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If all information in the world was written on clay tablets or carved into marble, its preservation would be greatly simplified. Even paper, when manufactured and stored properly, can have a life measured in hundreds of years. Today, however, much of the information being produced is digital,[1] and digital formats are notoriously fragile. Either the media on which the information is stored becomes unreadable, or the hardware and software needed to read the work becomes obsolete. Think of that old 8″ floppy disk in the back of the drawer with your attempt from twenty years ago to write the Great American Novel (in WordStar). The magnetic data might not still be readable; drives that can read the disk are scarce; and few word processing packages today can understand WordStar documents.

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I May Not Be Totally Perfect But Parts of Me Are Excellent: Copyright Protection for Short Phrases

“There’s a great power in words,” wrote Josh Billings, “if you don’t hitch too many of them together.” No doubt about it, a well-turned phrase can have a powerful effect on a reader. A judicious choice of words can result in the perfect punchline, an incisive aphorism, a moral tenet, or, as in the case of a haiku-beauty.

But short phrases-perhaps because they’re so easily severable from larger works-are commonly the subject of theft. They’re often plucked and recycled in other literary, musical or artistic works or on merchandise.

Copyright laws disfavor protection for short phrases. Such claims are viewed with suspicion by the Copyright Office, whose circulars state that, “… slogans, and other short phrases or expressions cannot be copyrighted.” [1] These rules are premised on two tenets of copyright law. First, copyright will not protect an idea. Phrases conveying an idea are typically expressed in a limited number of ways and, therefore, are not subject to copyright protection. Second, phrases are considered as common idioms of the English language and are therefore free to all. Granting a monopoly would eventually “checkmate the public” [2] and the purpose of a copyright clause to encourage creativity-would be defeated.

So how many words do you have to string together before you get copyright protection? 10? 20? 100? It’s not a matter of numbers. [3]Whether you can stop someone else from using your literary phrases is dependent upon the uniqueness and value of the phrases as well as the way in which you (and the borrower) use them.

Copyright disputes about short phrases end up clustering into three categories:

  • one or more phrases are grouped together in order to prove that two works are substantially similar;
  • a phrase is appropriated to sell a service or product; or
  • an author seeks to protect a singular literary phrase.

This article will examine case law in each of these categories, and also look at the common defenses used by those who appropriate a phrase or group of phrases.

“You Can’t Judge a Book By Its Cover”

Often, in order to prove that a book, article, or other writing has been infringed, an author will point to one or more similar phrases that have been copied in the infringing work. (Infringement requires access and proof of substantial similarity.) Not all similarities, however, amount to infringement. Separated from the original work, common short phrases are usually unprotectable. For example, if the only thing in common between two works is the phrase, “Hip Hop Behind Bars,” [4] or the phrase “safety core” to describe a rope product, [5]that alone is not enough to prove infringement. Similarly, if two legal publishers use similar subject headings, neither will be able to claim infringement on that basis alone. [6] Even if the two works contain dozens or hundreds of similar short phrases, that’s not enough to demonstrate substantial similarity if the short phrases are common, public domain or do not “exhibit the minimal creativity required for copyright protection.” [7]

For example, in one case, [8] the author of a social history of Jewish migration to San Francisco asserted that factual details, historical events, and some phrases were duplicated in the defendant’s novel about a wealthy Jewish family. The defendant admitted consulting the plaintiff’s work and taking at least eight descriptive phrases including “hordes of gold seekers,” “the river wound its way between muddy banks crawling with alligators,” and “rekindle old memories.” The court of appeals considered the borrowing of phrases to be insubstantial, noted that facts and historic events are free for all to use, and ruled for the defendant.

In short, sharing similar phrases, particularly common descriptive phrases, is usually not enough, by itself, to win a copyright claim. In order to stop an infringer, the author must either demonstrate that the phrases exhibit sufficient creativity, or that the taking of the phrases, along with other elements such as similar plot or characters, amounts to infringement. [9]

This can get a little tricky for courts, as they must judge the level of creativity-never an easy task-and they must weigh the literal similarities, such as copying of identical phrases, and the non-literal similarities, such as the appropriation of a distinctive plot, characters or style. Add to the confusion that every literary work is a mosaic of these literal and non-literal elements, and that each poached item has a value by itself and a value in relation to the rest of the work. In general, if an author can demonstrate a strong collection of similarities in plot, theme, characters and common phrases (or dialogue), a court will support a claim of infringement. [10]

In some cases,
a writer may popularize one or more public domain phrases and then seek to stop others from using them. Usually, such claims are unsuccessful-for example, a songwriter failed to win a claim when the only similarity between two songs was similar public domain phrases, such as “night and noon [11],” or “there will never be another you. [12]“

In another case, a country and western songwriter wrote a song containing the phrase, “I like to gamble, I like to smoke. I like to drink and tell a dirty joke.” The defendant’s song contained the phrases “She don’t drink. She don’t smoke. She can’t stand a dirty joke.” The district court ruled for the borrower and wisely noted that, “the perfect country and western song has been described as including drinking, mother, prisons, trains and trucks. This Court can add to that list without reservation smoking, gambling, loving, and telling dirty jokes.”[13]

There are situations in which one writer can stop another from copying public domain phrases, but these usually involve some creativity in the choice, sequencing or ordering of the phrases-for example, the author of a unique collection of civil war phrases could prevent another publisher from lifting large segments for a competing work. As one court put it, “[T]hough ordinary’ phrases may be quoted without fear of infringement, a copier may not quote or paraphrase the sequence of creative expression that includes such phrases.” [14]

“Show Me the Money”

In cases where short phrases are used to sell things, court decisions appear to follow two general rules:

(a) a court is likely to find that common short phrases used in advertising or label copy-for example, “FDS is the most personal sort of deodorant” are, by themselves, usually not protectible [15] and

(b) if a popular phrase is hijacked for a blatant commercial use-for example, using “E.T., Phone Home” on drinking mugs [16]-courts are more likely to find infringement.

There are many exceptions to these rules. In the case of advertising or label copy, for example, when more than the advertising phrases are borrowed, for example, layout or visual imagery, then a court may be much more likely to protect one advertiser from infringement by another. [17] Similarly, even humdrum phrases such as, “Why are we giving away SOLEX Electric Toothbrush Sets for Only $3?” and, “This is NOT a misprint” may be protected against copying when they are selected and arranged to mimic a competitor’s advertisement.[18]

In cases involving the use of phrases in connection with the sale of merchandise, courts are often strongly swayed by the connection of the phrase with a fictional character or real person. In the case involving “E.T. Phone Home” drinking mugs, the judge said, “[T]he use of the name . . . conjures up the image and appeal of the E.T. character names protected under copyright.” A similar result occurred in a case involving, “Look! . . . Up in the sky! . . . It’s a bird! . . . It’s a plane . . . It’s Superman!” when that phrase was used as part of a campaign to sell consumer electronics equipment. [19] Most likely, other famous movie phrases [20] would enjoy similar protection, particularly if a character association was also made. In a case involving the sale of busts of Martin Luther King, Jr. advertisements contained a few short phrases from one of his speeches. Perhaps swayed by the blatant commercial exploitation of Dr. King’s words, a court ruled that the borrowing was an infringement. [21]

In these sales-oriented cases, copyright is sometimes stretched to do the work of trademark law. In the world of trademarks, short phrases are protected if consumers associate them with particular goods or services. In some of the cases described above, the phrases were used for their associative or “endorsement” power and, under those conditions, courts may accept less significant similarities to justify a finding of copyright infringement.

