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Weil Wins Eleventh Circuit Appeal in High-Profile Copyright Fair Use Case

On October 19, 2018, Weil won a second consecutive victory before the Eleventh Circuit for clients Oxford University Press, Cambridge University Press and SAGE Publications in a high-profile copyright infringement dispute with Georgia State University involving the contours of the fair use doctrine in the academic setting – specifically, the common practice by universities of electronically distributing digital excerpts of copyrighted works.

In its unanimous opinion, the appellate court vacated in substantive part a lower court’s determination (made on remand following a prior appeal that Weil won) that a vast majority of 48 representative infringed works – originally published by Weil’s clients and distributed by GSU – were protected by fair use, and again remanded the case for renewed adjudication before the district court. Specifically, the Eleventh Circuit reversed as to 31 of the 48 works that the district court had held to be fair use, and it also vacated the lower court’s award of attorneys’ fees to GSU.

The publishers’ 2008 complaint arose from GSU’s practice of allowing faculty to use university networks and library e-reserve systems to copy and digitally distribute book excerpts to students without paying licensing fees. The university officials argued such a practice did not constitute copyright infringement because it was permitted under the fair use doctrine, and further argued that the sovereign immunity doctrine precluded GSU from copyright infringement liability.

In May 2012, following a bench trial, a Georgia federal court ruled that GSU professors had committed five out of 48 asserted copyright infringements involving four titles of the publishers and granted an injunction. After the parties filed cross-appeals, the Eleventh Circuit ruled in October 2014 that the district court had used “legally flawed methodology” in applying the fair use doctrine in its May 2012 ruling, and that GSU’s sovereign immunity doctrine argument had not been properly raised on appeal, and sent the case back to district court.

In March 2016, the district court issued a remand ruling that essentially reinstalled its prior findings, and it again awarded attorneys’ fees to the university. Weil’s clients again appealed that ruling to the Eleventh Circuit, which heard oral arguments in July 2017.

R. Bruce Rich, Co-Head of Weil’s IP/Media practice, argued the appeal. The Weil team also included partners Randi Singer and Todd Larson, counsel Jonathan Bloom, and associate Sam Zeitlin.