Amicus Curiae Georgia Attorney General

Contents

United States Court of Appeals
for the Sixth Circuit

No. 94-1778

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

vs.

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

Defendents-Appellants.

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

AMICI CURIAE BRIEF OF THE ATTORNEY GENERAL OF THE
STATE OF GEORGIA, THE NATIONAL SCHOOL BOARDS
ASSOCIATION, AND THE GEORGIA SCHOOL BOARDS
ASSOCIATION, THE CALIFORNIA SCHOOL BOARDS ASSOCIATION
AND THE AMERICAN ASSOCIATION OF SCHOOL ADMINISTRATORS
IN SUPPORT OF DEFENDANTS-APPELLANTS

	MICHAEL J. BOWERS
	Attorney General of Georgia

	BY: MICHAEL E. HOBBS
	Counsel to the Attorney General of Georgia
	Department of Law
	40 Capital Square, S.W.
	Atlanta,Georgia 30334-1300
Of Counsel:	Counsel of Record

August Steinhilber
General Counsel
National School Boards Association

E. Freeman Leverett
General Counsel
Geogia School Boards Association

John L. Bukey
Legal Counsel
California School Boards Association

TABLE OF CONTENTS
TABLE OF AUTHORITIES
STATEMENTOF SUBJECT MATTER & APPELLATE JURISDICTION
STATEMENT ABOUT ORAL ARGUMENT
STATEMENT OF CORPORATE AFFILIATION AND FINANCIAL INTEREST
STATEMENT OF ISSUES
STATEMENT OF THE CASE
STATEMENT OF FACTS
STANDARD OF REVIEW
SUMMARY OF ARGUMENT
ARGUMENT & CITATION OF AUTHORITIES
INTRODUCTION
I. THE PLAIN LANGUAGE OF SECTION 107 MEANS THAT FOR USE TEACHERS MAY MAKE OR HAVE MADE MULTIPLE COPIES OF EXCERPTS FROM COPYRIGHTED WORKS: A. The Claim that the Copyshop is the User is a Legal Fiction; B. The Publishers Seek to Confuse the Relationship of Sections 106 and 107 and Mislead this Court into Amending the Copyright Statute by Judicial Action
II. THE DISTRICT COURT’S ORDER IN THIS CASE SANCTIONS BURDENS ON BOOKS AND IS CONTRARY TO SUPREME COURT PRECEDENT: A. Burdens on Books are Contrary to Law and Public Policy; B.The Supreme Court’s Ruling in Bobbs-Merrill v. Straus that Publishers Cannot Place Burdens o Books in the Form of Copyright Notices Controls this Case
III. KINKO’S AND TEXACO EMPOWER PUBLISHERS TO ESTABLISH A LICENSING SYSTEM TO EXERCISE COPYRIGHT CENSORSHIP AND THUS DEMONSTRATE THE DANGER OF JUDICIAL LEGISLATION BASED ON FALSE PREMISES: A. Kinko’s Judicial Legislation is the Result of False Premises Resulting From the Failure to Distinguish the Work and the Copyright; B. Texaco Repeated Kinko’s Errors to Rationalize a Predetermined Conclusion

The Opinion in Texaco Indicates a Specific Intent to Amend the Copyright Statute By Judicial Action if Necessary to Protect Publishers
The Texaco Court Misread the Copyright Act

C. Kinko’s and Texaco Establish the Predicate for Copyright Censorship; D. The Kinko’s and Texaco Courts Failedto Comprehend the Potential Consequences of their Decisions
IV. THE PANEL DECISION GOT IT RIGHT: “MULTIPLE COPIES FOR CLASSROOM USE” MEANS “MULTIPLE COPIES FOR CLASSROOM USE”
CONCLUSION
APPENDIX

TABLE OF AUTHORITIES

Ignore Heading – Content

Cases:

American Geophysical Union v. Texaco, 802 F. Supp. 1, 7 (S.D.N.Y. 1992) . . . . . . . . . . . . . . . . . . . . . . . . Page 6, 24
American Geophysical Union v. Texaco, Inc., 60 F.3d 913 (2d Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . Page 6
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) . . . . . . . . . . . . . . . . . . . . . . . . Page 3
American Tobacco Co. v. Werckmeister, 207 U.S. 284 (1907) . . . . . . . . . . . . . . . . . . . . . . . . Page19
Basic Books, Inc. v. Kinko’s Graphic Corp., 758 F. Supp. 1522 (S.D. N.Y. 1991) . . . . . . . . . . . . . . . . . . . . . . . . Pages xi, 68
Bate Refrigerating Co. v. Sulzberger, 157 U.S. 1 (1895) . . . . . . . . . . . . . . . . . . . . . . . . Page 13
Board of Education v. Pico, 457 U.S. 853 (1982) . . . . . . . . . . . . . . . . . . . . . . . . Page 9
Bobbs-Merrill Co. v. Straus, 210 U.S. 339 (1908) . . . . . . . . . . . . . . . . . . . . . . . . Page 16
Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . Page 3
Campbell v. Acuff-Rose Music, Inc., 14 5. Ct. 1164 (1994) . . . . . . . . . . . . . . . . . . . . . . . . Page 21
Collins v. Nagle, 892 F.2d 489, 493 (6th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . Page 3
Dowling v. U.S., 473 U.S. 207 (1985) . . . . . . . . . . . . . . . . . . . . . . . . Page 8
EEOC v. University of Detroit, 904 F.2d 331, 334 (6th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . Page 3
Emerson v. Davies, 8 Fed. Cas. 615 (No. 4,436) (C.C.D. Mass. 1845) . . . . . . . . . . . . . . . . . . . . . . . . Page 8
Feist Publications v. Rural Telephone Co., 499-U.S. 340 (1991) . . . . . . . . . . . . . . . . . . . . . . . . Pages 7, 9
Fox Film Coro. v. Doyal, 744 F.2d 286 U.S. 123 (1932) . . . . . . . . . . . . . . . . . . . . . . . . Page 9
Globe Newspaper Co. v. Walker, 210 U.S. 356 (1908) . . . . . . . . . . . . . . . . . . . . . . . . Page 25
Holmes v. Hurst, 174 U.S. 82 (1899) . . . . . . . . . . . . . . . . . . . . . . . . Page 19
Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) . . . . . . . . . . . . . . . . . . . . . . . . Page 3
Sony Corp. v. Universal City Studios. Inc., 464 U.S. 417 (1985) . . . . . . . . . . . . . . . . . . . . . . . . Page 9
Taft Broadcasting Co. v. United States, 929 F.2d 240, 247 (6th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . Page 3
Twentieth Century Music Corp. v. Aiken, 422 U.S. 151 (1975) . . . . . . . . . . . . . . . . . . . . . . . . Page 9
U.S. v. Paramount Pictures, Inc., 334 U.S. 131 (1948) . . . . . . . . . . . . . . . . . . . . . . . . Page 9

Statutes

U.S. Const., Art. I, 8, cl. 8 . . . . . . . . . . . . . . . . . . . . . . . . Pages 7,20,24
17 U.S.C. 101 et seq . . . . . . . . . . . . . . . . . . . . . . . . Pages vi
17 U.S.C. 102(a) . . . . . . . . . . . . . . . . . . . . . . . . Page 7
17 U.S.C. 103 . . . . . . . . . . . . . . . . . . . . . . . . Page 8
17 U.S.C. 106 . . . . . . . . . . . . . . . . . . . . . . . . Page 7
17 U.S.C. 106(3) . . . . . . . . . . . . . . . . . . . . . . . . Pages 15,27
17 U.S.C. 107 . . . . . . . . . . . . . . . . . . . . . . . . Pages 4,21
17 U.S.C. 108(f) (4) . . . . . . . . . . . . . . . . . . . . . . . . Page 11
17 U.S.C. 115 . . . . . . . . . . . . . . . . . . . . . . . . Page 7
17 U.S.C. 302 . . . . . . . . . . . . . . . . . . . . . . . . Pages 7,19
17 U.S.C. 304 . . . . . . . . . . . . . . . . . . . . . . . . Pages 7,19
17 U.S.C. 401(b) . . . . . . . . . . . . . . . . . . . . . . . . Page 14
17 U.S.C. 501 . . . . . . . . . . . . . . . . . . . . . . . . Pages 5
17 U.S.C. 504(c) (2) . . . . . . . . . . . . . . . . . . . . . . . . Page 11
17 U.S.C. 506 . . . . . . . . . . . . . . . . . . . . . . . . Page 8
28 U.S.C. 1291 . . . . . . . . . . . . . . . . . . . . . . . . Page vi
28 U.S.C. 1338 . . . . . . . . . . . . . . . . . . . . . . . . Page vi

