes.

12

Q.

And what does it say on the right-hand

13

side?

It is.

Does that say --

14

A.

"Correct answer."

15

Q.

Okay.

And so you checked --

In the form

16

you checked it's -- it is required classroom

17

reading --

18

A.

Yes.

19

Q.

-- under Weighs Against Fair Use?

20

A.

Uh-huh.

21

Q.

Okay.

And what was your overall

22

conclusion in 2009 about whether or not the use of

23

this excerpt or these two chapter excerpts in your

24

class would constitute fair use, as --

25

A.

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21

1

Q.

-- you understood it?

2

A.

I believed that it was fine to use under

3

the fair use guidelines because it only had one

4

checkmark in -- in one of the factors --

5

Q.

Okay.

6

A.

-- and --

7

Q.

And --

8

A.

-- that was against fair use, so I --

9

I

believed it met the fair use.

10

Q.

11

of fair use?

12

A.

13

And you checked several that were in favor

Yes.

Uh-huh.

And there were -- there

were quite a few in the -- the fair use category.
Q.

14

Okay.

Is this something you did lightly,

15

or did you take time to do this and analyze this?

16

How would you --

17

A.

Oh.

18

Q.

-- characterize your evaluation of fair

A.

Yeah.

19
20

use?

21

MR. BLOOM:

22

You can answer.

23

When I object, unless your counsel

24
25

Objection to form.

instructs you not to answer, you can -THE WITNESS:

Oh.
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April 21, 2011
22

1

MR. BLOOM:

2

THE WITNESS:

3

I'm sorry.

4

Q.

-- go ahead.
Okay.

Thank you.

What was the question again?

(By Mr. Harbin)

Let me just --

How would

5

you characterize your deliberations about this, these

6

excerpts, and whether or not they're fair use?

7

A.

Oh, I took it extremely seriously.

I

8

mean, that --

9

pointed out the correct answer, and I wrote keep

10
11
12
13
14
15
16

That's why when there was a mistake, I

forever, and so forth.
Q.

Okay.

In that regard, if you look back at

the syllabus that is Greenberg Exhibit 1 -A.

(Witness complies with request of

counsel.)
Q.

-- do you have -- if you look at --

Do

you give instructions about not copying --

17

A.

Yeah.

18

Q.

-- copyrighted materials, not duplicating

19

necessarily or -- or selling such materials on the

20

first page --

21

A.

Yeah.

22

Q.

-- under professional behavior?

23

A.

Exactly.

24

Q.

And do you give oral --

25

Yes.

I do.

Did you give oral

instructions in your class about that?
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23

1

A.

Yes.

I go over the syllabus, and there

2

are a few things that I highlight orally; and that's

3

one of them, because students are generally

4

surprised.

5

they understand it.

6
7

Q.

They don't know this, so I make sure that

And did you do that in this class in the

fall of 2009, to your recollection?

8

A.

Yes, sir.

9

Q.

Do you generally do that?

10

A.

I --

11

Q.

Okay.

12

A.

-- one of the things I always do.

13

Q.

All right.

Yeah.

I do it every class.

It's --

Have you had occasions where

14

you've undertaken an analysis of a work using this

15

checklist and determined that in your view at least

16

it would not be fair use --

17

A.

Yes, sir.

18

Q.

-- or -- or was close enough call that

19

caused you concern?

20

A.

Yes.

21

Q.

And what did you do in those cases?

22

A.

Did not use the readings.

23

Q.

Okay.

And what would you have done in

24

this case if you determined that these excerpts,

25

Chapters 3 and 20, would not have constituted fair
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April 21, 2011
24

1

use?

2

A.

I would not have used them.

3

Q.

Okay.

4

Did the university encourage you to

use Ereserve to post excerpts of works?

5

A.

No.

6

Q.

Did you ever use uLearn in this class in

7

posting excerpts of books for the class?

8

A.

No.

9

Q.

Following the university's adoption of the

10

copyright policy including the use of the fair use

11

checklist, did your practice about putting excerpts

12

on Ereserve change in any way?

13

A.

MR. BLOOM:

14
15
16
17
18

Absolutely.

Q.

I'm sorry.

(By Mr. Harbin)
MR. BLOOM:

How did it change?

Could I just have that

question and answer read back.
(Whereupon, the record was read by the

19

reporter as requested.)

20

MR. HARBIN:

Let me rephrase the question

21

if you've got stopping, 'cause that's not what I

22

intended to ask.

23

THE COURT REPORTER:

Excuse me.

24

MR. HARBIN:

Yeah.

25

THE COURT REPORTER:

Right.

Adoption.

That's it.

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25

MR. HARBIN:

1
2

Q.

I'll

just reask it.

3

I'll just reask it.

(By Mr. Harbin)

Following the

4

university's adoption of the current copyright policy

5

that incorporates the use of the fair use checklist,

6

did your practice about putting excerpts on Ereserve

7

change in any way?

8

A.

Yes.

9

Q.

How did it change?

10

A.

I was a lot more careful.

