Re: PDF files on company Intranet?

On Fri, 21 Jan 2000, Bob Stock <bstock[_at_]mindspring.com> wrote:
>
> On 1/20/00, Laurie Urquiaga <urquiagal[_at_]lawgate.byu.edu> wrote:
> >
> > Bob, forgive me, I'm still learning. But based on discussions and
> > presentations, I've received the definite impression that me making
> > a copy of an article relevant to my research interests is an
> > 'accepted practice'. There's no chance that I'm going to fork out
> > money to subscribe on my own, or even purchase a single issue
> > (unless it reported a symposium or conference that was highly
> > relevant). So there is no impact on the market for the work.
>
> Not according to the leading case on this issue. Read American
> Geophysical Union v. Texaco Inc., 60 F.3d 913 (2d Cir. 1994) (I
> warn you, though, it's a wordy decision).

OK, I've read it. The discussion of 'mechanical' vs. 'transformative' copying was new to me (and interesting). I think it is unfortunate that so many academic institutions (including my own employer) are so ready to settle lawsuits than to fight them, because I do wonder if the result in Texaco (and Kinkos, for that matter) wouldn't have been different had the defendant been a non-profit university.

However, I am still troubled by one issue. The 2nd Circuit went out of its way to state that this opinion applied only to systematic, institutional copying and not to independent actions on the part of particular individuals. Note the following two excerpts extracted from Westlaw:

   "The parties and many of the amici curiae have approached this    case as if it concerns the broad issue of whether photocopying    of scientific articles is fair use, or at least the only slightly    more limited issue of whether photocopying of such articles is    fair use when undertaken by a research scientist engaged in his    own research. Such broad issues are not before us. **Rather,    we consider whether Texaco's photocopying by 400 or 500 scientists,    as represented by Chickering's example, is a fair use. This    includes the question whether such ~institutional, systematic    copying~ increases the number of copies available to scientists    while avoiding the necessity of paying for license fees or for    additional subscriptions. We do not deal with the question of    copying by an individual, for personal use in research or    otherwise (not for resale), recognizing that under the fair    use doctrine or the de minimis doctrine, such a practice by an    individual might well not constitute an infringement. In other    words, our opinion does not decide the case that would arise if    Chickering were a professor or an independent scientist engaged    in copying and creating files for independent research, as    opposed to being employed by an institution in the pursuit of    his research on the institution's behalf.**"

                                       (Cite as: 60 F.3d 913, *916)

   "Our ruling is confined to the institutional, systematic, archival    multiplication of copies revealed by the record--the precise    copying that the parties stipulated should be the basis for the    District Court's decision now on appeal and for which licenses are    in fact available."

                                       (Cite as: 60 F.3d 913, *931)

Granted, the parties agreed to stipulate that the use of a single person should be analyzed, but the underlying issue seems to have been the statistical extrapolation of the representative use to the company as a whole. It seems pretty clear to me that the independent actions of a single individual were not addressed. As a result, even after having read the case, I'm not sure I could say whether it was the 'archival' nature of the copying per se that was at issue, or the implications of such archival coping multiplied by 400 or 500 employees (especially when combined with the obvious resulting economic benefits to a commercial entity). I'm not even sure this same result would be reached in terms of the systematic copying of legal decisions by library reference staff for law school faculty, although I can certainly see the similarities between the fact patterns.

One of my personal concerns is that the fear of litigation will lead to the wholesale abandonment of established practices, with the result that legitimate fair uses will be lost through inaction and/or the unwillingness to defend them. Under the circumstances, I am hesitant to construe Texaco so as to apply its reasoning to fact situations different from that of the case. Texaco IS widely cited, but I hate to think I'll have to follow it in circumstances even the 2nd Circuit excluded from the decision.

Even more muddled than before,

Laureen C. Urquiaga
Access Services/Copyright Librarian
Howard W. Hunter Law Library
<urquiagal[_at_]lawgate.byu.edu> Received on Tue Jan 25 2000 - 23:04:26 GMT