Miscellaneous

Arber, A Transcript of the Stationers’ Registers 1554-1640 A.D . . . . . . . . . . . . . . . . . . . . . . . . Page 32
Licensing Act of 1662, 13 & 14 Car. II, c. 33 . . . . . Page 13
Jessica Litman, The Exclusive Right to Read, 13 Cardozo Arts & Entertainment 19 (1994) . . . . . Pages 30,31
Jessica Litman, Copyright Legislation and Technical Change, 68 Or. L. Rev. 275 (1989) . . . . . . . . . . . . . . . . . . . . . . . . Page 30
Nimmer on Copyright . . . . . . . . . . . . . . . . . . . . . . . . Page 25
L. Patterson, Copyright in Historical Perspective (1968) . . . . . . . . . . . . . . . . . . . . . . . . Page 12
Patterson, “Copyright and ‘the exclusive Right of Authors'”, 1 J. of Intell. Prop. Law 1 (1993) . . Page 29
Rosette, “Back to the Future: How Federal Courts Create a Federal Common-law Copyright Through Permanent Injunctions Protecting Future Works,” 2 J. of Intell. Prop. L. 325 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 24

STATEMENT OP SUBJECT MATTER AND APPELLATE JURISDICTION

This is a case for copyright infringement under the Copyright Act, 17 U.S.C. lOl et seq. This court has subject matter jurisdiction under 28 U.S.C. 1338. This case is an appeal from a final judgment of the U.S. District Court and this Court has appellate jurisdiction under 28 U.S.C. 1291.

STATEMENT ABOUT ORAL ARGUMENT

This is an amici curiae brief of the Attorney General of the State of Georgia, the National School Boards Association, the Georgia School Boards Association, the California School Boards Association, and the American Association of School Administrators; amici do not request the privilege of oral argument.

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

(This statement should be placed immediately preceding the statement of issues contained in the brief of the party. See copy of 6th Cir. R. 25 on reverse side of this form.)

PRINCETON UNIVERSITY PRESS,	)
MACMILLAN, INC. and ST.	)
MARTIN’S PRESS, INC.,	)
	)
Plaintiffs-Appellees,	)
	)
v.	) NO. 94-1778
	)
MICHIGAN DOCUMENT SERVICES	)
INC. and JAMES M. SMITH,	)
	)
Defendants-Appellants.	)

DISCLOSURE OF CORPORATE AFFILIATIONS
AND FINANCIAL INTEREST

Pursuant to 6th Cir. R. 25, National School Boards Association makes the following disclosure:

Is said party a subsidiary or affiliate of a publicly-owned corporation? NoIf the answer is YES, list below the identity of the parent corporation or affiliate and the relationship between it and the named party:
Is there a publicly-owned corporation, not a party to the appeal, that has a financial interest in the outcome? UnknownIf the answer is YES, list the identity of such corporation and the nature of the financial interest:

_________________________________	__________________________________
(Signature ofCounsel)	(Date)

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

(This statement should be placed immediately preceding the statement of issues contained in the brief of the party. See copy of 6th Cir. R. 25 on reverse side of this form.)

PRINCETON UNIVERSITY PRESS,	)
MACMILLAN, INC. and ST.	)
MARTIN’S PRESS, INC.,	)
	)
Plaintiffs-Appellees,	)
	)
v.	) NO. 94-1778
	)
MICHIGAN DOCUMENT SERVICES	)
INC. and JAMES M. SMITH,	)
	)
Defendants-Appellants.	)

DISCLOSURE OF CORPORATE AFFILIATIONS
AND FINANCIAL INTEREST

Pursuant to 6th Cir. R. 25, Georgia School Boards Association makes the following disclosure:

Is said party a subsidiary or affiliate of a publicly-owned corporation? NoIf the answer is YES, list below the identity of the parent corporation or affiliate and the relationship between it and the named party:
Is there a publicly-owned corporation, not a party to the appeal, that has a financial interest in the outcome? UnknownIf the answer is YES, list the identity of such corporation and the nature of the financial interest:

_________________________________	__________________________________
(Signature ofCounsel)	(Date)

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

(This statement should be placed immediately preceding the statement of issues contained in the brief of the party. See copy of 6th Cir. R. 25 on reverse side of this form.)

PRINCETON UNIVERSITY PRESS,	)
MACMILLAN, INC. and ST.	)
MARTIN’S PRESS, INC.,	)
	)
Plaintiffs-Appellees,	)
	)
v.	) NO. 94-1778
	)
MICHIGAN DOCUMENT SERVICES	)
INC. and JAMES M. SMITH,	)
	)
Defendants-Appellants.	)

DISCLOSURE OF CORPORATE AFFILIATIONS
AND FINANCIAL INTEREST

Pursuant to 6th Cir. R. 25, American Association of School Administrators makes the following disclosure:

Is said party a subsidiary or affiliate of a publicly-owned corporation? NoIf the answer is YES, list below the identity of the parent corporation or affiliate and the relationship between it and the named party:
Is there a publicly-owned corporation, not a party to the appeal, that has a financial interest in the outcome? UnknownIf the answer is YES, list the identity of such corporation and the nature of the financial interest:

_________________________________	__________________________________
(Signature ofCounsel)	(Date)

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

(This statement should be placed immediately preceding the statement of issues contained in the brief of the party. See copy of 6th Cir. R. 25 on reverse side of this form.)

PRINCETON UNIVERSITY PRESS,	)
MACMILLAN, INC. and ST.	)
MARTIN’S PRESS, INC.,	)
	)
Plaintiffs-Appellees,	)
	)
v.	) NO. 94-1778
	)
MICHIGAN DOCUMENT SERVICES	)
INC. and JAMES M. SMITH,	)
	)
Defendants-Appellants.	)

DISCLOSURE OF CORPORATE AFFILIATIONS
AND FINANCIAL INTEREST

Pursuant to 6th Cir. R. 25, California School Boards Association makes the following disclosure:

Is said party a subsidiary or affiliate of a publicly-owned corporation? NoIf the answer is YES, list below the identity of the parent corporation or affiliate and the relationship between it and the named party:
Is there a publicly-owned corporation, not a party to the appeal, that has a financial interest in the outcome? UnknownIf the answer is YES, list the identity of such corporation and the nature of the financial interest:

_________________________________	__________________________________
(Signature ofCounsel)	(Date)

STATEMENT OF ISSUES[FN 1]

Whether the words “multiple copies for classroom use” in 17 U.S.C. 107 are so plain that a court is bound to give them their natural effect;
Whether publishers can lawfully require students to pay licensing fees for using materials teachers assign to them in coursepacks because the coursepacks consist of excerpts reproduced by a copyshop; and
Whether Basic Books, Inc. v. Kinko’s Graphic Corp., 758 F. Supp. 1522 (S.D. N.Y. 1991) was correctly decided.

Footnote 1As friends of the court, amici do not advocate the position of either party, but seek only to provide the court with information about the law of copyright. Therefore, the issues in this brief are limited to those important to the public as underwriters of the educational process and to students as beneficiaries of the fair use doctrine for teaching purposes. To the extent a tone of advocacy is in the brief, it is advocacy in the public interest, not a party.

STATEMENT OF THE CASE

Amici

adopt the Statement of the Case in Appellants’ Brief.

STATEMENT OF THE FACTS

The Appellants’ Brief provides a complete statement of the facts. Amici limit this statement to the facts relevant to issues discussed in this brief.

