Re: Coursepacks-outsourcing online distribution

On 04/19/99, Mark Lemley <mlemley[_at_]mail.law.utexas.edu> wrote:
>
> On Fri, 16 Apr 1999, David Wilson <davidwilson[_at_]ucsd.edu> wrote:
> >
> > I recommend the joint APA/NACS publication, Questions & Answers on
> > Copyright for the Campus Community (or similar title), which has an
> > extensive discussion of fair use in the campus setting. While not
> > controlling, it has been cited and its guidelines discussed in
> > federal district and circuit court opinions. A reading will
> > probably change your mind about the significance of
> > profit/non-profit enterprises as a controllling factor. Much more
> > important are spontaneity, length/percentage of the selection,
> > number of selections per course, etc. As the previous responder
> > wrote, a copy is a copy and diminishes the value of the copyright.
> > The distinction you are trying to draw may lie more properly
> > between the researcher/copier as individual (fair use) and the
> > enterprise/copier as reseller -- whether for- or not-for-profit
> > (get permission).
>
> Let me come to Georgia's defense here. She gets this distinction
> directly from the last major case to address the academic copyright
> issue, PUP v. MDS. The determinative factor to the court seemed to
> be the fact that Michigan Document Services was a for-profit business
> not affiliated with the University. I think the case is wrong in
> result and wrong to rely on that factor, but if you changed that
> factor the result in the case would likely change.

Although the court relied heavily on the for-profit factor (see below), I disagree that it was the "determinative" factor. I think the majority of the court (the Sixth Circuit, sitting en banc) would have reached the exact same result if the university had done the copying. The "for-profit" wrinkle simply made it easier for them to do so, and to claim that their opinion was "limited" in scope.

The determinative factor, in my view, was the number of copies being made. If one student had made copies of those works while working on a dissertation, I think the court would have held it to be a fair use. Making copies for all of the students in a single class was considered not to be a fair use.

Although I do not necessarily disagree with the result, Mark is certainly correct that the reasoning is badly flawed. For one thing, the Sixth Circuit DID rely heavily on the for-profit distinction in both the first and fourth factors, granting it nearly dispositive weight. That is directly contrary to Campbell, which reversed the Sixth Circuit on this very issue. Clearly, they did not get the message.

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Wed Apr 21 1999 - 23:16:25 GMT