*1 citing generalizations drug about evidence residence, information, dealer’s without more PRESS, PRINCETON UNIVERSITY objec
insufficient to render
reliance
officers’
Macmillan, Inc., and St. Martin’s
reasonable).
tively
Had the detective made
Press, Inc., Plaintiffs-Appellees,
meaningful
some
“effort
corroborate the
v.
issue,
report
entirely
informant’s
at
‘an
dif
presented.”
ferent case’ would have been
SERVICES,
MICHIGAN DOCUMENT
Gates,
242,
at
INC.,
Smith,
and James M.
1,
(citing Aguilar,
ingly, the items seized the Weaver resi 12, Reargued June 1996. suppressed. dence should be Decided Nov.
III. security privacy against
“The of one’s arbi
trary police intrusion is at the —which core the Fourth Amendment —is basic to a Colorado, society.”
free
Wolf v.
1359, 1361,
(1949).
69 S.Ct.
officer reinvent the wheel with each search Nevertheless, application.
warrant because generalization particu
of the threat of when necessary,
lar facts are we remain concerned affidavits, boilerplate language about search warrants. See United v. States
Brown, (6th Cir.1995) 49 F.3d
(Batchelder, J., dissenting) (preprinted boil
erplate language is insufficient for “suitable required
words of reference” incorpo warrant).
ration of affidavit search It
takes but a few minutes more for law en
forcement authorities to obtain and include facts, particularized
sufficient magis so that may perform
trates their detached function
fully Schauble, informed. United States v. (10th Cir.1981). 113, 116
647 F.2d Such time
was not taken this case. reasons,
For foregoing the district
court’s denial suppress of the motion to
REVERSED. hand, pre-printed 7. Because this McCullough kind of affidavit form the situation at Officer should period had been in use in substantial of time recognized possess have that he did not even apparently blessing Murfreesboro had the proba- sufficient factual information to constitute prosecutor of the local and General Sessions ble cause. Judge, important we think it is to stress that in *2 NELSON, J., opinion delivered the court, KENNEDY, BOGGS, in which NORRIS, SUHRHEINRICH, SILER, COLE, JJ., BATCHELDER and joined. *3 Huget, Stewart, J. Michael James E. But- MARTIN, (pp. 1393-94), MERRITT, C.J. J. Detroit, MI, Long, zel Ronald Rauchberg S. 1394-97), (pp. RYAN, (pp. 1397-1412), and J. rebriefed), (reargued and Herman L. Gold- separate delivered dissenting opinions, with smith, Proskauer, Rose, Goetz & Mendel- Judge joining DAUGHTREY in Judge sohn, City, New York for Princeton Universi- Judge dissents, MERRITT’S and RYAN’S ty Press. Judge and joining MOORE in Judge Huget, Detroit, J. Long, Michael Butzel MERRITT’S dissent.
MI, Rauchberg, Ronald S. Herman L. Gold-
smith, Proskauer, Rose, NELSON, DAVID A. Goetz & Judge. Circuit Mendel- sohn, City, New York Jon A. Baumgarten, This a copyright infringement case. Proskauer, Rose, Mendelsohn, Goetz & corporate defendant, Michigan Docu- DC, Washington, MacMillan, Inc., for St. Services, Inc., ment is a commercial Press, Martin’s Inc. shop reproduced segments substantial Chardavoyne, David G. Louise A. Marcot- scholarship, works of bound the Bodman, ty, Long Detroit, MI, Dahling, & “coursepacks,” into and sold the (reargued rebriefed), Susan M. Kornfield and coursepacks to students for in fulfilling Loren, Lydia Bodman, Longley P. & Dahl- reading assignments given by professors at Arbor, MI, ing, Ann Michigan for Document the University Michigan. copyshop Services, Inc., M. James Smith. permission acted without copyright from the Lyman Ray Patterson, University of Geor- holders, question presented and the main gia Law, Athens, GA, School of for amicus whether the “fair use” doctrine codified at 17 curiae Concerned Professors of Copyright U.S.C. 107 obviated the need to obtain Law. permission. such R. Bruce Rich and Elizabeth Stotland Answering “no,” question finding (briefed), Weil, Weiswasser Mang- Gotshal & infringement willful, district court es, City, New York Copy- amicus curiae summary judgment entered a order in which Center, right Clearance Inc. granted holders were equitable Hobbs, Michael E. Attorney General relief and were damages awarded Atlanta, GA, Georgia, for amicus At- curiae have been enhanced for willfulness. Prince torney Georgia, General of National State ton Univ. Press v. Michigan Document Association, School Georgia Boards School Servs., Inc., (E.D.Mich. F.Supp. Association, Boards California School Boards 1994). three-judge panel A of this court Association, American Association of School judgment reversed the on appeal, but a ma Administrators. jority of judges the active of the court subse
Raymond quently Kelly, (briefed), voted to J. Jr. rehear ease Seyfarth, en banc. Shaw, Geraldson, appeal & has now been Chicago, argued Fairweather before the IL, for amicus full court. Corp. curiae Follett Stephen (briefed), E. Gillen Frost & Ja- agree with We court that district cobs, Cincinnati, OH, for amicus Na- curiae exploitation defendants’ commercial
tional Inc., Music Association, Publisher’s materials did constitute College Stores, National Association Inc. use, and we shall affirm that branch of MARTIN, Before Judge; Chief the district judgment.. court’s We believe MERRITT, KENNEDY, NELSON, RYAN, district court erred in its BOGGS, NORRIS, SUHRHEINRICH, willfulness, however, and we vacate shall SILER, BATCHELDER, damages possible because award of its link DAUGHTREY/ MOORE, COLE, Judges. Circuit age finding. to that began obtain such holders
I chose not to do Smith so. permission. Mr. relatively advances recent Thanks attorney attorney, and the He consulted artifact coursepack technology, —an him that while was apparently advised college when students largely unknown there were “risky” permission, not to obtain undergrad- was an opinion of this the author Mr. Smith in the Kinko’s decision. flaws ubiquitous at as almost uate —has become study of the fair use own undertook his also as the colleges universities American doctrine, reading he could find on this what standpoint From the textbook. conventional ultimately library. con- subject in a law He developing professor responsible been case had cluded that the Kinko’s course, avail- teaching particular *4 decided, publicized this he con- wrongly and obvious advan- ability coursepacks has an writings, through speeches, and ad- clusion variety readings from a by selecting tage; stressed His advertisements vertisements. sources, professor can create what the purchased his professors whose students anthology perfectly tailored to an amounts worry have to about coursepacks would not present. wants to professor the the course obtaining permission delays upon attendant coursepacks is physical production of The publishers. copyshop. commercial typically handled a copyshop the materi- professor gives the The surprisingly, attracted the Mr. Smith Not up, coursepack is to be made als which industry. Three publishing of the attention Adding a the rest. copyshop does and Press, University publishers —Princeton contents, perhaps, page and a table cover Press, MacMillan, Inc., Martin’s and St. many sets as are copyshop runs as off eventually brought present suit Inc.— needed, necessary binding, sells does the corporation. his against Mr. Smith and professor’s stu- product finished publishers maintains a plaintiff Each of dents. per- processes requests for department Arbor, University Ann the home of reproduce portions of mission to copyshops. Michigan, is also home to several (In addition, copyshops may request works. Michigan Docu- Among is defendant them Copyright permission through the such (MDS), corporation owned ment Services Center, clearinghouse.) a national Clearance We are told by defendant James Smith. Martin’s, both of which and St. Macmillan most, all, if not of its differs from MDS they gen- companies, claim that for-profit are way: important it competitors in at one least requests erally respond two weeks within from, request permission nor does does not copies for classroom permission to make to, royalties copyright owners. pay agreed Princeton, non-profit organization, use. something crusad- of a Mr. Smith been respond two to four weeks. claims to within which his com- against system under er claim's to put these Mr. Smith has royalties, paying agreed petitors have been test, paid permission and he has fees. as are known in “permission fees” allege infringement of the plaintiffs story begins in March of the trade. works that were Motley, copyrights on six different Judge Baker when Constance excerpted permission. The works in for the without District Court of the United States York, magnitude on the question, and the decided the statistics District of Southern New Nancy excerpts, as copyright of the follows: J. involving the are reported first ease Weiss, Party, to the Lincoln: coursepacks. Farewell See implications of educational (95 pages Age FDR Books, Corp., Politics in Graphics Black Inc. v. Basic Kinko’s (S.D.N.Y.1991), percent of the entire holding copied, representing 80 F.Supp. 1522 758 (45 book); Opinion Lippmann, Public Walter copyshop had violated that a Kinko’s percent representing 18 of the selling pages copied, by creating and copyright statute whole); Ideology: Layne, E. Political Robert permission from the coursepacks without Man Believes Why the American Common copyrights. held the publishing houses that (78 Roger pages, percent); 16 Kinko’s, told, He Does many copyshops What we After (52 Brown, pages, per- 8 Psychology permission Social previously requested that had not cent); Rokeach, (3) Milton The Nature Hu- the amount substantiality (77 pages, percent); man Values James S. portion used relation to eopy- Roberts, Randy Olson and righted Where Domi- whole; work as a Fell, 194,5-1950 Vietnam, no America and (4) the upon effect of the use poten- (17 pages, percent). The extent of the- tial market for or value of undisputed, questions pre- work_” righted, appear purely legal sented the case language This provide does not blan in nature. immunity ket for “multiple copies for class Rather, room use.” “whether a use referred
II
to in
first
sentence of Section 107 is a fair
particular
use in
doctrine,
depend[s]
case ...
upon
fair use
which
creates
application
exception
monopoly,
determinative
“per
factors.”