Appellants, Michigan Document Services (MDS) and James M. Smith, provide a photoduplication service for professors and students. Professors submit materials to MDS for reproduction and sale to students enrolled in the classes for which the materials are prepared.

STANDARD OF REVIEW

The standard of review by this Court is de novo. EEOC v. University of Detroit, 904 F.2d 331, 334 (6th Cir. 1990), Collins v. Nagle, 892 F.2d 489, 493 (6th Cir. 1989). The moving party has the “burden of showing that interrogatories, admissions and affidavits in the record, construed favorably to the nonmoving party, do not raise a genuine issue of material fact for trial.” Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6th Cir. 1991). The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in their favor. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), Taft Broadcasting Co. v. United States, 929 F.2d 240, 247 (6th Cir. 1991). The District Court’s runction is not to “weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

SUMMARY OF ARGUMENT

The plain language of section 107 of the Copyright Act authorizes teachers to make or have made “multiple copies” of excerpts from copyrighted books for classroom use as a matter of fair use.

Publishers seek to destroy this right of fair use with over broad copyright notices providing that no one may make any copy of any part of the copyrighted book by any means for any purpose at any time without the publisher’s written permission. Such notices seek to qualify the title of a purchaser by asserting rights beyond those granted by the copyright statute. The notices thus are burdens on books and purport to make a violation of the notice (rather than the statute) copyright infringement. Such burdens on books are contrary to law, public policy and Supreme Court precedent.

The goal of the publishers in destroying fair use is copyright censorship to be implemented by a licensing system unparalleled in the English speaking world since “Bloody” Mary burned heretics at the stake for printing “heretical, schismatical or seditious” books in 16th century England. Mary’s licensing scheme found full flower, with less blood, in the reign of Charles II, when the Licensing Act of 1662 was in effect and required the licenser’s imprimatur for the printing or reprinting of any book.

The importance of the fair use doctrine- -and the reason publishers seek to destroy it- -is that fair use is a right that prevents copyright censorship. Unfortunately, other courts ruling on fair use for teaching and research have rendered decisions that provide the predicate for the publishers’ licensing scheme, amending the copyright statute by judicial action to do so.

Publishers as members of a powerful media industry have available enormous resources to influence the legislative and executive branches of government to achieve their goal of transforming copyright from a limited statutory monopoly into a plenary proprietary monopoly. Moreover, the media have a vested interest in shaping- -and do shape–the popular conception of copyright as unencumbered by any public interest.

The judicial branch is the only branch of the federal government whose members are granted life tenure. This tenure enables them to fulfill their charge to protect the integrity of the law and its administration. This is why a decision in this case consistent with the First Amendment and the Copyright Clause of the U.S. Constitution and the rules of the copyright statute is critical for controlling the copyright monopoly and protecting First Amendment rights by averting copyright censorship by publishers.

ARGUMENT AND CITATION OF AUTHORITIES

INTRODUCTION

This is the third case publishers have brought in a campaign to destroy the fair use doctrine for teaching and research. The other two cases were Basic Books, Inc. v. Kinko’s Graphic Corp., 758 F. Supp. 1522 (S.D.N.Y. 1991) ( Kinko’s) and American Geophysical Union v. Texaco, 802 F. Supp. 1 (S.D.N.Y 1992); 60 F. 3d 913 (2d Cir. 1995) (Texaco). The publishers won both, but the panel in this case ruled 2 to 1 against them and for the defendant copyshop.

The courts in Kinko’s and Texaco missed the plain meaning of section 107 of the Copyright Act. Why is not clear, but clearly they did not comprehend the full consequences of their rulings because they used false premises and flawed analysis. [FN 1]

The courts almost surely used false premises because copyright law, being more regulatory than proprietary, appears to be counter-intuitive. The appearance, however, is deceiving, because copyright is not normal-type property; it is a limited statutory right authorized by the Copyright Clause of the Constitution. [FN 2] Under the 1976 Act, for example, copyright is a statutory grant that is a series of limited rights to which a given work is subject for a limited period of time. 17 U.S.C. 106 (grant of rights); Id. 107-118 (statement of limitations); Id. 302, 304 (duration of copyright); the grant is made only upon conditions precedent (the creation and fixation of an original work of authorship, id. 102(a)), and the protected work is subject to fair use by others, id. 107, and to compulsory licenses, e.g., the compulsory recording license. Id. 115.

Its regulatory nature makes copyright appear to be counter-intuitive because in many instances the law allows one to use the work product of another without payment, which superficially seems unfair. But the Supreme Court has held that “this is not ‘some unforeseen byproduct of a statutory scheme.’ It is rather ‘the essence of copyright,’ and a constitutional requirement.” Feist Publications v. Rural Telethone Co., 499 U.S. 340, 349 (1991) (Feist).

Copyright owners contribute to the confusion about the nature of copyright by refusing to recognize its regulatory nature. The point is amply demonstrated by comparing the publishers’ private-interest definition of copyright [FN 3] with the Supreme Court’s public-interest definition. [FN 4]

Publishers thus do not accept basic facts: Copyright law is regulatory rather than merely proprietary because copyright is a license to profit from a trespass on the public domain, [FN 5] and is a single-source monopoly for books, the main repositories of information and learning in our society. Thus publishers are initially the only source for copyrighted books, even those that contain uncopyrightable materials, 17 U.S.C. 103; another who markets a book before the copyright owner does so is guilty of infringement, 17 U.S.C 501, subject to an arsenal of remedies, including criminal indictment. 17 U.S.C. 506.

Except for statutory limitations, 17 U.S.C. 107-120, the single-source copyright monopoly would be absolute. And except for the right of fair use it would be an unconstitutional limitation on the right of access to ideas and information. Board of Education v. Pico, 457 U.S. 853, 866-67 (1982) (“Our precedents have focused `not only on the role of the First Amendment in fostering individual self-expression but also on its role in affording the public access to discussion, debate, and the dissemination of information and ideas.'”) This is why the Supreme Court’s repeated ruling that copyright is primarily to benefit the public–not the copyright owner–is a guiding rule of construction for copyright cases. [FN 6]

Unlike the panel decision, the district court order and Kinko’s and Texaco failed to recognize copyright as a type of property so special that it engaged the attention of the Framers in drafting the Constitution to create and define the powers of a new government. The three courts committed similar errors, over-looking the plain language of the copyright statute enacted by Congress under the Copyright Clause, and finding defendants guilty of infringement for acts that Congress specifically permits in 107: the making of multiple copies for classroom use (the act of defendants in Kinko’s and this case), and the making of copies for research purposes (the act of defendant in Texaco). Publishers seek to have this court commit the same errors en banc and by so doing to empower them to license the very type copying that the statute authorizes.

I. THE PLAIN LANGUAGE OF SECTION 107 MEANS THAT FOR CLASSROOM USE TEACHERS MAY MAKE OR HAVE MADE MULTIPLE COPIES OF EXCERPTS FROM COPYRIGHTED WORKS.

Section 107 consists of two paragraphs. The first paragraph provides “[T]he fair use of a copyrighted work for teaching (including multiple copies for classroom use) . . . is not an infringement of copyright.” 17 U.S.C. 107. The second paragraph lists four non-exclusive factors to determine if a use is fair. Since the use must comport with these factors, a teacher can copy only excerpts for classroom use. A typical coursepack will include twenty or more excerpts. See Kinko’s, 758 F. Supp. at 1533. With this understanding, the words “multiple copies for classroom use” are so simple and limited in their meaning that it is difficult to see how any court could interpret them to mean anything but “multiple copies for classroom use.” This is why, seeking to avoid the effect of this plain language, publishers have resorted to a two-part strategy: 1) to sue the copyshop that makes the copies rather than teachers for whom the copies are made; and 2) to obscure the relationship of sections 106 and 107.

A. The Claim That the Copyshop is the User is a Legal Fiction.

Suing the copyshop as defendant, publishers hope to avoid the plain language of the statute with the fiction that the copyshop is the user. [FN 7] The fiction becomes clear when one recognizes that teaching involves two persons, the teacher and the student, and that both are users of the material. The copyshop is merely the conduit the teacher uses to get the material to the students.

