Full opinion text
ORDER ORINDA D. EVANS, District Judge. Table of Contents I. Case History............................................................1201 II. Eleventh Amendment Immunity and the Ex Parte Young Doctrine............1205 III. Copyright Infringement and the Fair Use Defense...........................1210 A. Findings of Fact.....................................................1211 B. Conclusions of Law ..................................................1221 1. Prima Facie Case of Copyright Infringement.......................1221 2. The Fair Use Defense...........................................1223 Factor 1: Purpose and Character of the Use, including whether such use is of a commercial character or is for nonprofit educational purposes...........................................1224 Factor 2: Nature of the Copyrighted Work.........................1225 Factor 3: Amount and Substantiality of the Portion Used in Relation to the Copyrighted Work as a Whole.....................1227 a. Classroom Guidelines........................................1227 b. Amount of the Portion Used in Relation to the Copyrighted Work as a Whole..........................................1229 e. Substantiality of the Portion Used in Relation to the Copyrighted Work as a Whole ..............................1233 Factor 4: The Effect of the Use on the Potential Market for or Value of the Copyrighted Work.................................1235 Additional Considerations........................................1240 a. Limited unpaid copying of excerpts will not deter academic authors from creating new academic works ...................1240 b. The slight limitation of permissions income caused by the fair use authorized by this Order will not appreciably diminish Plaintiffs’ ability to publish scholarly works and will promote the spread of knowledge....................................1240 Summary of Fair Use Assessment.................................1242 IV. Individual Infringement Claims...........................................1243 A. Professor Murphy ...................................................1243 Maymester 2009: AL 8180 1. Pronunciation Games (Cambridge).................................1244 2. Keep Talking (Cambridge) .......................................1246 3. More Grammar Games (Cambridge)...............................1247 4. Grammar Practice Activities (Cambridge)..........................1248 5. Five Minute Activities (Cambridge)................................1249 6. Newspapers (Oxford)............................................1251 7. Role Play (Oxford) ..............................................1252 B. Professor Kaufmann .................................................1253 Maymester 2009: EPRS 8500 8. The Craft of Inquiry (Oxford).....................................1253 9. Handbook of Feminist Research (Sage) ............................1255 10. Handbook of Social Theory (Sage).................................1256 11. The Sage Handbook of Qualitative Research (Third) (Sage)...........1258 12. The Sage Handbook of Qualitative Research (Second) (Sage)..........1261 13. Handbook of Critical & Indigenous Methodologies (Sage).............1262 14. Qualitative Research Practice (Sage)...............................1264 15. Handbook of Narrative Inquiry (Sage).............................1265 Summer 2009: EPRS 8510 16. The Sage Handbook of Qualitative Research (Second) (Sage)..........1266 17. Inside Interviewing (Sage) .......................................1269 Fall 2009: EPRS 8500 18. The Craft of Inquiry (Oxford)............................. 1270 19. Approaches to Qualitative Research (Sage).........................1271 20. Handbook of Feminist Research (Sage) ............................1272 21. Handbook of Narrative Inquiry (Sage).............................1274 22. The Sage Handbook of Qualitative Research (Third) (Sage)...........1276 23. The Sage Handbook of Qualitative Research (Second) (Sage)..........1278 24. Handbook of Social Theory (Sage).................................1280 C. Professor Esposito...................................................1282 Summer 2009: EPSF 8280 25. Handbook of Ethnography (Sage).................................1282 26. Handbook of Feminist Research (Sage) ............................1283 27. The Sage Handbook of Qualitative Research (Second) (Sage)..........1284 28. The Sage Handbook of Qualitative Research (First) (Sage) ...........1286 Fall 2009: EPRS 8520 29. Theoretical Frameworks in Qualitative Research (Sage)..............1287 D. Professor Kruger....................................................1289 Fall 2009: EPY 7090 30. Awakening Children’s Minds (Oxford)..............................1289 Fall 2009: EPY 8220 31. Understanding Trauma (Cambridge)...............................1291 E. Professor Orr.......................................................1292 Summer 2009: MUS 8860 32. Liszt: Sonata in B Minor (Cambridge).............................1292 33. The Cambridge Companion to Mendelssohn (Cambridge).............1294 34. The Cambridge Companion to Schumann (Cambridge)...............1296 35. The Cambridge Companion to Beethoven (Cambridge)...............1297 36. The Music of Berlioz (Oxford).....................................1299 Fall 2009: MUS 8810 37. The Organ as a Mirror of Its Time (Oxford) ........................1300 38. North German Church Music (Oxford).............................1301 F. Professor Dixon.....................................................1302 Fall 2009: AAS 8000 39. The Slave Community (Oxford) ...................................1303 40. African American Single Mothers (Sage)...........................1304 41. Black Children (Sage)............................................1305 42. Black Families (Third) (Sage)................................■.....1307 G. Professor Hartwig...................................................1309 Fall 2009: AH 4900 43. Ancient Egyptian Materials & Technology (Cambridge)..............1309 H. Professor Kim.......................................................1311 Fall 2009: AL 8550 44. Criterion Referenced Language Testing Cambridge).................1311 45. Assessing Grammar (Cambridge)..................................1312 46. Assessing Reading (Cambridge)...................................1314 47. Fundamental Considerations in Language Testing (Oxford)...........1315 48. Language Testing in Practice (Oxford).............................1317 49. Assessing Listening (Cambridge)..................................1319 50. Assessing Languages for Specific Purposes (Cambridge).............1320 51. Assessing Speaking (Cambridge)..................................1321 52. Learning Vocabulary in Another Language (Cambridge).............1323 53. Assessing Vocabulary (Cambridge)................................1325 54. Assessing Writing (Cambridge)...................................1326 I. Professor McCombie.................................................1327 Fall 2009: ANTH 4440 55. International Health Organisations (Cambridge) ....................1328 56. Evolution of Infectious Disease (Oxford)............................1330 J. Professor Gabler-Hover..............................................1331 Fall 2009: ENGL 4200 57. A History of Feminist Literary Criticism (Cambridge)...............1331 K. Professor