- 1 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
- 2 ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
- 3 TABLE OF CONTENTS
- 4 TABLE OF AUTHORITIES
- 5 CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT
- 6 INTERESTS OF THE AMICUS CURIAE
- 7 IMPORTANCE OF THE DECISION IN THIS CASE
- 8 ARGUMENT
- 9 CERTIFICATE OF SERVICE
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
and ST. MARTIN’S PRESS, INCORPORATED,
MICHICAN DOCUMENT SERVICES, INC.,
and JAMES M. SMITH,
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
COUNSEL FOR AMICUS CURIAE FOLLETT CORPORATION:
Raymond J. Kelly
Bart A. Lazar
Joshua R. Rich
Seyfarth, Shaw, Fairweather & Geraldson
55 E. Monroe, Suite 4200
Chicago, Illinois 60603
May 17, 1996
TABLE OF CONTENTS
- I. ALLOWING MICHIGAN DOCUMENT SERVICES AND OTHERS
TO PUBLISH SUBSTANTIAL EXCERPTS FROM COPYRIGHTED
WORKSWITHOUT PERMISSION WILL ELIMINATE THE
INCENTIVE TO CREATE NEW WORKS
- II. COURSEPACK PUBLICATION IS A COMMERCIAL USE
- III. CONCLUSION: EQUITY REQUIRES A FINDING OF INFRINGEMENT
- Fox Film Corporation v. Doyal,
286 U. S. 123 (1932) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 6
- Harper & Row, Publishers, Inc v. Nation Enterprises,
471 U.S. 539 (1985) . . . . . . . . . . . . . . . . . . . . . . . Page 8
- Mazer v. Stein,
347 U.S. 201(1954) . . . . . . . . . . . . . . . . . . . . . .Page 6
- Princeton Univ. Press v. Michigan Document Servs., Inc.,
855 F. Supp. 905 (E. D. Mich. 1994) . . . . . . . . . . . . . . . . . . . . . . . Page 7
- Sony Corp. v. Universal City Studios. Inc.,
464 U.S. 417 (1984) . . . . . . . . . . . . . . . . . . . . . . . . Page 7
- Weissmann v. Freeman,
868 F. 2d 1313 (2d Cir.), cert. denied , 493 U. S. 883
(1989) . . . . . . . . . Page 8
- U. S. Const. Art. I, § 8, cl. 8. . . . . . . . . . . . . . . . . . . . . . . . . Page 6
CERTIFICATE OF INTERESTED PERSONS AND
CORPORATE DISCLOSURE STATEMENT
INTERESTS OF THE AMICUS CURIAE
Follett’s divisions are engaged in producing and disseminating a wide variety of educational materials. One division, Custom Academic Publishing Company (“CAPCO”), specializes in creating and publishing coursepacks. CAPCO works with professors at colleges and universities around the country in compiling, preparing, requesting and obtaining permissions from copyright owners, paying licensing fees and reproducing copyrighted materials for coursepacks. CAPCO has published coursepacks for over five years and is one of the largest publishers of coursepacks in the United States. CAPCO and Follett College Stores are in the same publication and distribution business as Michigan Document Services.
Other Follett divisions produce, distribute and sell a variety of educational materials. Follett Library Resources distributes library books for grade schools and high schools; Follett Campus Resources distributes and sells used textbooks; and Follett Software Company develops and sells educational software for use by libraries and educational institutions. In publishing and distributing these new and used textbooks and other educational materials Follett is both a customer of and competitor with textbook publishers, including members of the American Association of Publishers (the “AAP”). Follett is not a member of the AAP.
Coursepacks are not mere reproductions qf pre-existing materials, but are organized, edited and packaged in accordance with a professor’s instructions. For example, a coursepack usually has a table of contents, is separated into separate chapters, and presents material in a specific order to correspond with the syllabus for the course. Because of the convenience of combining a number of materials under one cover to serve as a textbook or a supplement to textbooks, coursepacks have become increasingly popular during the past ten years, and Follett’s coursepack publishing and distribution business has increased as well. Like Michigan Document Services, Follett produces and distributes coursepacks which in some cases are used by professors instead of textbooks–thus, Follett believes that in some cases coursepacks actually replace textbooks. Follett believes the practice of selling coursepacks as replacements for textbooks is growing rapidly.
Follett is a leader in the coursepack publishing business, and has a significant financial interest in allowing coursepacks to be created without licensing fees. Nevertheless, Follett respects the rights of copyright owners and believes that permissions to publish can be sought and fees paid without delaying the delivery of the coursepack or making the coursepack cost-prohibitive for students, who purchase substantial quantities of coursepacks from Follett.
Follett has a frrm policy of respecting the rights of copyright holders and paying permission fees. Follett has an overriding concern for the protection of copyrighted works and believes that third parties should not “reap where they have not sown” by profiting from the use of copyrighted materials without rewarding the author of the work.