Although publishers–as a matter of sheer logic–must view the persons who pay the license fees (students) as the users, their obscurantism is purposeful in pursuit of two intermediate and one ultimate goal. The first intermediate goal is to transform the copyshop into their agent to collect the fees; the other is to do indirectly what the language of the statute prevents them from doing directly, destroy the fair use right of both teachers and students. The reasoning is simple: To destroy the means by which one exercises a right is to destroy the right.

The publishers’ ultimate goal is copyright censorship by replacing the fair use doctrine with a licensing system. Their plan is to use teachers as their licensers (to determine the copyright status of the books) and copyshops as their agents (to collect the license fees from students). The system will work because students are a captive market. [FN 8]

B. The Publishers Seek to Confuse the Relationship of Sections 106 and 107 and Mislead this Court into Amending the Copyright Statute by Judicial Action.

To succeed in their plan, the publishers must persuade this Court to amend the statute “by judicial action” by giving section 106 a literal interpretation, that “the exclusive right . . . to reproduce the work in copies” is just that: an exclusive right without limitations (as the publishers’ private-interest definition of copyright in n. 3 demonstrates.) But one need only see the relationship of sections 106 and 107 to understand that to accede to the publishers’ arguments would be error.

Section 106 provides that the right to reproduce in copies is “Subject to sections 107 through 118 Ä . .”; section 107 provides that “Notwithstanding the provisions of section 106, the fair use of a copyrighted work, . . . is not an infringement of copyright.”

To agree with the publishers’ interpretation of 106, a court must conclude that section 106 overrides section 107 to which it is specifically made subject. But to do this, a court must violate the established principle “that a court should give effect, if possible, to every clause and word of a statute.” Feist, 499 U.S. at 358. For when one reads “multiple copies for classroom use,” it is clear that “the language is so plain and unambiguous “that a refusal to recognize its natural, obvious meaning would . . . indicat[e] a purpose to change the law by judicial action . . . ” Bate Refrigerating Co. v. Sulzberger, 157 U.S. 1, 36-37 (1895).

Amici urge this Court to decline the publishers’ invitation to corrupt the plain language of 107 and instead to give full effect and meaning to the doctrine of fair use.

II. THE DISTRICT COURT’S ORDER IN THIS CASE SANCTIONS BURDENS ON BOOKS AND IS CONTRARY TO SUPREME COURT PRECEDENT.

The publishers’ goal of replacing the fair use doctrine with their own private licensing system is manifested by their private-interest definition of copyright, supra, n. 3, and implemented by copyright notices purporting to preclude anyone from copying any portion of “this book” at any time for any reason by any means for any purpose without “permission in writing from the publisher”. Plaintiff McMillan’s notice is the classic example:

All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without permission in writing from the Publisher. [FN 9]

The McMillan notice, which includes far more than the statutory elements, [FN 10] is a parody of copyright notices, a self-conferral of rights beyond those granted by statute. It purports to deny the owner of the book (or anyone else) the right to make either a fair use of the book or to use uncopyrightable material in the book, a constitutional right. Feist, 499 U.S. at 348.

The district court’s order in this case gives the parodic copyright notice the force of law, the effect of which is to diminish the right of fair use. (Teachers may no longer use copyshops to make multiple copies for classroom use.) Therefore, the district court’s order furthers the publishers’ goal of destroying the fair use doctrine to create a void so they can establish their licensing system.

The overbroad copyright notice, of course, violates the U.S. Constitution because it is a burden on books and is thus the first step that will enable publishers to license the use of books in the classroom. Whatever form licensing takes- -whether by the imprimatur of a “Copyright Clearance Center” as agent for publishers or by the imprimatur of a “Secretary for Printing of Good Books,” as agent of the U.S. Government–it inhibits the First Amendment right of access to ideas and information, which Board of Education v. Pico, supra, precludes.

A. Burdens on Books are Contrary to Law and Public Policy.

Apart from First Amendment issues, it will be useful to note that overbroad copyright notices are contrary to copyright law and are burdens on books contrary to both law and public policy.

On the first point, the publishers seek the right to sell books and then to lease the use of the books for the purpose of copying excerpts. Since students are a captive market in that they must purchase course material, the publishers’ “permissions fees” are a form of a private use tax imposed for the temporary lease of a book for one-time copying. [FN 11] The copyright statute, however, provides that a copyright owner may sell or lease copies of the copyrighted work. 17 U.S.C. 106(3). It does not give the right to sell and lease the use of the same book.

On the second point, the publishers’ notice is an unauthorized attempt to control and limit the use of books after their sale. This is nothing more than an attempt of publishers to use private law to usurp legislative authority and this Court’s approval of such notices would threaten integrity in the administration of the copyright law as a matter of public policy. The Constitution assigns to Congress (not copyright owners) “the task of defining the scope of the limited monopoly that should be granted to authors . . in order to give the public appropriate access to their work product.” Sony, 464 U.S. at 429 (emphasis added). Congress has exercised its power in 107 to aid students in preference to publishers and it is not for courts to undo Congress’ work.

B. The Supreme Court’s Ruling in Bobbs-Merrill v. Straus that Publishers Cannot Place Burdens on Books in the Form of Copyright Notices Controls this Case.

The Supreme Court in Bobbs-Merrill Co. Straus, 210 U.S. 339 (1908) (Bobbs-Merrill), held that a publisher could not impose a burden on books that was a restraint on alienation. That case governs the disposition of this case, because the publishers here attempt to impose a burden on books that is a prior restraint on use. In both instances, the publishers use the copyright notice to impose the burden.

The Bobbs-Merrill copyright notice read as follows:

The price of this book at retail is $1 net. No dealer is licensed to sell it at a less price, and a sale at a less price will be treated as an infringement of the copyright. The Bobbs-Merrill Company.

210 U.S. at 341 (emphasis added).

The publishers here make the same claim as the publisher in Bobbs-Merrill: The defendant copyshop infringed the plaintiffs’ copyright by violating the copyright notice rather than the copyright statute. The overly broad notices thus present the same issue in both cases: Can publishers enhance the copyright monopoly by the self-conferral of rights beyond those in the statute?

The right in Bobbs-Merrill was “the sole liberty of . vending [the copyrighted work].” 210 U.S. at 348. The publisher argued that this language meant “that the statute vested the whole field of the right of exclusive sale in the copyright owner,” and that he could part with or withhold “so much of the right as he pleases.” 210 U.S. at 349.

The Court framed the question as follows:

Does the sole right to vend (named in 4952) secure to the owner of the copyright the right, after a sale of the book to a purchaser, to restrict future sales of the book at retail, . . . because of a notice in the book that a sale at a different price will be treated as an infringement, . . . We do not think the statute can be given such a construction, .

210 U.S. at 350 (emphasis added).

As the Court explained, the publisher was seeking not only the right to sell the copies, “but to qualify the title of a future purchaser,” and adding this right “would give a right not includad in the terms of the statute, and . . . extend its operation, by construction, beyond its meaning.” 210 U.S. at 351. The rule of Bobbs-Merrill is that the copyright owner exhausts the right to vend with the first sale of a book. [FN 12] This is the first-sale doctrine, now codified in 17 U.S.C. 109. The principle is that the copyright statute does not empower the copyright owner by copyright notice “to qualify the title of a future purchaser,” as publishers seek to do in this case.

And it is worthy of note that a restraint of alienation that qualifies the title in the hands of retailers is much less consequential than a restraint on use that qualifies the title of all purchasers. [FN 13] Thus the governing principle of Bobbs-Merrill– -that a copyright owner is not entitled to rights beyond those granted by the copyright statute- -applies with great force in this case.

III. KINKO’S AND TEXACO EMPOWER PUBLISHERS TO ESTABLISH A LICENSING SYSTEM TO EXERCISE COPYRIGHT CENSORSHIP AND THUS DEMONSTRATE THE DANGER OF JUDICIAL LEGISLATION BASED ON FALSE PREMISES.

