Kenneth D. Crews (June 1, 2009)2
Part I: Background of the Report
I have been retained by the law firm of King & Spalding to prepare this report inconnection with the case of Cambridge University Press v. Patton, et al., filed in theFederal District Court for the Northern District of Georgia, Civil Action No.1:08-CV-1425-ODE (hereinafter the “Current Case”).King & Spalding represents the defendants in the Current Case. The allegations againstthe defendants center on claims of copyright infringement in connection with the copyingof articles from periodicals and excerpts from books (the “Instructional Materials”) infurtherance of the teaching needs of Georgia State University (“GSU”). In particular, thedefendants are accused of making copies of the Instructional Materials and making themavailable to students, for reading in connection with the courses at GSU, through a libraryservice known as “electronic reserves” (hereinafter “E-Reserves”).Certain named officials of GSU are accused of infringing copyrights held by the plaintiffsin certain specified works. Copyright infringement, in the context of E-Reserves, mayoccur if the library, for example, makes a digital scan of the Instructional Materials andallows students to access and perhaps to download, copies of the Instructional Materialsthrough the networked E-Reserve system. Such activities are not copyright infringementif they are within fair use. Fair use is a statutorily established exception to or limitationon the rights of copyright owners. Uses that are within fair use are deemed by statute notan infringement of copyright. In response to that possibility, GSU had adopted a policyfor the use of materials, including uses on E-Reserves, and the university has revised thatstandard in light of the Current Case.This report will examine the circumstances of E-Reserves at GSU and the current state of the law of copyright as applied to E-Reserves. Any attempt to make a mere “snapshot”of current conditions would be misleading. This report will instead place these issues inthe context of the changing state of education, publishing, technology, and the law. Allof these circumstances will likely remain in steady transition. This report willdemonstrate that E-Reserves and the law of fair use today are not necessarily the same asthey have been in the recent past. One can infer that the near future will likely bringfurther change. This report will accordingly demonstrate that a flexible understanding of fair use better reflects the law and can better serve future needs.
Case 1:08-cv-01425-ODE Document 104-2 Filed 06/01/2009 Page 3 of 72