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`[PUBLISH]
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`IN THE UNITED STATES COURT OF APPEALS
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`FOR THE ELEVENTH CIRCUIT
`________________________
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`Nos. 12-14676 & 12-15147
`________________________
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`D.C. Docket No. 1:08-cv-01425-ODE
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`CAMBRIDGE UNIVERSITY PRESS,
`OXFORD UNIVERSITY PRESS, INC.,
`SAGE PUBLICATIONS, INC.,
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`versus
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`CARL V. PATTON, et al.,
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`Plaintiffs - Appellants,
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`Defendants,
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`J. L. ALBERT,
`in his official capacity as Georgia State
`University Associate Provost for Information
`System and Technology,
`MARK P. BECKER,
`in his official capacity as President of Georgia State University,
`KENNETH R. BERNARD, JR.,
`in his official capacity as member of the
`Board of Regents of the University System of Georgia.,
`ROBERT F. HATCHER, in his official capacity as
`Vice Chair of the Board of Regents of the
`University System of Georgia,
`W. MANSFIELD JENNINGS, JR.,
`in his official capacity as member of the
`Board of Regents of the University System of Georgia,
`JAMES R. JOLLY,
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`Case: 12-14676 Date Filed: 10/17/2014 Page: 2 of 129
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`in his official capacity as member of the Board of Regents
`of the University System of Georgia, et al.,
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`Defendants - Appellees.
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`________________________
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`Appeals from the United States District Court
`for the Northern District of Georgia
`________________________
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`(October 17, 2014)
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`Before TJOFLAT and MARCUS, Circuit Judges, and VINSON,* District Judge.
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`TJOFLAT, Circuit Judge:
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`Three publishing houses, Cambridge University Press, Oxford University
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`Press, and Sage Publications, Inc. (collectively, “Plaintiffs”) allege that members
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`of the Board of Regents of the University System of Georgia and officials at
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`Georgia State University (“GSU”) (collectively, “Defendants”) infringed
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`Plaintiffs’ copyrights by maintaining a policy which allows GSU professors to
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`make digital copies of excerpts of Plaintiffs’ books available to students without
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`paying Plaintiffs. Plaintiffs alleged seventy-four individual instances of
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`infringement, which took place during three academic terms in 2009. The District
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`Court issued an order finding that Plaintiffs failed to establish a prima facie case of
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`* Honorable C. Roger Vinson, United States District Judge for the Northern District of
`Florida, sitting by designation.
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`Case: 12-14676 Date Filed: 10/17/2014 Page: 3 of 129
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`infringement in twenty-six instances, that the fair use defense applied in forty-three
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`instances, and that Defendants had infringed Plaintiffs’ copyrights in the remaining
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`five instances.
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`Finding that GSU’s policy caused the five instances of infringement, the
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`District Court granted declaratory and injunctive relief to Plaintiffs. Nevertheless,
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`the District Court found that Defendants were the prevailing party and awarded
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`them costs and attorneys’ fees. Because we find that the District Court’s fair use
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`analysis was in part erroneous, we reverse the District Court’s judgment; vacate the
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`injunction, declaratory relief, and award of costs and fees; and remand for further
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`proceedings consistent with this opinion.
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`I.
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`A.
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`Like many recent issues in copyright law, this is a case in which
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`technological advances have created a new, more efficient means of delivery for
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`copyrighted works, causing copyright owners and consumers to struggle to define
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`the appropriate boundaries of copyright protection in the new digital marketplace.
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`These boundaries must be drawn carefully in order to assure that copyright law
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`serves its intended purpose, which is to promote the creation of new works for the
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`public good by providing authors and other creators with an economic incentive to
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`create. See Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156, 95 S. Ct.
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`2040, 2044, 45 L. Ed. 2d 84 (1975). If copyright’s utilitarian goal is to be met, we
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`must be careful not to place overbroad restrictions on the use of copyrighted
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`works, because to do so would prevent would-be authors from effectively building
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`on the ideas of others. Some unpaid use of copyrighted materials must be allowed
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`in order to prevent copyright from functioning as a straightjacket that stifles the
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`very creative activity it seeks to foster. If we allow too much unpaid copying,
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`however, we risk extinguishing the economic incentive to create that copyright is
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`intended to provide.