Kinko’s and Texaco empower publishers to engage in copyright censorship by empowering them to establish a licensing system to control the use of books for teaching and research. Therefore, they are examples of judicial legislation, the effect of which is to amend the copyright statute and the cause of which is oversight of two basic propositions of copyright law. One proposition is that not all copyrights are created equal; the other is that there is a distinction between the work and the copyright

The first proposition is apparent from the fact that originality is a constitutional condition for copyright, Feist, 499 U.S. 340, passim , and that Congress has provided copyright protection for works containing uncopyrightable material. 17 U.S.C. 103. Section 102(a) works receive plenary copyright protection as creative works (e.g. novels, dramas); but section 103 works, compilations and derivative works, “receive only limited protection” and the compilation copyright does not protect “the facts or information conveyed.” Feist, 499 U.S. at 359.

The second proposition follows from the first. The term of copyright is limited, 17 U.S.C. 302, 304, and the work goes into the public domain after the copyright has expired. Thus a long established rule of copyright law is that the work is separate from the copyright. [FN 14]

The rule, of course, is necessary to limit the copyright monopoly according to the scope of protection. Its importance, however, is that the varying measures of copyright protection deter copyright censorship by publishers. This is because an important condition for copyright censorship- – and a concomitant licensing system to implement it- -is a copyright that provides uniform protection as a proprietary monopoly so that all copyrights can be treated as members of one class. [FN 15] Thus, variable-protection copyrights protect against censorship.

Because the two courts overlooked these basic propositions, the cases promote the publishers’ goal of creating a nationwide licensing system to control the use of books for learning.

A. Kinko’s Judicial Legislation is the Result of False Premises Resulting from the Failure to Distinguish the Work and the Copyright.

Kinko’s failure to distinguish the work and the copyright manifests itself in false premises, the most damaging of which may have been the court’s statement that:

The copyright law, through the fair use doctrine, has promoted the goal of encouraging creative expression and integrity by ensuring that those who produce intellectual works may benefit from them.

758 F. Supp at 1529-30 (emphasis added).

Contrary to “ensuring that those who produce intellectual works may benefit from them” the fair use doctrine aids those who wish to use copyrighted works to learn, the constitutional purpose of copyright. U.S. Const., Art. I, 8. cl. 8.

The court then discussed the four factors in section 107, noting that “any common law interpretation proceeds on a case-by-case basis.” Id. at 1529. The case-by-case basis, of course, makes sense only as a work-by-work basis, since there may be several works in a given case (as in Kinko’s) and the different works may be entitled to varying measures of protection.

The failure of analysis continues in the following paragraph:

This case . . . involves multiple copying. The copying was conducted by a commercial enterprise which claims an educational purpose for the materials. The copying was just that copying–and did not ‘transform’ the works in suit, that is, interpret them or add any value to the material copied, as would a biographer’s or critic’s use of a copyrighted quotation or excerpt. Id. at 1529.

The paragraph is the culmination of the court’s faulty reasoning. True, the case “involves multiple copying [copies?],” but the court overlooked the plain language allowing “multiple copies for classroom use.” 17 U.S.C. 107.

The conclusion that copying by a commercial enterprise alters the teaching purpose for which the copies are made is logically untenable, and the Supreme Court has made reliance on the “transformative doctrine” error because it is irrelevant to the issue of classroom copying. Campbell v. Acuff-Rose Music, Inc., 114 S. Ct. 1164, 1171 n. 11 (1994) (“The obvious statutory exception to this focus on transformative uses is the straight reproduction of copies for classroom distribution.”)

Kinko’s discussion of the four fair use factors was less than perceptive. In dealing with the first factor, purpose and character of the use, the court again discussed transformative use (repeating its error) and commercial use.

As to commercial use, the court admitted that the packets “in the hands of the students, was no doubt educational. However, the use in the hands of Kinko’s employees is commercial.” 758 F. Supp. at 1530. This, of course, is like saying that the telephone company as service provider makes use of a work that a professor faxes to a student and is therefore an infringer, even though the professor is not. The court was clearly reaching for a reason to support its conclusion and not using reason to determine what the conclusion should be.

As to the nature of the work, the second factor, the court found in favor of Kinko’s because “The books infringed in suit were factual in nature.” The false premise here was that copyrighted works can properly be treated as a class. The constitutional requirement of originality- -which means that not all copyrights are created equal- -requires that copyrightability be determined on a book-by-book basis. [FN 16]

It is in the amount and substantiality of the portion used, the third factor, that Kinko’s lack of analysis is most apparent. Although admitting that the availability of the work is an appropriate factor, the court noted that “plaintiffs in this case convincingly argue that damage to out-of-print works may in fact be greater since permissions fees may be the only income for authors and copyright owners.” Id. at 1533. The publishers thus misled the court into believing that not receiving what they are not entitled to results in a claim for damages.

Apparently unaware of the implications of its statement, the court then said: “This court finds and concludes that the portions copied were critical parts of the books copied, since that is the likely reason the college professors used them in their classes.” Id. at 1533. The circularity of this statement needs no further elaboration.

As to the fourth factor, market effect, the Kinko’s court had little trouble finding that it favored the publishers. Noting that Kinko’s “produced 300 to 400-page packets at a cost of $24 to the student,” and that one packet which “contained excerpts from 20 different books, totalled 324 pages, and cost $21.50,” id. 1533, the court found “that Kinko’s copying unfavorably impacts upon plaintiffs’ sales of their books and collection of permissions fees.” Id. at 1534.

The court, however, did not explain why there should be a double effect. Presumably the purchase of the book would obviate the necessity for paying the “permission” fee, and the payment of the “permission” fee would preclude the need for buying the book. [FN 17] Apparently the court deemed this irrelevant, because the adverse impact “is more powerfully felt by authors and copyright owners of the out-of-print books, for whom permissions fees constitutes a significant source of income.” Id.

The premise’ here, that one is harmed by not receiving that to which he or she is not entitled, is, perhaps, the weakest of all the premises the court used, suggesting that the court overlooked copyright policies. A court that manifests such an unusual understanding of basic copyright law is not likely to appreciate the full implications of its actions. Thus the court accused Kinko’s of “historic willful blindness to the copyright law.” Id. at 1541. But in granting an injunction to prevent the copying of future works, the court missed two irrefutable points: 1) The injunction it granted to protect future works created a federal common law copyright; [FN 18] and 2) only Congress has authority to grant copyright. U.S. Const., Art. 8, cl. 8.

B. Texaco Repeated Kinko’s Errors to Rationalize a Predetermined Conclusion.

That a subscriber who pays $2484 for three subscriptions to a periodical (annually), as did Texaco, must pay the publisher a licensing fee to copy a single article is a proposition that defies common sense. [FN 19] The Second Circuit in Texaco , however, substituted rationalization for common sense in using a classic technique to reach a result it desired rather than accept the result that the plain meaning of the statutory language mandated. It simply reframed the question. The parties briefed the case on the issue of whether a scientist’s copying of articles from scholarly journals for research purposes was fair use. The appellate court changed the issue so that a scientist’s copying for research purposes became institutional copying for archival purposes.

Section 107, of course, deals with neither institutional nor archival copying, and the reformulation of the issue enabled the court to avoid the plain language of the first paragraph of section 107 and to concentrate on the four fair use factors of the second paragraph. Thus, in a lengthy opinion the court does not discuss the first paragraph of section 107.

1. The opinion in Texaco indicates a specific intent to amend the copyright statute by judicial action if necessary to protect publishers.

The court’s willingness to engage in judicial legislation and amend the copyright statute by judicial action is proved by its footnote 19, in which it suggested a judicially created compulsory license. “If the dispute is not now settled, this appears to be an appropriate case for exploration of the possibility of a court-imposed compulsory license,” a proposition for which it cited Nimmer on Copyright.

Apparently it did not occur to the court- -or to Nimmer–that such a ruling might well be unconstitutional. Globe Newspaper Co. v. Walker , 210 U.S. 356, 367 (1908) (since “Congress has prescribed the remedies . . . `no others can be resorted to.'”) The comment, however, does reveal the extent to which the court erred in relying on II legislative” facts as a substitute for the words of the statute. Thus, as if it were speaking of the results of a study, the court concluded that photocopying constitutes a threat to the sanctity of copyright, explaining in conclusory fashion that, “the invention and widespread availability of photocopying technology threatens to disrupt the delicate balances established by the Copyright Act.” 60 F.3d at 916.