I realized it

11

wasn't just a matter of pages, but I had to go

12

through this checklist.
And over time I started to use fewer and

13
14

fewer and fewer chapters, to the point that today,

15

like if you looked at my syllabus for this semester,

16

I have zero chapters.

17

Q.

And why is that?

18

A.

Because, to be quite honest, this is very

19

onerous; and I take it seriously; and so it's --

20

It's just not worth it to me to -- to have to do this

21

for every single thing that I want to assign to them,

22

so I don't.

23
24
25

Q.

Okay.
MR. BLOOM:

I just move to strike the last

two answers to the extent that they address
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April 21, 2011
26

1

Professor Greenberg's practice following the

2

fall of 2009.

3

Q.

4

(By Mr. Harbin)

Okay.

And let me just --

As I said, I wanted to put this in the record.
Let me hand you what's been marked as

5
6

Green -- Defendant's Greenberg Exhibit 5 and ask you

7

if that is a copy of your CV that -- your curriculum

8

vitae with names of students that appeared on Pages 2

9

through 4 redacted.

10

A.

MR. BLOOM:

11
12

Yes.
Can I get a copy of that,

John.

13

MR. HARBIN:

14

MR. BLOOM:

15

MR. HARBIN:

16

Thank you, ma'am.

17

Q.

Thanks.
That's all I have right now.

BY MR. BLOOM:

19

I'm sorry.

CROSS-EXAMINATION

18

Oh, yes, yes.

Okay.

Good afternoon, Professor

20

Greenberg.

21

Manges on behalf of the plaintiffs.

22

you some additional questions.

23

I'm Jonathan Bloom with Weil, Gotshal &
I'll be asking

Can you give me your best guess as to how

24

many individual readings you've completed a checklist

25

for in your career at GSU?
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April 21, 2011
27

1

A.

I really don't know.

No.

2

All I can say is that since the fair use

3

checklist became something that we were supposed to

4

do, I did it for every reading from a book that I was

5

thinking of assigning.

6
7

Q.

Okay.

So would -- you --

You can't give

me a ballpark guess?

8

A.

(Witness shakes head negatively.)

9

Q.

Okay.

And you testified a moment ago, I

10

think, that there were a few instances in which you

11

determined that a reading that you were contemplating

12

posting on the reserves was not fair use; is that

13

correct?

14

A.

Uh-huh.

15

Q.

Okay.

16

A.

No.

17

Q.

-- specifically?

18

A.

No.

19

Q.

You don't.

20

A.

No.

21

Q.

Okay.

Do you recall when that occurred --

Okay.

Do you recall the year?

Can you tell me a little bit more

22

specifically with respect to those instances why you

23

concluded that the use would not be fair use?

24
25

A.

I do not know.

All I know is that I would

do this checklist, and it would become apparent that
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April 21, 2011
28

1

there were too -- either not enough factors in favor

2

of fair use and/or too many against fair use.

3

Q.

Okay.

Do you have a recollection as to

4

any of the specific readings that you decided would

5

not be fair use?

6

A.

No.

7

Q.

Okay.

8

Do you recall how long they were

in -- in, you know, in length?

9

A.

(Witness shakes head negatively.)

10

Q.

Okay.

11

MR. HARBIN:

12

THE WITNESS:

13

MR. HARBIN:

14

If you could, answer audibly.
Oh, sorry.
Even though it's being

videotaped --

15

THE WITNESS:

16

MR. HARBIN:

17

Okay.

THE WITNESS:

-- it will be more clear.
Okay.

18

Q.

(By Mr. Bloom)

Okay.

19

A.

So the answer to that was no.

20

Q.

(By Mr. Bloom)

Okay.

Do you recall with

21

respect to those works any of the factors on the

22

weighs against fair use side of the ledger on

23

Greenberg Exhibit 4 that you checked?

24

A.

Can you repeat that one more time, please.

25

Q.

Yeah.

With respect to these works that
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April 21, 2011
29

1

you concluded would not be fair use --

2

A.

Uh-huh.

3

Q.

-- I'm wondering which of the boxes on the

4

weighs against fair use side of the checklist you

5

checked when you were completing the checklist for

6

those works.

7

A.

It's not really an easily answerable

8

question, because I don't remember what works they

9

were, so I don't see how I could really know what I

10

would have checked or what I checked.

11

Yeah.
Q.

12

Okay.

If you don't remember, that's fine.

Were there ever any --

13

I can't.

Was there ever an

14

occasion where you presented a proposed reading to

15

the library staff to be posted on a reserve where

16

they informed you that the reading would not be fair

17

use?

18

A.

For 2009?

19

Q.

Yes.

20

A.

Okay.

21

Q.

The question is whether during 2009 there

Let's stick to 2009.
And so what's the question again?

22

was ever a situation where you presented a reading to

23

the library for posting on Ereserves where they told

24

you it would not be fair use?

25

A.

I believe that the answer would be no; but
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April 21, 2011
30

1

that would be because I did this so carefully and

2

seriously, that it wouldn't have been an issue.

3

Q.

And hypothetically --

4

A.

Okay.

5

Q.