Campbell,
requires]
U.S. at 578 n.
rigid
[and
mits
ap
courts
avoid
S.Ct. at
9, quoting
1170 n.
plication
when,
S.Rep.
94-473,
p.
No.
statute
62.1
occasion,
very
it would stifle
creativity
The four statutory
factors
not have
which
designed
that law is
Camp
foster.”
been
equal.
created
In determining whether
Music, Inc.,
bell v.
*5
Acuff-Rose
“fair,”
a use is
the Supreme Court has said
1164, 1170,
114
127
S.Ct.
L.Ed.2d 500 that
important
the most
fourth,
factor is the
(1994),
Abend,
quoting Stewart v.
495 U.S.
the one
107(4).
§
contained in 17 U.S.C.
See
207, 236,
1750, 1768,
110 S.Ct.
109 L.Ed.2d Harper
Publishers,
& Row
Inc. v. Nation
(1990). Initially developed by
courts,
184
Enters.,
539, 566,
471
U.S.
105 S.Ct.
the doctrine was
§
codified at 17 U.S.C.
107 2233,
(1985),
copyright. In determining factor, whether upon “the effect of the use the poten any use of a work in particular made case tial market for or copyrighted value of the is a fair use the work,” factors to be considered primus at least pares, figura is inter shall include— tively speaking, and turn we .shall to it first. (1) purpose use, and character of the proof The burden of as to market including such whether use is of a effect with the rests holder if the commercial nonprofit nature is for challenged use is of a na “noncommercial” purposes; educational alleged burden, ture. infringer has the
(2) work; copyrighted the nature of hand, on the other if challenged use is Judge rejects proposition Merritt’s dissent entirety, Judge Ryan’s read in its as When asserts, effect, plain in under correctly recognizes, that lan- quoted dissent sentence guage making says statute the copyrighted use of that a work for fair multiple copies for purposes use teaching (including classroom multiple constitutes such as ipso Judge use reading copies use) Merritt's classroom infringement. for is not an facto. statute Congress would be statutory unassailable if had And the set forth factors in next copyrighted said that “the use of a for determining work must be sentence in considered purposes teaching (including multiple as such making multiple copies whether the class- use) infringement case,” for classroom is not an “any particular room ais fair use use in copyright." just But that Congress statutory what as the factors must be considered said, rather, said. It determining that "the a fair use of in whether other use referred to work, including such use includ- in the particular [i.e. sentence is fair use first in a ing "fair ... purposes use”] such ... case. as To hold would be to otherwise subvert the teaching (including multiple copies for classroom intent in manifested the words of the statute use) ... is not infringement copyright.” pertinent legislative histoiy. in the confirmed 562, 105 at 2231. And like the use Sony Corp. v. S.Ct. in nature. Uni “commercial” us, 417, 451, before Studios, Inc., being challenged in the case now City versal (1984). challenged Harper & Row was 774, 793, the use L.Ed.2d 574 S.Ct. exploitation of the “presumptively an unfair argue that the at bar the defendants the case privilege belongs to the owner publishers monopoly proof with the rests burden Id., quoting Sony, 464 copyright.” being challenged “noncom of the because the 451, 104 793.3 at S.Ct. at disagree. U.S. mercial.” We to which the materi- It is true that the use Sony presumption strength purchase the put by the students who als are may vary according to the context which in nature. coursepacks is noncommercial arises, disappears en- presumption and the by the students But the use of the materials tirely challenged use is one where chal- publishers the use that the are is not into a new ar- transforms the challeng- lenging. What Campbell, 510 tistic creation. See copyrighted materi- ing duplication is the 587-89, Perhaps pre- at 1176. for-profit corporation als for sale present ease than sumption is weaker profits give has decided to maximize its in other contexts. There is a it would be —and edge competitive over other here, nonetheless, itself presumption of unfairness royalties shops by declining pay re- persuaded are not the defen- and we — copyrights.2 quested by the holders of the dants have rebutted it. excerpts from the The defendants’ use of wrong If we are about the existence here was no less commercial books issue challenged presumption use is —if magazine’s character than was The Nation commercial, words, in other Harper & use of material *6 prov burden of plaintiff publishers have the Row, publication of a short article where poten ing upon effect either the adverse unpub containing excerpts from the still copyrighted market for the work or the tial manuscript by President lished book that potential value of the work —we believe was to be an unfair use. Like the Ford held the burden of have carried purchased unauthorized students who proving potential a diminution in market val coursepacks, purchasers of The Nation ue. put magazine not contents of the did stop determining market harm —a commercial use —but that did not One test by Sony, in Supreme characterizing Supreme Court Court from the de test endorsed Row, excerpts publica Harper Campbell evocative use of the as “a & fendant’s —is opposed categorical imperative. ne- “[T]o tion was commercial as of Kant’s [that] Row, use,” said, gate Supreme Harper 471 at fair Court has nonprofit....” & U.S. suggest copyshop exploiter that a unless the assesses the work's market 2. of the dissents Two content, merely potential, the shoes of customers and makes a selection based on stands in its copyrighted profit makes no “use” of materials that and realizes a from the substance of the materially cop- dictionary "exploit” differs from the use to which the But the defines in work. of, utilize," by put advantage But sub- ies are the ultimate consumer. terms that include "to take ject exception, Dictionary to the fair use 17 U.S.C. 106 see Webster's Third Hew International gives copyright right owner the (Unabridged), nothing Harper sug- "exclusive” in & Row copyrighted cop- reproduce "to work in gests Supreme Court intended a narrow- making copies ies....” And if the fairness of meaning. idiosyncratic er or more depends on what the ultimate consumer does points maga- dissent also out that it was copies, hard to see the manu- with the it is how outsiders, employees, zine who obtained the any copyrighted pirated facture of editions of unpublished manuscript of the Ford book and scholarship work of could ever be an unfair use. portions that were included in the selected A, infra, Part III the dissenters' As discussed in suggestion nothing offending article. But turns on the "in proposes limiting princi- no —which college character of such activities. If a house” ple legislative history counter —runs manuscript, professor had obtained the selected properly rejected by Copyright Act and has been peddled the article on a free- the courts. basis, anyone lance can doubt that it would have copyright Judge Ryan's for The Nation dissent maintains that there can- been a violation of the "exploitation" copyrighted publish professor’s of a article? not be an
1387
challenged
only
acknowledged,
copy-
show that
Second Circuit
that
“one need
“a
widespread, it
ad-
right
always
become
would
degree
use ‘should
holder can
assert some
versely
potential
[ejffect
market for the
potential
of adverse
on its
licensing
affect
Row,
Harper
copyrighted work.’”
&
consequence
revenues as a
of [the defen-
quoting Sony,
at
U.S. at
105 S.Ct.
dant’s
... simply
copyright
use]
because the
(emphasis
As noted
most of the
occupying.” Id. at
(quoting
Twin Peaks
compete
coursepaeks Prods.,
in the sale of
Int’l,
with MDS
Ltd.,
Inc. v. Publications
privilege
dupli-
pay permission fees for the
(2d
Cir.1993)). Where,
F.2d
cating
selling excerpts
hand,
copyright
clearly
the other
holder
plaintiffs together
works.
have
The three
exploiting
does have an
licensing
interest
collecting permission
ap-
been
fees
a rate
especially
market —and
where
$500,000
proaching
year.
copyshops
If
actually
holder
doing
has
succeeded in
so—
doing
across the nation were to start
what
appropriate
potential
“it is
licensing
rev-
here,
doing
have
this
defendants
been
photocopying
enues for
be considered in a
poten-
revenue stream would
and the
shrivel
analysis.”
Geophysical,
American
tial value of
works of schol-
Only “traditional,
A
gation
fully
Supreme
is
consistent
by
from that made
the defendants here
with
was
Row,
Harper.
rejected
Court case law.
