Re: Coursepacks-outsourcing online distribution

On Tue, Apr 27, 1999, Barbara Ruhmann <brruhmann[_at_]ucdavis.edu> wrote:
>
> On Mon, 26 Apr 1999, Robert Cumbow <rcumbow[_at_]grahamdunn.com> wrote:
> >
> > 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.
>
> But a further guideline regarding "multiple copies for classroom use"
> notes that "No charge shall be made to the student beyond the actual
> cost of the photocopying". (From the NACS/AAP booklet "Questions and
> Answers on Copyright for the Campus Community"). If MDS was copying and
> taking no profit, charging strictly for the cost of making the copies,
> then it might well be fair use. As an off-campus entity, and a business
> (therefore seeking profit), I assume that he was charging more than just
> the cost of the paper. This does bring up the question, though, of what
> constitutes an actual cost. I believe if that question were answered by
> an institutional copying service, and a private service, the responses
> would be nowhere near the same.

I think the NACS / AAP policy probably goes a little farther than the fair use statute ... as far as I know, no statutory or case law uses the cost charge-through analysis to determine whether the making of multiple copies for classroom use is a fair use or not. It's a good tool for a case-by-case analysis, though, and I appreciate your calling it to our attention.

Bob

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 29 1999 - 18:48:32 GMT