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`The fair use doctrine provides a means by which a court may ascertain the
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`appropriate balance in a given case if the market actors cannot do so on their own.
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`Fair use is a defense that can excuse what would otherwise be an infringing use of
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`copyrighted material. See 17 U.S.C. § 107 (“[T]he fair use of a copyrighted
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`work . . . is not an infringement of copyright.”). To prevail on a claim of fair use, a
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`defendant must convince the court that allowing his or her unpaid use of
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`copyrighted material would be equitable and consonant with the purposes of
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`copyright. In order to make this determination, the court must carefully evaluate
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`the facts of the case at hand in light of four considerations, which are codified in
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`the Copyright Act of 1976: (1) the purpose of the allegedly infringing use, (2) the
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`nature of the original work, (3) the size and significance of the portion of the
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`original work that was copied, and (4) the effect of the allegedly infringing use on
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`the potential market for or value of the original. Id. These factors establish the
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`contours within which a court may investigate whether, in a given case, a finding
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`of fair use would serve the objectives of copyright. Here, we are called upon to
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`determine whether the unpaid copying of scholarly works by a university for use
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`by students—facilitated by the development of systems for digital delivery over the
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`Internet—should be excused under the doctrine of fair use.
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`Plaintiffs are three publishing houses that specialize in academic works.
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`Plaintiff Cambridge University Press (“Cambridge”) is the not-for-profit
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`publishing house of the University of Cambridge in England, having an American
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`branch headquartered in New York City. Plaintiff Oxford University Press, Inc.
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`(“Oxford”) is a not-for-profit United States corporation associated with Oxford
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`University in England and headquartered in New York City. Plaintiff Sage
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`Publications, Inc. (“Sage”) is a for-profit Delaware corporation, headquartered in
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`Sherman Oaks, California.
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`Plaintiffs do not publish the large, general textbooks commonly used in
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`entry-level university courses. Rather, Plaintiffs publish advanced scholarly
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`works, which might be used in upper-level undergraduate and graduate courses.
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`Cambridge and Oxford publish scholarly books and journals on niche subject
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`areas. Their works involved in this case include research-based monographs,
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`which are “small, single author books which give in-depth analysis of a narrow
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`topic,” Cambridge Univ. Press v. Becker, 863 F. Supp. 2d 1190, 1212 (N.D. Ga.
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`2012) (footnote omitted), instructional books, trade books, and other works on
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`academic topics. Sage primarily publishes books on the social sciences. All three
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`plaintiffs publish, in addition to works by a single author, “edited books” which
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`feature the contributions of multiple authors. Id.
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`Plaintiffs market their books to professors who teach at universities and
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`colleges. Cambridge and Oxford regularly send complimentary copies of their
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`publications to professors. Sage provides trial copies upon request. Plaintiffs
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`intend that professors use Plaintiffs’ publications in their work and assign them as
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`required reading so that students will purchase them.
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`Rather than assigning whole books, some professors assign or suggest
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`excerpts from Plaintiffs’ books as part of the curriculum for their courses.
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`Professors might do this by putting the work on reserve at the university library so
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`that students can visit the library to read an assigned excerpt. Or, professors might
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`prepare a bound, photocopied, paper “coursepack” containing excerpts from
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`several works for a particular course. Often, a third-party copy shop assembles
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`these coursepacks, performing the copying and binding, obtaining the necessary
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`licenses from publishers, and charging students a fee for the finished coursepack.
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`In recent years, however, universities—following the trend with regard to
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`distribution of many forms of media the world over—have increasingly abandoned
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`paper coursepacks in favor of digital distribution of excerpts over the Internet.1
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`GSU is a public university in Atlanta, Georgia. It is part of the University
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`System of Georgia, and is overseen by the Board of Regents of the University
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`System of Georgia. GSU maintains two on-campus systems known as “ERes” and
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`“uLearn” for digital distribution of course materials to students.