“Euclid Alone Has Looked on Beauty Bare”

In the examples above, the cases analyzed situations where a phrase is derived from a larger work. But what if the phrase is the whole work? Will copyright ever protect it? The possibility was explored most famously by Judge Frank in Heim v. Universal Pictures Co., Inc.[22] In Heim, the issue arose as to whether the copyright of a musical phrase would be enough to justify a finding of infringement. Judge Frank determined that lack of originality, not brevity, is what prevents the separate copyrightability of a phrase. This originality could be demonstrated by a phrase that was so idiosyncratic that its appearance in another work would preclude coincidence and, as an example, Judge Frank cited Edna St. Vincent Millay’s title and opening line to her sonnet, “Euclid alone has looked on beauty bare.” Or, as co
pyright scholar Melville Nimmer summed up the standard, “The smaller the effort (e.g., two words) the greater must be the degree of creativity in order to claim copyright protection.” [23]

Obviously, terse statements such as, “Contents Require Immediate Attention” or, “Gift Check Enclosed” do not exhibit sufficient originality. [24] But do statements of advertising copy, haikus, or jokes, all of which rely on brevity and simplicity, rise to the necessary level of originality?

One example of the higher degree of creativity necessary for copyright protection is evidenced by Ashleigh Brilliant, the author of literary phrases sold on postcards and merchandise. (For examples of Brilliant’s “Pot-Shots,” see www.ashleighbrilliant.com.)

In a 1979 case, [25] a company copied two of Brilliant’s phrases-“I may not be totally perfect, but parts of me are excellent” and “I have abandoned my search for truth and am now looking for a good fantasy”-and altered a third phrase, all for sale on t-shirt transfers.

The district court acknowledged that the phrases were distinguished by conciseness, cleverness, and a pointed observation, and ruled that they were protected by copyright. By fulfilling the higher creative standards of an epigram, Brilliant’s Pot-Shots also satisfied the inverse relationship between originality and length discussed by Judge Frank and Professor Nimmer.

In Brilliant, the clever arrangement of a small group of words established the required degree of originality. However, arrangement of words is not the only means of demonstrating originality in a short phrase. Evidence of creativity also is demonstrated by the use of inventive words or language.

For example, in Heim, Judge Frank also mentioned a phrase from Jabberwocky-“Twas brillig and the slithy toves”-as an example of sufficient originality. [26] A similar style of nonsense “code words” prompted Judge Learned Hand to write, “Conceivably there may arise a poet who strings together words without rational sequence-perhaps even coined syllables-through whose beauty, cadence, meter and rhyme he may seek to make poetry.” [27]

“The Best Offense is a Good Defense“

An author accused of borrowing one or more phrases from another work will usually make one (or all) of the following arguments in defense:

  • copyright doesn’t protect the copied phrases,
  • even if the phrases are copyrighted, the borrowing is too small (or de minimis) to matter,
  • even if the phrases are copyrighted, the two works are not substantially similar, or
  • even if the phrases are copyrighted, the borrowing is excused by the fair use or parody defense.

The first three defenses have already been discussed, above. Fair use and parody are covered in considerable detail elsewhere on this Stanford Copyright and Fair Use website. However, it’s worth adding an additional comment or two.

In analyzing the fair use defense when short phrases are borrowed, a court will aggregate the phrases and weigh the value of the phrases in relation to the work. Or, put another way, are the phrases the heart of the work? The more important the phrases are to the work, the harder it often is to win a fair use battle.

The parody defense, although considered a branch of the fair use doctrine, has acquired its own factors and characteristics. By its nature, parody demands some borrowing from an original work in order to “conjure up” the original. In one case, [28] the composers of the song “When Sunny Gets Blue” claimed that their song was infringed by “When Sonny Sniffs Glue,” a twenty-nine second parody which altered the original lyric line and borrowed six bars of the plaintiff’s music. The court permitted the parody and noted that: “[T]he economic effect of a parody with which we are concerned is not its potential to destroy or diminish the market for the original-any bad review can have that effect-but rather whether it fulfills the demand for the original. Biting criticism suppresses demand; copyright infringement usurps it.”

Claiming fair use or parody as a defense has an unfortunate hitch. The only way to find out if you’re right is to have a court rule on the matter. From a real-world perspective, this often favors the litigant with the deepest pockets-that is the party who can last the longest in litigation. However, there are some cases where a borrower has a very strong argument that fair use will apply-for example, borrowing a few lyric lines of a song in a review or new article. But when the use of short phrases lacks some transformative value or fails to offer some insight or commentary-for example, copying phrases on a T-shirt-the fair use argument is harder to win.

Conclusion

Judge Frank’s observation in Heim v. Universal Pictures remains the most insightful guideline for the protection of short phrases-a literary phrase must be so idiosyncratic that its appearance in another work would preclude coincidence. What produces this idiosyncrasy? In parody, it is the interposition of something familiar with something incongruous. In a character phrase, such as “E.T. Phone Home,” it is the inseparable association between the words and the fictional personality. In an epigram, it is the demonstration of a highly structured creativity.

In order to guess how protectible a phrase may be, the question must be asked-as in the protection of characters-has enough development gone into the work so that a line can be drawn separating the author’s expression from that which is in the public domain? Wherever this line is drawn, it will seem arbitrary, but “that is no excuse for not drawing it . . ” [29] If an author has created a uniquely suggestive phrase, then the courts will protect it under copyright. But if an author’s literary phrase is merely a trivial variation on that which already belongs to the public, copyright will not extend.


[1] Though the Copyright Office circulars do not have the force of a statute, they are considered to be, “a fair summary of the law.”Kitchens of Sara Lee, Inc. v. Nifty Foods Corp., 266 F. 2d 541 (2d Cir. 1959); Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068 (9th Cir. 2003).

[2] Morrissey v. Proctor & Gamble Co. 379 F. 2d 675 (1st Cir. 1967).

[3] That said, one court apparently felt that 54 words was enough. A 54-word “thank you” passage from a car dealership brochure was considered copyrightable and a competitor’s use of a similar thank you passage was an infringement. CRA Mktg., Inc. v. Brandow’s Fairway Chrysler-Plymouth-Jeep-Eagle, Inc., 1999 U.S. Dist. LEXIS 11889 (E.D. Pa. 1999).

