what this court did and did not decide in that instance. Like the moving plaintiffs, GMAC asserted that "the only basis for finding that the disclosure requirements of the STA do not constitute infringement must be founded on the fair use doctrine provided for in section 107 of the Copyright Act." See College Entrance Examination Board v. Cuomo, 788 F. Supp. 134, 139 (N.D.N.Y. 1992) (hereinafter referred to as "GMAC Decision"). Unlike the moving plaintiffs, however, GMAC rested its entire argument that the STA's disclosure requirements infringed upon its rights under the Copyright Act upon the fourth fair use factor. Although the court noted that it would discuss the other three factors, it concentrated its discussion, as GMAC had, on the fourth factor to determine whether or not GMAC had met its burden to demonstrate a likelihood of success on the merits of its copyright infringement claim. See id. at 140. After discussing each of the fair use factors, this court concluded that because "factor one favors the State, factor two favors GMAC, and factors three and four favor neither party, . . . GMAC has not demonstrated a likelihood of success on the merits of its copyright infringement claim." Id. at 143.
Although this conclusion precluded a grant of preliminary relief, the court, nonetheless, went on to discuss whether GMAC had demonstrated that it would suffer irreparable injury if such relief were not granted. In this regard, GMAC argued, inter alia, that because it had established a prima facie case of copyright infringement; i.e., that the STA's disclosure requirements did not constitute fair use, it was entitled to a preliminary injunction. The court rejected this contention, however, based upon its previous finding that GMAC had not shown a likelihood of success on the merits of its claim of copyright infringement. Therefore, the court held that GMAC had failed to demonstrate that it would suffer irreparable injury if this court failed to grant its motion. Id. at 144.
Finally, although not necessary to its decision, this court noted that there were other equitable considerations which mitigated against the court granting GMAC's motion for a preliminary injunction. In this regard, the court stated that "delays in seeking preliminary injunction serve as a ground for denying such relief." GMAC Decision, 788 F. Supp. at 145. The court found that GMAC, as well as the other plaintiffs, had waited ten years before commencing a suit challenging the STA. See id. Moreover, once the suit had been filed, GMAC, by stipulation, voluntarily continued to comply with the disclosure requirements for an additional year and then agreed to disclose two of its four tests for another year before moving for preliminary relief. See id. In addition, the court found that GMAC's argument that it sought preliminary relief to protect future violations of its copyrights was the same argument it could have made at any time during the ten years that the STA had been in effect. See id. Therefore, the court determined that "any alleged harm that GMAC may suffer during the pendency of this action is identical to the harm, if any, that it has endured during the last 10 years each time it has disclosed a test form." GMAC Decision, 788 F. Supp. at 145. Accordingly, the court concluded that "GMAC has failed to demonstrate the need for the preliminary relief it now seeks." Id.
Since the court entered its decision in 1992, the moving plaintiffs have entered into additional stipulations with the State regarding both the total number of test administrations which they would offer in New York and the number of these test forms which they would disclose in compliance with the STA. The stipulations that were entered in 1992 and 1993 required the moving plaintiffs to continue to disclose test forms at the same levels as they had between 1980 and 1990 while they continued to offer additional, nondisclosed tests in New York on additional dates that had been previously unavailable in this state. See State's Memorandum of Law at 8.
In 1994, two of the moving plaintiffs sought a stipulation that would have reduced the number of disclosed test forms to levels that were less than the levels of disclosure to which the parties had previously agreed. In this regard, GRE sought to reduce the number of disclosed test forms during the 1994-1995 test year from three to two. Similarly, ETS sought to reduce the number of disclosed test forms during the 1994-1995 test year from five to four. The State maintains that
because this constituted a retrenchment on the plaintiffs' part, and because the defendants had (and have) separation-of-powers concerns about entering stipulations that have the practical effect of amending a statute, the defendants last year insisted that the plaintiffs attempt to seek a legislative solution to their problem with New York's disclosure requirements.
See id. at 9.
Given the State's position, the moving plaintiffs did, in fact, seek a legislative solution to their problems with the STA. A bill was passed by the State Senate at the end of the legislative session in June 1994 which would have provided the moving plaintiffs with the relief they sought with respect to the 1994-1995 test year. The proposed amendment provided, in pertinent part, that in the test year beginning July 1, 1994, the College Board would offer four disclosed administrations of the SAT, the Graduate Record Examinations Board would offer two disclosed administrations of the GRE, and the Test of English as a Foreign Language Policy Council would offer five disclosed administrations of the TOEFL. Unfortunately, given the timing, it was obvious that the State Assembly would not be able to address this amendment before the end of the legislative session. Therefore, the State reluctantly entered into stipulations that permitted the moving plaintiffs to reduce their levels of disclosure in the 1994-1995 test year.
These stipulations will expire on June 30, 1995.
For the test year 1995-1996, the College Board and the Graduate Record Examinations Board seek to retrench their levels of disclosure even further. In this regard, the College Board seeks to reduce its level of compliance with the STA to three disclosed tests in 1995-1996, four disclosed tests in 1996-1997, and, if feasible, five disclosed tests in 1997-1998. In addition, in the 1995-1996 test year, the College Board would like to offer five nondisclosed administrations of the SAT in New York. See Plaintiffs' Memorandum of Law at 9 (citing Dietrich Declaration at P 29). The Graduate Record Examinations Board seeks to reduce its level of compliance to only two disclosed tests in 1995-1996, one disclosed test in 1996-1997, and, an as yet unspecified number thereafter. The Test of English as a Foreign Language Policy Council seeks only to preserve the status quo; i.e., it seeks to maintain the same level of disclosure that it offered between 1980 and 1994 (five tests) while making seven additional nondisclosed test dates available in New York.
The moving plaintiffs contend that "because the State has declined to extend the stipulation for upcoming years, plaintiffs have been forced to file this motion to protect their rights and those of New York test-takers." See Plaintiffs' Memorandum of Law at 8. To the contrary, the State asserts that
it is the plaintiffs' effort to back away from their historic levels of successful compliance with New York's disclosure law, which they maintained between 1980 and 1993 without apparent harm to the validity or reliability of their test instruments, that has made it necessary for them to file this motion. They do not want to "extend" the stipulation; they want an injunction that fundamentally alters it.