Duke University’s Kevin Smith, one of the “go to” people for analysis and comment on scholarly communication/copyright issues, has posted an analysis of last Friday’s (January 2, 2014) rejection by the 11th Circuit Court of Appeals of a petition filed by the publishers to rehear the case en banc.
The publishers were very unhappy with this decision [see “Appellate Court Reverses District Court Judgment in Publishers v. Georgia State U. Fair Use Case” (11/17/2014], even though it gave them the outcome they desired in the specific conflict. They are looking for a radical realignment of fair use; the actual case is relatively unimportant, I think, compared to this desire to change the landscape so that many more licenses for educational institutions would be required. So they asked the entire 11th Circuit to rehear the case (en banc) instead of letting the decision of the usual three judge panel stand. Their petition for rehearing is a wish list of the principles they would like to have govern copyright in academia, which, of course, all point to paying those publishers more money.
On Friday the 11th Circuit rejected this petition for an en banc rehearing, as well as the petition for rehearing filed by GSU. The Court did not comment on the rejection; they simply denied both petitions, thus leaving the opinion of the Appellate panel as the Court’s final word on the case.
For libraries, this means we are still in the uncertain and murky position I describe back in October.