Cambridge University Press et al v. Patton et al

Filing 432

RESPONSE re 426 Plaintiffs' Memorandum of Law in Support of Their Post-Trial Proposed Declaratory Judgment and Permanent Injunction filed by J. L. Albert, C. Dean Alford, Mark P. Becker, Kenneth R. Bernard, Jr, James A. Bishop, Hugh A. Carter, Jr, William H. Cleveland, Frederick E. Cooper, Larry R. Ellis, Rutledge A. Griffin, Jr, Robert F. Hatcher, Ronald Henry, C. Thomas Hopkins, Jr, Charlene Hurt, Felton Jenkins, W. Mansfield Jennings, Jr, James R. Jolly, Donald M. Leebern, Jr, Eldridge McMillan, William NeSmith, Jr, Risa Palm, Carl V. Patton, 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, Allan Vigil, Larry Walker, Philip A. Wilheit, Sr. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Askew, Anthony) Modified on 6/21/2012 in order to update docket text (anc).

EXHIBIT C

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

CAMBRIDGE UNIVERSITY PRESS;
OXFORD UNIVERSITY PRESS, INC.;
SAGE PUBLICATIONS, INC.,
Plaintiffs
v.
MARK P. BECKER, in his official
capacity as President of Georgia State
University, et al.
Defendants

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

[PROPOSED] DECLARATORY JUDGMENT
1.

The Court hereby Declares that as discussed in detail in the Court’s

May 11, 2012 Order, a Copyright Policy that considers the below enumerated
guidelines will limit the University System of Georgia’s use of Plaintiffs’ works
(1) “to decidedly small excerpts,” (2) proscribe the use of multiple chapters from
the same book, and (3) “provide sufficient guidance in determining the ‘actual or
potential effect on the market or the value of the copyrighted work’” as required by
the May 11, 2012 Order:
Factor 1: Purpose and Character of the Use

When the use is for teaching or scholarship, this factor will favor fair
use. Activities that are truly confined to a university in support of
nonprofit education favor fair use. Uses that are "transformative" also
favor fair use.
Factor 2: Nature of the Copyrighted Work
When the use is of excerpts that are informational and educational in
nature and not fictional, as opposed to fiction and other highly
creative works, including novels, short stories, poetry, and modern art
images, this factor will favor fair use.
Factor 3: Amount of the Work Used
When the amount used is “decidedly small,” this factor will favor fair
use. An excerpt may be considered to be “decidedly small” according
to the following guidelines:
A.

B.
C.

D.
E.

The excerpt is made and/or distributed by the faculty,
without charge, for teaching (including multiple copies
for classroom use) or scholarship or other educational
purpose; and
The excerpt is to be used for a non commercial, nonprofit
educational use; and
The excerpt fulfills a demonstrated legitimate purpose in
the course curriculum and is narrowly-tailored to
accomplish that purpose; and
The excerpt does not constitute the “heart of the work”;
and
The excerpt constitutes a decidedly small portion of the
work in accordance with the following criteria:
1. If the excerpt is from a work that is not divided
into chapters or contains fewer than ten chapters,
the excerpt does not exceed ten (10) percent of the
pages in the work as a whole; or

2. If the excerpt is from a work that contains ten or
more chapters, the excerpt does not exceed one (1)
chapter; or
F. If, after consulting the copyright owner (often the
publisher) or its authorized agent (such as the Copyright
Clearance Center), it is determined that the excerpt is not
readily available for digital academic use at a reasonable
price; and
G. The excerpt may be accessed only by students currently
enrolled in the relevant course only during the academic
term in which the course is offered; and
H. A notice is provided with the excerpt to remind students
of the limitations of the copyright laws and to prohibit
the distribution of the excerpt to others.
Factor 4: Effect on the Value of or Market for the Work
This factor will weigh against fair use if a digital excerpt license is
readily available from, for example, the publisher (or an agent of the
publisher, such as the Copyright Clearance Center) at a reasonable
price for academic use; the absence of such a digital excerpt license
weighs in favor of fair use.

SO ORDERED this ____ day of ____, 2012.

_____________________________
Hon. Orinda D. Evans
United States District Judge