Back in February, the plaintiff publishers in the case asked the trial court to reopen the record, meaning they wanted the court to examine the most current evidence in this case. This is consistent with the doctrine of Ex parte Young. Because GSU is a state university it is protected by sovereign immunity and the plaintiff publishers are barred from monetary damages. Instead, they can only get injunctive relief. Ex parte Young requires that the injunction must be forward-looking and cannot take into account past actions of the defendant. Therefore, the publishers asked the District Court to look for current evidence of alleged infringement. They want to see if GSU is continuing to violate copyright law (using the Eleventh Circuit’s ruling as a framework to determine infringement).
District court Judge Evans denied this motion and stated, ““[t]he first order of business should be to determine, consistent with the Court of Appeals rulings, whether the Defendants’ use of the Plaintiffs’ works …are protected by the fair use defense.” Only after all alleged infringements are ruled upon will the court determine any applicable remedies. This means that the district court will not reopen the record, and will instead analyze the original allegedly infringing works using the Eleventh Circuit’s framework.
Publishers Weekly has written extensively about the case: