Amicus Curiae Brief Natl Assoc College Stores

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT


No. 94-1778


PRINCETON UNIVERSITY PRESS, MACMILLAN, INC.,
and ST. MARTIN’S PRESS, INCORPORATED,

Plaintiffs-Appellees

v.

MICHICAN DOCUMENT SERVICES, INC.,
and JAMES M. SMITH,

Defendents-Appellants.


ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN


MOTION FOR LEAVE TO FILE AND BRIEF AMICUS CURIAE
OF THE NATIONAL ASSOCIATION OF COLLEGE STORES, INC.
IN SUPPORT OF PLAINTIFFS-APPELLEES’ BRIEF
AND SUPPLEMENTAL BRIEF


 

COUNSEL FOR PLAINTIFFS-APPELLEES:

Stephen E. Gillen (0033094)
Frost & Jacobs
2500 PNC Center
201 East Fifth Street
Cincinnati, Ohio 45202
(513) 651-6800
Marc L. Fleischaker
Margo Shatz Block
Arent Fox Kintner Plotkin & Hahn
1050 Connecticut Avenue, NW
Washington DC 20036-5339
(202) 857-6053
Counsel for Amicus Curiae
The National Association of College Stores, Inc.

 

May 17, 1996


UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

PRINCETON UNIVERSITY PRESS,
MACMILLAN, INC., and ST. MARTIN’S PRESS, INC.

Plaintiffs-Appellees, No. 94-1778

v.

MICHICAN DOCUMENT SERVICES,
INC., and JAMES M. SMITH,

Defendents-Appellants.


DISCLOSURE OF CORPORATE AFFILIATIONS
AND FINANCIAL INTEREST

Pursuant to 6th Circuit Rule 25, prospective amicus curiae the National Association of College Stores, Inc. (“NACS”) makes the following disclosure:

  1. Is said party a subsidiary or affiliate of a publicly owned corporation?
    As to amicus: No.
  2. Is there a publicly owned corporation, not a party to this appeal, that has a financial interest in the outcome?
    As to amicus: No.
  3. Additional: NACS is a non-profit incorporated trade association that does not have any parent, subsidiary, or affiliate that is a publicly owned corporation. While NACS’ members and associate members are too numerous to mention, Princeton University Press, and St. Martin’s Press, Inc. are associate members of NACS.
Respectfully submitted,
_____________________________
Stephen E. Gillen (0033094)
Frost & Jacobs
2500 PNC Center
201 East Fifth Street
Cincinnati, Ohio 45202
(513) 651-6800
Marc L. Fleischaker
Margo Shatz Block
Arent Fox Kintner Plotkin & Kahn
1050 Connecticut Avenue, NW
Washington, DC 20036-5339
(202) 857-6053
Counsel for Amicus Curiae
The National Association of College Stores, Inc.

May 17, 1996


UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT


No. 94-1778


PRINCETON UNIVERSITY PRESS, MACMILLAN, INC., and
ST. MARTIN’S PRESS, INCORPORATED,

Plaintiffs-Appellees

v.

MICHICAN DOCUMENT SERVICES, INC., and JAMES M. SMITH,

Defendents-Appellants.


ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN


MOTION FOR LEAVE TO FILE AND BRIEF AMICUS CURIAEOF THE
NATIONAL ASSOCIATION OF COLLEGE STORES, INC. IN SUPPORT OF
PLAINTIFFS-APPELLEES’ BRIEF AND SUPPLEMENTAL BRIEF

Prospective amicus curiae, the National Association of College Stores, Inc. (“NACS”), respectfully moves this Court, pursuant to Rules 27 and 29 of the Federal Rules of Appellate Procedure, for an Order permitting the filing of a brief amicus curiae, attached to this motion, in support of the plaintiffs-appellees brief and supplemental brief.

NACS is a non-profit incorporated trade association with approximately 3,000 member college stores. In addition, there are approximately 1,200 associate members, primarily consisting of vendors to such stores, including publishers. NACS’ membership includes more than 95% of the college stores in the United States which primarily sell to the higher education market. NACS’ primary mission is to assist the college stores in meeting the needs and wants of students, faculty, and staff as an academic resource/service helping to maintain and fulfill the institution’s purpose.

In furthering NACS’ mission, the Association has long supported the need for academic publishers to have copyright protection, and in this context has encouraged its membership to comply fully with those laws. NACS believes that the current “fair use” doctrine, as it has been widely understood in the higher education community, requires those who compile coursepacks to obtain copyright permission for using portions of copyrighted works. This process is not only entirely workable, but also generally reflects an appropriate balance of protection for the copyright owner, encouragement for authors and publishers to create and disseminate scholarly works, with adequate flexibility to allow for the rapid expansion in the use of coursepacks for the benefit of students and faculty.

Unrestricted coursepack copying, whether by a for-profit copy shop or a non-profit adjunct of the university, without payment of reasonable copyright permission fees, will ultimately result in limiting the market for original published works, and as a consequence have a negative impact on college and university scholarship as a whole. Thus, the issues and implications presented by this case are vitally important to NACS’ membership, because academic scholarship is the foundation of the college or university which they serve. Accordingly, while NACS takes no position in this brief on the scope of the fair use doctrine or the appropriateness of reproducing copyrighted materials in other academic settings, NACS believes that unrestricted reproduction for coursepacks by an off-campus, for-profit copy shop is unwarranted as a matter of law and unwise as a matter of policy.

NACS’ members, many of which are owned and operated by the university or college which they serve, are well positioned to appreciate the value of the original scholarly published works. This perspective is likely to be different from a copy shop operation, such as Michigan Document Services, Inc. (“MDS”), which merely copies the work and may not have the same interest in preserving the value of the original published works, and hence the availability of future scholarship through widely available published works.

Historically, NACS has supported seeking and obtaining permission when reproducing significant portions of copyrighted works in coursepacks. Even prior to the decision in Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F. Supp. 1522 (S.D.N.Y. 1991), NACS has urged members to seek and obtain permission either directly from copyright owners, who are in most cases publishers, or through intermediary sources, such as the Copyright Clearance Center, Inc. Occasionally, NACS will act as an intermediary source between college stores and publishers in seeking permission to include copyrighted works in coursepacks In addition, on a regular and ongoing basis, NACS conducts a myriad of efforts to educate members on the need fo? and processes involved in obtaining copyright permission for copyrighted works included in coursepacks.

The vast majority of NACS’ store members currently seek copyright permission and pay permission fees for using portions copyrighted works in coursepacks. This has not been an unreasonable burden. While fees may generally be passed along to coursepack purchasers, the permission system has not priced coursepacks out of students’ financial reach. Because NACS’ members appreciate the role that their permission fees play in providing incentives for the creation and dissemination of scholarly works, NACS supports the permissions process for coursepacks.

If defendants-appellants’ arguments as adopted by the panel majority were to become widespread, compilers of coursepacks would no longer seek permission and pay permission fees; NACS fully expects this would have an adverse impact on the incentive to publish original source materials. Moreover, as the market for original source materials contracts, prices for such works could rise. This would result in higher prices for original works for college and university students, having a further negative impact on thj market for scholarly works.

The defendants-appellants are advocating unrestricted copying of portions of copyrighted materials included in coursepacks as an allowable “fair use” of the original copyrighted works. This position is contrary to well established and well reasoned copyright law. For that reason, NACS concurs with the plaintiff-appellees’ legal arguments, at least insofar as they apply to coursepacks.

Moreover, the Copyright Act provides that a determination of “fair use” requires consideration of four factors: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion taken; and (4) the effect on the market for or value of the copyrighted work. 17 U.S.C. � 107. As the panel stated, the fourth factor in the fair use analysis is the “most important element of fair use.” Princeton University Press v. Michigan Doc. Serv., (No. 94- 1778) Slip Op. at 16 (6th Cir. 1996) (citing Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 566 & 568 (1985)). The purpose of NACS’ submission is to illuminate from NACS’ unique perspective the negative impact that unrestricted coursepack copying would have on the market for original scholarly works, principally as these considerations relate to the fourth factor in the fair use determination.

