Cambridge University Press et al v. Patton et al

Filing 384

RESPONSE to 361 Plaintiffs' Revised List of Works at Issue filed by J. L. Albert, Mark P. Becker, Kenneth R. Bernard, Jr, Larry R. Ellis, Rutledge A. Griffin, Jr, Robert F. Hatcher, C. Thomas Hopkins, Jr, W. Mansfield Jennings, Jr, James R. Jolly, Donald M. Leebern, Jr, William NeSmith, Jr, Risa Palm, Doreen Stiles Poitevint, Willis J. Potts, Jr, Neil L. Pruitt, Jr, Wanda Yancey Rodwell, Nancy Seamans, Kessel Stelling, Jr, Benjamin J. Tarbutton, III, Richard L. Tucker, Larry Walker, Philip A. Wilheit, Sr. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Bates, Mary) Modified on 6/8/2011 in order to update docket text (ank).

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

CAMBRIDGE UNIVERSITY PRESS,
et al.,
Plaintiffs,

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

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

DEFENDANTS’ SUBMISSION IN RESPONSE TO
PLAINTIFFS’ REVISED LIST OF WORKS AT ISSUE

During the trial, Plaintiffs filed their reduced list of the number of works at
issue and a summary what Plaintiffs contend are the relevant facts about those
remaining works. (Plaintiffs now claim 75 acts of infringement over the three
relevant semesters in 2009, by 23 professors concerning 64 works.)
This Submission by Defendants is to respond to Plaintiffs’ revised listing
and to summarize Defendants’ contentions as to the remaining works -- in addition
to Defendants’ contention that the professors’ actual or alleged uses of the works at
issue constituted fair uses.

(Defendants refer to the “actual or alleged”

infringements because, while Plaintiffs have cut the number of alleged
infringements, Plaintiffs are still over-stating the number of alleged uses, in light of
the evidence adduced at trial.

For example, Plaintiffs are still claiming

infringement by Professor Murphy as to seven works, even though Professor
Murphy required students to purchase two of the books and did not use the other
five excerpts in class; he merely apprised the students that the remaining excerpts
were available on ERes. Similarly, Plaintiffs still claim that Professor Kaufmann
used a work that she did not use.)
Attached as Exhibits “A,” “B,” and “C” are lists reflecting, by semester, the
reduced number of works about which Plaintiffs presently complain, including the
title of the work, the publisher, the total numbers of chapters and pages, the
number of chapters and pages allegedly used, and Plaintiffs’ and Defendants’
respective contentions as to the amounts (in terms of percentages) used.

In

addition, the list identifies instances in which a significant number of the excerpt
pages at issue are plainly not protectable under copyright law, either because the
pages contain public domain material or the publisher has specifically stated the
pages can be copied for classroom use, and calculates the percentage used net of
the pages that are plainly not protectable.

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Finally, the lists in Exhibits “A,” “B,” and “C” set forth the contentions by
Defendants as to each excerpt (in addition to the contention that the actual or
claimed use of the excerpt was fair use). In addition to indentifying the excerpt
pages that plainly constitute unprotectable matter, the list summarizes the lack of
proof of ownership regarding the works as to which ownership is still an issue.
Additionally, the list identifies the works as to which Defendants contend Plaintiffs
are not entitled to any presumptions, such as a presumption of originality, either
because of the status of the work as a foreign work or because Plaintiffs did not
register the work until more than five years after first publication.
Respectfully submitted this 7th day of June, 2011.
SAMUEL S. OLENS
Georgia Bar No. 551540
Attorney General
R. O. LERER
Georgia Bar No. 446962
Deputy Attorney General
DENISE E. WHITING-PACK
Georgia Bar No. 558559
Senior Assistant Attorney General
MARY JO VOLKERT
Georgia Bar No. 728755
Assistant Attorney General

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/s/ Mary Katherine Bates
Mary Katherine Bates
Georgia Bar No. 384052
John W. Harbin
Georgia Bar No. 324130
Stephen M. Schaetzel
Georgia Bar No. 628653
KING & SPALDING LLP
1180 Peachtree Street, N.E.
Atlanta, GA 30309
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Anthony B. Askew
Special Assistant Attorney General
Georgia Bar No. 025300
McKeon, Meunier, Carlin & Curfman, LLC
817 W. Peachtree Street NW, Suite 900
Atlanta, GA 30308
Phone: [phone]
Fax: [phone]
[e-mail]
Katrina M. Quicker
Georgia Bar No. 590859
BALLARD SPAHR LLP
999 Peachtree Street, Suite 1000
Atlanta, GA 30309-3915
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorneys for Defendants

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CERTIFICATE OF COMPLIANCE
Pursuant to Rule 7.1D of the Local Rules of the Northern District of
Georgia, counsel for Defendants certifies that the foregoing DEFENDANTS’
SUBMISSION IN RESPONSE TO PLAINTIFFS’ REVISED LIST OF
WORKS AT ISSUE was prepared in a font and point selection approved by this
Court and authorized in Local Rule 5.1C.

/s/ Mary Katherine Bates
Mary Katherine Bates

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

CAMBRIDGE UNIVERSITY PRESS,
et al,
Plaintiffs,

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

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

CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this 7th day of June, 2011, I have
electronically

filed

the

foregoing

DEFENDANTS’

SUBMISSION

IN

RESPONSE TO PLAINTIFFS’ REVISED LIST OF WORKS AT ISSUE with
the Clerk of the Court using the CM/ECF system, which will automatically send email notification of such filing to the following attorneys of record:

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

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

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

/s/ Mary Katherine Bates
Mary Katherine Bates
Georgia Bar No. 384052
KING & SPALDING LLP
1180 Peachtree Street, N.E.
Atlanta, GA 30309
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

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