Anggoro...................................................1332 Fall 2009: EPY 8960 58. Language Acquisition & Conceptual Development (Cambridge)........1332 L. Professor Barker....................................................1334 Fall 2009: FILM 4750 59. Film Language (Oxford) .........................................1334 M. Professor Gainty.....................................................1336 Fall 2009: HIST 4820 60. The Cambridge History of China, Volume 8, Part 2 (Cambridge)____1336 N. Professor Davis......................................................1337 Fall 2009: HIST 7010 61. Region, Race & Reconstruction (Oxford) ...........................1338 62. The Unpredictable Past (Oxford)..................................1339 O. Professor Freeman...................................................1341 Fall 2009: JOUR 4800 63. Living Ethics (Oxford)...........................................1341 P. Professor Moloney...................................................1342 Fall 2009: NURS 8035 64. Handbook of Mixed Methods (Sage)...............................1343 Q. Professor Lasner....................................................1344 Fall 2009: PERS 2001 65. Crabgrass Frontier (Oxford)......................................1344 66. The Polities of Public Housing (Oxford) ............................1346 R. Professor Hankla....................................................1347 Fall 2009: POLS 3450 67. Contemporary Cases in U.S. Foreign Policy (Sage)..................1347 68. U.S. Foreign Policy (Sage) .......................................1349 S. Professor McCoy....................................................1350 Fall 2009: POLS 8250 69. Regimes & Democracy in Latin America (Oxford)...................1350 T. Professor Duffield ...................................................1352 Fall 2009: POLS 8170 70. Behavior, Society & Nuclear War, Volume I (Oxford) ................1353 U. Professor Whitten ...................................................1354 Fall 2009: PSYC Í030 71. A World of Babies (Cambridge)...................................1356 V. Professor Harvey....................................................1356 Fall 2009: SOCI8030 72. The Power Elite (Oxford) ........................................1356 W. Professor Ohmer ....................................................1359 Fall 2009: SW 8200 73. The Sage Handbook of Qualitative Research (Second) (Sage)..........1359 74. Utilization-Focused Evaluation (Sage).............................1361 V Did Georgia State’s 2009 Copyright Policy Cause Infringement of Plaintiffs’ Copyrights?...........................................................1363 VI. Relief To Be Granted.....................................................1364 VII. Costs and Attorneys’ Fees.................................................1364 ATTACHMENT: Permissions and Book Sales Revenue for Books Involved in this Case...........................................................1364 This copyright infringement case brought under 17 U.S.C. § 101 et seq. is before the Court for findings of fact and conclusions of law following a non-jury trial from May 17 through June 7, 2011. Both sides presented oral and documentary evidence and deposition testimony. The parties filed proposed findings of fact and conclusions of law. Before turning to findings and conclusions, the procedural history of the case is noted. I. Case History The original Complaint was filed on April 15, 2008. It alleged that Defendants, officials of Georgia State University in Atlanta, Georgia, had infringed copyrights held by Plaintiffs, publishing houses, by allowing unlicensed portions of Plaintiffs’ copyrighted books to be posted electronically and made available electronically to students. The portions of the books which had been published electronically were listed in Exhibit 1 to Plaintiffs’ Complaint. The Complaint sued Defendants in their official capacities and sought injunctive and declaratory relief and an award of attorneys’ fees. Defendants filed an Answer which denied infringement, claimed the defense of fair use, and also claimed sovereign immunity and Eleventh Amendment immunity, based on Defendants’ positions as state officials. Plaintiffs filed a First Amended Complaint on December 15, 2008. The First Amended Complaint added as Defendants the various members of the University System of Georgia’s Board of Regents, all of whom were sued in their official capacities only. The First Amended Complaint alleged that the members of the Board of Regents were ultimately responsible for the alleged infringements which had occurred at Georgia State by virtue of their supervisory authority over the University system. The Answer to the First Amended Complaint again denied the claimed infringements, asserted the defense of fair use, and also asserted sovereign immunity and Eleventh Amendment immunity for all Defendants. In December 2008, the University System of Georgia, of which Georgia State University is a part, announced that a Select Committee had been formed to review Georgia State’s then-existing copyright policy, The Regents Guide to Copyright. On February 17, 2009, the Select Committee announced a new policy (“Copyright Policy”). The new policy required (among other things) that each professor who wanted to post an excerpt of copyrighted material on the electronic reserves system (“ERES”) fill out a “fair use checklist” to determine whether the proposed use qualified as fair use. The new policy took effect on February 17, 2009, which was part way through the spring semester. The initial round of discovery was completed in January 2010. Summary judgment motions were filed by both sides on February 26, 2010. Plaintiffs’ motion addressed the claimed inadequacy of the new Copyright Policy and the fair use checklist, but also argued that they were entitled to injunctive relief based on the alleged infringements (listed in Exhibit 1 to the First Amended Complaint) which predated the new policy. They also relied on additional alleged infringements which occurred prior to enactment of the new Copyright Policy in February 2009, but which had not been listed in the Complaint or First Amended Complaint. Defendants argued in part in their motion for summary judgment that with respect to Plaintiffs’ claim for injunctive relief, only alleged infringements occurring since the 2009 policy was enacted should be considered. Defendants claimed that the 2009 policy had substantially reduced unlicensed electronic copying of copyrighted excerpts at Georgia State. Plaintiffs in turn argued that there have been “massive” infringements since the new policy was enacted. On August 11 and 12, 2010, the Court issued orders that directed Plaintiffs to produce a comprehensive list of all claimed infringements of their copyrights that had occurred at Georgia State during the three full semesters post-dating enactment of the new Copyright Policy: the 2009 Maymester (a three-week term), the 2009 summer semester and the 2009 fall semester. Also, Plaintiffs were required to provide certain information concerning the infringement claims. Plaintiffs’ list was filed on August 20, 2010, showing 126 claimed infringements plus the required information. On August 30, 2010 Defendants filed certain objections. In a ruling on September 30, 2010, the Court denied Plaintiffs’ motion for summary