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`ERes (short for “E-Reserves”) is an “electronic reserve system” hosted on
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`servers maintained by GSU and managed by GSU’s library staff. Since 2004,
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`GSU has used ERes to allow GSU students to access course materials—including
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`course syllabi, class notes, sample exams, and excerpts from books and journals—
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`on the Internet via a web browser. In order to place an excerpt from a book or
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`journal on ERes, a professor must either provide a personal copy of the work to the
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`GSU library staff or indicate that the GSU library owns a copy. A member of the
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`1 As the Association of Research Libraries recognizes, “[t]oday, students and teachers
`alike strongly prefer electronic equivalents (e-reserves for text, streaming for audio and video) to
`the old-media approaches to course support.” Brief of American Library Association, et al., as
`Amicus Curiae Supporting Defendants/Appellees at 8 (quoting Association of Research
`Libraries, Code of Best Practices in Fair Use for Academic and Research Libraries 13 (2012),
`http://www.arl.org/storage/documents/publications/code-of-best-practices-fair-use.pdf).
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`library staff then scans the excerpt to convert it to a digital format and posts the
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`scanned copy to ERes. GSU students are given access to an ERes website specific
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`to the courses in which they are enrolled. On each course-specific ERes website,
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`students find their reading assignments listed by title. The scanned excerpts are
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`accessible via hyperlink. When a student clicks a link for a particular assignment,
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`the student receives a digital copy of a scanned excerpt that the student may view,
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`print, save to his or her computer, and potentially keep indefinitely. ERes course
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`websites are password-protected in order to limit access to the students in the
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`particular course. Once a course ends, students no longer have access to the ERes
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`website for that course.
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`uLearn is a “course management system” hosted on servers maintained by
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`the Board of Regents. Like ERes, uLearn provides course-specific webpages
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`through which professors may make course material available, including digital
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`copies of excerpts from books, which students in the course may view, print, or
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`save. The most significant difference between the ERes and uLearn systems is that
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`uLearn allows professors to upload digital copies of reading material directly to
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`their course websites while ERes forces professors to rely on GSU library
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`personnel to upload reading material for them.
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`ERes and uLearn have been popular at GSU.2 For example, during the
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`Spring 2009 term, paper coursepacks were offered for only about fifteen courses,
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`while instructors in hundreds of courses made readings available on ERes. Thus,
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`the excerpts from larger works that make up some portion of course readings at
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`GSU, and which were once distributed to students via a paper coursepack
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`purchased at the university bookstore, are now largely distributed to students via
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`digital download on the Internet, that the students pay for only indirectly via tuition
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`and fees.
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`There exists a well-established system for the licensing of excerpts of
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`copyrighted works. Copyright Clearance Center (“CCC”) is a not-for-profit
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`corporation with headquarters in Danvers, Massachusetts. CCC licenses excerpts
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`from copyrighted works for a fee, acting on behalf of publishers who choose to
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`make their works available through CCC. These licenses are called “permissions.”
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`All three Plaintiffs offer excerpt-specific permissions to photocopy or digitally
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`reproduce portions of their works, which may be obtained directly from Plaintiffs
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`2 Electronic reserve systems are popular not just at GSU, but nationwide. Many other
`university libraries offer electronic reserve systems to students and faculty that are similar to
`ERes and uLearn. See Brief of the Association of Southeastern Research Libraries as Amicus
`Curiae Supporting Defendants/Appellees at 3.