&
where
by
in
the Second Circuit American
(Jon
opinion
no
in
that
Geophysical,
there is
indication
test, negate “to fair use.” excerpt signed 95-page from the book point regard with to the fourth final Our politics by Nancy Professor black Weiss. statutory the affidavits of factor concerns say that a license was not Dawson does not assigned one or more of three who publisher of the Weiss from the available to be read works book, say the license fee and he does not much of the The defendants make students. assigning him from would have deterred *8 professors as- proposition that these book. they have signed excerpts when would not purchase the en- required their students Ill significant us what seems tire work. But uses, In the context of nontransformative the affidavits shows that is that none of these least, they except as touch on at and insofar executing the affidavit would have professor factor, statutory factors the fourth the other assigning the refrained from considerably important. We shall seem less byUhe copyright position if taken the relatively briefly. deal with them holder been sustained beforehand. had Lieberman, true that Professor Victor It is A assigned excerpt from the Olson who the Vietnam, purpose and character of As to “the rais- Roberts book on America use, is of a including whether such use workability of the the questions the es about nonprofit nature or is for edu “many publishers.” commercial systems of permission 107(1), § avers, we purposes,” Kin- cational 17 U.S.C. a Professor Lieberman for con- already explained our reasons given materi- have copyshop to which he had ko’s eluding challenged that the use is of com- a bears little resemblance to the creative meta- nature. mercial morphosis accomplished by parodists Campbell case. argue copying The defendants that the here would “nonprofit issue be considered by educational” if done pro- students or B
fessors themselves. The also defendants factor, statutory second they can profitably produce note multi- “the nature of work,” dispute than is not in ple less it would cost the here. The defendants professors acknowledge or the students to make the same ex- cerpts copied for copies. number of the coursepacks Most of the copyshops contained material, creative “expression;” which the compete with defendants it was have cer- tainly fees, telephone paying permission however, listings been book shops reproducing. assume that defendants were perform we these too can This factor too against cuts copying on a more fair use. cost-effective basis professors than the or students can. This significant strikes us as a more than datum C ability of a copyshop black market do-it-yourself cost.
beat statutory The third requires factor us to assess “the amount substantiality As to the proposition that it would be portion used in relation copyright to the professors the students or to make ed work Generally as whole.” speaking, at copies, by their own the issue is no means least, (or larger “the the volume greater free from doubt. need not We decide this importance) taken, greater what is however, question, for the fact is that the affront to the interests copying complained performed of here was owner, likely and the less taking that a will profit-making on a by a basis commercial qualify a fair Leval, as use.” Pierre N. enterprise. And courts ... prop- “[t]he have Standard, Toward a Fair Use 103 Harv. L. erly rejected attempts for-profit users to . 1105, 1122(1990) Rev. stand in the shoes of their making customers nonprofit or noncommercial Patry, uses.” case at used bar— amounts Law, Fair Use in Copyright n. 34. As 8,000 words the shortest excerpt ex —far Judiciary the House Committee stated its 1,000-word ceed the safe harbor that we report legislation, on the 1976 shall part discuss in the opinion. next of this possible would not non-profit “[I]t for a H.R.Rep. See Cong., No. 94th 2d Sess. institution, by means ar- contractual (1976), reprinted after 17 U.S.C.A. rangements with copying a commercial en- using as defendants were much as 30 terprise, to enterprise authorize the to car- percent copyrighted work, one and in no ry out and distribution functions case did percent use less than exempt would be conducted copyrighted work per as whole. These non-profit institution itself.” H.R.Rep. No. centages are not insubstantial. And to the Cong., 94th (1976), 2d Sess. at 74 extent requires third factor some Cong. U.S.Code & Admin.News type of assessment of the ‘Value” of. 5687-88. excerpted material in relation entire noted, It finally, should be work, degree fact that thought *9 which challenged use has sufficiently the excerpts transformed important to make original copyrighted required reading works —another ele- them fairly strikes us as statutory ment the first virtually factor —is convincing “evidence of qualitative value you If indiscernible. copies make verbatim copied Row, material.” Harper & 471 pages book, of 95 of a 316-page you 565, have not U.S. at 105 at S.Ct. 2233. We have no very transformed the 95 pages suppose much —even reason to choosing that in the ex you juxtapose them to cerpts from other copied, professors passed package works and everything conveniently. over representative material that was more This kind of mechanical “transformation” of major ideas of the as a whole
1390
(1994).
1164,
surpris
repre-
The defendants attach weight ing publishers considerable of the revenue stream derived assertions numerous academic au- permissions. from the sale of Neither are they thors that do not write primarily contrary, us, for we. On the seems money published want their destruction this revenue can stream writings freely eopyable. The defen- upon have effect deleterious the incentive suggest dants publish unlicensed will writings. academic *11 1392 areas most unsettled of the is one Fair VI said has been doctrine law. The of the that conclusion court’s district The defy definition.” virtually to as “so flexible somewhat is willful infringement was
the Assoc., 293 Geis v. Bernard Inc. Time Copy The in our view. problematic, more (S.D.N.Y.1968). poten The 130, 144 F.Supp. statutory of collection the Act allows right illus here is disagreement reasonable tial for $20,000 for damages $500 between argued dissents forcefully by the trated 504(c)(1). § infringed. U.S.C. each cir In the opinion. panel the now-vacated that holder copyright establishes Where that case, say we cannot this cumstances may willful, court is infringement con copying that belief the defendants’ $100,- more than not award to increase toas unreasonable was so fair use stituted 504(c)(2). If the court U.S.C. Accordingly, shall we bespeak willfulness. innocent, on was infringement finds for reconsideration the case remand hand, reduce court other awarded. damages to be statutory Here the Id. than damages $200. not less - in $5,000 per work awarded court district amount characterizing the VII fringed, from this strong admonition “a as award con injunctive relief is as Insofar at 913. F.Supp. court.” has court the district cerned, judgment of scheme, statutory Willfulness, this under document separate on a set forth not been meaning. As Profes- specialized a rather has 58, Fed. required Rule manner explains, Nimmer sor sentence of penultimate The R.Civ.P. might sim- [‘willfulness’] contexts “In other the district court’s concluding paragraph neces- without copy, intent to ply mean evidently intended sentence order—a clear infringe. It seems intent to sarily an injunction— separate of a office serve used, ‘willfully’ means with as here as follows: reads conduct the defendant’s knowledge that ENJOINED “Further, defendants infringement. Oth- copyright constitutes existing or any plaintiffs’ copying from provid- point no erwise, would be there ob- first without copyrighted works future minimum the reduction ing specially necessary permission.” taining the infringe- of innocent in the case awards F.Supp. at 913. that was infringement ment, because not intend clearly did court district necessarily innocent. be would 'nonwillful copying without from the defendants prohibit then, mean, who that one This seems by copyright. protected not works permission consti- conduct his been notified court district uncertain whether We are who rea- infringement, but tutes of a sort any consideration gave the con- good faith believes sonably and in fair anything other than could not purposes.” for these ‘willful’ trary, not is set should court remand district On use. Nimmer, 3 & David B. Nimmer Melville document separate ain judgment its forth § 14.04[B][3] Copyright Nimmer pre- injunction more scope of the stating the (1996). (cid:127) cisely. faith good contest do not plaintiffs this heard panel initial Before consti- conduct that his belief Mr. Smith’s court—the the en banc before not case—but use; only the reasonableness tuted ex court the district argued “Reasonableness,” defendants challenged. that belief enjoining them powers its ques- ceeded context, essentially present copyrighted works. future reproduction case are instant The facts of law. tion persuasive. argument find doWe whether the issue dispute, the exten authority supports weight of posi- plaintiffs’ supported law See, works. to future injunctive relief sion of must be defendants clearly that the so tion Co., 23 Mills, Photo v. Linn Inc. e.g., Olan have exhibited law to a matter of as deemed (8th Cir.1994); and South F.3d 1345 proper- plaintiffs’ disregard of Pacific a reckless (11th Duncan, Co., 744 F.2d v. Inc. ern novo. issue de review ty rights. We
1393 Cir.1984), denied, 1004, cert. 471 U.S. 105 constitutional requirement.” Feist Publica 1867, (1985); S.Ct. tions, L.Ed.2d Basic Inc. v. Co., Rural Tel. Serv. Books, 1542; F.Supp. Melville B. Nim 113 L.Ed.2d Nimmer, mer & David 8 Nimmer (1991). on Copy 358 (1995). right § 1406[B] The by taken view Michigan Document Services provided a these authorities seems the better one us. service the University of Michigan that promoted scholarship higher education. VIII Michigan Document Services was paid for its grant The summary of judgment on the services; however, that fact does not obviate fair use issue is AFFIRMED. The award of a fair use claim under these facts. Requiring damages VACATED, and the case is RE- Michigan Document pay Services to permis- MANDED for reconsideration damages sion fees in this instance is inconsistent with entry of a separate judgment the primary mission of the Copyright Act. inconsistent with opinion. rights individual granted by the Act are subservient to the primary objective, Act’s MARTIN, Jr., BOYCE F. Judge, Chief which is promotion creativity general- dissenting. ly. We must therefore consider the fair use presents This case for me one of the more provision of Section 107 of the light inAct obvious examples of how laudable societal the sum public total of benefits intended objectives, recognized by both the Constitu- instance, law. In this there is no statute, tion and have been thwarted adverse impact economic on Princeton Uni- judicial decided lack of prudence. Copyright versity Press that can outweigh the benefits protection as embodied in the Copyright Act provided by Michigan Document Services. of 1976 is intended as a public service to both Indeed, presume adverse economic impact, the creator and the published consumer of as has the majority, presume is to Although works. grants the Act to individu- $50,000 in fees currently by plaintiff earned als limited control over original works, their is mandated by the every Act' in instance— it was drafted to production stimulate the something I presume. hesitate to those works for the benefit of the majority That the significance lends whole doctrine, nation. fair use which identity of the person operating photo- requires public unlimited published access to copier profound is a indication that its ap- works in educational settings, is one of the proach misguided. Given the focus essential checks on the otherwise exclusive Act, Copyright only practical property difference rights given to copyright holders between this case and that of a student under the Copyright Act. making his or her own is that com- Ironically, majority’s rigid statutory mercial photocopying is faster and more construction Copyright grants Act cost-effective. Censuring private incidental publishers the kind of power I, that Article profit sector reflects little of the essence of Section 8 of the designed Constitution is copyright law. majority Would the require guard against. The Copyright grants Clause permission fees the Professor’s teaching Congress the power to create copyright in- assistant who at times must copy, at the terests that are in scope. limited Conse- behest, Professor’s copyrighted materials for quently, the Copyright adopted Act the fair cláss, dissemination to a merely because protect use doctrine to society’s vested inter- such assistant paid an hourly wage by the est in the sharing of ideas and information for this work? Professor against pursuits of illegitimate or excessive private proprietary claims. may While it majority’s reading strict of the fair unjust seem share, must in use promises doctrine to hinder scholastic situations, certain work-produet progress with By charging permis- nationwide. others, charge, free of that is not some “un- sion job, fees on this kind of publishers will byproduct foreseen of a scheme;” .statutory pass expenses colleges and universities rather, it is “essence copyright” will, course, and a pass such fees on to infringement use), ... is not harmed also be Students students. added). (emphasis § 107 right.” 17 U.S.C. delays cause expenses added upheld injunction the Court Also, an- creating specialized such against opt *13 by the provided protections profes- exceeds Even their courses. thologies for of whether regardless Act of 1976 Copyright of the benefits reproduce attempt sors grossly so use and is a fair use was education, text- the added a such customized Amend- First that it violates likely prohibi- overbroad to students cost book ment.
