Analysis of MDS Decision

March 14, 1996

ARL Announces...

.... analysis of the MDS decision on fair use and coursepacks urges
"cautious reliance" on this recent court ruling, pending appeals in
the case.

    A recent decision by the Sixth Circuit Court of Appeals has stirred questions anew about the fair use doctrine as it applies to a
"coursepack" collection of materials. The decision, rendered on
February 12, 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 (Princeton University Press v. Michigan Document Services, Inc.). In 1994, ARL signed onto an amicus brief in this case that put before the court a strong argument in support of the constitutional foundation for copyright and fair use.

    To sort through the implications of this decision, ARL turned to Kenneth D. Crews, Associate Professor of Law, and of Library and Information Science, at Indiana University-Purdue University Indianapolis. Mr. Crews writes that the MDS decision "in its reasoning and conclusions ...stands in nearly complete contradistinction to the Kinko's decision of 1991." However, he goes on to caution that this decision "is not the end of this case. We have months and possibly years of future appeals."

    "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 such a complete prohibition on photocopying in coursepacks, and the private settlement in that case allowed at least brief excerpts in coursepacks without further permission. Libraries and other organizations should rely only cautiously on the MDS ruling in the development of new policies and practices pending its appeal...Indeed, the case reminds us that fair use is a flexible and transitory concept constantly in need of regular review and fresh understanding."

    The complete analysis by Kenneth Crews, The MDS Decision and Fair Use for Coursepacks, is 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


___________________________________________________________________
Patricia Brennan			   	patricia[_at_]cni.org            
Information Services Coordinator           	202/296-2296 phone       
Association of Research Libraries          	202/872-0884 fax         
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