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`or through CCC. Permissions are not, however, available for licensed copying of
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`excerpts from all of Plaintiffs’ works.3
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`CCC offers a variety of permissions services to various categories of users,
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`including corporate, educational, and institutional users. One such service, the
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`Academic Permissions Service (“APS”), licenses educational users to make print
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`copies on a per-use basis. CCC also offers an electronic course content service
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`(“ECCS”) for licensing of digital excerpts by educational users on a per-use basis,
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`that—in 2008, the year for which evidence on the question was presented—offered
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`only a small percentage of the works that were available through APS. ECCS is
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`designed for electronic reserve systems such as ERes and uLearn. Software is
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`available that would allow GSU library personnel to place an order with CCC for a
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`permission to provide students with a digital copy of an excerpt via ERes. CCC
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`3 In 2011, according to the Director of Digital Publishing Global for Cambridge, Frank
`Smith, “CCC [was] able to license excerpts from 60% of Cambridge’s works.” Cambridge Univ.
`Press v. Becker, 863 F. Supp. 2d 1190, 1213 (N.D. Ga. 2012). Mr. Smith did not testify as to
`how many of Cambridge’s works were available via CCC for licensed copying in 2009, the year
`during which the instances of copying that the District Court examined took place. In 2011,
`according to Oxford’s Acting President, Niko Pfund, “CCC . . . license[d] the copying of
`excerpts from over 90% of Oxford’s titles.” Id. Mr. Pfund did not testify as to how many of
`Oxford’s works were available via CCC for licensed copying in 2009. However, the District
`Court found that “[t]here is documentary evidence showing that some but by no means all of
`these works were available for permissions in 2009.” Id. at 1214. In 2011, according to the
`Director of Licensing at Sage, Carol Richman, “CCC . . . handle[d] permissions for all of Sage’s
`works.” Id. Ms. Richman did not testify as to how many of Sage’s works were available via
`CCC for licensed copying in 2009. However, the District Court found that “documentary
`evidence shows that many though not all of Sage’s works at issue in this case generated
`permissions revenue from CCC during the period from July 1, 2004 to December 1, 2010.” Id.
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`also offers an Academic Repertory License Service (“ARLS”) which affords
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`subscribers access to excerpts from a set group of about nine million titles,
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`approximately 17 percent of which are available in digital format. Sage
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`participates in ARLS and did so in 2009, Oxford participated in 2009 with regard
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`to journals but not books, and Cambridge does not participate. GSU did not and
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`does not subscribe to this program.
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`When the GSU bookstore assembles and sells a paper coursepack containing
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`excerpts from copyrighted works, GSU pays permissions fees for use of the
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`excerpts.4 The central issue in this case is under what circumstances GSU must
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`pay permissions fees to post a digital copy of an excerpt of Plaintiffs’ works to
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`ERes or uLearn.
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`B.
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`4 GSU stipulated that “[a]t GSU, coursepacks are printed and bound together and sold as
`units through the GSU bookstore. . . . GSU pays permission fees when copyrighted content is
`used in hardcopy coursepacks.” Doc. 276, at 8. Presumably this means that if no license for an
`excerpt of a particular work is available for use in a paper coursepack, GSU would simply not
`use that work. However, there is no evidence in the record that makes this explicit.
`Additionally, that GSU previously decided to pay for permissions to use paper excerpts does not
`necessarily weigh heavily on whether its current use of digital excerpts constitutes fair use. A
`number of factors might influence GSU’s decision whether to pay for permissions, or instead,
`claim fair use. As we make clear below in our analysis of the fourth fair use factor, the same
`logic also applies to Plaintiffs’ decision whether to make digital permissions available. See infra
`note 32.