tive. such a suggest Act does Copyright I. Rather, contem- fair use doctrine result. impression with of first of informa- a case free flow This is creation and plates the Supreme Neither the consequences. information of such broad flow tion; unhindered appeals court of other things, education nor Court among other through, “multiple exception allowing of interpreted free flow and the creation spawns turn § 107 of found in use” classroom for new information. legal pre- There is no statute. copyright copy published right limiting the our history supports legal no cedent and Act, Congress creat- Copyright works in way that in a reading phrase of this Court’s one before like the exception for cases an ed copying practice of widespread outlaws the school, bought your you I inwas us. When students. teachers and classroom use for library supple- for you went books institutions, practical For supple- this academic record To information. mental in this decision consequences of the Court’s information, learn and in order to mental say the unsatisfactory, highly long-hand or case are it, you wrote.it out from benefit multiple copies for Anyone who makes easy, but least. you needed —not typed out what guilty of a use for fee free enter- classroom help Today, with effective. just copied is portion unless the infringement fundamental technology, this prise a Chapters from long. paragraphs study has a few for obtaining information means of verboten. journal from a are may now rou- book articles Students been made easier. corner and other longer Kinko’s infor- No copies of the inexpensive tinely acquire bookstores, libraries copyshops, or school hassle. all of the mation need without any- copy and kiosks booths information and student-run giving of an instructor The trend passage. I do a except small thing for a fee single a set of to make copying to a service plain so why construe just see we should fee is for a small copies for each student permits its statutory language that on face process of to the classic approach a modern classroom use.” copies for “multiple this statute enforce To otherwise education. use making copies for classroom custom I dissent. therefore is nonsensical. law during my college and began a fee for now well- forty years ago and is days MERRITT, dissenting. Judge, school Circuit for over- justification I see no established. permissi- in this case done copying practice. turning long-established this language of plain under ble ana- the Court's method disagree with I copies for class- that allows “multiple statute language statutory explaining the lyzing of a fair use “[T]he room use:” Ex- exception.1 § providing of 107 teaching ... such as purposes for work ... ( n including is cast “teaching,” the statute cept for multiple copies classroom infringement because determinations Judge Ryan’s use” and opinion majority Both taking case-by-case basis made are approach determination whether dissent reasonableness into infringing solely consideration use of here is at issue the use ,107. perspective, I do not equitable Nei- statutory set out in factors the four controlling. The the four believe factors language nor the plain of the statute ther given much plain language should be specific be made requires determination case law abstract weight than the four case fac- more grounds four solely of those on the narrow copying for relevance language considerations the statute is plain little tors. Because use. “multiple copies classroom concerning for classroom clear general, language abstract that allows fair copyright] Congress may authorize are “criticism,” “comment,” use for report- “news neither unlimited nor' primarily designed to ing” and “research.” The scope or extent of provide special private benefit,” Sony Corp. copying allowed for these is left uses unde- America v. Studios, Universal City Inc., fined. Not “teaching.” so purpose, This 417, 429, alone, purpose and this is immediately fol- (1984), L.Ed.2d 574 a statement the Court by a lowed definition. The definition allows fully more explained as follows: “multiple copies for classroom use” copy- The limited scope of the copyright holder’s righted material. The four factors to be statutory monopoly, like the limited *14 considered, e.g., market por- effect and the right required duration by the Constitu- used, tion of the work are of limited assis- tion, reflects a balance of competing claims tance when teaching the use at issue fits upon public the interest: Creative work is squarely within specific the language of the to be encouraged rewarded, but pri- i.e., statute, “multiple copies for classroom vate motivation must ultimately serve the present use.” In the ease that is all we cause of promoting public broad availabili- “multiple copies for classroom use.” have— ty literature, music, of and the other nothing There is in the statute that distin- arts.... technological When change has guishes copies between made for by students rendered its literal ambiguous, terms the person third charges who a fee for their Copyright Act must be light construed in copies labor by made students them- of purpose. its basic pay selves only who for fee use of the copy Century Twentieth Corp. Aiken, Music v. political machine. Our economy generally 151, 2043-44, encourages the division and specialization of (1975) (footnotes omitted). L.Ed.2d 84 labor. There is no why reason in this in- public has the right stance the law make use should discourage high copyrighted work and schools, colleges, exercise that right students and without requesting permission from, hiring pay- from or the labor of others to make their ing any to, fee copyright the copies any holder. more than there is a reason to essence of discourage promotion is the lawyers from hiring paralegals to learning publishers. enrichment copies make for clients and courts. The —not Court’s distinction in this ease based on the division of labor—-who does copying —is II. sighted
short and unsound economically. if plain Even language of the statute Our authority Court cites no for the propo- allowing “multiple copies for classroom use” sition that the intervention of the copyshop were clear, less analysis the Court’s of the changes the outcome of the case. The Court fair use factors is off base. There is nothing by focusing errs on the “use” of the materials in the fair analysis use that casts doubt on by made the copyshop in making plain meaning “multiple copies for upon rather than the real user of the materi- classroom use.” als—the students. Neither the District Court nor our provides Court a rationale as Money changes hands and makes the why the eopyshops cannot “stand in the transaction “commercial” because the co- shoes” of their customers in making copies pyshop has freed the student from under- noncommercial, purposes educational taking physical task of copying. The where would be fair use under- copyshop money makes its based on the by professor taken or the person- student pages copied, number of not the content of ally. pages. those paid The students copy- Rights of copyright tempered owners are shop solely time, for the effort and materi- by rights public. The copyright als each student would otherwise have owner has never been complete accorded expended in copying the material himself or control over all possible of a uses work. money paid herself. The money is not Generally, monopoly “[t]he privileges go [of would publishers. otherwise because met their burden “commercial,” Plaintiffs have our use to be put it lifted the burden the Court has maga- authority the use cites as Court defendant. onto the shoulders excerpts from President Nation
zine The
infringement.
book,
found
a use
Ford’s
upon the
Turning to the effect
Row,
(citing Harper &
Maj. Op. at 1385
market for
value
potential
Pubs.,
Enterprises,
v. Nation
Inc.
failed to
work,
have
plaintiffs
righted
here
(1985)).
