Re: Coursepacks-outsourcing online distribution

On Wed, Apr 21, 1999, Tyler Ochoa <tochoa[_at_]law.whittier.edu> wrote:
>
> 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.

The Sixth Circuit also (if I recall correctly) relied on the assumption that MDS's coursepacks harmed PUP by depriving them of a license fee ... an analysis that the dissent rightly pointed out amounts to a circular argument, since if the copying was fair use to begin with, there would have been no entitlement to a license fee.

Robert C. Cumbow
> Graham & Dunn, P.C.
> 1420 Fifth Avenue, 33rd Floor
> Seattle, Washington 98101-2390
> Phone: 206-340-9619
> Fax: 206-340-9599
> E-mail: rcumbow[_at_]grahamdunn.com
> Website: http://www.grahamdunn.com/
>
Received on Thu Apr 22 1999 - 16:36:34 GMT