NACS does not request oral argument in connection with this motion.

WHEREFORE, prospective amicus curiae NACS respectfully requests that an Order be entered to permit the filing of the brief amicus curiae attached hereto in support plaintiffs-appellees brief and supplemental brief.

Respectfully submitted,
_____________________________
Stephen E. Gillen (0033094)
Frost & Jacobs
2500 PNC Center
201 East Fifth Street
Cincinnati, Ohio 45202
(513) 651-6800
Marc L. Fleischaker
Margo Shatz Block
Arent Fox Kintner Plotkin & Kahn
1050 Connecticut Avenue, NW
Washington, DC 20036-5339
(202) 857-6053
Counsel for Amicus Curiae
The National Association of College Stores, Inc.

May 17, 1996


TABLE OF CONTENTS

DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTEREST
MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE
TABLE OF AUTHORITIES
BRIEF
INTERESTS OF AMICUS CURIAE
ARGUMENT

A. Unrestricted Reproduction of Portions of Copyrighted Works in Coursepacks Will Have A Negative Impact On The Market For Original Published Works

B. The Court Should Consider The Current System in Place For Obtaining Permission To Use Portions of Copyrighted Works in Coursepacks

CONCLUSION

TABLE OF AUTHORITIES

CASES

Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F. Supp. 1522
(S.D.N.Y. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Pages 3, 6
Princeton University Press v. Michigan Doc. Serv., (No. 94-1778)
Slip Op. (6th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Pages 5, 6
Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985) . . . . . . . . . . . . . . . . . . . . . . . Page 5
American Geophysical Union v. Texaco, Inc., 60 F.3d 913 (2d Cir. 1994),
cert. dismissed, 116 S. Ct. 592 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 7

STATUTES

17 U.S.C. § 107 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 5

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT


No. 94-1778


PRINCETON UNIVERSITY PRESS, MACMILLAN, INC., and
ST. MARTIN’S PRESS, INCORPORATED,

Plaintiffs-Appellees

v.

MICHICAN DOCUMENT SERVICES, INC., and JAMES M. SMITH,

Defendents-Appellants.


ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN


BRIEF AMICUS CURIAE IN SUPPORT OF PLAINTIFFS-APPELLEES’
BRIEF AND SUPPLEMENTAL BRIEF

The National Association of College Stores, Inc. (“NACS”) submits this brief amicus curiae pursuant to Rule 29 of the Federal Rules of Appellate Procedure.

INTERESTS OF AMICUS CURIAE

NACS is a non-profit incorporated trade association with approximately 3,000 member college stores. In addition, there are approximately 1,200 associate members, primarily consisting of vendors to such stores, including publishers. NACS’ membership includes more than 95% of the college stores in the United States which primarily sell to the higher education market. NACS’ primary mission is to assist the college stores in meeting the needs and wants of students, faculty, and staff as an academic resource/service helping to maintain and fulfill the institution’s purpose.

In furthering NACS’ mission, the Association has long supported the need for academic publishers to have copyright protection, and in this context has encouraged its membership to comply fully with those laws. NACS believes that the current “fair use” doctrine, as it has been widely understood in the higher education community, requires those who compile coursepacks to obtain copyright permission for using portions of copyrighted works. This process is not only entirely workable, but also generally reflects an appropriate balance of protection for the copyright owner, encouragement for authors and publishers to create and disseminate scholarly works, with adequate flexibility to allow for the rapid expansion in the use of coursepacks for the benefit of students and faculty.

Unrestricted coursepack copying, whether by a for-profit copy shop or a non-profit adjunct of the university, without payment of reasonable copyright permission fees, will ultimately result in limiting the market for original published works, and as a consequence have a negative impact on college and university scholarship as a whole. Thus, the issues and implications presented by this case are vitally important to NACS’ membership, because academic scholarship is the foundation of the college or university which they serve. Accordingly, while NACS takes no position in this brief on the scope of the fair use doctrine or the appropriateness of reproducing copyrighted materials in other academic settings, NACS believes that unrestricted reproduction for coursepacks by an off-campus, for-profit copy shop is unwarranted as a matter of law and unwise as a matter of policy.

