Re: the copyright thread. It is long, but important.
Anita Cohen-Williams; Reference Services; Hayden Library
Arizona State University, Tempe, AZ 85287-1006
Tel: (602) 965-4579 FAX: (602) 965-9169
[log in to unmask] Owner: HISTARCH, SPANBORD, SUB-ARCH
*** Forwarding note from KARIE --ASUACAD 03/18/96 09:15 ***
To: ACADPROF
From: Sherrie Schmidt
*** Resending note of 03/15/96 14:12
Subject: K. Crews Analysis of MDS Decision
From: Duane E Webster <[log in to unmask]>
Date: 14 March 1996
To: Directors of ARL Libraries
From: Duane Webster, ARL Executive Director
RE: Recent MDS Decision on Fair Use and Coursepacks
As you know, a recent decision by the Sixth Circuit Court of
Appeals found that an off-campus, for-profit photocopy shop may, as a
matter of fair use, make coursepacks that include substantial portions
of copyright protected books and sell them to students (Princeton
University Press v. Michigan Document Services, Inc.). You may recall
that in 1994, ARL signed onto an amicus brief in the MDS case that was
prepared by law professors. The amicus brief made a strong argument in
support of the constitutional foundation for copyright and fair use.
To sort through the implications of this most recent ruling, ARL
turned to Kenneth Crews who prepared an analysis of the decision as well
as recommendations for how libraries and other organizations might
respond. We believe you will find his analysis useful and we encourage
you to make a copy of this report available to others in your
institution who have an interest or responsibility for libraries,
publishing, and other research institution activities associated with
copyright management.
The complete analysis by Kenneth Crews is attached to this e-
mail message; it is also posted to the ARL server at the following URLs:
WWW: http://arl.cni.org/scomm/copyright/mds.crews.html
Gopher://arl.cni.org:70/00/scomm/copyright/other/mds.crews
*****
The MDS Decision and Fair Use for Coursepacks
March 5, 1996
Prepared for the Association of Research Libraries
By Kenneth D. Crews
Associate Professor of Law and of
Library and Information Science
Director, Copyright Management Center
Indiana University Purdue University at Indianapolis
755 West Michigan Street
Indianapolis, Indiana 46202-5195
Phone: (317) 274-4400
Fax: (317) 278-2300
[log in to unmask]
Five years ago a Federal District Court in New York ruled that
Kinko's Graphic Corporation infringed copyrights, and did not exercise
fair use, when it photocopied "coursepacks" comprising book chapters,
and sold them to students for their required reading at nearby colleges
and universities.(1) The decision was widely publicized and debated in
academic circles, and in intervening years many colleges and
universities and their libraries have compiled and handled coursepacks
with extraordinary caution.(2) Typical post- Kinko's advice regarding
coursepacks generally calls for the copy shop--whether on or off
campus--to secure permissions for all materials to be included.(3) Many
libraries also have responded to the "coursepack" collection of
materials with trepidation. While libraries generally do not make
coursepacks, librarians have raised questions about the appropriateness
of adding coursepacks to collections or even keeping a coursepack at a
traditional print reserve desk. The ruling against Kinko's has stirred
questions even about the lawfulness of isolated copies made at photocopy
machines housed in the libraries.
Amidst this heightened sensitivity and caution about copyright
infringement and coursepacks, comes a decision rendered on February 12,
1996 by the Sixth Circuit Court of Appeals, based in Cincinnati, Ohio,
which appears at first glance to have undone much of the ruling against
Kinko's. The latest decision, Princeton University Press v. Michigan
Document Services, Inc., holds that an off-campus, for-profit photocopy
shop may, as a matter of fair use, make coursepacks that include
substantial portions of copyright protected books and sell them to
students.(4) At a minimum, the conflict between this case and Kinko's
exposes the turmoil and uncertainty that lies within fair use, and it
ought to remind all members of the academic community that we need to
respond critically to developments in copyright law. Fair use is a
complex and fluid doctrine that defies sweeping conclusions in response
to single cases.