The comment is disingenuous. The court surely knew that photocopying machines were in widespread use in 1976; and only a failure to analyze the first paragraph of section 107 could enable it to avoid the fact that Congress did take them into account. The terms “copying” and “copies” in the first paragraph clearly do not refer to handwritten copies. Since scriptoria are not a feature of modern day life, it is photocopy machines that enable teachers to use the right to make “multiple copies for classroom use.” Thus it is the court’s reliance on an unproven legislative fact that “threatens to disrupt the delicate balances established by the Copyright Act.”

2. The Texaco Court misread the Copyright Act.

The Texaco court clearly misread the Copyright Act. The court said “Congress has thus far provided scant guidance for resolving fair use issues involving photocopying, legislating specifically only as to library copying, and providing indirect advice concerning classroom copying.” 60 F.3d at 917 (emphasis added). The facts are that: 1) Congress specifically provided that: “[T]he fair use of a copyrighted work, including such use by reproduction in copies . . . for purposes such as . teaching (including multiple copies for classroom use) scholarship, or research, is not an infringement of copyright;” and 2) The Classroom Guidelines have no relevance to a case involving copying by a research scientist for a corporation.

Perhaps the court’s most unfortunate misreading of the statute is seen in this statement:

It is indisputable that, as a general matter, a copyright holder is entitled to demand a royalty for licensing others to use its copyrighted work, see 17 U.S.C. 106 (copyright owner has exclusive right “to authorize” certain uses), .

60 F.3d at 929 (emphasis added).

The statement is wrong. The statute gives the copyright owner the option of distributing copies “by sale . . . or by rental, lease, or lending.” 17 U.S.C. 106(3). It does not, as the court implied, give the copyright owner the right to sell books and then lease their use to the purchaser (and others) in return for royalty payments.

The court’s use of false premises derived from a misreading of the Copyright Act made inconsistencies in the opinion almost inevitable. At one point, for example, the court said that copyright is “to motivate the creative activity of authors . by the provision of a special reward”, quoting Sony, 60 F.3d at 916, but later on, speaking of scholarly authors, the.court said:

Ultimately, the monopoly privileges conferred by copyright protection and the potential financial rewards therefrom are . . . to motivate publishers to produce journals, . . . It is the prospect of such dissemination that contributes to the motivation of these authors.

60 F.3d at 927 (emphasis added).

The court got it wrong. The Copyright Clause does not empower Congress to reward publishers, only authors. Until the Copyright Clause is amended, Congress can enact copyright statutes only to benefit authors. The Texaco court’s unwitting candor about copyright aiding publishers over authors brings the central issue to the forefront. Can courts ignore the First Amendment and the Copyright Clause and amend the copyright statute “by judicial action” and do what Congress cannot: Empower publishers to leverage their single-source-monopoly into a licensing scheme by imposing a burden on books in the form of parodic copyright notices so that they can exercise copyright censorship over materials that students must have for learning?

C. Kinko’s and Texaco Establish the Predicate for Copyright Censorship.

Kinko’s and Texaco establish the predicate for copyright censorship. [FN 20] If they survive, publishers will assume the power to license the use of all works for the classroom, a practice they already engage in. For example, in 1991 the Copyright Compliance Office of the Association of American Publishers (AAP) sent a compliance letter (demanding the payment of $2500 to avoid a lawsuit) to the Bel Jean Copyshop in College Park, Maryland. According to the Bel Jean letter, the copyshop reproduced for classroom use copies of 18th and 19th century British dramas, works in the public domain and never protected by American copyright. Even though Bel Jean had sought permission, its sin was making the copies before permission was granted. [FN 21]

The ultimate goal of the publishers- -to change copyright from a constitutionally limited statutory and regulatory monopoly into a common law proprietary monopoly–received a major boost in Texaco. Thus the court’s reasoning in that case can, and no doubt will, be used to sanction the protection of uncopyrightable material, a skill for which the Copyright Compliance Office of the AAP is noted, as the Bel Jean letter proves.

D. The Kinko’s and Texaco Courts Failed to Comprehend the Potential Consequences of their Decisions.

The Kinko’s and Texaco courts suffered another–and perhaps decisive–intellectual failing: a lack of imagination. For surely they did not imagine the consequences of their rulings: American colleges and universities will cease to be a marketplace of free ideas and become closed markets with captive buyers required to purchase licenses to use ideas in the classroom. The result will be a system of copyright censorship unparalleled in the English-speaking world since the Licensing Act of 1662, 13 & 14 Car. II, c. 33, in England required the licenser’s imprimatur to print (or reprint) any book.

It is, of course, a great inconvenience to publishers not to be able to license the use of the books they have sold and receive additional profit. But the fact that such conduct may be profitable is not enough alone to justify it. The slave trade was profitable for slave traders; the sale of tobacco products to children is profitable for tobacco companies. Licensing the use of books after they have been sold is not so evil, but it would be a great inconvenience to etudents. The price of higher education, already at a crisis level, will be further increased at the expense of students (a captive market), and ultimately to the detriment of learning itself.

IV. THE PANEL DECISION GOT IT RIGHT: “MULTIPLE COPIES FOR CLASSROOM USE” MEANS MULTIPLE COPIES FOR CLASSROOM USE.

Because the right of fair use is the only defense against copyright censorship by publishers, the panel decision got it right: “multiple copies for classroom use” means “multiple copies for classroom use.”

The more interesting question is why Kinko’s and Texaco got it wrong. There is no definitive answer, but it is useful to note that the publishing industry is a powerful one that has three major advantages in the copyright arena. Professor Jessica Litman has articulated with clarity in her article on copyright changes sought for the National Information Infrastructure, “The Exclusive-Right to Read.” As she has demonstrated, copyright owners: 1) exercise great influence on the legislative process in Congress; [FN 22] 2) control the media and inform the public about copyright law as it serves their purpose; [FN 23] and 3) control the media and create a culture about copyright and property rights to aid them in misleading courts. [FN 24]

In litigation, as this case demonstrates, copyright owners claim that they are entitled to govern the copyright monopoly by their own rules–for example, over broad copyright notices–not the law as duly enacted by Congress. And the Kinko’s and Texaco courts agreed. [FN 25] Thus, to establish their licensing system, the publishers seek to have courts make copyright a common-law- proprietary monopoly in lieu of the statutory-public-interest monopoly the Constitution authorizes.

As a weapon in this endeavor, publishers use the implied threat of withholding their product from the market if their wishes are not granted. The dissent on the panel took this implied threat seriously and expressed its concern when it said: “If this decision stands, and if our sister circuits follow our lead, it seems likely that some academics will find it harder to get their books published.” The publishers’ threat, however, is too time-worn to be meaningful; it has been used at least since the 17th century when, to protect their monopoly, booksellers in 1643 petitioned Parliament for censorship legislation. [FN 26]

With all due respect, the dissent also fell prey to another common error when it said: “This suggestion [that unlicensed copying will stimulate artistic activity] would be more persuasive if the record did not demonstrate that licensing income is significant to the publishers.” But this is to accept the Kinko’s-Texaco fallacy that one is harmed by not receiving that to which he or she is not entitled. Congress made “multiple copies for classroom use” a fair use in order to protect students from the very market claims that the publishers now make. This Court should not excise that fair use from copyright law at the behest of publishers whose preference of self-interest over the public interest is manifest.

Footnote 1

The dissent to the panel decision was also misled by faulty analysis.The statement that “Most of the copy shops with which the defendants compete have been paying permission fees. . is a false premise for the inference that defendant copyshop had a competitive advantage because its competitors paid license fees. The correct premise is that students pay the license fees and the competing copyshops serve as agents for publishers in collecting and remitting the fees. See the “copyright notice” used for coursepacks: “ALL FEES AND ROYALTIES HAVE BEEN PAID BY CAMPUS PROFESSOR COPIES FOR REPRODUCTION OF THIS MATERIAL. THE FEES AND ROYALTIES HAVE BEEN TOTALED, AND COMPRISE PART OF THE PRICE OF THIS PACKET.” Appendix.

