Re: Coursepacks-outsourcing online distribution

On Fri, Apr 23, 1999, 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.

I can't agree. "The amount and substantiality of the portion used in relation to the copyrighted work as a whole" is but one of four factors to be weighed in determining whether a use is fair. I know of no case law standing for the principle that copying of a work in its entirety is a priori not fair use. Indeed, the fair use statute's specific authorization of "multiple copies for classroom use" clearly contemplates at least one situation in which copying an entire work (be it haiku or article or book) might well fair use -- and it is precisely the situation that was at issue in PUP v MDS.

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 Mon Apr 26 1999 - 15:44:30 GMT