Cambridge University Press et al v. Patton et al

Filing 335

NOTICE Of Filing Discovery Responses by Cambridge University Press, Oxford University Press, Inc., Sage Publications, Inc. (Attachments: # 1 Exhibit Defendants' Amended And Supplemental Responses to Plaintiffs' First Set Of Interrogatories To Defendants)(Rains, John)

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

CAMBRIDGE UNIVERSITY PRESS,
et al.,
Plaintiffs,

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

-vs.MARK P. BECKER, in his official
capacity as Georgia State University
President, et al.,
Defendants.
DEFENDANTS’ AMENDED AND SUPPLEMENTAL RESPONSES TO
PLAINTIFFS’ FIRST SET OF INTERROGATORIES TO DEFENDANTS
Defendants MARK P. BECKER, in his official capacity as Georgia State
University President, RON HENRY, in his official capacity as Georgia State
University Provost, NANCY SEAMANS, in her official capacity as Georgia State
University Dean of Libraries, J.L. ALBERT, in his official capacity as Georgia
State University Associate Provost for Information Systems and Technology,
(collectively, “University Administrators”), KENNETH R. BERNARD, JR., in his
official capacity as member of the Board of Regents of the University System of
Georgia, JAMES A. BISHOP, in his official capacity as member of the Board of
Regents of the University System of Georgia, HUGH A. CARTER, JR., in his

official capacity as member of the Board of Regents of the University System of
Georgia, WILLIAM H. CLEVELAND, in his official capacity as member of the
Board of Regents of the University System of Georgia, ROBERT F. HATCHER,
in his official capacity as Vice Chair of the Board of Regents of the University
System of Georgia, FELTON JENKINS, in his official capacity as member of the
Board of Regents of the University System of Georgia, W. MANSFIELD
JENNINGS, JR., in his official capacity as member of the Board of Regents of the
University System of Georgia, JAMES R. JOLLY, in his official capacity as
member of the Board of Regents of the University System of Georgia, DONALD
M. LEEBURN, JR., in his official capacity as member of the Board of Regents of
the University System of Georgia, ELRIDGE MCMILLAN, in his official capacity
as member of the Board of Regents of the University System of Georgia,
WILLIAM NESMITH, JR., in his official capacity as member of the Board of
Regents of the University System of Georgia, DOREEN STILE POITEVINT, in
her official capacity as member of the Board of Regents of the University System
of Georgia, WILLIS J. POTTS, JR., in his official capacity as member of the
Board of Regents of the University System of Georgia, WANDA YANCEY
RODWELL, in her official capacity as member of the Board of Regents of the
University System of Georgia, KESSEL STELLING, JR., in his official capacity

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as member of the Board of Regents of the University System of Georgia,
BENJAMIN J. TARBUTTON, III, in his official capacity as member of the Board
of Regents of the University System of Georgia, RICHARD L. TUCKER, in his
official capacity as Chair of the Board of Regents of the University System of
Georgia, and ALLAN VIGIL, in his official capacity as member of the Board of
Regents of the University System of Georgia (“Board Members”) (collectively,
“Defendants”),and only in said capacities, respond and object to Plaintiff’s First
Set of Interrogatories to Defendants (“First Set of Interrogatories”) as follows:
GENERAL OBJECTIONS
1.

Defendants object to the First Set of Interrogatories to the extent they

call for disclosure of information which reflect or constitute in full or in part
privileged communications between attorney and client. (“Privilege Objection”).
2.

Defendants object to the First Set of Interrogatories to the extent they

call for identification of documents which have been prepared either in anticipation
of litigation or for hearing or trial, or which constitute the mental impressions,
conclusions, opinions, or legal theories of counsel for Defendants. (“Work Product
Objection”).
3.

Defendants object to the First Set of Interrogatories to the extent they

call for (a) information which is not within the applicable scope of discovery in
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this action, or (b) information which is not relevant to the subject matter of this
action and are not reasonably calculated to lead to discovery of admissible
evidence. Defendants further objects to the First Set of Interrogatories to the
extent they call for information which is not within the possession, custody, or
control of Defendants or are equally so available to Defendants and Plaintiffs.
(“Scope Objection”).
4.

Defendants object to the First Set of Interrogatories to the extent that

they are overly broad or overly inclusive or call for extensive research,
investigation, information, or identification of information which would subject
Defendants to annoyance, embarrassment, oppression, or undue burden or expense.
(“Burden Objection”).
5.

Defendants object to the First Set of Interrogatories to the extent that

they are vague, indefinite, uncertain, or ambiguous and cannot be reasonably
answered. (“Vague Objection”).
6.