Footnote 2

“The Congress shall have Power… To Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” U.S. Const., Art. I, 8, cl. 8. (The portion underlined is the copyright clause to distinguish it from the patent clause.)

Footnote 3

“The copyright law grants owners of copyright (authors and other creators and [or) publishers [as assignees]) the sole right [subject to fair use and other limitations] to do or allow others to do each of the following acts with regard to their copyrighted works: to reproduce all or part of the work; to distribute copies [to the public]; . . . .” Taken from the pamphlet, “Questions And Answers On Copyright For the Campus Community,” no author identified, but Copyrighted by the National Association of College Stores, Inc. and The Association of American Publishers, Inc., 1994. (The bracketed material shows changes necessary to make the definition accurate as a public interest rather than a purely private interest definition.)

Footnote 4

The Supreme Court defines copyright as “a series of carefully defined and carefully delimited interests to which the law affords correspondingly exact protections . . . the copyright holder’s dominion is subject to precisely defined limits.” Dowling v. U.S., 473 U.S. 207, 216 (1985).

Footnote 5

As Justice Story said in Emerson v. Davies, 8 Fed. Cas. 615, 619 (No. 4,436) (C.C.D.Mass. 1845): “In truth, in literature, in science and in art, there are, and can be, few, if any, things, which, in an abstract sense, are strictly new and original throughout.” Even Shakespeare and Milton “gathered much from . . . current knowledge and classical studies.”

Footnote 6

See, e.g., Fox Film Corp. v Doyal, 286 U.S. 123, 127 (1932); U.S. v. Paramount Pictures, Inc. 334 U.S. 131, 158 (1948); Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975); Sony Corp. v. Universal City Studios, 464 U.S. 417, 429 (1985); Feist Pub. v. Rural Telephone., 499 U.S. 340, 349 (1991).

Footnote 7

It also enables them to avoid another statutory obstacle, the manifested intent of Congress to protect teachers who use copyrighted materials for educational purposes. In addition to the fair use language in section 107, Congress provided a good-faith fair-use defense that is available to teachers as employees of non-profit educational institutions, 17 U.S.C. 504(c)(2), and also subjected the many limitations on library copying in 17 U.S.C. 108 to the right of fair use. 17 U.S.C. 108(f) (4).

Footnote 8

The publishers’ use of copyright is thus reminiscent of the use of copyright as a device of monopoly and an instrument of censorship in England for 150 years. For a comprehensive treatment of this topic, see L. Patterson, Copyright in Historical Perspective (1968).

Footnote 9

The requirement of “permission in writing” makes the notice analogous to the licenser’s imprimatur required to print books in 17th century England under the Licensing Act of 1662, 13 & 14 Car. II, C. 33. That statute is a major reason for the First Amendment protecting both free speech and free press.

Footnote 10

The letter “C” in a circle or “Copyright” or “Copr., ” the year of publication and name of the owner. 17 U.S.C. 401(b).

Footnote 11

See e.g., the “copyright notice” used for Course Packets: “ANY ATTEMPT TO DUPLICATE THIS MATERIAL WITHOUT OBTAINING THE APPROPRIATE AUTHORIZATION IS PROHIBITED.” Appendix.

Footnote 12

Had the Court in Bobbs-Merrill ruled for the publisher, there would be no used-book market as it now exists.

Footnote 13

Under the publishers’ logic, it makes no difference who owns the book from which excerpts are copied. Although the school library purchases. the book for use by students, they must pay the license fee, i.e. a use tax, if a professor copies an excerpt for them to use in the classroom.

Footnote 14

Holmes v. Hurst, 174 U.S. 82, 86 (1899) (copyright “is equally detached from the manuscript, or any other physical existence whatsoever”); American Tobacco Co. v. Werckmeister, 207 U.S. 284, 297 (1907) (“It is not the physical thing created, but the right of printing, publishing, copying, etc. which is within the statutory protection.”) Congress codified the rule in 17 U.S.C. 202.

Footnote 15

Note the logic of licensing. Under the Licensing Act of 1662, if any portion of a book was offensive, the licenser’s imprimatur was denied; under the publishers’ plan, if any portion of a book is copyrightable, the publishers’ imprimatur is required. See discussion of the Bel Jean Letter, p. 20.

Footnote 16

Thus in an infringement action, the copyright owner must prove “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” Feist, 499 U.S. at 361.

Footnote 17

But the court’s reasoning is consistent with that of the publishers, who claim the right to sell the book and to receive “permissions fees” for copying excerpts from the book.

Footnote 18

See Rosette, “Back to the Future: How Federal Courts Create a Federal Common-law Copyright Through Permanent Injunctions Protecting Future Works,” 2 J. of Intell. Prop. L. 325 (1994).

Footnote 19

American Geophysical Union v. Texaco, 802 F. Supp. 1, 7 (S.D.N.Y. 1992).

Footnote 20

To see the publishers’ promiscuous use of Kinko’s in their campaign for copyright censorship, see “Questions and Answers On Copyright For the Campus Community,?? pp. 6-9 cited supra, n.3. The publishers also cite the district court order in this case to support their campaign.

Footnote 21

The letter is reprinted in Patterson, “Copyright and ‘the exclusive Right of Authors’,” 1 J. of Intell. Prop. Law. 1, 44-48 (1993)

Footnote 22

“Congress, for its part, has, since the turn of the century been delegating the policy choices involved in copyright matters to the industries affected by copyright.” Jessica Litman, The Exclusive Right to Read , 13 Cardozo Arts & Entertainment 29, 33 (1994); see Jessica Litman, Copyright Legislation and Technical Change, 68 Or. L. Rev. 275 (1989).

Footnote 23

“[B]y asserting that what members of the public think of as ordinary use of copyrighted works was, in fact, flagrant piracy, . . . copyright owners may well have won a rhetorical battle the rest of the country never realized was being fought.” Litman, “The Exclusive Right to Read,” 13 Cardozo Arts & Entertainment 29, 36 (1994)

Footnote 24

“[B]ecause the assumptions underlying copyright owners’ claims to expansive control over the works they create and disseminate crept into our discourse without much examination at a time when the price of acknowledging them was only nominal, we have so far allowed important policy choices to be made without serious debate.” Id. at 37.

Footnote 25

25 The fact that the publishing industry is centered in New York City, the home of the Kinko’s and Texaco courts, is irrelevant as a matter of law, but not common sense.

Footnote 26

The argument was “Many mens studies carry no other profit or recompense with them, but the benefit [copyright] of their Copies; and if this be taken away, many Pieces of great worth and excellence will be strangled in the womb, or never conceived at all for the future.” Stationers’ Petition of April, 1643, I Arber, A Transcript of the Stationers’ Registers, 1554-1640 A.D., 584, 587 (bracket in original).

CONCLUSION

For the foregoing reasons, amici curiae respectfully urge this Court to reinstate the panel opinion.

	MICHAEL J. BOWERS
	Attorney General
	State of Georgia

	_____________________________________
	MICHAEL E. HOBBS
	Counsel to the Attorney General
	of Georgia
	Counsel of Record

Of Counsel:

August Steinhilber
General Counsel
National School Boards Association

E. Freeman Leverett
General Counsel
Georgia SchooI Boards Association

John L. Bukey
Legal Counsel
California School Boards Association

Please Serve:

MICHAEL E. HOBBS
Counsel to the Attorney General
State of Georgia
Department of Law
40 Capitol Square, S.W.
Room 135
Atlanta, Georgia 30334-1300
(404) 656-2218

APPENDIX

This Appendix consists of a copy of the cover, the “copyright notice,” the title page and the table of contents of a coursepack printed for the University of Georgia Law School. It is of special interest because its contents consist only of public domain material, cases and statutes, but the “copyright notice” prohibits any duplication without the “appropriate authorization.”