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`On April 15, 2008, Plaintiffs filed their original complaint in the United
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`States District Court for the Northern District of Georgia. Plaintiffs alleged that
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`hundreds of GSU professors have made thousands of copyrighted works—
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`including works owned or controlled by Plaintiffs—available on GSU’s electronic
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`reserve systems without obtaining permissions from copyright holders, and that
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`GSU’s administration facilitated, encouraged, and induced this practice. Plaintiffs
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`sued Defendants in their official capacities as GSU officials, claiming (1) direct
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`copyright infringement5 caused by the officials’ “scanning, copying, displaying,
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`and distributing Plaintiffs’ copyrighted material;” (2) contributory copyright
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`5 In an action for direct infringement, the owner of a copyright may bring a claim against
`anyone who violates one of the “exclusive rights” protected by the Copyright Act. 17 U.S.C. §
`501(a). The exclusive rights protected by the Copyright Act are as follows, subject to certain
`limitations set forth in other sections:
`(1) to reproduce the copyrighted work in copies or phonorecords;
`(2) to prepare derivative works based upon the copyrighted work;
`(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or
`other transfer of ownership, or by rental, lease, or lending;
`(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and
`motion pictures and other audiovisual works, to perform the copyrighted work publicly;
`(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and
`pictorial, graphic, or sculptural works, including the individual images of a motion picture or
`other audiovisual work, to display the copyrighted work publicly; and
`(6) in the case of sound recordings, to perform the copyrighted work publicly by means
`of a digital audio transmission.
`Id. § 106.
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`infringement6 caused by the officials’ “facilitating, encouraging, and inducing
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`librarians and professors to scan, copy, display, and distribute Plaintiffs’
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`copyrighted material” and “students to view, download, copy and further distribute
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`[Plaintiffs’] copyrighted material;” and (3) vicarious copyright infringement7
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`caused by the officials’ inducing GSU employees and students to copy Plaintiffs’
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`copyrighted material, profiting from this practice, and failing to stop it despite
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`having the right and ability to do so. Doc. 1, at 25–28. Plaintiffs sought
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`declaratory and injunctive relief. Plaintiffs supported their allegations with
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`numerous examples of GSU professors posting excerpts of Plaintiffs’ works on
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`GSU’s electronic reserve systems. Defendants filed an Answer, denying Plaintiffs’
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`allegations of infringement; claiming sovereign immunity and Eleventh
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`Amendment immunity based on Defendants’ status as state officials; and asserting
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`a defense of fair use because “any alleged use of copyrighted materials was for the
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`6 A claim of contributory copyright infringement arises against one who intentionally
`induces or encourages the direct infringement of another. Metro-Goldwyn-Mayer Studios Inc. v.
`Grokster, Ltd., 545 U.S. 913, 930, 125 S. Ct. 2764, 2776, 162 L. Ed. 2d 781 (2005). Although
`the Copyright Act does not expressly provide for any liability for infringement committed by
`another, “the[] doctrines of secondary liability emerged from common law principles and are
`well established in the law.” Id. (citations omitted).
`7 A claim of vicarious copyright infringement arises against one who “profit[s] from
`[another’s] direct infringement while declining to exercise a right to stop or limit it.” Id.
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`purpose of teaching, scholarship or research and for nonprofit educational
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`purposes.” Doc. 14, at 2.
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`On December 15, 2008, Plaintiffs filed their First Amended Complaint. The
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`First Amended Complaint added several members of the Board of Regents as
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`Defendants, alleging that they were ultimately responsible for the alleged acts of
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`infringement at GSU because of their supervisory authority over the University
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`System of Georgia. Defendants’ Answer to the First Amended Complaint again
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`denied infringement, asserted fair use, and claimed sovereign immunity and
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`Eleventh Amendment immunity for all Defendants.
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`In late December 2008, the University System of Georgia convened a Select
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`Committee on Copyright to review GSU’s then-existing copyright policy, which
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`was called the “Regents’ Guide to Understanding Copyright & Educational Fair
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`Use.”8 On February 17, 2009, the Select Committee announced a new copyright
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`policy for GSU (the “2009 Policy”), which went into effect the same day. Under
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`the 2009 Policy, a revised version of which remains in effect today, GSU
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`professors who wish to post an excerpt of a copyrighted work on ERes or uLearn
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`8 GSU’s now-supplanted Regents’ Guide to Understanding Copyright & Educational Fair
`Use dates from 1997. According to a GSU professor who testified at trial, under the Regents’
`Guide GSU professors were routinely allowed to post digital copies of excerpts consisting of up
`to 20 percent of a work without obtaining a license from the copyright holder. Doc. 403, at
`88:9–15.