judgment [Doc. 142], which sought judgment on all claims in Plaintiffs’ First Amended Complaint. Defendants’ motion for summary judgment [Doc. 160] seeking judgment on all claims was as [227], granted in part and denied in part. Defendants were granted summary judgment as to Plaintiffs’ claim of direct infringement (Count I) and Plaintiffs’ claim of vicarious infringement (Count III); Defendants’ motion was denied as to Plaintiffs’ claim of contributory infringement (Count II) [Doc. 235], In the summary judgment order, the Court agreed with Defendants that only the infringement claims post-dating the commencement of the 2009 Policy were relevant to Plaintiffs’ claims for injunctive and declaratory relief. The Court interpreted Plaintiffs’ First Amended Complaint as including a claim that the 2009 policy had led to continuing abuse of the fair use privilege. Because the parties had not had an opportunity to conduct discovery as to these alleged infringements, the Court declined to determine the validity of these claims. Noting that all Defendants were entitled to claim protection under the doctrines of sovereign immunity and Eleventh Amendment immunity, subject to the exception possibly offered by the Ex Parte Young doctrine, the Court ruled: Plaintiffs must show that the 2009 Copyright Policy resulted in ongoing and continuing 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 instance of 2009 Copyright Policy infringement was a fair use. [Doc. 235 at 30 (footnote omitted)]. The parties were directed to confer and to file a proposed scheduling order for additional discovery, which they did on October 20, 2010. On November 4, 2010, Defendants filed a motion to dismiss Plaintiffs’ First Amended Complaint, arguing that the Court lacked jurisdiction to proceed. Defendants’ argument was that because none of the named Defendants had copied or caused the electronic copying of the excerpts (they argued this was done by the individual professors who evaluated whether use of each excerpt constituted fair use, based on the fair use checklists they filled out and by others who assisted, e.g. by scanning excerpts into the electronic system), the named Defendants were not responsible for the claimed violations and therefore could not be sued, even for injunctive relief, under the Ex Parte Young exception to sovereign immunity/Eleventh Amendment immunity. Plaintiffs countered that all Defendants have supervisory authority of varying types over the professors and have the power to issue instructions to cease copyright violations. On March 15, 2011, the parties filed a joint document detailing alleged infringements in the 2009 Maymester, the summer 2009 semester and the fall 2009 semester [Doc. 266]. Ninety nine alleged infringements were listed. This joint filing included Plaintiffs’ specification of the name of the copyrighted work, the infringements, and Defendants’ objections of various types to each claim of infringement. For example, in some instances Defendants claimed that there was no copyright registration. Defendants also claimed that all 99 uses were protected by the doctrine of fair use. Defendants consistently objected to the fact that Plaintiffs’ percentage calculations of the ratio between the number of pages in the excerpts and the number of pages in the books were based on only the text portions of the copyrighted books, not including such parts as tables of contents, introductions, and prefaces. Defendants instead contended that all pages of the copyrighted work should be used when calculating such percentages. Thus, in all instances Defendants’ calculations of what percentage of the copyrighted work had been excerpted and placed in the electronic reserves system were lower than Plaintiffs’. For the 99 excerpts identified in this filing, the excerpted portions on average represented 9.6% of the pages in the copyrighted books (Defendants’ calculations). The majority of the excerpts were one chapter of a multichapter book. On average these books contained eighteen chapters. The joint March 15 filing was admitted into evidence at trial as Joint Exhibit 5. The trial began on May 17, 2011. During Plaintiffs’ case in chief, representatives of each of the three Plaintiffs testified: Frank Smith, Director of Digital Publishing Global for Cambridge; Carol Richman, Director of Licensing for Sage; and Niko Pfund, Acting President of Oxford. Mr. Smith, Ms. Richman, and Mr. Pfund testified about the type of works their publishing houses typically publish, the publishing houses’ involvement with the Association of American Publishers (“AAP”) and Copyright Clearance Center (“CCC”), as well as permissions revenues each receives annually from CCC. Ms. Richman also testified about Sage’s in-house permissions program. Tracey Armstrong, President and CEO of CCC, testified concerning CCC’s burgeoning permissions business, including how CCC licenses permissions to users. Plaintiffs called Marjorie Dims-dale, administrator of Georgia State’s electronic reserves system; Paula Christopher, project manager for Georgia State’s electronic uLearn system; and James Palmour, an information systems specialist at Georgia State. Plaintiffs then called six Georgia State professors to testify: Jodi Kaufmann, Jennifer Esposito, YouJin Kim, Nathaniel Orr, Marni Davis, and Patricia Dixon (by deposition). These professors testified concerning their use (or non-use) of fair use checklists, their understanding (or lack thereof) of the checklists, the training (from Plaintiffs’ viewpoint, the lack of adequate training) they had received regarding use of the checklists, and how and why these professors had decided to utilize the excerpts of Plaintiffs’ copyrighted works which Plaintiffs deem too extensive. Over half of them testified that they had not attended the training sessions Georgia State had held for professors concerning implementation of the 2009 Copyright Policy. Finally, Plaintiffs called Georgia State’s President, Mark Becker (by deposition). He testified about the structure of the university and his supervisory capacities at Georgia State, including his responsibility for the library, as well as enforcement and compliance with the laws [Doc. 387]. Plaintiffs’ case in chief closed on May 26, 2011. At the close of Plaintiffs’ case, the Court granted Defendants’ motion for judgment on Count II (contributory infringement), leaving only the claim under Count I that the 2009 Copyright Policy caused copyright infringement. On June 1, 2011, Plaintiffs voluntarily and unilaterally filed with the Clerk of Court a revised list of 75 claimed infringements [Doc. 361]. This list dropped 25 of the claimed infringements from the March 15 joint list and added one new claim. This list also offered certain information concerning the 75 claimed infringements. The remaining 75 claimed infringements are those which were addressed during the trial. Defendants began their presentation of evidence with additional deposition testimony of President Mark Becker. Next Defendants called as witnesses eleven Georgia State professors: Charles Hankla, Janet Gabler-Hover, Melinda Hartwig, Patricia Dixon, Denis Gainty (by deposition), Margaret Moloney, Anne Kruger, John Murphy, John Duffield, Jennifer McCoy (by deposition), and Daphne Greenberg (by deposition). The professors testified concerning