-- if the university provost were to tell

6

you that a reading that you wanted to post on

7

Ereserves would violate fair use --

8

A.

Uh-huh.

9

Q.

-- would you -- and -- and asked you to

10

take remedial action, i.e., not post it on Ereserves,

11

would you follow that instruction --

12

A.

Yes.

13

Q.

-- from the provost?

14

A.

Yes.

15
16

I would not post anything that

violated fair use.
Q.

Okay.

And if the head of the library had

17

told you the same thing, that posting an excerpt

18

would not be fair use, would you follow that

19

instruction?

20

A.

Yes.

21

Q.

Okay.

22

The same question with respect to

the university president?

23

A.

Yes.

24

Q.

Same question with respect to the Board of

25

Regents?
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April 21, 2011
31

1

A.

Yes.

2

Q.

Okay.

3

Turning back to the --

Oh, strike

that.
Just if you would, refer to Exhibit 1,

4
5

which is the -- the syllabus.

6

moment ago at the paragraph on the first page on

7

professional behavior.

8

A.

Uh-huh.

9

Q.

Right.

We were looking a

You see about halfway down the --

10

or actually, I guess the second to last sentence --

11

I'm sorry -- third to last sentence in the paragraph

12

says, "Duplicating copyrighted materials is illegal,

13

and copying and selling such material is a felony."
Do you see that?

14
15

A.

Yes, sir.

16

Q.

Okay.

Do you have an understanding as to

17

whether copying is involved in the process of -- is

18

involved with the Ereserve -- Ereserves system?

19

A.

What do you mean?

20

Q.

Strike that.

21

Do you have an understanding as to whether

22

when you instruct a -- when you select a reading for

23

posting on Ereserves and the library staff posts it

24

on Ereserves at your direction, do you have an

25

understanding as to whether copying is involved in
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April 21, 2011
32

1
2

that process, posting the work on Ereserves?
A.

I'm not involved with the process of how

3

it gets on Ereserves, but it would have followed the

4

fair use act (indicating).

5

Q.

Okay.

But do you have an understanding

6

one way or the other as to whether there are acts of

7

copying involved in the posting of the reading on

8

Ereserves?

9

A.

I've never asked nor -- I don't --

10

I mean --

11

involved but --

12

Q.

Huh.

I mean I -- I guess copying would be

Okay.

But I don't know that for a fact.
Do you have any understanding as to

13

whether copying is involved when a student accesses a

14

reading on Ereserves?

15

A.

I do not know.

16

Q.

Okay.

17

In your experience when --

And

let's talk specifically with respect to this course.

18

A.

Okay.

19

Q.

In your experience do students in this

20

class sometimes print out the readings from Ereserves

21

and bring them to class?

22
23
24
25

A.

They do sometimes print out readings.

Which readings they print out, I do not remember.
Q.

Do you make a recommendation to them that

they should print out readings and bring them to
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April 21, 2011
33

1

class?

2

A.

Yes.

3

Q.

Okay.

4

A.

That sometimes students find it helpful to

5
6
7

And what do you tell them?

bring copies of the readings to the class.
Q.

Okay.

So do you tell them that it's

something that they may want to do?

8

A.

Like I say, sometimes it's helpful.

9

Q.

Okay.

10

A.

Yeah.

11

Q.

Okay.

12
13

Would you say most students in --

in this class follow that advice?
A.

No.

Not necessarily, because there are a

14

lot of readings and a lot of articles; and this

15

generation of students are very comfortable reading

16

off the screen.

17

Q.

Okay.

18

A.

And they don't necessarily need to bring

19
20

hard copies of anything.
Q.

Okay.

And when a student prints a copy of

21

a reading off of Ereserve, do you have an

22

understanding one way or the other as to whether an

23

act of copying is involved in that process?

24
25

A.

It --

It feels like you're trying to

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34

1

Q.

No.

2

A.

I mean, you know.

3

Q.

I assure you I'm not.

4

A.

-- if -- if they're bringing a -- a

5

I mean --

copy -- I mean, this is a copy (indicating), right?
So I --

6

I'm not sure exactly how to

7

answer your question; but if they're bringing a copy,

8

then yes.
Q.

9
10

question.

I guess it's a copy.
Well, let -If --

Let me rephrase the

If a student downloads --

11

A.

Yes.

12

Q.

-- a reading from Ereserve and prints it

13

out --

14

A.

Okay.

15

Q.

-- and brings it to class, is it your

16

understanding one way or the other as to whether a --

17

a copy is made?
A.

19
20

I would have to say yes, a copy has been

Q.

18

Okay.

made.
Mr. Harbin asked you, I believe,

21

whether GSU encouraged you to use Ereserves.

22

remember that?

23

A.

Uh-huh.

24

Q.

Okay.

Do you

25

And your answer was no.

Am I --

Is that right?
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April 21, 2011
35

1
2

A.

No.

He --

He asked about -- specifically

about excerpts from chapters.

3

Q.

Okay.

4

A.

We were encouraged, if we had readings

5

which could include articles --

6

I mean, we were

encouraged to use Ereserves --

7

Q.

