Re: Coursepacks-outsourcing online distribution

From: Dan L Burk <BURKDANL[_at_]shu.edu>
Date: Sat, 24 Apr 1999 11:05:48 -0400

On 4/23/99, Barbara Ruhmann <brruhmann[_at_]ucdavis.edu> wrote:
>
> On Thu, 22 Apr 1999, Robert Cumbow <rcumbow[_at_]grahamdunn.com> wrote:
> >
> > 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.
>
> If I may quote from a copy of the newsletter sent out by the AAP
> following the MDS decision. This is from a letter released in
> Washington, DC November 11, 1996, entitled "Publishers Win Important
> Fair Use Victory":
>
> Paragraph 3, 2nd sentence:
> ...
> Judge Nelson rejected MDS's argument that it was "fair use" to copy
> and sell substantial excerpts of copyrighted works for educational
> purposes without seeking permission or paying licensing fees to the
> copyright holders...".
> End of quote.
>
> What I was always told, and what I accept as proper to "fair use" is
> a minimal use of copyrighted material which must meet the four basic
> factors stated in the US copyright law. What the quote above notes
> is the word "substantial". Quite literally, we have been lead to
> understand that to copy anything in its entirety is NOT "fair use".
> Therefore, even if what we were seeking to print under "fair use"
> were a 17-syllable haiku, "fair use" could be denied, inasmuch as
> even though the piece was incredibly short, the right to print all
> 17 syllables was not ours to determine, but would have to be cleared
> through a publisher or authorized entity - unless it managed to fall
> under still more guidelines which might make it eligible for copying.
> Nevertheless, even under additional guidelines, the intent is that
> "fair use" is not to cover "substantial" copying of published material.

First, as to Barbara's substantive comments, taking all of a work certainly militates against fair use, but as she points out, there are four factors, none of which is dispositive on the matter. It is entirely possible to have situations in which all of a work is taken, but the other factors would render that taking fair use. Or, in other words, under the statute it is impossible to assert a rule as simplisitic as "taking all of a work is never fair use."

Additionally, It's not clear to me why we're discussing an AAP newsletter article as a reference for standards on fair use -- even assuming that it is not simply disinformation (as the title of the article suggests) the article doesn't constitute any kind of legal authority on fair use standards.

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Dan L. Burk
Seton Hall University
burkdanl[_at_]shu.edu

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Received on Sat Apr 24 1999 - 15:12:28 GMT