their determinations that use of the copyrighted excerpts they selected was allowable under the fair use doctrine, as well as the steps they took to make such fair use determinations. They testified to why they selected particular excerpts for the course curriculum. Most of them did not attend the training sessions concerning the 2009 Copyright Policy. Defendants called Laura Burtle, Georgia State’s Associate Dean for special collections and individual library services, whose testimony concerned the library’s process of uploading excerpts to the library’s ERES system and the library’s practice of flagging excerpts that appear “out of the norm.” Deborah Mariniello, an employee of CCC, testified by deposition regarding CCC’s licensing services. Defendants called Nancy Seamans, Georgia State’s Dean of Libraries, who testified about development of the 2009 Copyright Policy as well as the library staffs implementation of the new policy. Next, Defendants called Kenneth D. Crews, who testified about how Georgia State’s 2009 Copyright Policy compares to the copyright policies of other colleges and universities. Finally, William Potter, University Library and Associate Provost and chair of the Select Committee, testified regarding development of the 2009 Copyright Policy. II. Eleventh Amendment Immunity and the Ex Parte Young Doctrine The Eleventh Amendment provides: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. U.S. Const. amend. XI. The Eleventh Amendment prohibits suits against a state or state actors by that state’s citizens as well as by citizens of another state. Hans v. Louisiana, 134 U.S. 1, 10, 10 S.Ct. 504, 33 L.Ed. 842 (1890). Here, because Defendants are state officials sued in their official capacities, they are state actors protected by the Eleventh Amendment and therefore have immunity from suit. See Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1301 (11th Cir.2007) (holding that the University System of Georgia and the Board of Regents are state entities for Eleventh Amendment purposes). However, Plaintiffs seek an injunction under the doctrine of Ex Parte Young, a narrow exception to Eleventh Amendment immunity. In Ex Parte Young, the United States Supreme Court held that when a state actor seeks to enforce an act which violates federal constitutional guarantees, the Eleventh Amendment does not bar suit seeking an injunction for prospective relief from a continuing violation. Ex Parte Young, 209 U.S. 123, 159-60, 28 S.Ct. 441, 52 L.Ed. 714 (1908). The Supreme Court reasoned: [T]he use of the name of the state to enforce an unconstitutional act to the injury of complainants is a proceeding without the authority of, and one which does not affect, the state in its sovereign or governmental capacity. It is simply an illegal act upon the part of a state official in attempting, by the use of the name of the state, to enforce a legislative enactment which is void because unconstitutional. Id. at 159, 28 S.Ct. 441. Over the past century, the Ex Parte Young doctrine has been interpreted by the Supreme Court and lower courts many times. The Supreme Court has held that Ex Parte Young applies in suits against state officials who violate federal laws, not just federal constitutional guarantees. Verizon Md. Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002). Defendants argue that the case should be dismissed because Plaintiffs’ claims are barred by the Eleventh Amendment and the Ex Parte Young doctrine does not apply. Citing Pennington Seed, Inc. v. Produce Exchange No. 299, 457 F.3d 1334 (Fed. Cir.2006) as persuasive authority, Defendants assert that the Ex Parte Young exception to Eleventh Amendment immunity does not apply to them because Defendants themselves are not violating federal law but instead only oversee Georgia State’s policies and personnel. Defendants argue that this is an insufficient connection between Defendants and any violations of the Copyright Act for Ex Parte Young to apply here. In Pennington Seed, patent holders filed an original complaint against the University of Arkansas (a public state university), and a first amended complaint against the chairman of the board for the Arkansas university system, the president of the Arkansas university system, the chancellor of the University of Arkansas, and a University of Arkansas professor; the patent holders alleged infringement and conversion of their U.S. patent. Id. at 1337. Specifically, they alleged that the defendants were “actively growing, marketing, offering for sale, promoting and selling a product containing [the patentees’] patented product.” Id. at 1338. The United States District Court for the Western District of Missouri dismissed the original complaint because the Eleventh Amendment barred the action against the University of Arkansas. Id. The District Court then dismissed the first amended complaint against the chairman of the board, the president, and the chancellor (which had been alleged on the basis of the Ex Parte Young doctrine) based on Eleventh Amendment immunity because the first amended complaint “failed to allege a causal connection between those officials and the enforcement or threatened enforcement of an act.” Id. On appeal to the Federal Circuit, the patent holders argued that the District Court improperly dismissed the claims against the chairman of the board, the president, and the chancellor because Ex Parte Young applied as an exception to Eleventh Amendment immunity. Id. at 1341. However, the Federal Circuit held that the claims against the chairman of the board, the president, and the chancellor were properly dismissed. Id. at 1343. The Federal Circuit reasoned that Ex Parte Young does not apply in an action “against any random state official ... there must be a connection between the state officer and the enforcement of the act.” Id. at 1342. The Federal Circuit stated, “A nexus between the violation of federal law and the individual accused of violating that law requires more than simply a broad general obligation to prevent a violation.” Id. Ultimately, the Federal Circuit held: Allegations that a state official directs a University’s patent policy are insufficient to causally connect that state official to a violation of federal patent law— i.e., patent infringement. A nexus between the violation of federal law and the individual accused of violating that law requires more than simply a broad general obligation to prevent a violation; it requires an actual violation of federal law by that individual. See Frew [ex rel. Frew v. Hawkins, 540 U.S. 431, 437, 124 S.Ct. 899, 157 L.Ed.2d 855 (2004) ] (holding that the Ex Parte Young doctrine applies when state officials act in violation of state law); see also Shell Oil Co. [v. Noel, 608 F.2d 208, 211 (1st Cir. 1979)] (holding that a general obligation to enforce state laws is not a sufficient nexus). The fact that a University Official has a general, state-law obligation to oversee a University’s patent policy does not give rise to a violation of federal patent law. Id. at 1342-43. The Federal Circuit affirmed the dismissal of plaintiffs’ claims against the chairman of the board, the president, and the chancellor. Id. at 1343. In reaching this conclusion, the Federal Circuit reasoned that the patent holders were asking the federal courts to enjoin the chairman of the