NACS’ members, many of which are owned and operated by the university or college which they serve, are well positioned to appreciate the value of the original scholarly published works. This perspective is likely to be different from a copy shop operation, such as Michigan Document Services, Inc. (“MDS”), which merely copies the work and may not have the same interest in preserving the value of the original published works, and hence the availability of future scholarship through widely available published works.

Historically, NACS has supported seeking and obtaining permission when reproducing significant portions of copyrighted works in coursepacks. Even prior to the decision in Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F. Supp. 1522 (S.D.N.Y. 1991), NACS has urged members to seek and obtain permission either directly from copyright owners, who are in most cases publishers, or through intermediary sources, such as the Copyright Clearance Center, Inc. Occasionally, NACS will act as an intermediary source between college stores and publishers in seeking permission to include copyrighted works in coursepacks. In addition, on a regular and ongoing basis, NACS conducts a myriad of efforts to educate members on the need for and processes involved in obtaining copyright permission for copyrighted works included in coursepacks.

The vast majority of NACS’ store members currently seek copyright permission and pay permission fees for using portions copyrighted works in coursepacks. This has not been an unreasonable burden. While fees may generally be passed along to coursepack purchasers, the permission system has not priced coursepacks out of students’ financial reach. Because NACS’ members appreciate the role that their permission fees play in providing incentives for the creation and dissemination of scholarly works, NACS supports the permissions process for coursepacks.

If defendants-appellants’ arguments as adopted by the panel majority were to become widespread, compilers of coursepacks would no longer seek permission and pay permission fees. NACS fully expects this would have an adverse impact on the incentive to publish original source materials. Moreover, as the market for original source materials contracts, prices for such works could rise. This would result in higher prices for original works for college and university students, having a further negative impact on the market for scholarly works.

The defendants-appellants are advocating unrestricted copying of portions of copyrighted materials included in coursepacks as an allowable “fair use” of the original copyrighted works. This position is contrary to well established and well reasoned copyright law. For that reason, NACS concurs with the plaintiff-appellees’ legal arguments, at least insofar as they apply to coursepacks.

Moreover, the Copyright Act provides that a determination of “fair use” requires consideration of four factors: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion taken; and (4) the effect on the mafket for or value of the copyrighted work. 17 U.S.C. � 107. As the panel staied, the fourth factor in the fair use analysis is the “most important element of fair use.” Princeton University Press v. Michigan Doc. Serv., (No. 94- 1778) Slip Op. at 16 (6th Cir. 1996) (citing Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 566 & 568 (1985)). The purpose of NACS’ submission is to illuminate from NACS’ unique perspective the negative impact that unrestricted coursepack copying would have on the market for original scholarly works, principally as these considerations relate to the fourth factor in the fair use determination.

ARGUMENT

A. Unrestricted Reproduction of Portions of Copyrighted Works in
Coursepacks Will Have A Negative Impact On The Market For Original
Published Works.

Defendants-appellants argue that unrestricted reproduction of copyrighted works in coursepacks will not affect the market for the original copyrighted works. This position, however, misperceives the negative impact that widespread unrestricted copying of copyrighted materials in coursepacks would have on the market for the original published works.

Without significant financial incentives, either from the original sale of the copyrighted work or from permission fees obtained from compiling coursepacks, academic publishing will become less commercially viable for both authors and publishers. This in turn will lead to fewer works being published.

This was the determination of Judge Nelson in his dissent to the panel decision:

[L]icensing income is significant to the publishers. It is the publishers who hold the copyrights, of course — and the publishers obviously need economic incentives to publish scholarly works, even if the scholars do not need direct economic incentives to write such works. . . . If publishers cannot look forward to receiving permission fees, why should they continue publishing marginally profitable books at all? And how will artistic creativity be stimulated if the diminution of economic incentives for publishers to publish academic works means that fewer academic works will be published.