Okay.

8

A.

-- as a place; but, you know, that --

9
10

He

specifically asked about book chapters.
Q.

Okay.

And just following up on that,

11

what -- what do you recall you were told with --

12

Strike that.
So at some point, I take it, you were

13
14

advised that Ereserves was an alternative way for you

15

to make readings available to students; is that

16

correct?

17

A.

Yes, sir.

18

Q.

And do you recall when that was?

19

A.

No, sir.

20

Q.

Okay.

Do you recall --

Do you recall

21

anyone in the university administration ever saying

22

to you either one on one or as a part of a meeting of

23

some kind that it was a good idea to use Ereserves?

24
25

A.

To be honest, I don't -- I don't remember

how I learned about Ereserves in general.

I --

I

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April 21, 2011
36

1

know that at some point I learned that Ereserves was

2

a good place to put materials for classes.

3

Q.

Okay.

And I believe for this course,

4

according to the syllabus, the readings for Ereserves

5

were articles.

6

on Ereserves were articles; is that correct?

7

A.

The -- the readings that were placed

It would be whatever is on the syllabus

8

with -- except for the physical books that were

9

physically available to the students, so it included

10

mainly articles.

You're correct.

11

Q.

Okay.

12

A.

But it did include, as you know, these two

13

chapters.

14

Q.

Okay.

When did you start teaching at GSU?

15

A.

About 2001.
I --

16

It's possible that --

I taught I think one class as a

17

staff member, and that would have been in the late

18

1990s, but I became a faculty member in 2001.

19
20
21
22

Q.

Okay.

What was your position at the time

when you were -- in 2001?
A.

Two --

You mean where did I come from as

staff?

23

Q.

No.

I mean what was your title?

24

A.

Oh.

Assistant professor.

25

Q.

Okay.

And your title today is?
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37

1

A.

Associate.

2

Q.

Associate.

3

Okay.

And are you a

tenured --

4

A.

Yes.

5

Q.

-- faculty member?
Okay.

6
7

And do you recall when you began

using Ereserves --

8

A.

No.

9

Q.

-- at GSU?
You don't?

10
11

A.

No.

12

Q.

Was it sometime after 2001?

13

A.

Yes.

14

Q.

Okay.

It wasn't immediately at 2001.
And --

And how did you make

15

articles available to your students prior to the time

16

you started using Ereserves?

17

A.

Through a course packet.

18

Q.

Do you recall just roughly sort of over

19
20
21

how many years you used course packs?
A.
twice.

I do have a recollection of using it
It's possible I used it more.

22

Q.

Okay.

23

A.

Yes, sir.

24

Q.

Okay.

25

Twice meaning for two classes?

And would you say -- is it a --

and -- and -Toll Free: 877.495.0777
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38

So now do you continue to use course

1
2

packs?

3

A.

No.

4

Q.

Okay.

And do you have an understanding as

5

to whether with respect to those course packs any

6

fees were paid to the publishers of the materials you

7

used in the course packs?

8

A.

I do not know.

9

Q.

Okay.

10

You don't know one way or the

other?

11

A.

No.

12

Q.

Okay.

Okay.

And with respect to the

13

readings that have been posted on Ereserves at your

14

direction, do you have an understanding as to whether

15

any fees were paid for any of those readings to the

16

publisher?

17

A.

I do not know.

18

Q.

Okay.

Okay.

And when did you first

19

become aware of the -- of the new GSU copyright

20

policy?

21

A.

22

use it.

23

Q.

Okay.

24

A.

No.

25

Q.

Okay.

Whenever they told us we were supposed to
Sorry.

I don't remember.
It was prior to the fall of 2009?
I don't remember.
Do you recall reading the policy?
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Daphne Greenberg, Ph.D.

April 21, 2011
39

1

A.

I would have.

Yes.

2

Q.

Okay.

3

A.

I don't have a strong memory of it, but I

4

would have read it in order to -- to understand what

5

I'm supposed --

6

Q.

Okay.

7

A.

-- to be doing.

8

Q.

Do you today have a physical copy of the

9
10

GSU copyright policy?
A.

I don't know for a fact, but my guess is

11

that in the same place that I keep all these things

12

(indicating), I probably have that copyright.

13

Q.

Okay.

14

A.

A memo whatever it's called.

15

Q.

Okay.

16

I'm just going to show you a

document.
(Plaintiff's Exhibit 1 was marked for

17
18

identification.)

19

Q.

(By Mr. Bloom)

Oops.

Let me show you a document that I've

20
21

marked as Greenberg Plaintiff's Exhibit 1 and ask you

22

if you recall having seen this before.

23

A.

It looks familiar.

24

Q.

Okay.

25

A.

So yes.

I believe it -Toll Free: 877.495.0777
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Daphne Greenberg, Ph.D.

April 21, 2011
40

1

Q.

And what --

2

A.

It's --

What is this?

Well, it says a whole bunch of

3

different things; but it's basically all the things

4

that can help me know how to do this.

5

actual policy, the general policy; and let's see.