board, the president, and the chancellor from neglecting their job duties established by state law; and according to Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984), “a federal court cannot enjoin a state official to perform his or her duty under state law” (emphasis in original). Pennington Seed, 457 F.3d at 1343. In Pennhurst School, a resident of a Pennsylvania institution for the care of the mentally retarded (“Pennhurst School”) brought suit against Pennhurst School on behalf of himself and a class consisting of all persons who were or might become residents of Pennhurst School. Pennhurst School, 465 U.S. at 92,104 S.Ct. 900. Various state and county officials who allegedly had violated his federal constitutional and statutory rights as well as his rights under the Pennsylvania Mental Health and Mental Retardation Act of 1966 (“MH/MR Act”) were also named as defendants. Id. The resident sought both damages and injunctive relief. Id. The trial court found that the inadequate conditions at Pennhurst School violated each resident’s right to “minimally adequate habilitation” under the Pennsylvania MH/MR Act and awarded injunctive relief against the state officials who had oversight responsibility for Pennhurst School. Id. at 92-93, 104 S.Ct. 900. The United States Court of Appeals for the Third Circuit affirmed and held that the MH/MR Act required the state to adopt the “least restrictive environment” approach for the care of the mentally retarded. Id. at 95, 104 S.Ct. 900. The Court of Appeals relied on Ex Parte Young to refute the state’s argument that injunctive relief under the Pennsylvania MH/MR Act was barred by the Eleventh Amendment; the Court of Appeals noted that “the [Eleventh] Amendment did not bar a federal court from granting prospective injunctive relief against state officials on the basis of federal claims,” and concluded “that the same result obtained with respect to a pendent state-law claim.” Id. at 96, 104 S.Ct. 900. The Supreme Court reversed and remanded. Id. at 125, 104 S.Ct. 900. The Supreme Court stated that none of the past Eleventh Amendment cases “can be said to hold that injunctive relief could be ordered against State officials for failing to carry out their duties under State statutes.” Id. at 109, 104 S.Ct. 900. The Supreme Court determined that when a plaintiff alleges that a state official has violated state law, the entire basis for the Ex Parte Young doctrine disappears. Id. at 106, 104 S.Ct. 900. The Supreme Court held that the Eleventh Amendment barred the federal courts from determining how the individual defendants should carry out their duties under the Pennsylvania MH/MR (a state law). Id. The majority opinion explained: “[I]t is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law.” Id. at 106, 104 S.Ct. 900. Plaintiffs here argue that the Ex Parte Young exception to Eleventh Amendment immunity does apply because Defendants are state actors, acting in their official capacities, who are violating federal copyright law. Citing Luckey v. Harris, 860 F.2d 1012 (11th Cir.1988) as binding authority, Plaintiffs argue that the Ex Parte Young doctrine applies here because the Defendants have the right and ability to stop any alleged copyright violations. Plaintiffs assert that under Luckey, it is sufficient that the Defendants have “some connection” with the alleged copyright violations for Ex Parte Young to apply, and that each of the named Defendants has a connection to the alleged copyright violations at Georgia State. In Luckey, plaintiff Horrace Luckey brought suit on behalf of a class consisting of “all indigent persons presently charged or who will be charged in the future with criminal offenses in the courts of Georgia and all attorneys who represent or will represent indigent defendants,” against the Governor of Georgia, the Chief Judge of the Douglas Judicial Circuit,'the Chief Judge of the Clayton Judicial Circuit, and all Georgia judges responsible for providing assistance of counsel to indigents criminally accused in the Georgia' courts. Luckey, 860 F.2d at 1013. The case was brought under 42 U.S.C. § 1983, alleging that systemic deficiencies in the Georgia indigent criminal defense system denied indigent defendants their Sixth Amendment right to counsel, their due process rights under the Fourteenth Amendment, their right to bail under the Eighth and Fourteenth Amendments, and equal protection of the laws guaranteed by the Fourteenth Amendment. Id. The trial court granted defendants’ motion to dismiss, holding that the claims were barred under the Eleventh Amendment because Ex Parte Young did not apply, and that the suit failed to state a claim for which relief could be granted. Id. On appeal, the United States Court of Appeals for the Eleventh Circuit reversed on both grounds and remanded. Id. The Court of Appeals concluded that because plaintiffs sought an order to compel defendants to provide indigent defense services that meet minimum constitutional standards, the relief sought fell within the Ex Parte Young exception to the Eleventh Amendment. Id. at 1015. The Court of Appeals stated, “[w]hile the state ultimately may finance compliance with such an order, this fact is not determinative” of whether Ex Parte Young applies. Id. Next the Court addressed defendants’ argument that they did not take any actions personally that violated the Constitution. Id. The Court of Appeals held: Personal action by defendants individually is not a necessary condition of injunctive relief against state officers in their official capacity. All that is required is that the official be responsible for the challenged action. As the Young court held, it is sufficient that the state officer sued must, “by virtue of his office, ha[ve] some connection” with the unconstitutional act or conduct complained of. Id. at 1015-16 (internal quotation marks and citation omitted). Thus, the Court of Appeals found that because the governor was responsible for law enforcement in Georgia and had the residual power to commence criminal prosecutions, and because the judges were responsible for administering the system of representation for criminally accused indigent defendants, defendants were “appropriate parties against whom prospective relief could be ordered” and Ex Parte Young applied. Id. at 1016. While the fact pattern of Pennington Seed is similar in certain respects to the case here (there, state officials were sued for alleged patent infringements in which they were not personally involved; here, state officials were sued for copyright infringements when they did not personally participate in individual fair use decisions or make any copies), it is not quite the same. In the instant case some of the Defendants were responsible for the creation and implementation of the 2009 Copyright Policy, which applies to University System of Georgia schools, including Georgia State [Doc. 278-3 at 11]. The Court infers and finds that the 2009 Copyright Policy had at least the tacit approval of the Board of Regents. The violations which are alleged here may have occurred as a result of application of that policy. In addition, the Supreme Court has held that: “In determining whether the doctrine of Ex Parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a ‘straightforward inquiry into whether the complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.’ ” Verizon Md. Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002) (citation omitted). Further, the Eleventh Circuit Luckey opinion is binding on this Court. While Luckey is a civil rights case, brought under 42 U.S.C. § 1983, its holding as to the permissible breadth of the Ex Parte Young doctrine has precedential effect in a suit involving claimed infringement of the federal Copyright Act. Finally, the Court notes that in Virginia Office for Protection & Advocacy v. Stewart, — U.S.-, 131 S.Ct. 1632, 179 L.Ed.2d 675 (2011) the Supreme Court extended Ex Parte Young to cover a state agency’s suit against a state official who violated federal law by refusing the agency access to records which federal law mandated be turned over. The case’s holding signals the Supreme Court’s continuing commitment to protecting federally guaranteed rights under the Ex Parte Young doctrine. This Court does have subject matter jurisdiction in this case by virtue of the fact that it is brought under the Copyright Act, 17 U.S.C. § 101 et seq., a federal law. Ex Parte Young does not create a cause of action; it enables a form of relief (in this case, equitable and declaratory relief under the Copyright Act) which otherwise would be barred by the Eleventh Amendment or sovereign immunity. The Court holds that the Ex Parte Young doctrine applies in this case, such that the Court could issue injunctive relief without offending Eleventh Amendment or sovereign immunity. III. Copyright Infringement and the Fair Use Defense The next step is to examine how Georgia State’s 2009 Copyright Policy operated in relation to the requirements of copyright law during the three 2009 academic terms. This is a challenging process on at least two levels. By far the most fundamental difficulty is the very fluid framework for resolving fair use issues which is established by copyright law. To determine when a particular use is a “fair use,” four statutory factors must be considered. These factors are: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. 17 U.S.C. § 107. This does not exclude consideration of other factors. Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 588, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985). It is hornbook law that there is no across the board rule for what weight should be given to each factor or how the factors should be applied. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577-78, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994); Harper & Row, 471 U.S. at 588, 105 S.Ct. 2218. This determination is made after a fact-intensive, value-laden review in each case of claimed infringement. In Campbell, the Supreme Court’s last fair use decision, the Court reaffirmed that fair use does not rest on “bright-line rules” and must be done on a case-by-case basis. Campbell, 510 U.S. at 577, 114 S.Ct. 1164 (quoting Harper & Row, 471 U.S. at 560, 105 S.Ct. 2218). The Supreme Court then added, “Nor may the four statutory factors be treated in isolation, one from another. All are to be explored, and the results weighed together, in light of the purposes of copyright.” Id. at 578, 114 S.Ct. 1164. Another difficulty is that there is no precedent on all fours for how the factors should be applied where excerpts of copyrighted works are copied by a nonprofit college or university for a nonprofit educational purpose. Thus, assuming that there is some efficacy in having a “fair use checklist” that professors must fill out before using a copyrighted excerpt, what should be in it may be open to debate. The Court believes that the best way to proceed is first to decide how the four fair use factors should be applied in a case such as this one (unpaid copying of excerpts of copyrighted material by a nonprofit college or university for nonprofit educational use in graduate or upper level college courses). Also, the Court will consider whether any other factor or consideration should be taken into account. This will be based on the facts of record in the instant case. Once this decision is made, each of the 75 claimed infringements will be addressed individually. The Court will then compare the outcome of this process to the outcomes that were achieved under the checklists prescribed under the 2009 Copyright Policy. A. Findings of Fact The Court makes the following findings of fact: Plaintiffs/Plaintiffs’ Works Involved in this Case Plaintiffs Cambridge University Press (“Cambridge”), Oxford University Press, Inc. (“Oxford”), and Sage Publications, Inc. (“Sage”) are publishing houses that publish academic works [Stipulated Facts, Doc. 278-3 at 2]. Cambridge is the not-for-profit publishing house of the University of Cambridge in England [Id.]. Its United States headquarters, which operates its Americas Branch, is in New York City [Id.]. Oxford is a not-for-profit U.S. corporation headquartered in New York City. Oxford has an affiliation with Oxford University in Oxford, England [Id.]. Sage is a for-profit Delaware corporation with its headquarters in Thousand Oaks, California, and offices in Los Angeles, London, New Delhi, Singapore, and Washington, D.C. [Id.]. It is privately owned by a family. Although Sage is a for-profit company, it makes substantial charitable contributions to an educational institution, as do both Cambridge and Oxford [Frank Smith, Tr. Vol. 1 at 55; Carol Richman, Tr. Vol. 2 at 60]. Plaintiffs collectively represent a tiny part of the higher education publishing market in the United States. This market is dominated by large publishing houses that have 70-80% of the market. These large publishing houses-not Plaintiffs-publish the large, heavy textbooks which are typically used in entry level college courses. Plaintiffs Cambridge and Oxford are highly regarded university presses that publish scholarly books and journals, often in niche subject areas. Sage is a publishing company primarily dedicated to publishing social science books [Carol Richman, Tr. Vol. 2 at 58]. It has been instrumental in the development of the field of qualitative research [Id. at 61]. The record does not reflect whether Plaintiffs’ publications or practices are representative of those of other firms that publish academic books. All three Plaintiffs market their books to professors who teach courses in colleges and universities. Cambridge and Oxford often send them complimentary copies; Sage will provide a trial copy on request. Plaintiffs hope that professors will read their books and use them in their work. They also hope that professors will assign the books as required reading for the course, so the students will purchase the books. Professors build and maintain personal book collections and use them as a resource for teaching. This would include Plaintiffs’ books. Of relevance to this case, some professors assign or suggest reading of excerpts from some of Plaintiffs’ books as part of course curricula. Cambridge and Oxford both publish research-based monographs which they consider the heart of their offerings. These are small, single author books which give in-depth analysis of a narrow topic. These books lend themselves well to use in upper level undergraduate and graduate courses, but many are of general interest in the academic community. Cambridge’s and Oxford’s books which are involved in this case are