[4] Bell v. Blaze Magazine, 58 U.S.P.Q. 2d (BNA) 1464 (S.D. N.Y. 2001).

[5] J. Racenstein & Co. v. Wallace, 1999 U.S. Dist. LEXIS 12675 (S.D. N.Y. 1999).

[6] State of Georgia v. Harrison Co., 548 F. Supp. 110 (N.D. Ga 1982).

[7] Arica Inst., Inc. v. Palmer, 970 F.2d 1067, 1072 (2d Cir. 1992).

[8] Narrell v. Freeman, 872 F.2d 907 (9th Cir. 1989).

[9] For all rules there are exceptions (or aberrations). In a 2000 case, the author of a book, “Wall Street Money Machine,” claimed that motivational speaker Anthony Robbins used a few of his phrases in a “Financial Power” manual, given out at a Robbins seminar. (The phrases were based on metaphors comparing investing to driving a taxi.) The jury determined that Cook had a valid copyright and that there was infringement on two of the four copied phrases: “Money is made on the Meter Drop” and “No one I know has come up with a name for the type of investing I call `Rolling Stocks.’ It works on stock that roll up and down in repeated waves. . . . Some roll fast and some slow.” The Ninth Circuit upheld the damage award against Robbins for $655,000 but the case subsequently settled and the decision was withdrawn by the court. Cook v. Robbins, 232 F.3d 736 (9th Cir. 2001).

[10] Shaw v. Lindheim, 919 F.2d 1353, 1361 (9th Cir. 1990).

[11] O’Brien v. Chappel & Co., 159 F. Supp. 58 (S.D. NY 1958)

[12] Gingg v. Twentieth Century Fox Film Corp., 56 F. Supp. 701 (S.D. Cal. 1944)

[13] Pendleton v. Acuff-Rose Publications, Inc., 225 U.S.P.Q. (BNA) 935 (M.D. Tenn. 1984).

[14] Salinger v. Random House, Inc., 811 F.2d 90, 98 (2d Cir. 1986).

[15]&nbs
p;Alberto-Culver Co. v. Andrea Dumon, Inc., 466 F.2d 705, 710 (7th Cir., 1972).

[16] Universal City Studios v. Kamar Industries, Inc., 217 U.S.P.Q. (BNA) 1165 (S.D. Tex 1982).

[17] Klitzner Industries, Inc. v. H. K. James & Co., 535 F. Supp. 1249 (E.D. P.A., 1982).

[18] Raffoler, Ltd. v. Peabody & Wright, Ltd., 671 F. Supp. 947 (E.D. N.Y. 1987).

[19] DC Comics, Inc. v. Crazy Eddie, Inc., 205 U.S.P.Q. (BNA) 1177 (S.D. N.Y. 1979).

[20] Professor J. Wesley Cochran of Texas Tech had his copyright class submit suggestions for protectible phrases from movies and they came up with:

She’s my sister. My daughter. My sister. My daughter. She’s my sister

and my daughter.

Badges? We don’t need no stinking badges!

Here’s looking at you, kid.

Frankly, my dear, I don’t give a damn.

Bond. James Bond.

You know how to whistle, don’t you Steve? You just put your lips together

and blow.

Go ahead. Make my day.

Why don’t you come up and see me sometime?

I’ll make him an offer he can’t refuse.

Toto, I don’t think we’re in Kansas anymore.

You talking to me?

http://legalminds.lp.findlaw.com/list/cni-copyright/msg12983.html

[21] Martin Luther King Jr. Center for Social Chance. v. American Heritage Products, Inc., 508 F. Supp. 854 (N.D. Ga 1981).

[22] Heim, 154 F.2d 480 (2d Cir. 1946).

[23] 1 M. Nimmer, NIMMER ON COPYRIGHT 2.01[B] (1988).

[24] Magic Marketing, Inc. v. Mailing Services of Pittsburgh, Inc., 634 F. Supp. 769 (W.D. Pa. 1986).

[25] Brilliant v. W.B. Productions, Inc. Civ. No. 79-1893-WMB (S.D. Cal Oct. 22, 1979).

[26] A British court reached a similar conclusion in Exxon Corp. v. Exxon Ins. Consulting int’l Ltd. [1981] 2 All E.R. 495, 504. FYI, In case you’re wondering, the word “Supercalifragilisticexpialidocious,” was not an invented term when used in the song of the same name. Life Music, Inc. v. Wonderland Music, Co, 241 F. Supp. 653 (S.D. NY 1965).

[27] Reiss v. National Quotation Bureau, Inc., 276 F. 717 (S.D. NY 1921)

[28] Fisher v. Dees, 794, F.2d 432 (9th Cir. 1986).

[29] Nichols v. Universal Pictures Corp. 45 F.2d 119, 122 (2d Cir.) (Decision by J. Learned Hand)

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How I Learned to Love FAIR USE or how to bring a $300,000 lawsuit down to $0 if you’re a library, archive, or nonprofit educational institution.

When I give seminars to librarians on copyright, the most popular question is: “What happens if we get sued? How much money are we talking about?” Answer? In ever popular lawyer-speak, “It depends.” The good news for libraries, archives, and nonprofit educational institutions, is that a good understanding and application of Fair Use can reduce your liability down to $0. This article aims to help you evaluate a given situation involving the fair use of copyrighted materials.

“Fair Use?” , you say. “Absolutely. Everything we do is Fair Use. That is, we think it’s fair.” That kind of thinking won’t go too far in court. Although Fair Use is the grayest area of copyright law (I always color my PowerPoint slides on Fair Use gray), 17 U.S.C. § 107 outlines criteria including four specific factors that courts weigh to determine if what you’ve done would lawfully be considered Fair Use.

Copyright Infringement

When considering whether or not you’ve infringed on someone’s copyright, you’ll first want to make the case that you are innocent of infringing which means you should look at sections of U.S. copyright law that directly protect libraries, archives and some educational institutions. See especially, 17 U.S.C. § 108 and § 110. If your use isn’t covered (be sure to also look through other user exceptions from § 109 – § 122), you’ll want to look at Fair Use, the slipperiest defense in copyright law, § 107 .

Q: Before we get to Fair Use, I’d like to know — can I go to jail if I unintentionally infringe on someone’s copyright?

Only willful copyright infringement is a federal crime, punishable by imprisonment, fines or both. If you willfully copy or distribute by electronic or other means a work with a retail value of $1,000 but less than $2,500, you could be imprisoned up to one year and/or fined. See § 506. The terms go up if the infringement is greater.

The Digital Millennium Copyright Act added criminal penalties to persons who circumvent (loose definition: hackers) copyright protection systems or mess with copyright management information. Not only must your actions be willful, but there’s a specific provision exempting nonprofit libraries, archives, and educational institutions from criminal liability. See § 1204. They may be accountable for civil remedies, although there’s a particularly odd provision that allows them to hack copyright protection systems if done, “solely in order to make a good faith determination of whether to acquire a copy of that work” See § 1201(d).

