[Note that this posting is also found on the Scholarly Communications @ Duke site. I decided to post it on both the venue I am leaving and this new, group undertaking, because the issue is so important. But I apologize for the repetition that many readers of both sites will experience]
My first thought when I read the new ruling in the Georgia State copyright lawsuit brought by publishers over e-reserves was of one of those informal rules that all law students learn — don’t tick off your judge. From the first days of the original trial, the arrogant antics of the attorneys representing the publisher plaintiffs — Oxford University Press, Cambridge University Press, and Sage Publishing — clearly put them in a bad light in the Judge Evans’ eyes. Those chickens came home to roost in this latest opinion, especially where the plaintiffs are chided for having filed a declaration about what licenses were available for excerpts back in 2009, even after the Judge told them not to, since that information had not been introduced as evidence in the original trial. All of that evidence was stricken, and the Judge based her new opinion on the evidence that was before her in that first trial. I can imagine that the publishers might use that ruling as a basis for yet another appeal, but if they do so, they had better be able to prove that the evidence is genuine and reliable, and to explain why, if it is, they did not produce it at trial back in 2011.