of various types. They include research-based monographs, instructional books, trade books (general readership books) and other works on academic topics. Sage publishes, through its Higher Education Division, books which are primarily of interest to educators who teach upper level college or graduate courses for aspiring educators or teachers who are seeking a graduate degree. Almost all of Sage’s books which are at issue in this ease fall into that category; almost all of them pertain to the field of qualitative research. Cambridge, Oxford and Sage all publish edited books prepared by an external editor under contract with the publisher. These external editors — professors who are experts in their field — determine the scope of the work, select the chapter topics, select the contributing authors, and oversee, collect, review ánd edit the individual contributions (all subject to the publisher’s approval). With respect to Cambridge’s, Oxford’s and Sage’s books, authors of single author books and external editors receive royalties from book sales which are anywhere from two percent to fifteen percent. Contributing authors do not receive royalties. They may receive a small honorarium and a few free books. The Copyright Clearance Center (“CCC”) I Availability of Plaintiffs’ Works Through CCC CCC is a not-for-profit corporation headquartered in Danvers, Massachusetts [Tr. Vol. 11 at 164]. It licenses the copying of excerpts from copyrighted works to corporate, academic and other users for a fee, acting on behalf of publishers who opt to make their works available through CCC [Tr. Vol. 4 at 6-7]. The fee charged is calculated based on the number of pages the user seeks to copy. The licenses are called “permissions.” CCC is the only reproduction rights organization in the United States [Tr. Vol. 11 at 163] and is the world’s largest licensing organization for text licensing [Tr. Vol. 11 at 163-164], It has no real competitors in that arena. CCC opened for business on January 1, 1978, the same day the Copyright Act of 1976, which codified the fair use defense, took effect [Tr. Vol. 4 at 6]. Its gross revenues in FY 2010 (the twelve month period ending June 80, 2010) were $215,000,000. All three Plaintiffs have used and currently use CCC as a licensing agent, though permissions are not available for licensed copying of excerpts from all of Plaintiffs’ books. CCC is a well-known source of licensed excerpts of copyrighted materials. Georgia State’s 2009 Copyright Policy states that CCC is an available source for such excerpts. CCC also coordinates and supports litigation efforts by publishers against perceived infringers. In this case, CCC and its counsel did the initial fact gathering concerning unlicensed copying of excerpts in the higher education community. Based on the testimony of Frank Smith, Niko Pfund, Carol Riehman and Tracey Armstrong (that the Plaintiff-publishers agreed to “join” the litigation), the Court infers that CCC and AAP organized the litigation and recruited the three plaintiffs to participate. AAP and CCC are each paying one-half of Plaintiffs’ litigation expenses including attorneys’ fees in this case. CCC offers numerous types of permissions services to various categories of users, including corporate, educational, and institutional users. Three of these services were addressed by the evidence in this case. One is the Academic Permissions Service (“APS”), which licenses educational users to make print copies on a per-use basis. APS began in 1991. CCC also offers an electronic course content service (“ECCS”) through which college and university libraries may obtain licenses to make digital copies on a per-use basis. This program is directed at electronic reserves systems such as Georgia State’s ERES system. ECCS began in 1997. Only a small percentage (twelve percent) of the works that were available through APS were available through ECCS in 2008. There is no specific evidence as to what that percentage was in 2009. The third CCC service discussed at trial, the Academic Repertory License Service, began in 2007. Overall, CCC is able to license excerpts from 60% of Cambridge’s works. Of relevance in this case, Cambridge has chosen not to license, through CCC or otherwise, excerpts from its reference works and some of its books on language including teaching English as a second language [Frank Smith, Tr. Vol. 1 at 70]. Mr. Smith was not asked during his examination to identify the Cambridge books which were available for licensed copying in 2009. Oxford’s Acting President, Niko Pfund, gave a rough estimate that CCC currently (in 2011) licenses the copying of excerpts from over 90% of Oxford’s titles [Niko Pfund, Tr. Vol. 3 at 70]. He did not state what the percentage was in 2009. Mr. Pfund testified concerning what licenses for various excerpts of Oxford’s works would have cost, had permissions been paid. During this examination he was directed to Joint Exhibit 5 which was up on a screen in the courtroom. Plaintiffs’ counsel pointed to the portion of the exhibit which showed what a particular excerpt of each book in question would have cost [See Tr. Vol. 3 at 94-109]. Initially the questions were phrased as, for example, “can you confirm that if this excerpt had been permissioned it would have cost X dollars?” [See, e.g., Tr. Vol. 3 at 95, 96, 99 lines 20-22]. The witness looked at the screen and answered yes. Subsequently the form of the questions shifted to this format: Q. And back up to the screen, I would ask you again to confirm please that as of the date of this use the suggested retail price, list price for this work was 65 dollars? A. Yes. Q. And that it was available or would have been available for permissioning per student for this length of excerpt at a cost of $1.68? A. Yes. [Tr. Vol. 3 at 100,101]. Q. And back up to the Joint Exhibit please at C-16, ask you to confirm that the suggested retail list price for that work as of the fall of 2009 was $19.59? A. Correct. Q. And that the excerpt used was available per student for licensing at a cost of $3.12? A. Yes. [Tr. Vol. 3 at 103]. These questions did not establish that any of the works were available for permissions. After hearing and observing Pfund’s testimony, the Court finds that he probably did not think he was being asked whether the books were available for permissions, as opposed to being asked to publish what was shown on Joint Exhibit 5. It is not clear that this was counsel’s intention either. The Court is also unconvinced that Pfund knew whether licensed excerpts of these particular books were available. In any event, Pfund’s testimony itself did not establish that these books were available for licensed excerpts. Joint Exhibit 5 does not establish that either, as it does not state whether the works actually were available through CCC. It only states what the excerpt would have cost, based on standard per-page rates charged by CCC for Oxford excerpts. There is documentary evidence showing that some but by no means all of these works were available for permissions in 2009. CCC currently (2011) handles permissions for all of Sage’s works [Carol Rich-man, Tr. Vol. 2 at 90]. There is no testimony concerning whether this was the case in 2009. However, 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. Also, Sage has its own in-house permissions and