On 6/19/98, David Post <postd[_at_]erols.com> wrote:
>
> I've recently had occasion to reread the Michigan Document Services
> case, as well as the Kinko's case, regarding coursepack production. My
> question is in part a practical one, in part a theoretical one. I'm
> tempted to assert the following: that even in the 2d and 6th Circuits
> (not to mention the 3d Circuit, where my own institution is located), I
> can, in good faith, compile (without authorization) a single collection
> of (presumptively copyrighted) material together into a coursepack,
> bring it to the first class, and tell my students that they must make a
> single copy of this compilation for their own use in my class -- that,
> in other words, their own copying of this material constitutes fair
> use. I think this is a fair reading of these two cases (not to mention
> the statute itself); indeed, the dissenters in MDS made much of the
> fact that the majority opinion would appear to sanction this practice
> (while criticing the seeming incoherence of this). And if my students
> are not infringing copyright, neither I nor my employer can be deemed
> to be infringing under theories of contributory or vicarious liability.
>
> The practical side of this question is that I'm actually thinking of
> proceeding in this manner for one of my fall classes, and I would just
> like to get a sense from others whether they think this is, or is not,
> permissible.
I assume that the part of the dissent that David is referring to is this from Princeton University Press v. Michigan Document Services:
"That the majority lends significance to the identity of the person operating the photocopier is a profound indication that its approach is misguided. Given the focus of the Copyright Act, the only practical difference between this case and that of a student making his or her own copies is that commercial photocopying is faster and more cost-effective."
Taken from Judge Martin's dissent.
The part in the majority opinion that Judge Martin is probably referring to is this:
"As to the proposition that it would be fair use for the students or professors to make their own copies, the issue is by no means free from doubt. We need not decide this question, however, for the fact is that the copying complained of here was performed on a profit-making basis by a commercial enterprise. And "[t]he courts have... properly rejected attempts by for-profit users to stand in the shoes of their customers making nonprofit or noncommercial uses." Patry, Fair Use in Copyright Law, at 420 n.34."
I guess I don't reach the same conclusion from reading the above passage as Judge Martin did. What would most students who had to photocopy an entire coursepack do? They would go to a photocopying company and get it copied. Or they would use the school facilities (which normally charge a fee) and copy it. Isn't someone still making a profit? Aren't the same number of copies still being made? Aren't the permission fees still *not* being paid? The students' actions or the professor's actions may not be strictly commercial, but unless the student or the professor has his own personal photocopier, he is not the only one involved in the copying.
My practical reaction, as a former law school student, to your idea is why don't *you* make the copies? The majority passage above says "students or professors." So, if your conclusion is that it might be fair use for the students, then it should be the same for the professors. Or do you think that somehow distributed copying will diffuse liability? I don't see it.
Banking on fair use in many situations is an unsafe bet. Look what happened to James Smith when he did. But in your case not only do we have an interesting legal proposition, which is why you posted it to this list (and I'm sure others will chime in with their own opinions of the legal merits), but we also have an ethical issue. And it seems to me that to ask your students to make copies when the act itself *might* be unlawful is wrong. Not, of course, that I think your motives are blameworthy, but I don't like the result of your no doubt good intentions.
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