85 L.Ed.2d
105 S.Ct.
done
photocopying
demonstrate
copied
from
excerpts were
But
Ford
marginal econom-
caused even
defendant
and dis-
photocopier
on a
As the
publishing business.
ic harm their
study.
science class
political
to a
tributed
concedes,
prefer
would
Court
for classroom
multiple copies
They were not
con-
purchase
publications
that students
... of teach-
use,
purposes
copied “for
receiving pho-
excerpts instead
taining the
the Ford
“scooped” They were
ing.”
publications.
excerpts from the
tocopies Nation, a com-
in The
published
memoirs
(“the publisher would
Maj. op. at 1387
See
Row,
Harper and
before
publication,
mercial
buy the book
that students
preferred
have
owner,
publish them.
could
added).
_”)
(emphasis
What
itself
*15
interpret
classroom
the
does not
The case
part of the
“prefer” is not
would
publishers
application
§
no
exception of 107
use
poten-
on the
analysis
the effect
to determine
us.
the case
before
what the
are to examine
tial market. We
The
the market effect.
tell us about
facts
“amount and
also assesses the
The statute
it
wishful
that
is
demonstrate
facts
in relation
substantiality
portion
the
used
of
publishers
the
thinking
part
the
of
a
The
copyrighted work as whole.”
the
assigned the works in
professors who
the
of
percentage
the
excerpts
were a small
here
their students
have directed
question would
recognized
The District Court
work.
total
excerpted
if the
purchase
entire work
the
“truly ‘excerpts’
excerpts
were
copying.
for
The
portions were unavailable
for
replacements
the
purport
do not
percentage
copied
a
of
were
small
Press v.
Univ.
original
Princeton
works.”
and,
work,
testi-
as the
total
the
Inc.,
Servs.,
F.Supp.
Michigan Doc.
855
they
fied,
likely
would
more
it seems
(E.D.Mich.1994).
does not
This factor
altogether instead of
the
have omitted
work
use,
and our
against a
of fair
weigh
purchase
entire
requiring
students
contrary
reaching a
conclusion.
Court errs in
work.
analyzing
mar-
also errs
The Court
plaintiffs here
complained
by
of
The use
copying. The
classroom
effect of the
ket
years and
many
widespread for
has been
proof
erroneously
shifts the burden
Court
to demonstrate
publishers
not been able
have
by label-
effect to the defendant
as to market
market for
harm to the
any significant
Maj. op.
in nature.
ing the use “commercial”
pub-
The
during that
time.
works
plain-
Generally
is on the
the burden
at 1385.
Congress
persuade
industry tried to
lishing
alleged harm to
tiff to demonstrate
by
type
copying done
in 1976 to ban
value for the
potential market
to do so
Congress declined
defendant here.
challenge
to noncommercial
If the
is
a
work.
industry
trying
has been
publishing
and the
work,
plaintiff must
use of
language
around the
ever since to
by
of the evidence
prove
preponderance,
rights.
expand its
the statute to
harmful or
particular
is
either
use
amount
wrong to measure the
It
also
widespread, would
if it
become
should
by loss of
publishers
for
economic harm
potential market
adversely affect the
that as-
fee —a criterion
presumed license
shifts the
The Court
bur-
copyrighted work.
right to
publishers
have
sumes
acknowledge that the
it fails to
den because
where the user
in all cases
collect such fees
“multiple copies for
question making
—
published works. The
any portion of
“teaching” purposes pre-
classroom use”
—
approach
opinion approves
majority
§
plain language of
cisely fits the
injunction
affirming the issuance of
to relieve the
strains
éxception. The Court
any por-
copying
prohibiting defendant
proof.
their normal burden
plaintiffs of
plaintiffs’
tion of
works.
It does so without
injunction
doctrine of fair use exists. The
ease-by-case
requiring a
determination of in-
necessity
avoids the
determining
whether
fringement
Supreme
as mandated
infringement
is an
or a fair use—
any copying
Court. See discussion
at 1385-86.
and dissemination is forbidden.
infra
injunction
protects
The
also
publica-
future
publishers
right
have
no
to such a
plaintiffs
tions of
yet
that have not
—works
Simply
license fee.
because
even been
created —without
knowledge
managed
licensing
sig-
have
to make
fees a
as to the
copyright protection
level of
nificant
copyshops
source
income from
normally
works would
be afforded.
other users of their works does not make the
licensing
income from the
a factor on which
gross
injunction
overbreadth of the
rely
analysis.
we must
in our
If
publish-
appears to violate the First Amendment.
right
many
ers have no
to the fee
purpose
of the First Amendment is to
it,
instances in which
collecting
we
possible
facilitate the widest
dissemination of
practice by
should not validate that
now us-
information. “From a first amendment view
ing
justify
the income derived from it to
point,
injunction
the effect of an
is to restrain
imposition
job
further
simply
fees. Our
infringing expression
altogether
ef —an
to determine whether the use here falls with-
goes beyond
fect which
what
necessary
exception
in the
“multiple copies
Goldstein,
secure the
property.”
does,
for classroom use.” If it
publisher
Copyright
Amendment,
and the First
70 Co
cannot look to us to
copyshop
force the
(1970);
lum. L.Rev.
see also New
pay
copying.
a fee for the
Int’l, ApS
Co.,
Era Pubs.
Henry
v.
Holt and
(2d Cir.1989)
(Oakes,
873 F.2d
J.,
595-97
The Court states that defendant has de-
*16
denied,
concurring),
cert.
pay “agreed royalties”
clined to
to the hold-
(discuss
(1990)
injunction provides blanket protection given for all the works of a pub- III. regard lisher without to the limitations on injunction upheld by Court, The as it copyright protection in- overbroad. The —is now, rights stands copy- extends the of the junction inappropriate prohibits because it right beyond prescribed owners far the limits public using from copyshop defendant’s by Congress.2 prohibits It defendant from noninfringing copying plaintiffs’ works. any copying plaintiffs’ from materi- als, both those in any now existence and RYAN, Judge, Circuit dissenting. may published by plaintiffs future, in the regardless of whether the entire application work is It is clear from of the four appropriately protected by copyright fair use factors of 17 107 that U.S.C. copying whether the is for copying publishers’ classroom use or MDS’s injunction and, is otherwise a fair pro- thus, use. The in works this case is fair use no copying hibits defendant from infringement publishers’ rights. of the In- righted deed, plaintiffs, works of the merely aspect without re- it is a use which is an gard length, purpose use, professors’ content or and students’ classroom and, recognition ónly without that the in the and most technical narrowest Although majority 2. precisely” scope injunction, has modified its the re- opinion directing draft of the to order a remand gives guidance virtually mand instruction no (1) injunction the district court to set out the ain curing the district court about the overbreadth of separate required by order as Federal Rule of injunction. (2) Civil Procedure 65 and to set forth "more copies and better apparently produces MDS genre under sec-
sense, separate a use of a professors or than cost individual And, so, less I must dissent from tion .107. and, could. expressing students contrary majority’s view matter, I shall iden- understanding my the materials professors select I on which important subissues tify three to MDS with deliver them copied and analysis colleagues’ has led them my think expected of students of the number estimate activity is mistakenly that MDS’s conclude assign then in the course. materials. publishers’ a fair use particu- in a enrolled material to students my colleagues have erred my judgment, In they may them that and inform lar class in course- required materials purchase the permission fees focusing they loss of wish to do so. 1. on the at MDS pack form alternative, under section to make evaluating effect” are free “market students li- 107(4); at the excerpted material copies of the themselves, copy the material from brary supports the evidence 2. students, the whole purchase or to other provide an permission fees conclusion assigned text original work which to create to authors important incentive appears. publish new to publishers new works or
works; and copy of all the a master prepares MDS history, specifically legislative using professor, creates selected materials Guidelines,” to decide the “Classroom contents, excerpts by au- identifies table use. issue of classroom work, underlying num- thor and name of the copied pages, and binds bers the then I. coursepacks are excerpts together. These judgment make Professors particular only to students for sold larger portions of much only fractional general course; sold to the are not need to be examined copyrighted works purchased Any copies that are not public. theories, facts, explain the their students coursepacks are simply discarded. developments in which the and historical basis, regardless of the per-page priced on *17 interested, or that the select- professors are page The fee for a page. of the contents central to excerpted are not ed materials copyrighted materials reproducing In such professors’ purpose. classroom page. fee for a blank same as the may instance, conclude professors or other receive no commissions professors benefit to the students that the educational coursepaek delivering economic benefit justify requiring students to does not materials to MDS. original work. Rather purchase the entire specifically this case are concerned We entirely, profes- than omit the materials from works to excerpts extracted with six could, course, copy a reference of make sors copyrights. Follow- plaintiffs which hold the produce and mul- excerpted portions professors who ing the direction several of sections for their tiple copies of the relevant excerpts the defendants for brought the to Alternatively, they might require students. excerpts, along copying, assembled MDS go- their own time spend their students to suit, in this materials not at issue with other gain library, waiting their turn to ing to the copied excerpts coursepacks. The into three library' scarce reserve access to sometimes 30%, of pages, or 5% to ranged from 17 to 95 materials, photo- going operated to the coin requesting original works. Each machines, making their own and stating that signed a declaration have copies, practice of where request he does not However, in circum- challenged. assigned the entire would otherwise have he case, professors, presum- stances of this work to his students. students, requested ably as a service operates plaintiff publishers Each of the from a number copy and MDS assemble processes re- and department that receives profes- excerpts identified of works any of that permission to use quests for to read. beneficial their students sors as publisher’s copyrighted works. plaintiff policy reasons, desirable for the courts publishers usually charge a allowing fee for long have held many uses of a copy portions others to of their works righted and work do not infringe upon the generally share these with the copyright. fees authors. publishers grant permission Sometimes the National Ass’n Am. v. Handgun Rifle copy charge, without and other times Ohio, Control (6th Fed’n 559, 15 F.3d deny permission entirely. — Cir.), denied, cert. -, 115 S.Ct. 71, 130 (1994). L.Ed.2d 26 Although monop II. oly protection of the financial interests of
The Copyright Act both
inventors and
gen
establishes a
authors
sometimes neces
grant monopoly
sary
eral
powers
creativity
“to stimulate
holders of
authorship,
and
copyrights
excessively
and codifies
protection
the “fair
broad
stifle,
use” doc
would
trine
exception
advance,”
as an
rather
than
grant.