licensing program which markets chapter excerpts in digital form, as discussed below. Thus, it is inferred that licensed excerpts from all of Sage’s works were readily available in digital format in 2009. Users typically access APS and ECCS by going online to CCC’s website. They type in the name of the book and page numbers for the excerpt they seek to copy. The system advises whether licenses are available for print and also for digital reproductions. If the publisher has preauthorized release of excerpts from the book, and payment is available through a credit card or existing account, the order is approved instantly and the license is issued within a few hours. If there is no preauthorization, CCC seeks authorization from the publisher. In 2009 it took up to two weeks to obtain permission for these orders. CCC is able to approve 85-90% of all APS requests and about 70% of all ECCS orders [Stipulated Facts, Doc. 278-3 at No. 29]. Each Plaintiff called an executive or management level representative to testify; none of them were asked by either side to identify the books which were preauthorized for release in 2009 or currently. CCC’s representatives did not offer this testimony either. Presumably, this information is readily available in CCC’s computer system. Finally, CCC offers an Academic Repertory License Service which affords subscribers access to excerpts from about nine million titles. This service began in 2007. In 2009 digital licenses for excerpts from a million and a half (seventeen percent) of these works were available. The percentage which is currently available is unstated. The lesser availability of digital excerpts is attributable to the following: (1) some publishers are concerned that they may not have the right to authorize distribution in digital as opposed to print format; (2) some publishers are reluctant to place digital copies of their works in the stream of commerce; and (3) sometimes publishers, for whatever reason, simply prefer limiting sales to the whole book. Cambridge did not and does not participate in this program; Oxford participated in 2009 only with its journals, not with its books. Oxford currently participates in this program. Sage participates in this program currently and did so in 2009. The Academic Repertory License Service offers a set group of titles approved by CCC; individual subscribers cannot vary this group. The cost varies for different schools, depending on a variety of factors including the number of students and the ratio of graduate students to the overall student body. Where subscribers wish to copy an excerpt from a work which is not included in the program, they may do so by submitting an order through the APS or ECCS programs at the usual rates. There is no discount for subscribers to the annual program. Georgia State did not and does not participate in the annual licensing program. CCC’s estimate is that it would cost Georgia State $114,000 per year plus a 20% start up fee to subscribe to this program. With respect to both APS and ECCS, publishers determine how much CCC will charge to license copying of their materials. This fee is for permission to copy only; the user must then make the desired number of photocopies or scan and place the electronic excerpt online. Thus, CCC does not provide any material to the user; it simply charges for a license. The per-page charge is currently anywhere between 10 and 25 cents for academic users, as chosen by the publisher. Sage currently stipulates 14 cents per page (unspecified whether APS, ECCS or both); Oxford 12 cents (unspecified whether APS, ECCS or both); and Cambridge 11 cents for APS and 15 cents for ECCS. In addition, CCC charges a $3.50 service charge ($3.00 in 2009) per order. The permissions fees are split between each publishing house and CCC, with 85% going to the publishing house. Publishers specify what percentage of book pages may be excerpted. CCC’s “default setting” is 25% or two chapters, whichever is greater. CCC states that its licensing programs are “net of fair use.” This means that the licensing fees do not take fair use into account. CCC does not furnish advice to users concerning whether a particular use is a fair use. All three Plaintiffs have in-house permissions departments. Of the permissions income which Oxford currently (2011) receives, about 90% comes from CCC. Cambridge’s estimate is 95%. The record does not show which of Oxford’s and Cambridge’s works earned in-house permissions fees in or before 2009. In-house permissions fees were earned by almost all of Sage’s books which are involved in this ease in or before 2009. For some books Sage’s in-house permissions fees aggregate to substantial amounts. For in-house orders Sage charges twelve cents per page, two cents less per page than CCC. Sage distributes digital copies to users as a PDF file attached to an email [Tr. Vol. 2 at 80]. All of the Plaintiffs sell books in e-book format. For example, Cambridge offers Cambridge Companions Online, a reference book product, and Cambridge Histories Online, to which institutions can subscribe. Several books in the Companion series, and The Cambridge History of China, Volume 8, Part 2, are at issue in this case. Plaintiffs earn considerable annual rights and permissions income through CCC. CCC made rights and permissions payments to Cambridge, Oxford and Sage totaling $4,722,686.24 in FY 2009 and $5,165,445.10 in FY 2010 [Stipulation Nos. 33 and 34; Doc. 276; Pls. Exs. 3, 4, 199, 200, 346, 347]. The per-Plaintiff average in FY 2009 would be $1,574, 228.74. However, these totals include payments which have no demonstrated relevance to this case due to lack of supporting evidence. These payments are: Foreign Authorization Service (FAS), Digital Repertory Amendment (DRA), Annual Authorization Service (AAS), Transactional Reporting Service (TRS), Non-Title FAS (NTS), Digital Permissions Service (DPS), Right-slink (RLNK), and Republication Licensing Service (RLS). They are incorrectly grouped with APS, ECCS, and AACL revenue in the referenced exhibits. In each of the two years only a small portion of permissions were paid under the APS, ECCS, and AACL programs, as follows: APS, ECCS, AND AACL PERMISSIONS PAID BY CCC TO PLAINTIFFS Twelve Months Ending June 30, 2009 (Plaintiffs’ Exhibits 3, 199, 346) Cambridge Americas Branch Oxford Sage APS $322,823.55 APS $410,136.66 APS $267,098.93 ECCS $ 81,671,35 ECCS$ 70,485.81 ECCS$ 85,660.91 $404,494.90 $480,622.47 $352,759.84 Twelve Months Ending June 30, 2010 (Plaintiffs’ Exhibits 4, 200, 347) Cambridge Americas Branch Oxford Sage APS $313,008.39 APS $377,938.05 APS $273,040.81 ECCS $ 95,406.38 ECCS$96,940.75 ECCS$124,860.17 $408,414.77 AACL$ 11,592,54 AACL$ 56.995.83 $486,471.34 $453,896.81 APS income is dominated by payments for printed coursepacks [Frank Smith, Tr. Vol. 2 at 34], It usually is paid by commercial copy shops; to that extent it will be unaffected by the outcome in this case, which is specific to educational uses by not-for-profit educational institutions. Plaintiffs’ aggregate net sales revenues for FY 2009 were $507,804,000.00 [Doc. 278-4, Stipulations 92-94], Dividing the total by three, the average net sales revenue per Plaintiff was $169,268,000.0o. On average, each Plaintiff earned $412,625.73 from permissions through APS and ECCS in FY 2009. Dividing th