Q: How much money could I be sued for in a civil copyright lawsuit?

A: If the lawsuit is for a work that has been registered at the Copyright Office, the damages can be quite stiff. A copyright owner may elect to recover statutory damages under § 504, even if she can’t show any lost profits. Statutory damages are amounts set by law. A copyright owner whose work was registered with the U.S. Copyright Office before the infringement (or within three months of publication) can elect to choose statutory damages or actual damages. Actual damages (also known as compensatory damages) are the dollar amount of any demonstrable loss suffered because of the infringement. Most copyright owners will choose statutory over actual damages because there is less to prove in order to obtain payment. If you’re found to be an infringer (and don’t have reasonable ground to believe your use was Fair Use), statutory damages are set by law at a minimum of $750 and a maximum of $30,000 per infringement, “as the court considers just.” If the court finds that you’ve infringed on ten photographs that have registered copyrights, for example, you may be facing a $300,000 lawsuit. If the copyright owner can prove that the infringement was committed willfully, the court has the discretion to increase the damages up to $150,000 per infringement. Further, the court may determine that the losing party must pay the winner’s costs and attorneys fees, under § 505. On the other hand, if the infringer can prove that she was not aware and had no reason to believe the act was infringement, the court may reduce the award down to $200.

If you work for a nonprofit educational institution, library, or archives and are acting within the scope of employment the court can bring the statutory damage award down to $0, even if you are found to be infringing copyright. For this to happen, you must show that you believed and had reasonable grounds for believing that your use was Fair Use

Fair Use

Q: What is Fair Use?

Fair Use is codified in U.S. Copyright law at 17 U.S.C. § 107. It states that the Fair Use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright.

The bad news is that even after careful consideration whenever you try to figure out if what you want to do is Fair Use you will most likely still be left with a giant gray area. The good news is that with some study of the four nonexclusive factors which form a framework to make your evaluations, your good faith effort may help enormously if you get sued.

The law lists four nonexclusive factors to consider in determining whether a use is Fair Use:

FACTOR ONE: PURPOSE and Character of the Use

Conditions Which Tend Toward Finding Fair Use

+ Use is for nonprofit educational purposes

 

Note: Although it is quite helpful to be a nonprofit library, archives or educational institution, the purpose of the use should also be nonprofit educational.

+ Use is to create a new work with a different purpose (called “transformative use”)

Note: Of special interest to libraries, archives and educational institutions is a recent 9th Circuit decision that found this factor in favor of an operator of a visual search engine. Arriba-Soft was sued by a professional photographer whose photographs were copied (in thumbnail form). The court said that the search engine was designed to “catalog and improve access to images on the Internet,” and was thus considered a “transformative use” (i.e., it adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.) Further, the thumbnail form made it unlikely that users would enlarge the images for the original, artistic purpose because of the low quality. Kelly v. Arriba-Soft, 03 C.D.O.S 5888 (9thCir. 2003).

Conditions Which Tend Against Finding of Fair Use

– Use is of a commercial nature

– Use is not transformative

FACTOR TWO: NATURE of the Copyrighted Work

Conditions Which Tend Toward Finding Fair Use

+ The work has a thin or weak copyright

Note: Reference works, science, other works that are primarily factual have elements that are not copyrightable.

+ The work has already been published

Conditions Which Tend Against Finding of Fair Use

– The work has a strong copyright

Note: Highly creative works, such as poetry, fiction, and art are really pure expression, and as such enjoy greater protection.

– The work is unpublished

Note: This surprises some librarians, who keep rich local history files, filled with unpublished letters, photographs etc. Yet copyright law favors the right of the copyright owners (including heirs) to make the decision whether or not to publish their work.

FACTOR THREE: AMOUNT and Substantiality of portion used in relation to the copyrighted work as a whole

Conditions Which Tend Toward Finding Fair Use

+ The smaller the amount copied the better

Note: This is measured in proportion to the size of the original. This was easier to measure in the print world than online.

+ Portion used is not “the heart of the work”

Note: A classic example here is taking the key moment from the I Love Lucy episode where Lucy is trying, in vain, to keep up with a fast moving chocolate candy conveyer belt.

Conditions Which Tend Against Finding of Fair Use

– The more that is takeneither in proportional size or importancethe more difficult it is to claim fair use.

FACTOR FOUR: MARKET Effect (Including Potential Effect) on Value of Copyrighted Work

Conditions Which Tend Toward Finding Fair Use

+ There isn’t a significant effect (including potential effect) on the market for the original work

Note: If you can demonstrate that your use doesn’t deprive the copyright owner of income, you’re more likely to persuade a judge regarding this factor.

Conditions Which Tend Against Finding of Fair Use

– There is a market for the work

Note: A 1994 Supreme Court decision says that the market factor is only one of the four factors, and not more important. The reality is that courts often weigh this factor much more heavily than the other three so beware if your use undermines an existing or potential market for the work.

Memory Trick to remember the Fair Use Factors: PNAM

Purpose

Nature

Amount

Market

Q: How will I know if what I’m doing is Fair Use?

Get sued and get a court to determine your case. Sadly, unless your facts ma
tch perfectly with a previous court case in your jurisdiction, this is what you need to do. Remember, though, that if you work for a nonprofit educational institution, library, or archives and are acting within the scope of employment, your statutory damages could go down to $0. You must show that you believed and had reasonable grounds for believing that your use was Fair Use. Keep track of your analyses, item by item. A handy way to do this is to use the Fair Use Checklist developed by Kenneth Crews at the Copyright Management Center of Indiana University.

Q: How do I find out more about how to handle a lawsuit against me?

Most copyright owners will send a “cease and desist” letter to you before filing a lawsuit. A new joint project of the Electronic Frontier Foundation and Harvard, Stanford, Berkeley, University of San Francisco, and University of Maine law school clinics,Chilling Effects Clearinghouse, is incredibly helpful in understanding these letters and their legal terminology. Samples of real “cease and desist letters” are posted.

Another important note is to check your institution’s insurance policy to make sure it adequately covers copyright lawsuits. If it does, be sure to contact your insurance company before spending money on attorneys. In a recent New York case, a sunglass company paid some legal fees to a law firm it had hired to litigate a patent infringement case. Its insurance company would have paid the fees if it had been approached initially, but would not pay after the fact. Darby & Darby v. VSI, 701 N.Y.S.2d 50 (2000). For an overview of how to handle a copyright infringement lawsuit against you, including insurance, see Mark H. Miller’s Copyright Infringement: What It Is; What to Do If You’re Accused of It (Jackson Walker LLP: 2000).

Fair use Summary
LIKELY YES LIKELY NO
PURPOSE

Nonprofit
Create work +
with new
purpose

Commercial work has same purpose as original
NATURE

Reference,
Nonfiction
Published +

Fiction, Art
Music

Unpublished
AMOUNT

Small amt (relative to whole original) +

Complete work
Heart of work
MARKET

Doesn’t hurt
market of Original +

Hurts market or potential market of original

Note: Attributionthat is giving credit to the copyright ownerwill not relieve you of a claim of infringement.

