Re: Q on Pup v. MDS

On 11/25/96, John Noble wrote:
>
> Many seem to have a problem getting past the red herring issue -- if the
> student can copy it for educational purposes, then why can't MDS do it for
> him? Well, I think that's the very fact that turns noncommercial copying
> into commercial copying. When the student copies for himself, its a
> noncommercial activity. When MDS does it for money, it is commercial.

I think the reason some can't get past this "red herring" is because the doctrine in question is one of fair *use* not fair *copying.* The use to which the copied item is to be put is the same regardless of who does the copying.

It is possible that at this level of proximity between the copying and the use, where the copy shop was not seeking to profit from the sale of the underlying copyrighted material but only from the service of making the copies, the distinction between someone's doing it for pay and someone's doing it for themselves without positive pay (other than the savings in cost) or as part of their salary (if the professor) doesn't make a significant difference.

• Vance R. Koven phone: 617-482-3852 *
• attorney at law fax: 617-482-4972 *
• 20 Park Plaza, Ste. 520 net: vrkoven[_at_]world.std.com *
• Boston, MA 02116-4303 *

  ---