We must, therefore, avoid hasty conclusions in the wake of this
latest ruling from the Sixth Circuit. While the Kinko's case actually
went to trial and the judge ruled upon a full record of facts, the
latest case--known as the MDS case--is a ruling on motions for summary
judgment. No trial has occurred in this case. The judges have ruled
only on whether they believe the facts, as the parties allege those
facts, would constitute an infringement. Moreover, the MDS case is
certain to be appealed. The plaintiff-publishers have announced their
intention to seek a rehearing from the Court of Appeals, and if they are
unsuccessful we can most likely expect an appeal to the U.S. Supreme
Court. Many important developments in this case remain ahead.
We must also resist hurried statements about the relationship
between the MDS case and the Kinko's case. Some observers have stated
that MDS "reverses" or "overturns" Kinko's. Nothing of the sort is
true. The Kinko's decision was rendered by the Federal District
Court--the lowest level in the federal court system--at the district
based in Manhattan. Following that trial and verdict, the parties
settled, and Kinko's waived its opportunity to appeal the case.(5) The
MDS case began in a Federal District Court in Michigan, where the judge
ruled in favor of the publishers on their motion for summary
judgment.(6) The copy shop appealed to the Sixth Circuit Court of
Appeals, an intermediate court in the federal system with jurisdiction
over the states of Michigan, Ohio, Kentucky, and Tennessee. That court
now has ruled in favor of the copy shop. Although the Court of Appeals
is a higher court, the Sixth Circuit has no authority to reverse or
overturn a decision from another part of the country, such as the
Kinko's ruling. As a result, both decisions remain on the record. Each
decision is authoritative on its particular facts within the
geographical territories that the courts serve, and the decisions are
instructive or persuasive for determining the law in the rest of the
country. For those persons who live in the jurisdiction of the courts
rulings in these cases, you may look to the decisions for direct
guidance. For the rest of the country, however, we must struggle with
the sharply conflicting opinions and the radically diverging results in
these two cases.
How can we make sense of these conflicting developments? For
those persons and organizations seeking to review standards that have
arisen since the Kinko's ruling, the MDS case offers some important
guidance for possibly carving out a workable measure of fair use. As in
all fair-use decisions, the particular facts at issue carry
extraordinary importance. The MDS ruling details a variety of facts
that seem to have persuaded the court that fair use may apply:
1. The instructor selected the materials to be included in the
photocopied coursepacks;
2. The coursepacks were compiled for specific courses at the
nearby campus, in this case the University of Michigan;
3. The coursepacks were sold only to students in the courses
and not to the general public;
4. All unsold coursepacks were discarded and not sold to others
or used for other purposes;
5. The purchase price of coursepacks was based solely on the
number of pages and not on any evaluation of the materials;
6. The instructor signed a statement declaring that he or she
would not have assigned the entire book for the students to purchase;
7. The materials included in the coursepack were either not
central to the course or were not so lengthy as to justify purchase of
the entire work;
8. The service provided by the copy shop was more efficient and
more economical than photocopying of materials by the individual
students or even by the instructor.
Fair-use cases are based not only on the particular facts, but
on the relationship of those facts to four general factors that Congress
instructed us to evaluate in the determination of whether or not a
particular activity is fair use. Most of the court's opinion focuses on
these four factors, as outlined in the fair-use statute, Section 107 of
the U.S. Copyright Act.(7) Indeed, the court succinctly refused to be
distracted from the four factors. In particular, it bluntly declined to
apply the so-called "Classroom Guidelines" which were advocated by the
plaintiff- publishers as an appropriate measure of fair use.(8) Those
guidelines are familiar to many academicians and librarians, and they
include elaborate word counts and other highly specific measures of fair
use for the reproduction of materials for classroom distribution.
According to the MDS opinion, "The publishers reliance on the Classroom
Guidelines is misplaced," and the court refused to replace statutory
language with guidelines developed by private parties and endorsed in a
congressional report.