More Resources

The very best sites for libraries, archives and nonprofit educational institutions on fair use:

Kenneth Crews, Copyright Management Center of Indiana University

http://www.copyright.iupui.edu/fairuse.htm

****See especially its Fair Use Checklist that you can use to evaluate each item and then keep on file to protect yourself at http://www.copyright.iupui.edu/checklist.htm****

Georgia Harper, University of Texas Copyright Crash Course: Fair Use

http://www.utsystem.edu/ogc/intellectualproperty/copypol2.htm

United States Copyright Office.

http://www.copyright.gov/circs/circ21.pdf

Circular 21 Reproductions of Copyrighted Works by Educators and Librarians includes excerpts from H.R. Rep. No. 94-1476, and some discussion of S. Rep. No. 94-473, noting that the codification of Sect. 107 is intended to offer guidance to users, but the “endless variety ofsituations and combinations of circumstances that can rise in particular cases precludes the formulation of exact rules in the statute. The bill endorses the purpose and general scope of the judicial doctrine of fair use, but there is no disposition to freeze the doctrine in the statute, especially during a period of rapid technological change. Beyond a very broad statutory explanation of what fair use is and some of the criteria applicable to it, the courts must be free to adapt the doctrine to particular situations on a case-by-case basis. Section 107 is intended to restate the present judicial doctrine of fair use, not to change, narrow, or enlargeit in any way.” The Circular also reprints the Classroom Guidelines (also found here), noting that the purpose of the guidelines “is to state the minimum and not the maximum standards of educational fair use” at http://www.copyright.gov/circs/circ21.pdf

APPENDIX

17 U.S.C. § 107 Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the Fair Use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

In determining whether the use made of a work in any particular case is a Fair Use the factors to be considered shall include:

the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

the nature of the copyrighted work;

the amount and substantiality of the portion used in relation to the copyrighted work as a whole;

and the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of Fair Use if such finding is made upon consideration of all the above factors.

1Also, everybody seems to throw the term “Fair Use” around casually at parties. With a little learning, you can be the only one there to use it correctly. This might even help you land your next job.

2A jury recently awarded a photographer $400,000 from the nonprofit National Geographic Society when it digitized four photographs for its, “108 Years of National Geographic on CD-ROM” collection, Greenberg v. National Geographic Society ,U.S. District Court, Miami FL (March 2003). See American Society of Media Photographers, Inc.http://www.asmp.org/news/spec2003/greenberg.shtml National Geographic says it will appeal the decision, which was already on remand from an 11th Circuit opinion in favor of the photographer. Greenberg v. National Geographic Society, 244 F.3d 1267 (11th Cir. 2001).

3 Snippets like this license for small fortunes. If you happen to find someone else has blatantly posted it on the Internet, stop and turn away. These works are strongly protected by copyright and the fact that you are not the original thief has no bearing.

4 Campbell v. Acuff-Rose Music, 510 US 569 (1994).

5 Okay, maybe thats not the worlds best memory trick, but its worked for me and some folks I’ve shared it with for years. Maybe you can gussy it up, like “Please, Not Another Muffin!” One workshop participant changed the “M” to and “E”, did a little rearranging and suggested PANE – purpose, amount, nature and economic impact. Then you can tell yourself that Fair Use analysis is a PANE. If it is, its a muddy pane.

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TO: Members of the Faculty, Hoover Institution Fellows, Senior Fellows, Department Administrators, Academic Staff (teaching and research) and Library Directors.
FROM: John Etchemendy, Provost
DATE: March 11, 2002
SUBJECT: Copyright Reminder

The attached informational sheets are intended to update and remind the University community of the applicability of copyright law at an academic institution like Stanford. The attached sheets cover:

  • BASIC COPYRIGHT PRINCIPLES
  • THE FAIR USE DOCTRINE
  • LIBRARY COPYRIGHT CONSIDERATIONS
  • FACE-TO-FACE TEACHING ACTIVITIES
  • OBTAINING PERMISSION TO USE COPYRIGHTED MATERIAL
  • INTERNET AND ELECTRONIC MEDIUM COPYRIGHT CONCERNS
  • THE DIGITAL MILLENNIUM COPYRIGHT ACT
  • RESOURCES ON COPYRIGHT AND FAIR USE

If these informational sheets and the listed resources do not address your specific copyright concerns, please feel free to contact the Fair Use Panel at 723-5553 for assistance.

Basic Copyright Principles

The Law. Congress enacted the federal Copyright Act to protect works of authorship. The Act gives the owner of a copyright the exclusive right to do and authorize others to do certain things in regard to a copyrighted work, including: make copies, distribute the work, display or perform the work publicly, and create derivative works.

Original Scope of Copyright. The Act applies to nearly all forms of captured content, including traditional works such as books, photographs, architectural drawings, music, drama and sculpture.

Expanded Scope of Copyright. The copyright laws have adapted to advancing technology by expanding the scope of protected works to include such things as video, motion pictures, electronic media, software, multimedia works and databases.

Test to Determine Copyright. A copyright will attach to an original work that is “fixed in any tangible medium of expression” (i.e., a medium that is captured in an accessible form of content).

No Mark or Registration Necessary. Since 1989, works are protected by copyright regardless of whether a copyright notice is attached and regardless of whether the copyright is registered.

Public Domain Works. Not all works carry copyrights; those in the public domain may be freely used. Any work published before 1923 is in the public domain. Works published from 1923 through 1978 are protected for 95 years from the publication date, if proper copyright formalities were followed. Since 1978, works generally have copyright protection for the life of the author plus 70 years.

If No Exception, Seek Permission. In academia, the three major exceptions to the copyright owner’s right to control the reproduction and use of works of authorship are: the fair use exception, the library exception, and the face-to-face teaching exception. These three exceptions are described below. Unless an exception applies, you must obtain permission to reproduce copyrighted work in any medium for any purpose.

Penalties. The penalties for copyright infringement are harsh. A court may award up to $150,000 for each separate willful infringement.

The Fair Use Doctrine

Fair Use Defined. The Fair Use Doctrine provides for limited use of copyrighted materials for educational and research purposes without permission from the owners. It is not a blanket exemption. Instead, each proposed use must be analyzed under a four-part test.

Fair Use Applied. Unfortunately, the four-part test to determine fair use is necessarily vague and fact-dependent. In some instances, two reasonable people could apply the four factors to the same facts and reach opposite conclusions. If the weighing and balancing analysis below does not provide an answer, please refer to the Copyright and Fair Use Resources section below.

Fair Use Four Factor Test.