Defendants’ response to the First Set of Interrogatories is not a waiver

of their objections or their right to object to any additional, supplemental, or further
request, or any part thereof.

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7.

Defendants’ response to Plaintiffs’ First Set of Interrogatories is

hereby made without waiving or intending to waive, but rather, preserving and
intending to preserve:
(a)

All questions as to the competence, relevance, materiality, and

admissibility as evidence for any purpose of the information, in any aspect
of this action or any other action or judicial or administrative proceeding or
investigation;
(b)

The right to object on any ground to the use of any such information

in any aspect of this action or any other action or judicial or administrative
proceeding or investigation;
(c)

The right to object at any time for any further response to this or any

other request for information; and
(d)

The right at any time to supplement this response.

8.

Defendants have conducted a reasonable search for information

responsive to these interrogatories by searching in those locations where
responsive information is reasonably believed or expected to be located. To the
extent that the Plaintiffs seek Defendants to take further action in responding to
these interrogatories, Defendants object to Plaintiffs’ First Set of Interrogatories as
subjecting Defendants to annoyance, oppression or undue burden or expense

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because such interrogatories are overly broad or overly inclusive or call for
extensive research, investigation, information or identification of information.
SPECIFIC OBJECTIONS
9. Defendants object to Plaintiffs’ Instruction 1 to the extent that Instruction
1 requires Defendants to state, for any document withheld as privileged, “(a) the
name and position of each person who prepared the document or communication
and each person (if any) who signed it; (b) the name and position of each person to
whom the document or communication was directed, circulated, or distributed; (c)
the date of the document or communication; and (d) the subject matter of the
document or communication.” Defendants will identify the basis for their
privilege objections in the form of a privilege log, as contemplated in FED. R. CIV.
P. 26(B)(5), at a mutually agreeable time.
Defendants, subject to each and all of the foregoing objectives, hereby
further respond to the individually numbered interrogatories of Plaintiffs’ First Set
of Interrogatories as follows.

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RESPONSES TO INTERROGATORIES
Interrogatory No. 1:
State all facts and identify all documents that you contend support each of
the affirmative defenses in your answer, and identify/label such facts/documents
according to the affirmative defense to which they correspond.
Response: Defendants specifically object to Interrogatory No. 1 on the basis of
the Burden Objection, the Scope Objection, the Privilege Objection, and the Work
Product Objection. Interrogatory No. 1 improperly seeks a legal conclusion
regarding the determination or identification of documents that support
Defendants’ affirmative defenses. Defendants further object that Interrogatory No.
1 is a contention interrogatory which is premature at this stage in the litigation.
Defendants further object that Interrogatory No. 1 is an improper multi-part
interrogatory, which asks for facts that support the affirmative defenses in part
1(a), for documents that support the affirmative defenses in part 1(b), and to label
such facts and documents according to the affirmative defense to which they
correspond in part 1(c). Interrogatory No. 1 is also duplicative of Plaintiffs’
Request for Production of Documents No. 1 and thus represents an improper and
unduly burdensome attempt to circumvent FED. R. CIV. P. 34.

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Subject to and without waving these objections, Defendants respond as
follows:
The library at Georgia State University (“GSU”) facilitates GSU professors
in making excerpts of reading materials for particular courses available via GSU’s
electronic reserve system (“ERes”) and facilitates student access to such excerpts.
Only students who are given a specific password can access the excerpts on ERes.
The course reading material excerpts made available by the GSU library though
ERes are intended to allow students online access to such excerpts held in reserves
by the GSU library, and are not digital replacements or substitutes for textbooks or
paper “coursepacks.”
GSU also facilitates professors in making digitized course information
available via uLearn (Blackboard/WebCT Vista), course web pages and faculty
web pages. Such electronic course management tools may provide syllabi, reading
materials, and other course-related information. Only students who are given a
specific password and are registered for an affected course can access the
information for such course on uLearn. Course web pages and faculty web pages
may or may not be password-protected. Course reading material available via
uLearn, course web pages, or faculty web pages, if any, is intended to allow