to that broad
progress.
intellectual
Leval, supra,
Section
of the Copyright
Act
1109.
progress
confers
For
in “Sci
rights upon
exclusive
ence
individual
and useful
occur,
Arts” to
creators to
others must
produce
permitted
distribute
be
and
original copy
upon
to build
and refer to the
righted
prior
work and
creations of
“derivative works
thinkers.
based
upon
work.”
17 U.S.C.
, Thus, the “fair use” concept
embodied
However,
§ 106.
section 107 carves out an
section 107
generally
understood
exception
rights
exclusive
conferred
permit a secondary use that “serves the
section
permitting
pub
members
copyright objective
stimulating
productive
lic
to use
works for “fair” pur
thought
public
and
instruction without exces
poses.
17 U.S.C.
107. Whether a chal
sively diminishing the incentives for creativi
lenged
qualifies
as a “fair use” is to be
ty.” Leval, supra, at
An
evaluation of
determined
considering section 107’s four
fair use therefore
“involves difficult balance
factors,
fair use
which are set forth in the
between the interests of authors
inven
and
majority opinion,
any
as well as
other rele
tors in the control
exploitation
and
of their
vant considerations. The four fair use fac writings
hand,
and discoveries on the one
tors,
factors,
other relevant
must be
society’s competing interest in the free flow
applied
weighed together
light
“in
ideas, information,
and commerce on the
purposes
copyright” protection.
Campbell
Sony
other
Corp.
hand.”
Am. v. Univer
Music, Inc.,
v.
569, 578,
510 U.S.
Acuff-Rose
Studios,
City
Inc.,
sal
1164, 1171,
(1994)
114 S.Ct.
“The does not insu is not late it finding from a infringement.” authors, reward the labor of but ‘[t]o Campbell, 584, 510 promote U.S. at 114 Progress S.Ct. at 1174. Science and useful ” Thus, agree I Publications, majority with Arts.’ Feist Inc. v. Rural Tel. production Co., 340, and use of the 349, coursepacks Serv. 1282, must 1290, (1991) be examined under all four factors L.Ed.2d 358 enumerat (quoting U.S. ined I, 8). section 107. § art. cl. This court has Const.
explained:
Copyrights provide III. an incentive for the creation by works protecting the own- A. er’s creation, his or her intellectual allowing creators to reap the material very outset, re- At the it is critical to under- However, wards of their stand, efforts. stated, because Ias have earlier that MDS’s not every use of a work undermines this “use” of this material of the underlying copyright law, rationale of same by essential character as “use” a stu- because some uses of works dent who personally pho- chooses to amake likely capturing the and are more excerpts. goals, There designated
tocopy motivated the 1) fur- same student will rewards.that are two differences: economic Thus, original work. classroom; creators in the the material ther “use” fac- the first fair use inquiry 2) for ultimate under copying for the student MDS does being chal- type of use tor is whether the profit. nature, is, likely to by benefit lenged its ultimately be an- question that must The excessively diminishing the society without is a fair use for that which is whether swered new works. incentives to create fair use if done copying—is not a a student — another, profit. and for a student for the i. explicitly antici- Plainly, Copyright Act analysis transformative char- Ordinarily, by “reproduction in pates that use of work factor prong first of the first acter under the teaching as ... purposes ... for such copies merely the new work centers on “whether (including multiple for classroom objects’ of the cre- ‘supersede^] the use),” a fair use even will sometimes new, something ... instead adds ation or commonly though teaching conducted character, purpose or different with a further § profit. U.S.C. expression, mean- altering the first with new materials, Thus, which copying of MDS’s words, asks, message; in other ing, or (including “teaching mul- indisputably are for work is to what extent the new whether and use),” must be tiple copies for classroom ” Campbell, 510 U.S. ‘transformative.’ the four “factors for fair use under tested omitted). (citations at 1171 114 S.Ct. Id. in section 107. be considered” there is no occasion to But in this case must evaluate first factor that courts The aspect transformative because address the purpose is “the in a fair use determination all in the inquiry is not conducted at use, including whether and character of the multiple copies for classroom use. case or is for is of a commercial nature such use has noted dicta Supreme Court purposes.” 17 U.S.C. nonprofit educational statutory exception to this fo- obvious “[t]he 107(1). straight uses is the cus on transformative multiple copies for classroom reproduction of parts to section 107’s.first There are two Campbell, at 579 n. distribution.” (1) degree to which the chal- factor: Thus, although 1171 n. 11. 114 S.Ct. at original, lenged use has transformed coursepacks value of the the transformative (2) nonprofit character of the profit or any respect weigh slight, it does not in use determi- Both a non-transformative use. against reproduction of MDS’s nation and a “commercial” use determination classroom use. use, though weigh against a conclusively. no means ii. of the use” is “purpose and character fair use ques- prong second of the first whether
examined to determine
purpose of the use is
to factor asks whether the
use would tend to advance or
tioned
nonprofit
Id.
in-
and educational.
goals
copyright law. The
commercial
thwart the
at 1174. The “fact that a
aspect of the
114 S.Ct.
quiry into the
transformative
opposed to
society
publication
commercial as
likely
[is]
use assesses the
benefit
*19
separate
a
factor that tends to
nonprofit
use—the more the
work
the
Harper
use.”
transformed,
likely
weigh against
a
a
of fair
the more
it is that
been
Row, Publishers,
Enterpris
Inc. v. Nation
product has
&
distinct and valuable new
been
539, 562, 105
2218, 2231,
es, 471
inquiry
profit
the
or non-
U.S.
S.Ct.
created. The
into
(1985).
point
The
here “is not
assesses
the L.Ed.2d 588
profit aspect of the use
both
the sole motive of the use is mone
society
and the likelihood whether
likely benefit
tary gain
whether the user stands
incen-
but
that the use will threaten the creators’
profit
exploitation
from
of the
purely
purposes
financial
tives: Users with
customary
paying the
likely
personal material without
to use the work for
are more
other,
my judgment,
party profits
In
a
socially
price.” Id.
gain rather
than
laudable
“exploiting copyrighted
from
protected
material when
put,
substantive text
not the
it assesses the
potential
copy-
marketable
of
process
mechanical
copying
it. Congress
righted material, selects material based on specifically identified “teaching (including
reproduce
its content in order to
por-
those
multiple copies
use),”
for classroom
§ 107
customers,
tions that will attract
and there-
(emphasis added), as an illustration of pos-
profits
fore
from
of the copy-
substance
sible fair use. Consequently, the act
righted work.
ing (implicit in “multiple copies”) is within
preliminary matter,
aAs
must
we
first
illustrative use of “teaching.” MDS is
deeide whose use of the coursepaeks must
not in
be
making
business of
copies
pro-
majority accepts
evaluated. The
publish-
tected work in
up
order to fill warehouses or
position
ers’
relevant “use” please
logging
industry;
it makes the
under the first factor is MDS’s sale of the
copies only for classroom use. Neither the
coursepaeks
students,
not the use of the
language of section 107 nor simple common
purchased coursepaeks by the professors and
sense warrant examining
production
Having
students.
inquiry
limited its
to multiple copies in a vacuum
ignoring
and
reproduction
MDS’s mechanical
of the ex-
their educational use on the facts of this case.
cerpts
for-profit
and
charge for the technolo-
majority
gy
claims that
required
Supreme
and labor
reproduce
the rele-
Court’s
pages,
reasoning Harper
vant
in
majority easily
& Bow
finds that
Publish
ers, Inc.
copyshop’s
v.