Follett believes that by allowing the excerpting of copyrighted material without the payment of permission fees, the creation, publication, distribution and sale of academic works is likely to be materially and adversely impaired. As a wholesaler and distributor of textbooks, Follett is concerned that fewer authors will want to write textbooks and fewer publishers will want to publish textbooks if wholesale excerpting of academic works by companies like Michigan Document Services is legalized. This will cause the market for textbooks to decline.
While academics now must “publish or perish”, there is,no requirement that academics must contribute to textbooks, or other scholarly materials. With a diminished financial incentive to publish, Follett is concerned that our scholars, academic institutions and publishers will not continue to freely and actively create and publish new information and express new ideas. If such valuable information and expression may be appropriated without reasonable compensation being paid, Follett believes that academic publishing as we now know it may indeed perish.
For the foregoing reasons, Follett respectfiilly submits its brief in favor of granting summary judgment in favor of Princeton University Press, Macmillan, Inc. and St. Martin’s Press, Incorporated and against Michigan Document Service, in that its conduct is not “fair use” under the Copyright Act, but copyright infringement.
IMPORTANCE OF THE DECISION IN THIS CASE
Coursepack publishing is a rapidly growing business. More and more frequently, coursepacks are replacing textbooks. Michigan Document Services, for example, advertises that coursepacks can be used to replace a conventional textbook. (R. 41, Ex. 22). A market and legal analysis demonstrates that a for-profit publisher of coursepacks copying relatively substantial portions of copyrighted works without obtaining the permission of copyright owners does not constitute fair use.
I. ALLOWING MICHIGAN DOCUMENT SERVICES AND OTHERS TO PUBLISH
SUBSTANTIAL EXCERPTS FROM COPYRIGHTED WORKS WITHOUT
PERMISSION WILL ELIMINATE THE INCENTIVE TO CREATE NEW WORKS
The copyright laws of the United States are derived from the United States Constitution, which provides that “The Congress shall have Power… [t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors.. .the exclusive Right to their respective Writings.” U.S. Const. art. I, � 8, cl. 8. The Supreme Court has determined that this clause was intended to foster creativity, by providing authors with limited monopolies in exchange for bringing their creative works to the public. The “primary object in conferring the [copyright] monopoly lie in the general benefits derived by the public from the labors of authors.” Fox Film Corporation v. Doyal 286 U.S. 123, 127(1932).
The economic philosophy behind the copyright clause is to encourage individual effort through personal gain as the best way to advance public welfare through the talents of authors Mazer v Stein 347 U.S. 201, 219 (1954). In recognition of this theory, Follett and the majority of other coursepack publishers pay permission fees. Follett firmly believes that the market for permission fees supports the publication of textbooks and other educational materials. If permission fees are not paid, there will be less incentive for publishers to publish textbooks and for authors to write them. The only equitable decision is to reward authors for their contribution to Michigan Document Services’ profit making enterprise.
II. COURSEPACK PUBLICATION IS A COMMERCIAL USE
As a matter of law, there are substantive differences between students copying for personal use and entities which copy for the purpose of sales to others. CAPCO, Follett College Stores and Michigan Document Services profit from publishing and distributing coursepacks. The Supreme Court noted such a difference in holding that individuals may make personal copies of copyrighted material for home viewing, when selling that video to others would constitute infringement. Sony Corp. .v. Universal Studios, Inc. 464 U.S. 417, 433 (1984) Similarly, it would not be “fair use” for a student to reproduce, distribute and sell private copies of copyrighted materials a student originally made for research purposes. Therefore, Michigan Document Services’ publishing of coursepacks should not be considered to be “fair use”.
III. CONCLUSION: EOUITY REOUIRES A FINDING OF INFRINGEMENT
The record demonstrates that Michigan Document Services is a “maverick” who proceeded with its activities against industry practice and the warning of counsel.
Follett believes that Michigan Document Services has not “done” equity and thus is not entitled to the defense. Follett believes that equity dictates that the publishers of coursepacks pay permission fees for publishing substantive excerpts of copyrighted material. It is equitable that authors receive compensation for use of their works. Moreover, it is constitutionally mandated that authors should derive financial benefit as an incentive to create. Finally, Michigan Document Services is a commercial enterprise which should have sought permission to publish substantive excerpts of copyrighted material.
For the foregoing reasons, Follett believes that granting summary judgment in favor of Princeton University Press, MacMillan, Inc. and St. Martin’s Press, Incorporated and against Michigan Document Service is (i) the only fair and equitable result, and (ii) the result mandated by Federal Copyright law.
Dated: May 16, 1996
|Raymond J. Kelly|
|Bart A. Lazar|
|Joshua R. Rich|
|Seyfarth, Shaw, Fairweather & Geraldson|
|55 East Monroe, Suite 4200|
|Chicago, Illinois 60603|
|Attorneys for AMICUS CURIAE FOLLETT CORPORATION|
CERTIFICATE OF SERVICE
|Bart A. Lazar|