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students online access to such material and is a not digital replacement or substitute
for textbooks or paper “coursepacks.”
GSU also facilitates the provision of individual GSU college or school
departmental web pages. Such web pages provide information related to the
particular department, including information pertaining to faculty and courses.
Defendants do not believe that course reading material is intended to be made
available or is made available via departmental web pages.
On February 17, 2009, the University System of Georgia (“USG”) adopted a

new policy on copyright, which is publicly available at www.usg.edu/copyright.
The new policy -- which was developed after several months of research into
existing practices and policies of various universities -- was intended to reflect not
only the current state of copyright law, but also the best practices for fair use of
copyrighted materials in the educational setting.
An important component of the new policy is a Fair Use Checklist
(“Checklist”). Based on a checklist developed by Kenneth D. Crews (Director of
the Copyright Advisory Office for Columbia University), USG’s Checklist serves
as a helpful tool to guide laypersons, including professors at GSU, through the fair
use analysis. Under each statutory fair use factor, the Checklist provides for the
professors’ consideration of circumstances that have been specifically identified by

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both Congress and the Supreme Court as relevant to a fair use determination. The
Checklist is designed to help professors carefully consider and work through the
four fair use factors and apply them to their selected excerpts. The policy requires
professors to complete the Checklist for each work that they wish to post on ERes
or other course management systems.
In addition to the explanatory material accompanying the new policy, GSU has
begun to conduct an extensive implementation campaign, including educational
efforts aimed at professors and library faculty. GSU’s Office of Legal Affairs has
conducted mandatory seminars for library personnel on the new copyright policy and
copyright law generally, and intends to continue and expand upon this educational
program. The Office of Legal Affairs has also offered and will continue to offer
copyright workshops for professors and other faculty members.
In all of the foregoing, Defendants believe and understand that the
University System of Georgia’s Policy on the Use of Copyrighted Works in
Education and Research is followed and will be followed in the future. That policy
is in part grounded upon the statutory doctrine of fair use as set forth in the
Copyright Act, 17 U.S.C. §§ 101 et seq. or permission granted by the copyright
holder. It is Defendants’ understanding that compliance with the USG copyright
policy will lead to the proper application of fair use in the educational setting.

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Defendants further respond that the following documents support
Defendants’ affirmative defense of fair use:
 The University System of Georgia’s Policy on the Use of Copyrighted
Works in Education and Research, available at
http://www.usg.edu/copyright/;
 All documents produced by Plaintiffs in this litigation, including but
not limited to documents addressing the effect, if any, on the market
for Plaintiffs’ works;
 All documents produced by Defendants in this litigation, including but
not limited to documents reflecting the amount of the work posted on
ERes, completed Checklists, and documents related to GSU’s
implementation of the new copyright policy; and
 All documents produced by Copyright Clearance Center, Inc. in
response to Defendants’ subpoena, including but not limited to
Copyright Clearance Center, Inc.’s fair use checklist and documents
addressing the effect, if any, on the market for Plaintiffs’ works.
Defendants respond that the above-stated facts and documents are the bases
for the affirmative defenses asserted by Defendants in their Answer.

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Interrogatory No. 2:
If you contend that any of the Plaintiffs gave GSU or any of the Defendants
permission to provide students access to Plaintiffs’ copyrighted works through
GSU’s library services, including its electronic library services, state all facts and
identify all documents you contend support such contention.
Response: Defendants object to Interrogatory No. 2 on the basis of the Privilege
Objection and the Work Product Objection. Interrogatory No. 2 improperly seeks
a legal conclusion regarding the determination or identification of documents that
constitute permission. Defendants further object that Interrogatory No. 2 is a
contention interrogatory which is premature at this stage in this litigation.
Defendants further object that Interrogatory No. 2 is an improper multi-part
interrogatory, which asks for facts that support Defendants’ contention that
Plaintiffs gave GSU permission to provide students access to Plaintiffs’
copyrighted works through GSU’s library services in part 1(a), and for documents
which support such contention in part 1(b).
Subject to and without waving these objections, Defendants respond that
GSU has obtained permission to provide students access to Plaintiffs’ copyrighted
works pursuant to the following licenses:

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 License for Cambridge’s Millennial Edition of the Historical Statistics
of the United States (GaState 2874 - GaState 2884);
 License for Oxford’s International Law in Domestic Courts Online
(GaState 2924 - GaState 2934);
 License for Sage Journals Online (GaState 3015 - GaState 3020);
 License to use portions of Materials Development in Language
Teaching on electronic reserves (CUP0000236).
Defendants further respond that GaState 3742 - GaState 3744, which
provides a summary of other GSU licenses, supports Defendants’ contention that
GSU was given permission to provide students access to Plaintiffs’ copyrighted
works through GSU’s library services.
Interrogatory No. 3:
Identify each and every person at GSU who participates or has participated
in any way in copying, scanning, posting, and/or transmitting Course Reading
Material on ERes or any Course Management System, and his or her job title.
(This need not include every instructor or professor that has distributed Electronic
Course Reading Material.)
Response: Defendants object to Interrogatory No. 3 on the basis of the Scope
Objection, the Burden Objection, and the Vague Objection. Based on Plaintiffs’