6

It's all about fair use and how to use the fair use

7

checklists and so forth.

8
9
10

Q.

13
14
15
16

For the record, the first page of

this document is titled, "Policy on the Use of
Copyrighted Works in Education and Research."
Okay.

11
12

Okay.

It's the

So do you --

Do you recall reading

the -- reading this document?
A.

It looks very familiar, so yes.

I believe

I did read it.
Q.

Okay.

If I could direct your attention to

Page 15.

17

A.

Okay.

18

Q.

You'll see toward the bottom there,

19

there's a --

20

are two bullets, and the first one says, "Copyright

21

Clearance Center."

Under the heading "Online Works," there

22

A.

Uh-huh.

23

Q.

Do you see that?
Do you know what the Copyright Clearance

24
25

Center is?
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Daphne Greenberg, Ph.D.

April 21, 2011
41

1

A.

No.

2

Q.

Okay.

3

A.

I don't think so.

4

Q.

Okay.

5

the --

I don't.
Have you ever heard of it before?

So given that answer, I take it

Strike that.
So you don't recall anyone from GSU ever

6
7

explaining to you what the Copyright Clearance Center

8

is?

9

A.

It's possible they did.

10

Q.

Okay.

I don't remember.

And you said you've --

You

11

testified earlier I think that you -- you believe you

12

attended a training session --

13

A.

Uh-huh.

14

Q.

-- at least one --

15

A.

Right.

16

Q.

-- correct?
Okay.

17
18

Do you recall whether there were

any materials distributed at --

19

A.

Yeah.

20

Q.

-- at a meeting?

21

A.

I have a vague memory of PowerPoint stuff

22
23
24
25

and some stuff from this packet.
Q.

Okay.

Now turning for a moment to the

fair use checklist -A.

Okay.
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Daphne Greenberg, Ph.D.

April 21, 2011
42

Q.

1

-- this was Exhibit 4.

Looking at the

2

first page under Factor 1, you did not check on the

3

left-hand side transformative use, correct?

4

A.

Uh-huh.

5

Q.

And on the right-hand side, you didn't

6

check nontransformative either, correct?

7

A.

Uh-huh.

8

Q.

Okay.

9
10

Do you have an understanding as to

what transformative means in the context of copyright
law?
A.

11

I believe it means that you are -- are

12

doing something to the actual document that changes

13

it.

14

Q.

And with respect to these excerpts from

15

adult development and learning, do you have an

16

understanding as to whether they -- whether your use

17

of them in connection with Ereserves is

18

transformative?

19

A.

I don't believe they are.

20

Q.

Okay.

21

Okay.

Is there a reason you didn't

check nontransformative?

22

A.

Don't remember.

23

Q.

Okay.

And by the way, you did not for any

24

of the factors check either factor weighs in favor of

25

fair use or factor weighs against fair use.

Is that

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Daphne Greenberg, Ph.D.

April 21, 2011
43

1

a --

Was that an oversight on your part?

2

A.

I'm not sure what you're saying.

3

Q.

If you look at, for example, in Factor

5

A.

Uh-huh.

6

Q.

-- at the bottom, on -- there's a box on

4

7

1 --

the left --

8

A.

Oh.

9

Q.

-- that says, "...Weighs in Favor...," and

10

one on the right that says "... Weighs Against Fair

11

Use."
Do you see that?

12
13

A.

Yes.

14

Q.

Okay.

I do.
I -- and I take it you -- that

15

was --

16

check one of the two?

17
18

Was that an oversight on your part not to

A.

Yeah.

My guess is that I did it in my

head and --

19

Q.

Okay.

20

A.

-- didn't think about it at that time --

21

Q.

Okay.

22

A.

-- of marking it.

23

Q.

Okay.

But is --

Did you conclude with

24

respect to each of the four factors that they weighed

25

in favor of fair use?
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Daphne Greenberg, Ph.D.

April 21, 2011
44

A.

1

I don't remember if I concluded that for

2

every factor, but I do know that I would have

3

concluded that overall.
Q.

4

It qualified as fair use.

And just in -- in general, did you have an

5

understanding as to whether each -- each of the

6

subfactors, that is, each -- each box was to be given

7

equal weight in the fair use analysis?
A.

8
9
10

I've done these checklists.

I -- I guess I would --

I would have gone by whatever the instructions say.
Q.

11
12

You know, it's been such a long time since

So sitting here today, you don't recall;

is that correct?

13

A.

Right.

14

Q.

Okay.

15

you.

And do -- do you --

Let me ask

Sitting here today --

16

A.

Uh-huh.

17

Q.

-- do you have any understanding as to

18

whether Factors 1, 2, 3, and 4 are each to be given

19

equal weight in the fair use analysis?
A.

20

That feels a little bit like an unfair

21

question, because I don't put --

I don't assign

22

chapters from books anymore that -- unless I require

23

students to buy them, so it's been a really long time

24

since I've studied the fair use checklist, so I don't

25

know.
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Daphne Greenberg, Ph.D.

April 21, 2011
45

I mean, if you want me to study, you know,

1
2

this stuff now, I can tell you what I think.