Princeton University Press v. Michigan Doc. Serv., (No. 94-1778) Slip Op. at 29-30 (6th Cir. 1996).

Likewise, this comports with the conclusion reached in Basic Books, Inc. v. Kinko’s Graphic Corp., 758 F. Supp. 1522 (S.D.N.Y. 1991), a case which presented nearly identical facts as the instant case. In Kinko’s, the court was clear in its finding of significant adverse impact from the unauthorized copying on the value of the original copyrighted works. Id. at 1534.

It is the defendants-appellants’ view that revenue from permission fees obtained through coursepacks is not required to further copyright purposes. While scholars may continue to write for reasons apart from economic incentives (e.g., to obtain tenure), publishers, who in many cases are the copyright owners, have no similar incentives. The record shows that the plaintiffs-appellees alone collected $500,000 in the early 1990s in permission fees relating to coursepacks. These fees serve to encourage the publication of books which might not otherwise be published if the only income generated was from the original sale of the books. If the incentive were to disappear, there would be a negative impact on the market for the original works.

B. The Court Should Consider The Current System in Place For Obtaining
Permission To Use Portions of Copyrighted Works in Coursepacks.

The Court should consider that a workable system exists for coursepack compilers to obtain permission to use portions of copyrighted works. This system itself supports the conclusion that the market may be affected adversely if permission fees are not required. As the Court stated in American Geophysical Union v. Texaco, Inc., 60 F.3d 913, 930 (2d Cir. 1994), cert. dismissed, 116 S. Ct. 592 (1995):

[I]t is sensible that a particular unauthorized use should be considered “more fair” when there is no ready market or means to pay for the use, while such an unauthorized use should be considered “less fair” when there is a ready market or means to pay for the use.

Id. at 931. Accordingly, MDS’ unauthorized use should be considered “less fair” where, as here, there is a ready market and means to pay for the use of copyrighted works.

NACS is well positioned to attest that the current, established system in place for seeking and obtaining permission to use portions of copyrighted works in coursepacks is administratively feasible. The bulk of college stores are seeking permission from copyright owners, either directly or through established intermediaries, such as the Copyright Clearance Center, for the portions of copyrighted works included in coursepacks. This is so, even though college stores perform a myriad of other functions aside from compiling coursepacks. The record below reveals that copy shops also are able to obtain the necessary permission when compiling coursepacks. Thus, the Court should consider the established system in place for obtaining such permission and paying the required fees in undertaking its fair use analysis. And, as stated above, when considering the impact that loss of licensing revenues will have on the market for the original works, MDS’ unrestricted reproduction of copyrighted works in coursepacks should not be considered “fair use.”

CONCLUSION

For the foregoing reasons, as well as those set forth by plaintiff-appellees, NACS respecffully urges the Court to grant summary judgment to plaintiffs-appellees thereby reinstating the decision of the U.S. District Court of the Eastern District of Michigan.

Respectfully submitted,
_____________________________
Stephen E. Gillen (0033094)
Frost & Jacobs
2500 PNC Center
201 East Fifth Street
Cincinnati, Ohio 45202
(513) 651-6800
Marc L. Fleischaker
Margo Shatz Block
Arent Fox Kintner Plotkin & Kahn
1050 Connecticut Avenue, NW
Washington, DC 20036-5339
(202) 857-6053
Counsel for Amicus Curiae
The National Association of College Stores, Inc.

May 17, 1996


CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing has been sent )y first class United States mail, postage prepaid, to:

Ronald S. Rauchberg, Esquire
Jon Baumgarten, Esquire
Herman Goldsmith, Esquire
Proskauer Rose Goetz & Mendelsohn
1585 Broadway
New York, NY 10036

Susan M. Kornfield, Esquire
David G. Chardavoyne, Esquire
Louise-Annette Marcotty, Esquire
Lydia Pallas Loren, Esquire
Bodman, Longley & Dahling
110 Miller, Suite 300
Ann Arbor, Michigan 48104

on this 17th day of May, 1996.

________________________________
Stephen E. Gillen