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`for distribution to their students must first determine whether they believe that
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`doing so would be fair use. In order to make this determination, professors must
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`fill out a “Fair Use Checklist” for each excerpt.9
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`The Checklist allows GSU professors to perform a version of the analysis a
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`court might perform should the professor claim fair use in a subsequent copyright
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`infringement suit. As described above, see supra part I.A, the fair use analysis
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`involves a consideration of whether allowing the unpaid use in a given case would
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`be equitable and serve the objectives of copyright in light of four statutory factors,
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`see 17 U.S.C. § 107. For each factor, the Checklist provides several criteria that
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`purportedly weigh either for or against a finding of fair use, each with a
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`corresponding checkbox.10 The Checklist instructs professors to check each
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`9 GSU’s 2009 Policy was modeled on the copyright policy of Columbia University,
`which employs a similar approach, including use of a four-factor fair use checklist. Appellees’
`Br. at 9. The 2009 Policy is also similar to a policy jointly drafted in 2006 by Cornell University
`and the Association of American Publishers (the “AAP”) for the use of materials in Cornell’s
`electronic review system, after publishers represented by the AAP threatened to sue Cornell for
`copyright infringement. Brief of American Library Association, et al., as Amicus Curiae
`Supporting Defendants/Appellees at 3. Many other universities incorporate a fair use checklist
`as part of their copyright policy to assist instructors with making fair use determinations,
`including Duke University, Florida State University, University of Tennessee-Knoxville, and
`Louisiana State University. Brief of the Association of Southeastern Research Libraries as
`Amicus Curiae Supporting Defendants/Appellees at 9.
`10 For example, the Fair Use Checklist provides that the “[n]onprofit [e]ducational” use of
`an excerpt favors a finding of fair use, whereas “[c]ommercial activity” weighs against a finding
`of fair use. Doc. 235-2, at 7. Use of a “[f]actual or nonfiction work” favors a finding of fair use,
`whereas use of a “[h]ighly creative work (art, music, novels, films, plays, poetry, fiction)”
`weighs against a finding of fair use. Id. at 8. Use of a “[s]mall portion” of a work favors a
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`criterion that applies, and then add up the checks to determine whether the factor
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`weighs in favor of or against a finding of fair use. After making this tally, the
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`Checklist explains that “[w]here the factors favoring fair use outnumber those
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`against it, reliance on fair use is justified. Where fewer than half the factors favor
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`fair use, instructors should seek permission from the rights holder.” Doc. 235-2, at
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`7. Thus, under the 2009 Policy, a GSU professor may post an excerpt of a
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`copyrighted work on ERes or uLearn without obtaining a permission from the
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`copyright holder if the professor first decides that doing so would be protected by
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`the doctrine of fair use, according to the criteria set forth in the Checklist.
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`After completing an initial round of discovery, both parties moved for
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`summary judgment on February 26, 2010. Plaintiffs alleged that the 2009 Policy
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`had failed to curb the alleged infringement of their copyrighted works, and argued
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`that they were entitled to summary judgment on all claims. Plaintiffs argued that
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`they were entitled to an injunction based on the alleged infringements listed in their
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`First Amended Complaint, that had occurred prior to enactment of the 2009 Policy,
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`finding of fair use, whereas use of a “[l]arge portion or entire work” weighs against a finding of
`fair use. Id. A use that has “[n]o significant effect on [the] market or potential market for [the]
`copyrighted work” favors a finding of fair use, whereas a use that “[s]ignficantly impairs [the]
`market or potential market for [the] copyrighted work or [a] derivative” weighs against a finding
`of fair use. Id.
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`and added allegations regarding new instances of infringement, which also
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`occurred prior to enactment of the 2009 Policy. Plaintiffs also argued that
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`injunctive relief was appropriate as to Defendants under Ex parte Young, 209 U.S.
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`123, 28 S. Ct. 441, 52 L. Ed. 714 (1908), which permits prospective injunctive
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`relief against state officers in their official capacities.