3

Q.

Okay.

4

A.

But I just don't remember.
MR. BLOOM:

5

Okay.

Well, recognizing that

6

my question invited it, I'm going to move to

7

strike the answer to the -- prior answer to the

8

extent it addresses your current practice, which

9

is not something I'm faulting you for.
THE WITNESS:

10
11
12

Q.

(By Mr. Bloom)

Okay.
But let's --

Let's cast

your mind back --

13

A.

Okay.

14

Q.

-- to the fall of 2009.

15

Do you recall if

at the time --

16

A.

Uh-huh.

17

Q.

-- you had an understanding as to whether

18

each of the Factors 1 through 4 was to be weighed

19

equally?

20

A.

I really don't remember.

21

Q.

Okay.

That's fine.

Referring you to your curriculum vitae --

22
23

A.

Okay.

24

Q.

-- it's Exhibit 5.

25

You note that

beginning on Page 10, there's a list of what is
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Daphne Greenberg, Ph.D.

April 21, 2011
46

1

called refereed journal articles.

2

A.

Yes, sir.

3

Q.

Can you explain what a refereed journal

4

article is.
A.

5

Sure.

It's an article that's published in

6

a journal; and in order to be accepted into the

7

journal, blind reviewers review the -- the

8

manuscript.

I don't know who's reviewing the

9

manuscript.

They don't know who's written the

10

manuscript.
And then based on their reviews, it either

11
12

gets accepted; or you have to make changes; or it

13

gets rejected for publication.
Q.

14

Okay.

And why is it that you list these

15

articles as a sort of separate category on the -- on

16

your curriculum vitae?
A.

17

Because that's what we do in academia.

18

guess it's also for promotion and tenure purposes.

19

It --

I

It served, I guess, many different purposes.
But having a journal article that has been

20
21

refereed is considered higher status, higher

22

scientific value than an article that is not, so

23

you're expected to differentiate the types of

24

publications you have.

25

Q.

All right.

And how -- how does the
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Daphne Greenberg, Ph.D.

April 21, 2011
47

1

referee -- refereeing process work?

Is that

2

something that is organized by the publisher of the

3

journal --

4

A.

I believe --

5

Q.

-- if you know?

6

A.

-- it's the editor; and -- and what the

7

interaction is between editor and publisher, I do not

8

know.

9

Q.

Okay.

And so is a refereed journal

10

article considered a -- an important credential for

11

the academic promotion process?

12

A.

Yes.

13

Q.

Okay.

14

A.

I have published chapters, two chapters in

And have you published books?

15

two different books, but I have not edited or

16

published a whole book.

17

Q.

Okay.

18

A.

They're on Page 13, the top of Page 13.

19

Q.

Okay.

20
21
22

25

Were those refereed,

those chapters?
A.

The first one, "Tales from the field," was

invited.
The second one, I do not know.

23
24

And were --

It's a

long time ago.
Q.

Okay.
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Daphne Greenberg, Ph.D.

April 21, 2011
48

1

A.

I was still a student.

2

Q.

Okay.

And have you ever published a --

3

either a journal article or a book chapter where the

4

publisher played a role in helping you shape the

5

content of the --

6

A.

No.

7

Q.

-- article?

8
9
10
11

Okay.

With respect to these book

chapters, did you -- did you sign a -- a contract
with the publisher?
A.

Wow.

The second one, I was still a

12

student.

13

coauthor, so my guess is probably not.

14

first author did it.

15

I do not remember.

I was a second
Probably the

The first one, I vaguely remember signing

16

something, but I don't know if that was with the

17

editor or the publisher or what it was.

18
19

Q.

Okay.

Okay.

So do you endeavor to

publish regularly in your field of expertise?

20

A.

Yes.

21

Q.

Okay.

22

A.

I guess for two reasons.

Why is that?
One is that

23

that's the only way to move the field forward is by

24

getting your work out there, and then from the

25

selfish reason I need it for my job.
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Daphne Greenberg, Ph.D.

April 21, 2011
49

1

Q.

Okay.

Why do you need it for your job?

2

A.

Because that's --

I -- I guess I don't

3

strictly need it at this point; but that's how you're

4

valued on your job, by what you produce.

5
6
7
8
9
10
11

Q.

Okay.

How important are publications

in -- in the tenure evaluation process at GSU?
A.

Refereed article publications are

important.
Q.

Okay.

And what about --

What about

books?
A.

I --

I do not know for a fact, but my

12

understanding is that books are given lower currency

13

than articles.

14
15
16

Q.

And --

And do you have an understanding

as to why that is the case?
A.

Because they don't go through as -- the

17

more -- as more of a -- as much of a vigorous

18

refereeing process as articles do --

19

Q.

Okay.

20

A.

-- or as refereed articles do.

21

There

isn't that blind review.

22

Q.

Okay.

23

A.

But I could be wrong.

24
25

involved.
Q.

I've never been

That's what I mean.
Yeah.

I was just going to ask you.
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Daphne Greenberg, Ph.D.