The court's analysis of the four factors may be summarized as
follows:
1. Purpose and Character of the Use. The court found that this
case involved mixed purposes. The copy shop was unquestionably seeking
to make a profit, but the ultimate purpose of the coursepacks was to
serve the non-profit educational objectives of the University of
Michigan. Even in the hands of the private for-profit copy shop, the
court adopted a sympathetic characterization of the defendant's
purposes, finding that MDS was not exploiting the copyright itself by
charging fees for coursepacks based on the quality of content. Instead,
MDS was offering a service in fulfillment of educational objectives.
Moreover, the court concluded that photocopying is an integral part of
teaching and the accomplishment of teaching objectives. The opinion
underscores a footnote in a recent Supreme Court opinion that identifies
a specific right to make multiple copies of works for classroom teaching
to an extent that may not be allowed for other fair-use purposes.(9) The
court also concluded that the selection of custom materials and their
compilation into a coursepack is "transformative," which also helped tip
this first factor toward fair use. Overall, the court was persuaded
that MDS's purpose favored fair use.
2. The Nature of the Copyrighted Work. The court offered
little analysis and ultimately reached no meaningful conclusion about
this factor. It recognized that non-fiction works, which were at issue
in this case, may be used or subject to fair use more extensively than
fiction, but the court also refused to conclude that all uses of such
materials would be fair. The court ultimately reached no determination
about this factor and its effect on the fair-use analysis.
3. The Amount and Substantiality of the Portion Used. The
court focused its inquiry on "whether the quantity and value of the
materials used were reasonable in relation to the purpose of the
copying." The court also looked for evidence of whether the amount
copied superseded or fulfilled demand for the original work. The
quantity of each book photocopied ranged from 5% to 30% of the original
work. The plaintiffs submitted a declaration that permission would have
been denied to photocopy at least one of the excerpts, and that the
photocopying was so extensive that the publisher would have required a
purchase of the book rather than allow the copying to proceed. The
court dismissed such claims as irrelevant and focused instead on the
statement signed by each instructor at the time of placing an order with
MDS, in which the instructor declared that he or she would not have
assigned the work to the class. In addition, the court relied on the
lack of evidence that the excerpts were anything other than the amounts
needed to serve the "limited classroom purposes" for the coursepacks.
In the end, the court resolved that this factor also favored fair use.
4. Effect of the Use upon the Potential Market for or Value of
the Copyrighted Work. The court put the burden on the publishers to
present proof of some likelihood of harm to their market caused by the
photocopying. The court found no such proof on the record, other than
"evidence of lost permission fees resulting from defendants refusal to
seek permission and pay fees for the copying and selling of excerpts
from copyrighted works." Market effects based on lost revenues from
permission fees were central to the analysis in the recent rulings
against Texaco Inc. for photocopying by research scientists.(10) The
Texaco cases held that Texaco could have paid fees to the Copyright
Clearance Center for permission to make photocopies, and its failure to
do so had an adverse effect on that particular market for the works.
Some observers have criticized that reasoning as "circular," because it
requires an analysis of royalty fees in order to determine whether
royalty fees even ought to be paid. The MDS decision endorsed that
critique and concluded, "Evidence of lost permission fees does not bear
on market effect." The court added, "It is circular to argue that a use
is unfair, and a fee therefore required, on the basis that the publisher
is otherwise deprived of a fee." Once again, the court underscored the
limited utility of the coursepacks and the instructors statement that
they would not have assigned the purchase of the book to conclude that
"there is no evidence of market effect." The court adopted a line of
reasoning frequently espoused by academicians and librarians: "If it had
any effect at all, use of the excerpted materials enhanced the prospect
that the original works might later be of interest to the student."
In its reasoning and conclusions, the MDS decision stands in
nearly complete contradistinction to the Kinko's decision of 1991.
Listservs and professional meetings are already exploring and analyzing
its significance. Like the Kinko's decision before, the MDS ruling will
undoubtedly undergo thorough analysis and extensive scholarly critique.