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`Defendants argued that they were entitled to summary judgment on all
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`claims. Defendants also contended that Plaintiffs were only entitled to prospective
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`declaratory and injunctive relief as to ongoing and continuous conduct, and so the
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`District Court should only consider alleged infringements that occurred since GSU
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`enacted the 2009 Policy. Thus, Defendants contended, any claims based on GSU’s
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`superseded pre-2009 policy were moot. Defendants also claimed that GSU’s
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`adoption of the 2009 Policy had substantially reduced the amount of Plaintiffs’
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`works used by GSU professors.
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`On August 11, 2010, and August 12, 2010, the District Court ordered
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`Plaintiffs to produce a list of all claimed infringements of their works that had
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`occurred at GSU during the period following enactment of the 2009 Policy, which
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`included the 2009 “Maymester” (a three-week term), the 2009 summer semester,
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`and the 2009 fall semester. The District Court also required that Plaintiffs provide
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`certain information about the alleged infringements, including the name of the
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`course in which the excerpt of the work was used, the instructor’s name, a title and
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`description of the copied work, the name of the owner of the work’s copyright, the
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`number of pages and chapters in the work, the number of pages and chapters
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`copied, the retail price to purchase the entire work, and the potential cost to license
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`each excerpt at issue. On August 20, 2010, Plaintiffs filed a list showing 126
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`claimed infringements.
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`On September 30, 2010, the District Court denied Plaintiffs’ motion for
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`summary judgment. The District Court granted in part and denied in part
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`Defendants’ motion for summary judgment, granting summary judgment to
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`Defendants on the claims of direct and vicarious infringement, and denying
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`summary judgment to Defendants on the claim of contributory infringement.
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`In its summary judgment order, the District Court construed the First
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`Amended Complaint as claiming that the 2009 Policy as applied to Plaintiffs’
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`works “has led to continuing abuse of the fair use privilege.” Doc. 235, at 5.
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`Accordingly, the District Court agreed that only alleged acts of infringement that
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`took place after GSU enacted the 2009 Policy were relevant to Plaintiffs’ claims,
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`and held that it would only consider those acts. However, the District Court
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`declined to consider at that time the list of alleged post-2009 Policy infringements
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`Case: 12-14676 Date Filed: 10/17/2014 Page: 19 of 129
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`that Plaintiffs had provided because the parties had not yet conducted discovery as
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`to these allegations.
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`The District Court granted summary judgment for Defendants on the direct
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`infringement claim because it found that GSU as an entity is not itself capable of
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`copying or making fair use determinations, and that Defendants cannot be held
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`liable under a respondeat superior theory because “respondeat superior applies in
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`the copyright context as a basis for finding vicarious liability, not direct liability.”
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`Id. at 19. With regard to the vicarious infringement claim, the District Court held
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`that summary judgment for Defendants was appropriate because it found that there
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`was no evidence to support the conclusion that GSU had profited from the
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`allegedly infringing use of Plaintiffs’ works by GSU personnel, or that GSU’s shift
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`to digital distribution of excerpts via its electronic reserve system served as a
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`“direct draw for students or that Defendants have a direct financial interest in
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`copyright infringement.” Id. at 21. With regard to the contributory infringement
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`claim, the District Court denied both Plaintiffs’ and Defendants’ motions for
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`summary judgment, finding that the record was silent as to whether the 2009
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`Policy “encourage[s] improper application of the fair use defense.” Id. at 30.
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`The District Court further held:
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`Going forward, in order to show that Defendants are responsible for
`the copyright infringements alleged in this case, Plaintiffs must show
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`Case: 12-14676 Date Filed: 10/17/2014 Page: 20 of 129
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`that the 2009 Copyright Policy resulted in ongoing and continuous
`misuse of the fair use defense. To do so, Plaintiffs must put forth
`evidence of a sufficient number of instances of infringement of
`Plaintiffs’ copyrights to show such ongoing and continuous misuse.
`Defendants will have the burden of showing that each specified
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