April 21, 2011
50

1

Have you -- have you ever served as a referee for --

2

A.

Oh, yeah.

3

Q.

-- someone else's scholarly work?

4

A.

Yes.

5

Q.

Okay.

6

A.

Oh, for articles.

7

Q.

For articles.

8

A.

No.

9

Q.

Okay.

10

But never for a book.

And who asked you to participate as

a referee with respect to the -- let's just -A.

11

It really varies.

You know, for instance,

12

a -- a journal will -- will not specialize, let's

13

say, in adult literacy, which is my area of

14

expertise; and all of a sudden, someone submits an

15

article -- a manuscript for possible publication in

16

their journal on adult literacy.
So they know of my name; and they'll

17
18

contact me, asking me if I can review this one

19

manuscript.

20

In other situations I'm actually on their

21

editorial board, so I routinely get manuscripts from

22

them.

23
24
25

Q.

Okay.

Going back for a moment to course

packs -A.

Uh-huh.
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Daphne Greenberg, Ph.D.

April 21, 2011
51

1

Q.

-- just a couple of questions.

Comparing

2

a course pack to a reading on Ereserve from the

3

student's perspective, can you identify any -- any

4

differences between the two types of reading

5

materials?

6
7

A.

10
11

Well, that's probably

because I was never a student that had access to -When I was a student, things were not

8
9

I don't know.

electronic yet, so yeah.
Q.

But I mean other -- other than the fact

that one is paper and one is --

12

A.

Yeah.

13

Q.

-- digital, are -- can you identify any

14

distinction?

15

A.

No.

16

Q.

Were you asked to collect any documents in

17

collect -- in connection with this litigation?

18

A.

No.

19

Q.

Okay.

20

Did you provide any documents to

counsel in connection with this litigation?

21

A.

Just my vitae (indicating).

22

Q.

Okay.

23

A.

Oh, yes.

How about the fair use checklist?
This was awhile ago, though.

24

don't --

25

I

I don't remember when but -- so I'm

guessing it was with this case.
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Daphne Greenberg, Ph.D.

April 21, 2011
52

But yeah.

1

At some point I got an e-mail

2

from -- from I think one of the GSU lawyers asking me

3

for my fair use checklists of some --

4

Q.

Okay.

5

A.

-- year or something.

6

Q.

Okay.

7
8
9

And what, if anything, did you do

to prepare for this deposition?
A.

Look up when I first started at GSU,

because I never remember.

10

Q.

Okay.

11

A.

But that's it.
Oh.

12
13
14
15
16

(indicating).
Q.

And I met --

I met with him

Last week.

Okay.

And did you look at any documents

with John?
A.

Oh, with John, yes.

He showed me my

17

syllabus, and he showed me the fair use checklist,

18

and he showed me the two readings.

19

Q.

Okay.

I don't want you to tell me

20

anything that the two of you discussed.

21

I'm not

asking for that.

22

A.

Oh, okay.

23

Q.

Did you speak to anyone other than --

24
25

other than John about this deposition?
A.

I -- I did speak to -- I -- I think
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Daphne Greenberg, Ph.D.

April 21, 2011
53

1

they're called GSU lawyers in terms of practicalities

2

like scheduling and stuff like that.

3

Q.

4

else --

5

A.

Okay.

6

Q.

-- any substance of what you talked about

7

And I don't want to know anything

with them either.
Have you read anything about this case in

8
9

Okay.

the press or the blogosphere?

10

A.

No.

11

Q.

Okay.

12

Did you ever ask for help from

anyone in completing a fair use checklist?
A.

13

I don't have specific examples, but I

14

would have --

I do remember talking to librarian

15

staff, whether it was for this particular class or

16

not.
But there -- there would sometimes be

17
18

occasions where that -- where I would get to some

19

item, and I wouldn't know how to fill it out, and I

20

would call and ask for help.

21
22

Q.

Okay.

recollection of -- of any of those conversations?

23

A.

No.

24

Q.

Okay.

25

And do you have any specific

I just know that I had them.
Do you recall who specifically you

spoke to?
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April 21, 2011
54

1
2

A.

Whoever was assigned to help me, 'cause I

don't remember who --

3

Q.

It was --

4

A.

-- it was.

5

Q.

-- someone in the library --

6

A.

Yes.

7

Q.

-- correct?

8

A.

I believe so.

9

Q.

Okay.

10

A.

Or it might have been somebody in the

11

legal department.

I --

I don't remember.

12

Q.

You don't recall?

13

A.

It would be one of those two.

14

Q.

Okay.

15

A.

Or maybe both.

16

Q.

Okay.

And is it your testimony that you

17

had a question about a specific item on the

18

checklist?

19

A.

No.

My testimony is that I remember

20

having questions, but I don't remember what they

21

were, and I remember seeking help about --

22

Q.

Okay.

23

A.

-- about them.

24

Q.

And do you remember getting the help that

25

you were seeking?
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Daphne Greenberg, Ph.D.

April 21, 2011
55

1

A.

MR. BLOOM:

2
3

Okay.