COURSE PACKET

Instructor: ELLINGTON

Course:JUR 462

Amount:$12.00

This cours packet was produced by Campus Professor Copies in accordance with Copyright Permission Guidelines. If you have any questions, please call toll free at 1(800) 459-2679.

UNIVERSITY OF GEORGIA

[Seal of the University of Georgia]

University Bookstore

100 Baxter Street
Athens, GA 30602
Phone 9706) 542-7243

Ignore Heading – Content

COPYRIGHT NOTICE

THE REPRODUCTION OF THIS MATERIAL WAS COPIED WITH PERMISSION OF THE COPYRIGHT HOLDER. IN AN EDUCATIONAL SETTING IT IS ESPECIALLY NECESSARY TO OPERATE WITHIN THE BOUNDS OF THE COPYRIGHT LAWS. THE IMPROPRIETY OF MUCH UNAUTHORIZED COPYING IS ALL TOO OFTEN OVERLOOKED BY USERS IN AN EDUCATIONAL ENVIRONMENT.

ALTHOUGH COPYING ALL OR PART OF WORKS WITHOUT OBTAINING PERMISSION IS QUITE EASY TO. DO, SUCH UNAUTHORIZED COPYING IS A VIOLATION OF THE RIGHTS OF THE PUBLISHER OR COPYRIGHT HOLDER. THIS IS IN DIRECT CONTRADICTION WITH THE VALUES AN EDUCATIONAL INSTITUTION ATTEMPTS TO INSTILL. AT CAMPUS PROFESSOR COPIES WE MAKE EVERY EFFORT TO ABIDE BY THE STANDARDS SET FORTH BY THE COPYRIGHT LAWS.

ALL FEES AND ROYALTIES HAVE BEEN PAID BY CAMPUS PROFESSOR COPIES FOR REPRODUCTION OF THIS MATERIAL. THE FEES AND ROYALTIES HAVE BEEN TOTALED, AND COMPRISE PART OF THE PRICE OF THIS PACKET.

ANY ATTEMPT TO DUPLICATE THIS MATERIAL WITHOUT OBTAINING THE APPROPRIATE AUTHORIZATION IS PROHIBITED.

1994 Supplement
for
Cases and Materials
on
Georgia Practice and ProcedureC. Ronald Ellington
Robert D. Brussack
July 1994

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Vol. I	Supplement
Page	Page
19 Scruggs v. Georgia Dept. of Human Resourses	1
30 Barmore v. Himebaugh	4
86 Allstate Ins. Co. v. Klein	7
90 White house, Inc. v. Winkler	10
90 Hyatt v. Broyles, Dunstan & Dunstan, P. C.	13
90 Eastlawn Corp. v. Bankers Equipment Leasing Co.	15
104 Showa Denko K. K. v. Pangle	23
192 Ga. Constitution Art. 6, § 2, ¶1	30
197 O. C. G. A. §14-2-510	31
Gault v. National Union Fire Ins. Co.	32
266 Harry S. Peterson Co. v. National Union Fire Ins. Co.	36

Vol. II
337 Osborne v. Hughes	47
337 Hobbs. v. Arthur	48
363 Allison v. Patel	50
404 Gillis v. Goodgame	60
404 Professional Corporation Act, O. C. G. A. §14-7-2.	62
404 Professional Corporation Act, O. C. G. A. §14-10-2.	62
404 Harrell v. Lusk	63
Hewitt v. Kalish	72
Handson v. HCA Health Services of Ga.	76
Lamb v. Candler General Hospital, Inc.	79
Williams v. Willis	81

Vol. III
545 Slater v. Brigadier Homes, Inc.	83
550 Lawson v. Watkins	86
Tenneco Oil Co. v. Templin	92
626 Fowler v. Vineyard	98
628 O. C. G. A. §9-11-56(h)	109
646 Lau’s Corporation, Inc. v. Haskins	110
646 Evans v. Heard	115

CERTIFICATE OF SERVICE

I hereby certify that on the day set out below I served the foregoing amici curiae brief with Appendix on the attorneys listed below by sending two copies by U.S. Mail with sufficient postage thereon to each of them:

Susan M. Kornfield, Esq.
Bodman, Longley & Dahling
110 Miller Avenue
Suite 300
Ann Arbor, MI 48104

James E. Stewart, Esq.
Butzel, Long, Gust, Klein & Van Zile
150 W. Jefferson Avenue
Suite 900
Detroit, MI 48226-4430

Ronald S. Rauchberg, Esq.
Proskauer, Rose, Goetz & Mendelson
1585 Broadway
New York, NY 10036

This ___________ day of May, 1996.

	_________________________________
	MICHAEL E. HOBBS
	Counsel to the Attorney General
	State of Georgia

United States Court of Appeals for the Sixth Circuit

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

Table of Contents

TABLE OF AUTHORITIES

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Cases:

Statutes

Miscellaneous

STATEMENT OP SUBJECT MATTER AND APPELLATE JURISDICTION

STATEMENT ABOUT ORAL ARGUMENT

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTEREST

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTEREST

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTEREST

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTEREST

STATEMENT OF ISSUES[FN 1]

STATEMENT OF THE CASE

STATEMENT OF THE FACTS

STANDARD OF REVIEW

SUMMARY OF ARGUMENT

ARGUMENT AND CITATION OF AUTHORITIES

INTRODUCTION

I. THE PLAIN LANGUAGE OF SECTION 107 MEANS THAT FOR CLASSROOM USE TEACHERS MAY MAKE OR HAVE MADE MULTIPLE COPIES OF EXCERPTS FROM COPYRIGHTED WORKS.

A. The Claim That the Copyshop is the User is a Legal Fiction.

B. The Publishers Seek to Confuse the Relationship of Sections 106 and 107 and Mislead this Court into Amending the Copyright Statute by Judicial Action.

II. THE DISTRICT COURT’S ORDER IN THIS CASE SANCTIONS BURDENS ON BOOKS AND IS CONTRARY TO SUPREME COURT PRECEDENT.

A. Burdens on Books are Contrary to Law and Public Policy.

B. The Supreme Court’s Ruling in Bobbs-Merrill v. Straus that Publishers Cannot Place Burdens on Books in the Form of Copyright Notices Controls this Case.

III. KINKO’S AND TEXACO EMPOWER PUBLISHERS TO ESTABLISH A LICENSING SYSTEM TO EXERCISE COPYRIGHT CENSORSHIP AND THUS DEMONSTRATE THE DANGER OF JUDICIAL LEGISLATION BASED ON FALSE PREMISES.

A. Kinko’s Judicial Legislation is the Result of False Premises Resulting from the Failure to Distinguish the Work and the Copyright.

B. Texaco Repeated Kinko’s Errors to Rationalize a Predetermined Conclusion.

1. The opinion in Texaco indicates a specific intent to amend the copyright statute by judicial action if necessary to protect publishers.

2. The Texaco Court misread the Copyright Act.

C. Kinko’s and Texaco Establish the Predicate for Copyright Censorship.

D. The Kinko’s and Texaco Courts Failed to Comprehend the Potential Consequences of their Decisions.

IV. THE PANEL DECISION GOT IT RIGHT: “MULTIPLE COPIES FOR CLASSROOM USE” MEANS MULTIPLE COPIES FOR CLASSROOM USE.

CONCLUSION

APPENDIX

COURSE PACKET

UNIVERSITY OF GEORGIA

University Bookstore

100 Baxter Street Athens, GA 30602 Phone 9706) 542-7243

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COPYRIGHT NOTICE

Ignore Heading – Content

Table of Contents

CERTIFICATE OF SERVICE

United States Court of Appeals
for the Sixth Circuit

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

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

DISCLOSURE OF CORPORATE AFFILIATIONS
AND FINANCIAL INTEREST

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

DISCLOSURE OF CORPORATE AFFILIATIONS
AND FINANCIAL INTEREST

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

DISCLOSURE OF CORPORATE AFFILIATIONS
AND FINANCIAL INTEREST

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

DISCLOSURE OF CORPORATE AFFILIATIONS
AND FINANCIAL INTEREST

100 Baxter Street
Athens, GA 30602
Phone 9706) 542-7243