It will also help to shape policies and behavior at libraries, colleges,
and universities far beyond the University of Michigan. Unlike the
Kinko's ruling, however, the MDS decision is not the end of this case.
We have months and possibly years of future appeals. In the meantime,
we might contemplate the following observations and consider the
following actions:
1. Libraries, copy shops, and other organizations located
within the Sixth Circuit are clearly best positioned to advance any
opportunities for fair use identified in the MDS decision, subject to
appeals of the case. A reversal on appeal, however, can place even past
claims of fair use in jeopardy.
2. For the rest of the country, the decision underscores that
fair use is confusing and complex and depends on the specific
circumstances in any case. We should at a minimum be wary of simplistic
rules. Sweeping requirements of permission for everything in a
coursepack are as overbroad as sweeping claims of fair use. In fact,
even the Kinko's decision refused to adopt a complete prohibition on
photocopying in coursepacks, and the private settlement in that case
allowed at least brief excerpts in coursepacks without further
permission.(11)
3. "Guidelines" on fair use, such as the Classroom Guidelines,
are interpretations or recommendations or suggestions about the meaning
of fair use as applied to particular circumstances. They are not the
law, and they have not been read into the law in the MDS case or in any
other ruling from any American court.
4. Libraries and other organizations should rely only
cautiously on the MDS ruling in the development of new policies and
practices pending its appeal. Any changes based on this decision should
be reviewed immediately upon further developments. Indeed, the case
reminds us that fair use is a flexible and transitory concept constantly
in need of regular review and fresh understanding.
Copyright 1996, Kenneth D. Crews. Permission is hereby granted to
reproduce and distribute copies of this work for nonprofit educational
and nonprofit library purposes, provided that copies are distributed at
or below cost, and that the author, source, and copyright notice are
included on each copy. You may also include this work in coursepacks
for nonprofit education even if the copies are made by a for-profit
copy shop. This permission is in addition to rights granted under
Sections 107, 108, and other provisions of the U.S. Copyright Act. For
inclusion on a World Wide Web home page, please link to the Association
of Research Libraries site at <URL:http://arl.cni.org>.
1 Basic Books, Inc. v. Kinko's Graphics Corp., 758 F.Supp. 1522
(S.D.N.Y. 1991).
2 Kenneth D. Crews, "Federal Court's Ruling Against Photocopying Chain
Will Not Destroy 'Fair Use'," Chronicle of Higher Education, April 17,
1991, p. A48.
3 Questions And Answers On Copyright For The Campus Community (Oberlin,
OH: National Association of College Stores, Inc. and The Association of
American Publishers, 1993), 7.
4 1996 U.S. App. LEXIS 1919 (6th Cir. 1996). Three judges
participated in the decision from the Sixth Circuit. Two judges wrote a
majority opinion upholding the claim of fair use; one judge dissented,
but held that the photocopying was not willful infringement.
5 "Photocopying Stores Agree to Pay Publishers Nearly $1.9- Million to
End Copyright Case," Chronicle of Higher Education, October 23, 1991, p.
A13.
6 855 F.Supp. 905 (E.D. Mich. 1994).
7 17 U.S.C. Section 107 (1995).
8 "Agreement on Guidelines for Classroom Copying in Not-For-Profit
Educational Institutions," in Copyright Law Revision, H.Rep. No.
94-1476, 94th Cong., 2d Sess., pp. 68-70 (1976).
9 Campbell v. Acuff-Rose Music, Inc., 114 S.Ct. 1164, 1171 n. 11
(1994).
10 American Geophysical Union v. Texaco Inc., 802 F.Supp. 1 (S.D.N.Y.
1992), aff d 60 F.3d 913 (2d Cir. 1995).
11 Basic Books, Inc. v. Kinko's Graphics Corp., 21 U.S.P.Q. 2d 1639
(S.D.N.Y. 1991) (allows one page of a work in a coursepack).
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Association of Research Libraries Gopher
March 13, 1996
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