Enterprises,
“use” of the copyrighted
Nation
works is
“commercial.” I
do not
support
find
for this
If
Court
characterizing
the words
used
section
[The
107 are to
Na
given
primary
magazine’s]
generally
tion
accepted
publica
‘aas
*20
meaning, particularly in
tion
was
opposed
[that]
the
of
commercial as
context
the
Act,
balance of
Copyright
nonprofit_’”
(citation
the
Maj.
it is
op.
obvious
at 1386
omitted).
the use that
is to be
majority’s
evaluated for
parallel
intended
fairness
this case is the use to which the
not bear
scrutiny.
does
close
selecting excerpts
only if
case
MDS were
distinguish
this
critical facts that
are two
There
First,
value to the
by assessing their commercial
from this case.
Harper
Row&
entity
Row,
coursepacks
for its own
profit-seeking
assembling
public,
the
Harper &
nonprofit
coursepacks
users —the
marketing
the
purposes,
sold
and
pur-
public who
general
public
paying
members
for
or to the
without
copied
magazine and “used”
chased
But that is not
copyrighted materials.
themselves —was
material
to educate
profit
MDS’s
does or did.
what MDS
original manu-
entity that obtained the
same
provision of me-
entirely to its
a
attributable
materials,
reproduction.
portions for
script and selected
running
of value
chanical service—
Thus,
Magazine
directed
Nation
both
Tfie
by
through its
others
to others and selected
copying.
from the
copying
profited
and
binding
and
them.
photocopying machines
Here,
nonprofit
case.
That
is not this
attempt
no
to assess
MDS made
Because
(the
originals
entity
professors) obtained
not
copied
it
and did
select
value of what
portions
reproduction.
selected
and
services, it
not
copying
did
materials for its
did not
but
professors directed
copyrighted material without
“exploit
did not direct what
profit;
profited
MDS
but
customary price,” as
was
paying the
Row,
Second, Harper
copied.
&
was to be
Harper
& Row case.
done
defendant, The Nation
profit-seeking
Certainly
that MDS “uses” the
it is true
carefully
the material to
Magazine,
selected
it
in the sense that
copyright work
and
its
copied
content!substance
handed to it
copyrighted material that is
profit
sought to
content!substance
from
it
not “use” the
professors. But
does
from
reproduced,
that it
of the material
university pro-
independent of the
material
reproduction
itself.
the mechanical service
use;
participant
it
and students’
fessors’
hand,
case,
profit-
In
on the other
only
profits are derived
in their use and its
defendant, MDS,
seeking
neither selected
photoreproduetion services the students
from
copied for its
material
content/sub-
pay
perform.
it to
copy-
sought
profit
from the
stance nor
substance;
its
righted material because
its
selling
producing
The business
profit
from the mechani-
purpose was
coursepacks
properly
more
viewed as the
and assem-
photoreproduction
cal services of
exploitation
professional
commercial
bly.
inability
technologies
of aca-
ing
mind, I
would
With these distinctions
parties
reproduce printed materials
demic
purpose” determi
approach the “commercial
copyright-
efficiently,
exploitation
not the
in a
section 107’s first factor
nation under
ed,
copyshop is a
creative materials. The
majority
A
way
does.
different
than the
solely
engaging
in the business
printer,
meaning
within the
of sec
is “commercial”
images
paper at the direction
reproducing
on
profit from
the user seeks to
tion 107 if
not control
of others. Because MDS does
-copyrighted material. Har
“exploiting” the
excerpts that
length or substance of the
Row,
per
work to the resulting eoursepacks supersed tial that contradicts these declarations. noted, court originals. As the district ed the majority appears these dec- to dismiss excerpts at in this case “are the six issue did not only professors larations because the purport truly ‘excerpts,’ and do not they would not have further declare original works.” replacements assigned eoursepacks that included the cost Princeton, F.Supp. at 910. fee; permission of a minimal “what seems absolutely no in the rec- There is evidence affida- significant to us is that none of these copyrighted support that the executing ord to professor that the vits shows excerpted so substantial- assigning works at issue were affidavit would have refrained from origi- by ly eoursepacks superseded the position if the taken that the proper nal or otherwise exceeded the holder had been sustained be- works say justify professors purposes not that could [The do] forehand.... educational Thus, [they] assign- reproduction. would have refrained from the third factor favors ing” they had known finding the contested works use. pay a copyshop required
that the
had been
to
Indeed,
Maj.
permission
op. at 1388.
fee.
D.
that;
they
say
good
did not
and there are
fair use factor is “the effect of
The fourth
many
assigned
things
other
about the
ex-
upon
potential market for or
the use
cerpts
they
say.
did not
But
those
value of the
work.”
U.S.C.
any way
not
unstated matters do
diminish
107(4).
factor,
courts must
Under
said. This
the truth or the force of what was
harm caused
consider the extent of market
expect
professors
court should
alleged in-
particular
actions of the
publishers
that had the
done what
assert
fringer and “whether unrestricted
wide
do,
they
right
have no
engaged
spread conduct of the sort
assigned the materials.
If
would not have
substantially
...
in a
defendant
would result
publishers
right
charge
one
have the
impact
potential
on the
market
they
adverse
penny per page copied,
also have the
590, 114
Campbell,
at
original.”
right
charge
per page copied.
It is
$50
(internal
high
quotation
marks omit-
to ask how
irrelevant and unknowable
ted).
single
The fourth factor is the
most
they
market harm
claim is the
permis-
loss of
use,
important
Harper
element of fair
&
eoursepacks
sion fees. MDS’s
would inflict
Row,
2233-34,
Sony,
(1995)). majority System.” even there was approach, the Political Under this contemplat- publishers that the had holders’ mo- evidence find would potential product, such a there is no evidence nopoly over uses ed compilation publishers’ in Princeton includes “the derivative would at issue works reproduce portions production selling permission devalued defendant’s is, eoursepacks is no evidence eoursepacks; for inclusion there the works —and actually compilation earn be- publishers likelihood that will that such a would less eoursepacks. reproduction such is a demonstrated existence of license cause of the 591-96, Maj. op. Campbell, 510 U.S. at S.Ct. at fact.” 1178-79, instance, declined to the Court majority Harper cites & Row solely undisputed find market harm based on support reasoning its Campbell as user created evidence that the unauthorized licensing loss of fees —to which the the mere product rap-parody—from the profitable — may copyright holder not be enti- original; rap-paro- that the the Court noted majority proof of market harm. The tled —is dy mar- version was not shown to affect the Row, plaintiff Harper that in & did *26 thereby prof- the authorized and leach Harper made between the facts in & Row publishers cap- otherwise its that the could Harper facts in & Row and the this case. However, ture. neither the facts on this copyright proof there was that the holder any support leap record nor case law such a (the potential conceived of a derivative work logic. in articles) planned Magazine Time and took meaningful steps in that to aid the creation of plaintiffs The fact is that the are not able capture profits to from derivative work and product to create a market for the that MDS planned that value of the de- creation. The produces. that serves a To extent MDS by rivative work was harmed the defendants’ all, by market at it is one created the individ- work; original unauthorized use of the professors ual who have determined which copyright contract with Time holder lost its they excerpts from which writers wish to Magazine concomitant fees—for —and comprise required reading particu- for a right print prepublication ex- exclusive publishers lar If the course. decided cre- cerpts of President Ford’s memoirs when anthology excerpts ate an from its illicitly Magazine The Nation obtained a on, righted example, for Black works “The unpublished manuscript pro- copy of the and Experience,” it would not fill the market quoting duced a short article from the heart by X niche created Professor who is interest- Row, Thus, manuscript. Harper in & Indeed, very ed in different materials. original the value of the in a derivative publishers not claim to lost an ac- do have targeted by market that was specific count for materials with a customized by holder was harmed the unauthorized use professor copyshop coursepack; of a because of the work. There is no similar evidence of they prepared nor claim to be to enter do injury to in the value of a work this case. highly-customized argu- market. The
First, publishers pub- there is no evidence that the ment that the seek to enter the lishers, here, planned any products to create derivative market of customized materials market; evidence, licensing copyshops, for a derivative no for MDS other who cre- instance, sought compilations, publi- such that MDS’s holders ate compilations publish competing compilation or license a cation of unauthorized inter- interest, instance, excerpts ability licensing to attract the feres with their obtain simply copyshops of the students in Professor Dawson’s inter- fees from other returns the disciplinary publishers original argument circular course “Black Americans and the to their fees, professors has submitted declarations from they to permission are entitled stating professors request do not they losing permission fees. part, because assign when would otherwise identify potentially publishers do the entire work. Because the and license specialty materials marketable assigned original would not have works compilations produce the as copyshops to ease, any purchased the students who works; rather, publishers true derivative coursepacks not a were demonstrable market identifying potential reject any active role purchasing diverted the works. If it creating derivative markets or derivative all, any excerpted had effect impose tax/surcharge works and seek to prospect materials enhanced the designed by unique compilations that are original might works later be of interest by MDS professors and assembled individual might purchase the student. Students Thus, specific course. the facts for use when, example, taking works any suggest that the value of con- do not discipline, other courses in the same conduct- damaged by has been ceived derivative work