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Copyright Law

: LibraryLaw Blog

The other course pack case...

By Peter Hirtle


A lot of people have been paying attention to the pubishers' lawsuit against Georgia State's ereserve program. (Kevin Smith had an especially thoughtful post on the suit earlier this summer.) Though also featured on Stanford's Fair Use web site, a different case brought by publishers has not gathered the same attention. Blackwell Publishing v Miller, however, has some interesting elements that may have implications for libraries.

The case concerns the photocopying practices of a copy shop in Michigan. The important case of Princeton University Press v Michigan Document Services established that the commercial reproduction of articles in course packs was not a fair use, in spite of the underlying educational purpose. (It did not speak to the noncommercial reproduction of course packs.) Miller's photocopy service, Excel, found an interesting way around the MDS decision. It solicited articles and readings from faculty members (much like the reserve operations in libraries), and then loaned those readings to students who then made reproductions of the readings on Excel's self-service photocopy machines. A group of publishers brought suit against Miller and Excel in 2007.

Initially Susan Kornfield, one of lawyers who had argued extremely well in the MDS case, represented Miller and Excel. The publishers' counsel included noted copyright specialist William S. Strong, the author of a popular handbook on copyright. I was looking forward to a sophisticated battle about the limits of educational reproduction.

Unfortunately, after almost a year, Kornfield's firm dropped out of the case, apparently because of non-payment of fees by the defendant. New counsel came on board, and motions have been filed for summary judgement. A hearing is scheduled for the end of this month.

Excel asserts a number of defenses to the charges, but two in particular stand out. The first, and one on which Excel spends a lot of time, is that any copying of published articles was authorized by the licenses for electronic content purchased by the Michigan library. This argument seems like a loser to me. I know from our own experience when trying to identify library licenses that would authorize the reproduction and sale of course packs, it was difficulty to find licenses that were explicit on the point. (Nevertheless, we were able to save students $34,000 in permission fees during the first semester in which we applied library licenses to bookstore course packs.) I don't think any of the licenses would have applied to a commercial vendor. And of course course packs contain far more than is licensed by the library, including book chapters and other non-journal material.

The second argument is much more intriguing. The publishers are claiming that Excel made the copies because they gathered the material from the faculty members, owned and serviced the photocopy machines, and provided instruction on their use. The fact that it was actually the student who pushed the button is immaterial - as far as the publishers are concerned, Excel made the copies. Excel claims, naturally enough, that it was the students, and not them, who made the copies.

Copyright jurisprudence has developed a mechanism for dealing with this sort of situation. It is the doctrine of indirect copyright infringement. With indirect infringement, one does not make the infringing copies oneself, but rather induces or materially aids someone else to make copies. It has been the basis for lawsuits against entities such as Napster and Grokster that may not have reproduced copyright content themselves, but contributed to others making reproductions.

In this case, the publishers are not claiming that Excel engaged in indirect infringement, but rather direct infringement. The problem with indirect infringement is that for it to occur, someone must be directly infringing the copyrights. In the case of Miller, it is not clear that the faculty members, who provide the course packs to Excel, or the students, who actually make the copies, are infringing copyright. Their use could be excused as a fair use (and some of the officials from the publishes who were deposed in the case may have indicated that student copying might be a fair use). If there is no direct infringement by the students, then there can be no contributory infringement by Excel. The publishers, therefore, have to argue that it is Excel that is making the reproductions, even though they it is not the one that pushes the "start" button. In effect, the students are unpaid employees of the copy shop, rather than individuals exercising their fair use rights.

The case is interesting to me because it highlights competing visions of educational reproduction. To the publishers, copy shops and library reserve operations are publishers. If someone wanted to compile and sell an anthology of readings, we would expect them to secure permission from the copyright owners to do this. This seems to be the way that publishers view us - as manufacturers and distributors of anthologies. Libraries, however, do not see themselves as publishers, but rather as just facilitating the reproductions that are authorized under the law. If it is ok for a student to have a copy of an article under fair use, then it really doesn't matter if the library helped some other student get a copy of that same article last year or even last semester.

There are important issues at play in this case. I hope that the disparity in the resources that the two parties can bring to bear on the matter doesn't lead to a poor judicial decision.

Full post as published by LibraryLaw Blog on September 06, 2009 (boomark / email).

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