  1. What is the character of the use? Educational, nonprofit and personal use is favored for fair use, while commercial use is disfavored. However, the fact that a use is educational or nonprofit in nature does not in and of itself mean the use is necessarily fair. More important than the educational or nonprofit nature of the use is whether the use is “transformative” in nature. A use is transformative if it builds upon, criticizes, comments on, parodies or otherwise adds something new to the original work. Put another way, the question is whether the new use, in the words of the Supreme Court, merely “supercedes the objects of the original, or instead adds something new, with a further purpose or different character.”
  2. What is the nature of the work to be used? Use of a work that is factual in nature weighs toward a finding of fair use. Use of imaginative works is more likely to require permission.What is the amount and substantiality of the portion to be used? Using only a small portion of a copyrighted material tips towards fair use, while using large portions indicates a need for permission. Be careful with this factor, however; a court recently held that copying only 5% of a book into a coursepack was not fair use.
  3. Will the use negatively affect the value of the copyrighted material? Where a work is available for purchase or license from the copyright owner, copying all or a significant portion of the work (in lieu of purchasing or licensing a sufficient number of “authorized” copies) would likely be unfair. If only a small portion of a work is to be copied, and one would likely forego using the portion if permission were required, then the balance tips towards fair use.
  4. Good Faith Fair Use Defense. Even if a copyright infringement occurs, a court may refuse to award damages if the infringer reasonablybelieved that the use was fair.

Library Copyright Considerations

Library Exemption for Reproduction of Copyrighted Works. The Copyright Act establishes certain exemptions for libraries and archives to reproduce copyrighted works.

Filing a Course Reserve. Some libraries at Stanford will not accept multiple photocopies of copyrighted materials needed for course reserves without first having permission from the copyright holder. Other libraries on campus will accept a limited number of photocopies for course reserves. Consult individual libraries for their policies. The Green Library policy on course reserve is located at http://www-sul.Stanford.edu/services.html.

Allow Several Months for Course Reserve Permission. Note that filling course reserve requirements may take two to three months before the quarter begins if the library does not already have a copy of the publication and copyright permission is needed.

Filing an E-Reserve. Some libraries at Stanford allow electronic files to be placed on reserve under limited circumstances in accordance with copyright principles. These e-reserves are access controlled to course participants only. For information about filing an e-reserve, please contact Brigid Welch, Head of Access Services (5-1277 or bwelch@stanford.edu).

Contact. For further questions about the library exemption, library policy and course reserves, please contact Brigid Welch, Head of Access Services (5-1277 or bwelch@stanford.edu) or Catherine Tierney, Associate University Librarian (3-2015 or ctierney@stanford.edu).

Face-To-Face Teaching Activities

Performance or Display of Copyrighted Materials During Face-to-Face Teaching. In addition to the fair use exemption and library exemption, the Copyright Act does provide an exemption to perform or display copyrighted materials during face-to-face teaching activities. Such use does not require the author’s permission. Note, however, that this exemption does not permit copying or distributing a work—only displaying or performing it.

Distance Learning and the TEACH Act. In June 2001, the Senate passed the Technology, Education and Copyright Harmonization Act (TEACH), which provides that educators may put limited amounts of copyrighted material onto computer systems to be accessed by students outside of the classroom as part of distance-learning classroom transmission supervised or directed by an instructor. Note that TEACH is currently pending before the House and is not the law. Until this bill becomes law, professors and teaching assistants should continue to exercise caution in posting copyrighted material onto the internet for use outside of the classroom. (The face-to-face teaching exemption does permit the display of internet material inside the classroom.) Also note that TEACH contains many conditions and exceptions, including an exception for textbooks, coursepacks or other works that are typically purchased or acquired by students. Therefore, if TEACH does become law, instructors should seek further guidance before using any copyrighted material in reliance on TEACH.

Obtaining Permission to Use Copyrighted Material

In General. If an exception (such as fair use, the library exception, or face-to-face teaching activities) is not clearly available, permission to use a copyrighted work must be obtained from the copyright holder. A request to use copyrighted material should be sent to the permission department of the publisher of the work. Assume four to six weeks for a request to be processed. Permission requests should contain:

  1. Title, author and/or editor, and edition.
  2. Exact material to be used.
  3. Number of copies to be made.
  4. Intended use of the material, e.g., educational.
  5. Form of distribution, e.g., hard copy to classroom, posted on internet.
  6. Whether material is to be sold (e.g., as part of a coursepack).

Journal Articles. The Stanford libraries have blanket copyright permission from many journals. Before forwarding a request for an article, check with the appropriate library to see if there is a blanket permission covering the article you would like to use.

Copyright Clearance Center (CCC). The CCC is able to give permission to use a wide number of materials for a fee. Please contact CCC at www.copyright.com or (978) 750-8400.

Coursepacks. Many commercial copying services will obtain copyright permission for included materials and add the royalty to the price of the coursepack.

Evidence of Permission. Written permission should be obtained and kept by the academic department. If oral permission only is obtained by faculty members, department personnel or library staff, a written record should be kept of the oral permission.

Internet and Electronic Medium Copyright

In General. Digitally created works and copyrighted works transformed into a digital format and placed on-line or on the internet are protected.

Exercise Caution. Be especially careful of copyright/fair use principles when downloading material from the internet. There is growing concern about the ability to pull copyrighted material from the internet without permission. Note too that material may have been placed on the internet without the author’s permission.

The Fair Use Doctrine. In 1998, the Conference on Fair Use (CONFU) attempted to form guidelines specifically addressing copyrighted material found on the internet. Unfortunately, there was no consensus at the conference, and many organizations, including Stanford, have not endorsed the guidelines. In addition to the traditional four fair use factors, you should consider the following additional concern:

Is access to the material limited or protected? Using material that is password protected or otherwise guarded from general distribution by some device weighs against a finding of fair use. Further, it is a violation of law to circumvent an access control mechanism and use copyrighted material — even if the use would otherwise be fair. See the Digital Millennium Copyright Act information sheet. Conversely, limiting access to the new work to a small audience by using passwords or other access control devices weighs toward a finding of fair use. (Some Stanford libraries will accept e-reserves, which are access controlled and limited to currently enrolled students.)

Personal Use. Generally, posting material on the internet by the copyright owner gives an internet user the right to use that material for his or her own personal use. It does not necessarily give the user the right to redistribute that material.

Protect the Copyright. Electronic distribution of a copyrighted work should state: This work is protected by copyright laws and is provided for educational instruction only. Any infringing use may be subject to disciplinary action and/or civil or criminal liability as provided by law.

THE DIGITAL MILLENNIUM COPYRIGHT ACT

In General. The DMCA provides limited protection for Internet service providers from the infringing acts of their users. It also prohibits gaining unauthorized access to a work by circumventing a technological protection measure put in place by the copyright owner to control access to the work. Such circumvention is prohibited even if the use of the work would otherwise be a fair use. The DMCA also prohibits trafficking in technology or devices that are primarily designed to circumvent such a technological protection.