ing subject more extensive research into a coursepacks. production of the defendant’s upon excerpt, doing gradu- touched in an or simple key is between eco- distinction ate work a broader field to which the copyright holder nomic detriment appeared excerpted material later relevant paid permission fees are when publishers pro- recalled. The have was always present— “harm” that will user —a any original duced no evidence that sale of an product of a harm to the value —either work has been lost. product— original a derivative work or of harm to a Nor is there indication copyright holder seeks to market. from which authors or derivative market distinction Application of the value/detriment publishers profits expected to receive purposes Copyright Act as serves the necessary respective that were to their deci- definition ad- established/reasonable publish sions to write or works. by majority not. does vanced said, I not claim As have do Copyright Act guiding principle of the they sought publish compilations *27 earnings original of the financial is anthologies by the exis- but were thwarted exclusively to the cre- works be channeled coursepacks. There is no evi- tence of the insofar —and inso- ators of the works publishers are interested in or dence necessary they are to motivate the far —as customizing copyrighted capable of original of works and do not exces- creation limited, specific, works to accommodate of sively impede the advancement science requests frequently updated of individual and through public and the arts dissemination professors. is no evidence even that There research, knowledge, scholarship, news- of compilation publishers seek to license the criticism, reporting, teaching, and the like. party equipped excerpts a third who statutory monopoly copyright holder’s compilations but to assemble the refuses encompass profits from derivative does not agreement publish- that the do so without an holders do not works grant rights publish ers exclusive Thus, or that do not themselves seek to market that the excerpts. there is no evidence potential that the in harm the value of works works value of the market; monopoly any way by pro- do in holders seek market was harmed challenged in this profits coursepacks privileges need not include these be- duction profits function incen- case. cause these do not as prospective
tives to creators. Therefore, that there is I would conclude market effect and no evidence of Here, of harm to the there is no indication factor, fourth, weighs important and most original copyrighted works. market of the decisively in of “fair use.” favor coursepacks that the act There is no evidence purchase of the entire as a substitute for E. of a alleged MDS has that no sale works. majority’s pub- disagree conclusion been lost to the I with the book has provide an copyshop permission fees coursepacks, and
lishers because of the MDS Maj. published?” op. publish- works will be and academic important incentive authors parameters mo- at 1391-92. right its ers. —to —and profits works is creat- nopolize reasoning, appeal of this Despite the initial profits that and limited to those ed statute licensing clear that the income it is far from creation necessary incentives to the provide publishers in their decisions significant unduly impeding of new works without marginally profit- publish whether to about public, especially in the flow of information licensing income The fact that able books. flow of information serves where the free aggre- in the provides some welcome income functions, including socially significant teach- provides an incen- gate that it does mean ing through multiple for classroom in individual cases. tive to to act use. fact, is, paltry no indication There publishers’ deci- permission fees affect the hundred authors declared More than one publish whether to individual sions about professional the record that write for on currently per-page fee Given that the cases. personal making such as a con- reasons now, by publishers and, until demanded discipline, providing particular tribution to a — copyshops successfully from other extracted colleagues opportunity to evaluate a federal case” of perhaps too timid to “make theories, critique the authors’ ideas and en- that it is almost incon- the issue —is so small hancing professional reputations, the authors’ fee, anticipation ceivable that this improving opportunities. career These fee, way any meaningful affects receipt stated that the of immedi- declarants pub- publishers’ decisions about whether a share monetary compensation ate such as any given work. use of the lish MDS’s primary incen- licensing fees is not their impact righted appears to have no works wide tive to write. The declarants advocate works, incentives to authors to create new excerpts from their works dissemination may provide authors incentive to even coursepacks imposition permis- via without write, thereby advancing progress of sci- entirety in then* sion fees where works But, majority, I and the arts. like ence assigned would not have been case. matter; speculate on the there is no evidence higher producing The fact that incentives record, way. in the either materials not revolve around education monetary compensation highly relevant. Finally, majority’s argu- a word about the coursepacks The inclusion history legislative ment that the unenacted permission payment without the fees does Copyright Act instructs us that deprive authors of the rewards that the copying function is not a fair use MDS’s value, recog- record indicates authors such as provisions enacted of sections 106 under the *28 nition. and 107. majority The dismisses the motives of the F. creators —and concludes authors —the actual majority opinion the fact that is the incentives to the stresses that what matters negotia- Congress supervised “initiated and publishers copyrights. who hold the concludes, majority any among groups groups tions interested that further without evi- — dence, authors, publishers, and licensing that income from the included educators— significant specific legislative language that permission-to-copy [and market is over cases, language emerged was publishers pub- and that of the m]ost individual part law or made a lishers need the incentive of licens- enacted into was economic reports.” Maj. op. at 1390. How- ing publish fees to academic works. The committee law,” ever, majority into but speculates: publishers “If cannot what were not “enacted fees, only part receiving permission made a of the conference commit- look forward why they publishing margin- reports, are Classroom Guidelines should continue tee heavily ally upon majority relies to profitable books at all? And how will which so language creativity if diminu- decide how the enacted into law artistic be stimulated Indisputably, Guide- applies. tion of economic incentives for the Classroom nonprofit copying publish assure academic works means that fewer lines educators
14H
purposes
enough
of “not more than
using
for educational
this court to refrain from
1,000
inspira-
infringement,
fair use when
them to find
“[t]he
words” is
but this is not the
only
reject
to use the work and the
reason to
arguments
tion and decision
out of hand
teaching
legislative history.
moment of its use for maximum
based on
Committee Re
ports
genuine
effectiveness are so close
time that
are
unreliable “as
indicator
expect
timely
congressional
would be unreasonable to
pre
intent” and “as a safe
request
permission.”
judicial
reply to a
H.R.
dictor of
construction.” Wisconsin
Rep.
Mortier,
597,
No. 1476 at 68-71. The Classroom Pub. Intervenor v.
617,
2476, 2488,
“prohibitf
[c]opying
...
... used
]
Guidelines
S.Ct.
bell, 574-78, 114 at 510 U.S. at S.Ct. Row, 549-53, 105 Harper & IV. 2224-27, not does diminish in measure reasons, foregoing I For all the conclude legislative history prop not the rule that is infringe upon that MDS did not authority er source of court for this when rights publishers. language analogous. of the statute is not It particularly inappropriate rely on the specific language of the Classroom Guide interpretive
lines as an tool when we know Congress actually
that members of consid rejected language
ered it in favor very language now claimed to lack clari ty. majority language FREISLINGER, Plaintiff-Appellee, con substitutes Alan pre-enactment political tained maneu v. vering Congress obligation rely, for our PROPANE EMRO COMPANY and Mara do, required body as we on the rich are Company, thon Oil Defendants-Third properly guides application case law our Party Plaintiffs-Appellants, statutory specific factors to the facts 574-78, 114 Campbell, In case. 510 U.S. at v. S.Ct. at noted that “[t]he Court WEST SALEM KNOX COUNTY HATCH simplified task not bright-line with ERY, INC., doing George’s as business rules, statute, for the like doctrine Supply, Party Farm Third Defendant- recognizes, case-by-case analysis.” calls for Appellee. infringement case No. 95-2350. very rely weak indeed if the court must Reports the unenacted theater of Committee Appeals, United States Court of infringement. Congress to find The fact that Seventh Circuit. fit, very likely political saw in the interests of Argued April 1996. expediency, pay deference to the unusual “agreement” parties of interested what about Decided Nov. 1996. be, they would like the law to even to the Rehearing Denied Dec. (but statute) point declaring not parties’ agreement part was of the com- use, “understanding” mittee’s of fair does
affect the rule of construction that binds this
court. sum, statutory even the four factors clarity” section are not “models of application to the facts of this case is challenge
“troublesome” —a of the kind fed- appellate judges paid every
eral face day ambiguous. four factors are not —the
Therefore, properly we resort
legislative history. rely I am satisfied to
exclusively upon the evidence and lack of
evidence on the record before us and the
plain language Copyright Act and its law;
construction in the case lead compilation
me to conclude that MDS’s into
coursepacks exceipts by profes- selected notes authorized, non-parodic rap ver- ket for an (the arti- challenge a use unauthorized original. might appear It at first sion of the quotes) impact on its cle’s direct based are, definition, able to (the not-yet-publish- of the entire work sales design and market a collection memoirs) on its harm to the ed but based other, unauthorized, and that the existence of licensing excerpts. market for the There necessarily replace will some of collections important but distinction to be subtle