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broad definition of the term “transmitting,” Interrogatory No. 3 requires
Defendants to identify “each and every person who has in any way participated” in
viewing such materials in an Internet web browser window, in opening and
viewing such materials in Adobe Acrobat, in downloading such materials whether
viewed or not, and/or in printing such materials. Further, it is unclear who
Plaintiffs are carving out of the interrogatory in stating, “This need not include
every instructor or professor that has distributed Electronic Course Reading
Material.”
Subject to and without waiving these objections, Defendants respond as
follows:
Denise Dimsdale, Library Media & Reserves Coordinator, and Malia
Cargile, Library Assistant II Digital Reserves, receive requests from faculty
members to make excerpts of course reading materials (which the faculty members
have certified comply with the USG copyright policy) available via ERes, collect
the requested excerpts, and perform a secondary review of the excerpts for
compliance with the GSU copyright policy. Before January 2009, Jim Palmour,
Information Systems Specialist Lead, performed a third-level review for
compliance with the GSU copyright policy, created PDFs of the excerpts which he
determined complied with the policy, and made the PDFs available via ERes. As

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of January 2009, Jim Palmour is no longer involved in copying, scanning, posting,
and/or transmitting Course Reading Material on ERes.
Michael Tillman-Davis, Reference-Faculty Services Librarian for the
College of Law, receives requests from faculty members at the College of Law to
make excerpts available via ERes, collects the requested excerpts, and reviews the
excerpts to ensure they comply with the USG copyright policy. Once Mr. TillmanDavis determines the excerpts comply, he scans the excerpts and makes them
available via ERes. Terrance Manion, Director of Information Technology for the
College of Law, Ron Wheeler, Associate Director for Public Services for the
College of Law Library, and Pam Brannon, Law Librarian, from time to time assist
Michael Tillman-Davis in reviewing the excerpts to ensure they comply with the
USG copyright policy.
Zoe Salloom, Project Manager, has relevant knowledge regarding how
digitized course information may be made available via uLearn. J.L. Albert,
Associate Provost and CIO, Keith Campbell, Assistant Director of University
Computing and Communication Services, Carl Stucke, Assistant Professor and
Associate Chair of the Computer Information Systems Department at the Robinson
College of Business, Martin Grace, Professor of Risk Management and Insurance
in the Robinson College of Business, and Randy Jones, Director of Information

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Systems and Technology for the College of Education have relevant knowledge
regarding how digitized course information may be made available via faculty web
pages and course web pages.
Interrogatory No. 4:
Identify each and every person at GSU with responsibility for or knowledge
of the development, construction, programming, function, structure, management,
maintenance, repair, and/or monitoring of ERes or any Course Management
System for the purposes of technical operation, legal compliance, or any other
purpose, and his or her job title.
Response: Defendants object to Interrogatory No. 4 on the basis of the Scope
Objection, the Burden Objection, and the Vague Objection. The meaning of the
terms “function,” “structure,” “management,” and “monitoring” is unclear and the
phrases “or knowledge of,” “legal compliance” and “any other purpose” is
indefinite. The interrogatory, as worded, literally asks for the identification of
every faculty member, teaching assistant, administrative assistant, secretary, staff
member, and/or student with knowledge regarding the operation of ERes, ULearn,
and faculty and course web pages.
Subject to and without waiving these objections, Defendants respond that the
GSU staff with relevant knowledge include Jim Palmour, Information Systems

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Specialist Lead, Zoe Salloom, Project Manager, J.L. Albert, Associate Provost and
CIO, Laura Burtle, Associate Dean and Associate University Librarian for
Learning and Technology Initiatives, Charlene Hurt, former Dean of Libraries
(retired), Nancy Seamans, Dean of Libraries, Keith Campbell, Assistant Director
of University Computing and Communication Services, Carl Stucke, Assistant
Professor and Associate Chair of the Computer Information Systems Department
at the Robinson College of Business, Martin Grace, Professor of Risk Management
and Insurance in the Robinson College of Business Randy Jones, Director of
Information Systems and Technology for the College of Education, Terrance
Manion, Director of Information Technology for the College of Law, and Michael
Tillman-Davis, Reference-Faculty Services Librarian for the College of Law.
Interrogatory No. 5:
Identify each and every person at GSU responsible for determining whether
a license is required for the distribution of any Electronic Course Reading Material
or Course Reading Material in hard copy form and his or her job title.
Response: Defendants object to Interrogatory No. 5 on the basis of the Scope
Objection, the Burden Objection, and the Vague Objection. The phase
“responsible for determining whether a license is required” is vague and indefinite.

