Re: Is all copying stealing?

On 06/03/97, David Stover <ds[_at_]ald.lib.co.us> wrote:
>
> Pardon the intrusion by a non-lawyer lurker but I would like to ask
> some questions that lead to a statement about the relevance of the
> act of copying whether it is a sentence from a book, the whole book,
> a photograph created by another, a software program, the source code
> of the software program, an e-mail message or any other electronic
> creation by anyone.
>
> I am questioning (with the term "fair use" kept in mind) the actual
> act of copying one of the above items and the illegality of the act of
> copying because I recall a Texaco decision some years ago that spelled
> out four criteria or conditions that had to occur for a claim of
> copyright infringement to be a valid cause of action (hope that is an
> accurate rememberance on my part).
>
> So, my question is two part, Could one consider the act of copying
> legal if it does not result in one of the Texaco conditions being met?
> and if not is there case law and precedent that confirms this answer?
>
> I work in a library district and the appropriate signs are hung on copy
> machines warning patrons of the possiblity of violations of the copyright
> law. Often I want to yell out, " The actual act of copying is not an
> infringement, but what you do with the copy may be."
>
> I would be interested in comments.

Yes, the act of copying itself with no more, can be considered an infringement. One of the exclusive rights given to the copyright holder under Section 106 of the 1976 Copyright Act, is the right to "reproduce the copyrighted work in copies." This right is limited by the fair use provisions, however, so that one who copies a single sentence from a book would have a valid defense to a charge of infringement. I assume the Texaco case you're remembering is American Geophysical v. Texaco, in which a scientific journal sued Texaco over the copying of journal articles by Texaco scientists. The issue in the case was whether copying the whole of an article could qualify as a fair use, and the court held that it could not. As in any fair use case, it reviewed the four statutory fair-use factors:

1. the purpose and character of the use
2. the nature of the copyrighted work
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole
4. the effect of the use upon the potential market for or value of the copyrighed work

As you can probably surmise, factor 3 makes it virtually impossible for a copy of an entire work to ever be considered a fair use.

There's some legislative history to inidcate that copying (even the whole of a work) for personal use, was not intended to be illegal. However, as far as I know, there's no law, or judicial decision confirming this, and the few times courts have had an opportunity to address the issue (most recently Princeton v. MDS) they have dodged it.

Barbara Friedman
<bfriedman[_at_]grolier.com> Received on Fri Jun 06 1997 - 18:26:29 GMT