COPYRIGHT AND FAIR USE RESOURCES

Stanford’s Copyright Ownership Policy. The University’s copyright policy establishes that all rights in copyright, regardless of their form of expression, remain with the creator, except in specified cases where law or University policy require otherwise. For more information, please refer to the policy at http://www.stanford.edu/dept/ DoR/rph/5-2.html

Stanford’s Fair Use Resources. Further guidelines and useful material are located at https://fairuse.stanford.edu.

Guidelines for Classroom Copying. These guidelines were prepared by the Authors League of America and the Association of American Publishers. 17 USC 107

Guidelines for Educational Multimedia. These guidelines were prepared by the Consortium of College and University Multimedia Centers. http://www.libraries.psu.edu/mtss/fairuse/guidelines.html.

Guidelines for Digital Images, Distance Learning, Computer Software. The TEACH Act, currently pending before Congress, would allow educators to put material on-line for use outside of the classroom. Until this bill becomes law, many educators are relying on the Conference on Fair Use Guidelines (CONFU). These CONFU guidelines are located at http://www.uspto.gov/web/offices/dcom/olia/confu/. Not all CONFU participants agreed with the developed guidelines and Stanford has not endorsed this policy. Stanford’s policy provides: “In addition to software, all other copyrighted information . . . retrieved from computer or network resources must be used in conformance with applicable copyright and other law.” Administrative Guide Memo 62 (2) (a) (3). http://adminguide.stanford.edu/62.pdf.

Computer Software. Please see “Copying of Computer Software,” Administrative Guide Memorandum 62 located at http://adminguide.stanford.edu/ch6contents.html. Section 2(a) of that policy provides: “Computer users must respect copyrights and licenses to software and other online information” and “[a]ll software protected by copyright must not be copied except as specifically stipulated by the owner . . . or otherwise permitted by copyright law. Protected software may not be copied into, from or by any University facility or system, except pursuant to a valid license or as otherwise permitted by copyright law.” The memo further provides that those who violate the policy will be subject to disciplinary action.

Further Assistance. Please contact the Fair Use Panel at 723-5553.

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TO: Members of the Faculty, Hoover Institution Fellows, Academic Staff, and Library Directors
FROM: Condoleezza Rice, Provost
RE: Copyright Reminder

This memorandum provides a general description of the applicability of the copyright law and the so-called “fair use” exemptions to the copyright law’s general prohibition on copying. It also describes “safe harbor” guidelines applicable to classroom copying.

The federal copyright statute governs the reproduction of works of authorship. In general, works governed by copyright law include such traditional works of authorship as books, photographs, music, drama, video and sculpture, and also software, multimedia, and databases. Copyrighted works are protected regardless of the medium in which they are created or reproduced; thus, copyright extends to digital works and works transformed into a digital format. Copyrighted works are not limited to those that bear a copyright notice. As a result of changes in copyright law, works published since March 1, 1989 need not bear a copyright notice to be protected under the statute.

Two provisions of the copyright statute are of particular importance to teachers and researchers:

  • a provision that codifies the doctrine of “fair use,” under which limited copying of copyrighted works without the permission of the owner is allowed for certain teaching and research purposes; and
  • a provision that establishes special limitations and exemptions for the reproduction of copyrighted works by libraries and archives.

    • The concept of fair use is necessarily somewhat vague when discussed in the abstract. Its application depends critically on the particular facts of the individual situation. Neither the case law nor the statutory law provides bright lines concerning which uses are fair and which are not. However, you may find it helpful to refer to certain third party source materials. Guidelines for classroom copying by not-for-profit educational institutions have been prepared by a group consisting of the Authors League of America, the Association of American Publishers, and an ad hoc committee of educational institutions and organizations. In addition, fair use guidelines for educational multimedia have been prepared by a group coordinated by the consortium of College and University Multimedia Centers (CCUMC). These guidelines describe safe harbor conditions, but do not purport to define the full extent of “fair use.”

    The guidelines, as well as other source material, are available through a variety of resources, including through the world wide web site https://fairuse.stanford.edu. Stanford University Libraries & Academic Information Resources, in collaboration with the Council on Library Resources and Justia, are sponsors of this web site. The site assembles a wide range of materials related to the use of copyrighted material by individuals, libraries, and educational institutions.

    I hope that the discussion below helps to clarify further the nature of “fair use.”

    I. Fair Use for Teaching and Research

    The “fair use” doctrine allows limited reproduction of copyrighted works for educational and research purposes. The relevant portion of the copyright statue provides that the “fair use” of a copyrighted work, including reproduction “for purposes such as criticism, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” is not an infringement of copyright. The law lists the following factors as the ones to be evaluated in determining whether a particular use of a copyrighted work is a permitted “fair use,” rather than an infringement of the copyright:

    • the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
    • the nature of the copyrighted work;
    • the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and
    • the effect of the use upon the potential market for or value of the copyrighted work.

    Although all of these factors will be considered, the last factor is the most important in determining whether a particular use is “fair.” Where a work is available for purchase or license from the copyright owner in the medium or format desired, copying of all or a significant portion of the work in lieu of purchasing or licensing a sufficient number of “authorized” copies would be presumptively unfair. Where only a small portion of a work is to be copied and the work would not be used if purchase or licensing of a sufficient number of authorized copies were required, the intended use is more likely to be found to be fair.

    A federal appeals court recently decided an important copyright fair use case involving coursepacks. In Princeton University Press, et.al. v. Michigan Document Services, the U.S. Court of Appeals for the Sixth Circuit concluded that the copying of excerpts from books and other publications by a commercial copy service without the payment of fees to the copyright holders to create coursepacks for university students was not fair use. The size of the offending excerpts varied from 30 percent to as little as 5 percent of the original publications. Although the opinion in this case is not binding in California, it is consistent with prior cases from other courts, and there is a reasonable likelihood that the California federal courts would reach a similar conclusion on similar facts.

    Where questions arise, we suggest that you consult the guidelines for classroom copying and other available source material available on the fair use web site, cited above. Please note that the guidelines are intended to state the minimum, not the maximum, extent of the fair use doctrine. Thus, just because your use is not within the guidelines, it is it not necessarily outside the scope of fair use. In the absence of a definitive conclusion, however, if the proposed use deviates from the guidelines, you should consider obtaining permission to use the work from the copyright owner. In instances where the fair use question is important and permission would be difficult or expensive to obtain, a member of the Fair Use Advisory Group (described below) or the Legal Office can assist in analyzing whether a particular proposed use would constitute “fair use.”

    Some photocopying services will obtain copyright permission and add the price of the royalties, if any, to the price of the materials. A request to copy a copyrighted work should generally be sent to the permission department of the publisher of the work. Permission requests should contain the following:

    • Title, author, and/or editor, and edition
    • Exact material to be used, giving page numbers or chapters
    • Number of copies to be made
    • Use to be made of the copied materials
    • Form of distribution (classroom, newsletter, etc.)
    • Whether the material is to be sold

    Draft form letters can be obtained from or reviewed by a member of the Fair Use Advisory Group or the Legal Office.