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The phrase “Electronic Course Reading Material ... in hard copy form” is also
vague and indefinite.
Subject to and without waiving these objections, as stated in response to
Interrogatory No. 1, Defendants believe and understand that all relevant persons at
GSU follow the USG copyright policy. Therefore, naming all such persons is
burdensome. Defendants further respond that Jim Palmour, Information Systems
Specialist Lead, is responsible for obtaining requisite licenses for materials in
coursepacks prepared by GSU IS&T and sold at the Georgia State University
Bookstore.
Interrogatory No. 6:
Identify each and every person at GSU with knowledge of the extent to
which Course Reading Material in electronic or hard copy coursepacks or
copypacks is distributed at the University. (This need not include every instructor
or professor that has distributed Electronic Course Reading Material.)
Response: Defendants object to Interrogatory No. 6 on the basis of the Scope
Objection and the Vague Objection. The meaning of the phrase “knowledge of the
extent to which Course Reading Material ... is distributed at the University” is
unclear and indefinite. Defendants further object to the terms “electronic
coursepacks” and “copypacks” as unclear and indefinite. Coursepacks are

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understood to be hard-copy excerpts assembled into a single work. Further, it is
unclear who Plaintiffs are carving out of the interrogatory in stating, “This need
not include every instructor or professor that has distributed Electronic Course
Reading Material.”
Subject to and without waiving these objections, Defendants respond that
individual professors, graduate research assistants, teaching assistants or others are
believed to have knowledge regarding access to excerpts given to students, but
only for a particular class or classes. Defendants further respond that Jim Palmour
has relevant knowledge regarding coursepacks prepared by GSU IS&T.
Interrogatory No. 7:
Identify every bookstore, copy shop, or other establishment (Kinko’s, e.g.)
that provides coursepacks or copy packs to students for use in GSU classes.
Response: Defendants object to Interrogatory No. 7 on the basis of the Scope
Objection and the Burden Objection. Defendants further object to the term “copy
packs” as unclear and indefinite. Subject to and without waiving these objections,
Defendants respond that they are aware of the following entities:
 The Print Shop / The Copy Shop
6 Decatur St.
Atlanta, Georgia
 BestWay Copy Center
18 Decatur St.
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Atlanta, Georgia
 Alpha Graphics
34 Peachtree St.
Atlanta, Georgia
 www.XanEdu.com
 www.Study.net
 Georgia State University Bookstore
(operated by Follett Educational Services)
University Bookstore Building
66 Courtland St SE
Atlanta, GA 30303
 Georgia Bookstore
124 Edgewood Ave. NE
Atlanta, GA 30303-3015
www.Gabookstore.com
Respectfully submitted this 19th day of May, 2009.
THURBERT E. BAKER
Attorney General

033887

R. O. LERER
Deputy Attorney General

446962

DENISE E. WHITING-PACK 558559
Senior Assistant Attorney General
MARY JO VOLKERT
Georgia Bar No. 728755
Assistant Attorney General

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_/s/ Kristen A. Swift___________
King & Spalding LLP
Anthony B. Askew
Georgia Bar No. 025300
Special Assistant Attorney General
Stephen M. Schaetzel
Georgia Bar No. 628653
Kristen A. Swift
Georgia Bar No. 702536

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

CAMBRIDGE UNIVERSITY PRESS,
et al,
Civil Action No.
1:08-CV-1425-ODE

Plaintiffs,
-vs.CARL V. PATTON, in his official
capacity as Georgia State University
President, et al,
Defendants.

CERTIFICATE OF SERVICE
The undersigned hereby certifies that, on this 19th day of May, 2009, the
foregoing DEFENDANTS’ AMENDED AND SUPPLEMENTAL
RESPONSES TO PLAINTIFFS’ FIRST SET OF INTERROGATORIES were
served by electronic mail -- as agreed by the parties -- on the following counsel of
record:
Edward B. Krugman
[e-mail]
Georgia Bar No. 429927
John H. Rains IV
[e-mail]
Georgia Bar No. 556052

R. Bruce Rich
Randi Singer
Todd D. Larson
WEIL, GOTSHAL & MANGES LLP
767 Fifth Avenue
New York, New York 10153

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

Telephone: [phone]
Facsimile: [phone]

__/s/Kristen A. Swift ________
Kristen A. Swift
Georgia Bar No. 702536

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