No Rehearing in Georgia State ‘Coursepack' Case Means SCOTUS May Be Next Stop

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By Anandashankar Mazumdar

Jan. 6 — Parties to a dispute over whether a university library's “e-coursepack” system infringes the copyright interests of academic publishers might soon look to the U.S. Supreme Court for resolution, after the U.S. Court of Appeals for the Eleventh Circuit Jan. 2 refused to rehear the case en banc.

Denying a petition for rehearing and a petition for rehearing en banc, the appeals court left intact its October ruling that criticized a federal district court's application of the fair use factors set forth in the Copyright Act of 1976 but left unchanged the essential structure of the court's analysis, a position disadvantageous to the publishers.

According to the appeals court's per curiam order, no active service circuit judge on the Eleventh Circuit bench had requested that all the judges be polled on the question of a rehearing en banc.

Dispute Over E-Reserve System

The dispute began in 2008 with the filing of a claim by three academic publishers: Oxford University Press, Cambridge University Press and Sage Publications Inc.

The publishers brought a claim against several individuals serving in offices of responsibility at Georgia State University, Atlanta.

The publishers alleged that the university was complicit in the violation of the publisher's rights under the Copyright Act by providing students with access to the university's computer system and to the Internet, which were being used to gain access to allegedly infringing copies of their works.

Following a bench trial, the U.S. District Court for the Northern District of Georgia determined that at as matter of law, the vast majority of the allegedly infringing acts were protected under the fair use doctrine, 17 U.S.C. §107 .

On appeal, the Eleventh Circuit criticized the district court for giving all four factors equal weight in determining whether the uses in question were fair.

The appeals court also rejected the district court's presumption that the use of only 10 percent or one chapter of a work would be acceptable without authorization.

The district court's ruling was vacated and remanded for re-application of the fair use test. However, the essential structure of the district court's analysis was left unmolested.

Market Harm Issue Preserved

Significantly, left untouched was the general proposition that if a publisher has not yet made it easy for students to purchase licenses to electronic excerpts from works, that the university's unauthorized provision of such services were not interfering with the publishers' market interests.

The regular request for rehearing was denied in a per curiam ruling by a three-judge panel comprising Judge Gerald B. Tjoflat, Judge Stanley Marcus, and Judge C. Roger Vinson.

Vinson had concurred with the original panel ruling, but said that he would have concluded that overall, the university's use of the academic works was not fair.

To contact the reporter on this story: Anandashankar Mazumdar in Washington at amazumdar@bna.com

To contact the editor responsible for this story: Tom P. Taylor at ttaylor@bna.com

Full text at http://www.bloomberglaw.com/public/document/Cambridge_University_Press_et_al_v_JL_Albert_et_al_Docket_No_1214/2.