UPDATED POST: Analysis and Commentary by Krista Cox, Director of Public Policy Initiatives at ARL: Eleventh Circuit Reverses and Remands Georgia State E-Reserves Case (Again)
For a second time, publishers have won an appeal in the long-running Georgia State University (GSU) e-reserves lawsuit. However, the case was once again remanded to the district court, giving district court judge Orinda Evans yet another crack at deciding the case.
In a concise 25-page decision filed late on October 19, a three-judge panel of the 11th Circuit Court of Appeals unanimously vacated Evans’ latest decision in part, and upheld it in part, and once again sent the case back to her with instructions for weighing what would be her third verdict. The appeals court also threw out the award of attorneys fees against the publishers, pending the outcome of the Evan’s third remand decision.
The case now heads back to Evans with instructions that will almost guarantee she returns with more infringement findings in her third opinion.
“The district court must reinstate its earlier findings that factor four strongly disfavors fair use for 31 of the 48 excerpts,” the opinion states. “The district court must eschew a quantitative approach to the weighing and balancing of the fair-use factors and give each excerpt the holistic, qualitative, and individual analysis that the Act demands. And the district court must omit any consideration of price from its analysis of the third factor.”
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