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Who infringed at Georgia State?

By Peter Hirtle

We have a ruling from the court over the motions for summary judgement in the lawsuit over Georgia State's ereserve program.  Kevin Smith gives an excellent analysis of the order in Going forward with Georgia State lawsuit.  The bottom line is that the court did not find Georgia State guilty of direct and vicarious copyright infringement, as the plaintiffs requested.  The only issue that will go forward is whether Georgia State contributed to the copyright infringement of others through its implementation of its 2009 policy.  (You can read more about direct  and indirect copyright infringement in Section 4.5 of Copyright and Cultural Institutions.)

As Kevin notes, there are lots of interesting legal issues discussed in the order.  What struck me most of all was the unanswered question of who actually infringed.  In order to have indirect copyright infringement, there must be a direct infringement.  The publishers seem to suggest that it was the "librarians and professors" who scanned, copied, displayed, and distributed the Plaintiffs' copyrighted works "on a widespread and continuing basis."  Under the publishers' theory, they could have sued the faculty members who made or requested the copies (and who also write the books they publish) for direct copyright infringement.

In reality, the most that professors and librarians do is make one copy available on a server.  Any distribution of these works is initiated by the students.  The court seemed to recognize this in a footnote when it observes that the plaintiff's theory of liability would actually have the students who downloaded material be the potential direct infringers.  The case may hinge, therefore, on whether students, and not faculty and librarians, are potential direct infringers.  The question would then be whether a student making a single copy of a brief work for educational purposes is a fair use.  If it is, then there is no direct infringement and there can therefore be no indirect contributory infringement. 

There was one other interesting tidbit in a note.  Apparently the Copyright Clearance Center is paying for 50% of this legal action.  It is disturbing to think that a portion of the administrative fees that libraries are paying to the CCC are being used to bring legal actions against those paying the fees.  While the CCC may claim that it is serving the interests of those who use it, that doesn't seem to be true in this case.

Full post as published by LibraryLaw Blog on October 04, 2010 (boomark / email).