Re: Electronic Reserves

Tyler Ochoa <tochoa[_at_]law.whittier.edu> wrote:
>
> If the article placed on reserve is a lawfully-purchased original,
> merely placing it on reserve is not an infringement, under the first
> sale doctrine. If the article placed on reserve is a photocopy, this
> probably violates both the reproduction and distribution rights. It
> is therefore an infringement, unless it is deemed to be a fair use.
> [I would be comfortable arguing for fair use in this situation, but
> it is not a slam dunk by any means.]
>
> As for student photocopying: the fact that the copying is being done
> for scholarly, research purposes does NOT necessarily make it a fair
> use. [See Princeton Univ. Press v. Michigan Document Services.] The
> student, therefore, may have infringed, even though the library is
> off the hook because of the posted warning. BUT if the instructor or
> library instructed or encouraged the student to copy the work, rather
> than merely overlooked it (a fine distinction, I grant you), then
> the university may be liable for contributory infringement as well
> (notwithstanding the posted warning). Fair use is unlikely, but one
> could argue this is like time-shifting.

I'm not sure I agree with your contributory infringement analysis based on the placement on an original article on reserve. Assuming for purposes of argument that the student copying is an infringement and that the time-shifting analogy would not apply (a likely result, I think, since the student may not dispose of the copy once she is finished reading it and since she was not authorized by the copyright owner to make Under cases like RTC v. Netcom and Fonovisa v. the Cherry Auction, a defendant who, with knowledge of the infringing activity "materially contributes to the infringing conduct of another" can be held liable as a contributory infringer. If a swap meet that provides a place for consumers to purchase bootleg tapes and an ISP that serves as a conduit for the distribution of a subscriber's infringing e-mail messages and that permits those messages to reamin on its system for 10 days or so "materially contribute" to the infringing activity of another, it seems difficult for me to distinguish the mere act of placing reading materials for a course on reserve in the library. I realize that both the cases I cite are not uncontroversial, but there is an argument that professors can't turn a blind eye to the knowledge that (a) libraries do not police copying, and (b) that most students will choose to make a copy they can mark up rather than read the "first sale protected" copy placed on reserve.

--
Laurence R. Helfer
Associate Professor of Law
Loyola Law School
919 S. Albany Street
Los Angeles, CA 90015
Tel:  (213) 736-1467
Fax: (213) 380-3769
E-mail:  Larry.Helfer[_at_]lls.edu