Go off the record for a

minute.
THE VIDEOGRAPHER:

4
5

Yes.

2:37 p.m.

Off the

record.

6

(Discussion ensued off the record.)

7

THE VIDEOGRAPHER:

8

Q.

Back on the

record.

9

2:39 p.m.

(By Mr. Bloom)

Okay.

Professor

10

Greenberg, if I could direct your attention back to

11

fair use checklist --

12

A.

Uh-huh.

13

Q.

-- on the second page, Factor -- Factor 4,

14

on the right-hand side, the second box is "Licensing

15

or permission reasonably available."
Do you see that?

16
17

A.

Uh-huh.

18

Q.

And you didn't check that, correct?

19

A.

Uh-huh.

20

Q.

Can you tell me why not?

21

A.

I don't remember.

22

Q.

Okay.

23

Do -- do you have --

Strike that.

Do you recall whether you investigated

24

whether licensing or permission was reasonably

25

available for use of portions of -- of this text?
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Daphne Greenberg, Ph.D.

April 21, 2011
56

1

A.

I don't remember.

2

Q.

Okay.

I'm sorry.

And you concluded that use of these

3

excerpts would not have a significant effect on the

4

market or potential market for the copyrighted work,

5

correct?

6

A.

Yes, sir.

7

Q.

Okay.

8
9

And can you just explain to me what

your thinking was on that factor.
A.

I thought that two chapters or 30-some-odd

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pages from such a big book would not impact the

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selling of the book in -- in any kind of major way.

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Q.

Okay.

And in evaluating that subfactor,

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did you take into consideration the market for the --

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the licensing of excerpts from the book?

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A.

I do not know.

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Q.

Okay.

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A.

No.

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You don't recall doing so?
I don't --

I don't remember one way

or the other.
MR. BLOOM:

Okay.

I have no further

questions.

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MR. HARBIN:

All right.

Thank you, ma'am.

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I don't have anything else.

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THE VIDEOGRAPHER:

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MR. HARBIN:

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THE WITNESS:

This --

You're done.
Cool.
Toll Free: 877.495.0777
Facsimile: 404.495.0766
2700 Centennial Tower
101 Marietta Street
Atlanta, GA 30303
www.esquiresolutions.com

Daphne Greenberg, Ph.D.

April 21, 2011
57

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THE VIDEOGRAPHER:

This concludes the

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videotape deposition of Professor Daphne

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Greenberg, April 21, 2011, 2:42 p.m.

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the record.

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We're off

(Whereupon, the deposition was concluded
at 2:43 p.m.)
(Pursuant to Rule 30(e) of the Federal

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Rules of Civil Procedure and/or O.C.G.A.

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9-11-30(e), neither a party nor the deponent

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having requested right of review of the

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deposition, the reading and signing of the

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deposition is waived.)

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Toll Free: 877.495.0777
Facsimile: 404.495.0766
2700 Centennial Tower
101 Marietta Street
Atlanta, GA 30303
www.esquiresolutions.com

Daphne Greenberg, Ph.D.

April 21, 2011
58

C E R T I F I C A T E

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STATE OF GEORGIA:

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COUNTY OF FULTON:

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I hereby certify that the foregoing

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transcript was taken down, as stated in the

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caption, and the questions and answers thereto

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were reduced to typewriting under my direction;

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that the foregoing pages 1 through 57 represent

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a true, complete, and correct transcript of the

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evidence given upon said hearing, and I further

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certify that I am not of kin or counsel to the

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parties in the case; am not in the regular

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employ of counsel for any of said parties; nor

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am I in anywise interested in the result of said

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case.

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This, the 25th day of April, 2011.

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S. JULIE FRIEDMAN, CCR-B-1476

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Toll Free: 877.495.0777
Facsimile: 404.495.0766
2700 Centennial Tower
101 Marietta Street
Atlanta, GA 30303
www.esquiresolutions.com

Daphne Greenberg, Ph.D.

April 21, 2011
59

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COURT REPORTER DISCLOSURE
Pursuant to Article 10.B of the Rules and
Regulations of the Board of Court Reporting of the
Judicial Council of Georgia which states: "Each court
reporter shall tender a disclosure form at the time
of the taking of the deposition stating the
arrangements made for the reporting services of the
certified court reporter, by the certified court
reporter, the court reporter's employer or the
referral source for the deposition, with any party to
the litigation, counsel to the parties, or other
entity. Such form shall be attached to the
deposition transcript," I make the following
disclosure:
I am a Georgia Certified Court Reporter. I am
here as a representative of Esquire Deposition
Solutions. Esquire Deposition Solutions was contacted
to provide court reporting services for the
deposition. Esquire Deposition Solutions will not be
taking this deposition under any contract that is
prohibited by O.C.G.A. 9-11-28(c).
Esquire Deposition Solutions has no
contract/agreement 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.
Esquire Deposition Solutions 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.

S. Julie Friedman, CCR-1476

Toll Free: 877.495.0777
Facsimile: 404.495.0766
2700 Centennial Tower
101 Marietta Street
Atlanta, GA 30303
www.esquiresolutions.com