    For certain works, permission may also be sought from the Copyright Clearance Center (CCC) which will quote a charge for works for which they are able to give permission. The Copyright Clearance Center can be contacted at www.copyright.com or (978) 750-8400, but it may be easier to go through a copying service that deals regularly with the CCC.

    II. Course Reserves

    Some libraries at Stanford will refuse to accept multiple photocopies or to make photocopies of copyrighted materials needed for course reserves without first having permission from the copyright holder. Other libraries on campus will accept a limited number of photocopies for course reserves. Consult individual libraries for clarification of their policies.

    While the libraries have blanket permission from dozens of journals, obtaining permission sometimes takes a good deal of time. Experience in obtaining permission has shown that an inquiry addressed to a journal publisher frequently produces information that the copyright is actually held by the author, and four weeks is often inadequate to obtain such permission. Four to six weeks is considered the norm.

    Permission may be obtained in a number of ways:

    • Upon request, some libraries on campus will obtain materials for course reserve. In these cases, the librarian will write to obtain permission to photocopy or to purchase reprints. However, most libraries do not provide this service.
    • Written permission may be obtained by the academic department.
    • Oral permission may be obtained by faculty members, departmental secretaries, or library staff, in which case a written record is needed of that action.

    Note that filling course reserve requirements may require two to three months before the quarter begins if the library does not already have a copy of the publication, if the publication is out of print, or if the copyright holder is not readily available.

    III. Resources

    Additional information on copyright issues may be found on the world wide web site https://fairuse.stanford.edu.

    Questions about the copyright law as it affects faculty and staff in their University capacities should be directed to a member of the Fair Use Advisory Group (see attachment) or to Linda Woodward in the Legal Office (3-9751), who can put you in touch with the appropriate lawyer to respond to your specific question. Questions about library policy and course reserves should be addressed to Assunta Pisani, Associate Director, University Libraries (apisani@stanford.edu or 3-5553). Information concerning the application of copyright law to computer software can be found in the memorandum “Copying of Computer Software” distributed by the Library and Information Resources and in Administrative Guide Memorandum 62.

    Thank you for your cooperation in ensuring the observation of these guidelines.

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On June 12 a federal appeals court in the midwest will hear [heard] arguments concerning an attempt by copyright holders to infringe on the rights of professors and students to use coursepacks. (Yes, you read that right. It’s not backwards. It is the copyright holders who are doing the infringing.) The question the court needs to think about is: Can professors be trusted to be fair when they take excerpts from other authors’ works to create course materials? The court’s view could affect more than just the academic community.

When professors choose readings for their courses, their first choice is generally a single text or a small group of texts. But sometimes, especially for courses on the newest theories or hottest topics in a field, there are no texts that make all the points the professors want. Then, they select excerpts from a variety of sources.

The professors have direct as well as indirect reasons to choose “fairly” in making these selections. The direct reason is simply the professors’ pedagogical motivation: to expose students to different perspectives on a range of issues, shorter pieces, and more of them, are better. (If one book said it all, it would be much easier for the professor to tell the students to buy it and be done with it.) The indirect reasons to choose fairly follow from the fact that the professors live in a community of scholars in their particular field. This can be summarized by two simple notions: “what goes around, comes around” and “the golden rule.” A professor who “steals” royalties from a colleague by photocopying a large fraction of a book rather than assigning the students to buy it could face repercussions in professional advancement and other matters governed by peer review. And since professors often are authors of scholarly works, they will act fairly toward other authors.

In pre-copymachine days, the professors’ selections were placed on reserve in the library. Nobody said that this infringed copyright. Later, as copymachines became standard library equipment, students could make photocopies on the spot so they could do the reading later or elsewhere. Still, nobody said that the students were infringing copyright.

Then, when professors began assembling the excerpts into coursepacks, book publishers decided to try to make money where they never had before. They began to tell copyshops that making coursepacks was copyright infringement. Then they sued. Their first target was Kinko’s, a nationwide copyshop chain. The publishers won the first round, and Kinko’s decided to get out of the coursepack business rather than appeal. The photocopy community got the message, or what they thought was the message: photocopying from books was copyright infringement every time, all the time, no matter what, no matter by whom, no matter how much. Better to refuse to do the copying than to risk a lawsuit.

How does this affect coursepack-making professors? They encounter the ever-growing permissions bureaucracy. They have to spend time obtaining permissions. If the permission is denied or conditioned on an excessive royalty, then they must search the literature for an alternative selection. Their time is wasted, their teaching decisions are skewed; and altogether too many resources are devoted to something that does not need to be done.

Meanwhile, who is in this bureaucracy dedicated to “enforcing” copyright? People working for copyshops, and people working for the publishers or their collectives. They have scant understanding of or interest in the limits on the scope of protection of a copyright — the concepts of public domain or fair use, for example. And the actual authors are rarely, if ever, involved. If they were, royalty-free, immediately-granted permissions would probably be the rule for coursepack excerpts. To scholars, the wider dissemination of their ideas is of far greater importance than the chance to make a few pennies off students for a photocopied excerpt.

The founders of our country understood this trade-off, too, when they wrote the copyright provision into the Constitution. That provision empowers Congress to PROMOTE PROGRESS by granting authors limited rights to their writings (copyrights). Copyright law strikes a balance between yesterday’s authors and today’s progress in a doctrine called “fair use,” which has been recognized by the courts since at least the mid-nineteenth century. In 1976, when the copyright law was recodified, “fair use” was explicitly included in the statute and “teaching (including multiple copies for classroom use)” was explicitly included as an example of fair use.

The publishers of academic works urge that they can not afford to publish unless they obtain fees for photocopying of coursepack excerpts. Perhaps, but they have no right to such fees under our present copyright law. In any event, academic publishing and coursepacks may both be dinosaurs: authors can self-publish on the world wide web and professors can use the web to post assigned materials for their students on password-secured sites. The scary thought, however, is that if the publishers succeed against copyshops now, they may well convince the internet services or the telephone company to be “copyright police,” too, so they can collect permission fees every time a student dials up an assignment.

If this is the balance Congress wishes to strike between yesterday’s authors and today’s progress, Congress can act. The legislative process would allow a dialogue between all interested parties: professors, students, authors, publishers, and the various industries that are or will be pressed into service to enforce copyright. A fight between a few publishers and one little copyshop in Ann Arbor is not the right place to resolve the problem.

If the appeals court decides in favor of the publishers in this case, the bureaucracy of copyright permissions will become bigger and more invasive. This is a sorry misallocation of resources. Far better to trust professors to take only an amount that is FAIR when they use other authors’ material in their coursepacks. All the incentives on the professors, positive and negative, make them trustworthy. Letting the professors decide what is “fair” is not leaving the fox to tend the chickens: it is leaving one of the chickens to tend the chickens. This is best for the chickens — and the eggs, their students.