Statement of support for petition for rehearing

The following statement about the Texaco fair use case was filed this
week with the Second Circuit Court on behalf of ARL and 14 other library
and academic organizations.  The statement, prepared by ARL's attorney,
Ritchie Thomas of the firm Squire, Sanders & Dempsey, supports Texaco's
petition to rehear the case about whether the use of certain scientific
and technical journal articles by a Texaco researcher was a fair use. 
The Court has no deadline for deciding if it will rehear the case; it
would be unusual for a rehearing to be granted.  We will keep you
informed of further developments. 
This statement amici curiae in support of Texaco Inc.'s
("Texaco") Petition for Rehearing And Suggestion For Rehearing En Banc
is submitted by the following library associations:
Association of Research Libraries
American Association of Law Libraries
Medical Library Association
Special Libraries Association
Northern California Association of Law Libraries
Association of Academic Health 
Science Library Directors
the following universities and university libraries:
Duke University
Georgetown University
Michigan State University Libraries
University of California at Santa Barbara 
University Library
University of Delaware Library
University of Missouri-Columbia Library
University of Texas System
and the following alliances of learned and scholarly societies:
American Council of Learned Societies
National Humanities Alliance
These Library and Academic Amici urge the Court to grant
Texaco's petition to rehear this appeal and reconsider, en banc, this
Court's 2-1 decision of October 28, 1994, in American Geophysical Union
v.  Texaco, Inc., 37 F.3d 881 (2nd Cir.  1994), which affirmed then
District Court Judge Pierre N.  Leval's order in American Geophysical
Union v.  Texaco Inc., 802 F.  Supp. 1 (S.D.N.Y.  1992), granting
judgment to the plaintiff on the issue of whether the use of certain
scientific and technical journal articles and letters by Texaco's
researcher Dr. Chickering was a fair use. 
The Library and Academic Amici support Texaco's request for a
rehearing because the decision of the majority of the reviewing panel
throws into confusion the status of personal use photocopying of
scientific, technical, and medical (and potentially other) journal
articles and excerpts by or for students, teachers, and researchers,
which is widely practiced and long has been considered fair use.  As
noted by Judge Jacobs' dissent, "making single photocopies for research
and scholarship purposes has been considered both reasonable and
customary for as long as photocopying technology has been in existence."
American Geophysical, 37 F.3d at 902 (Jacobs, J., dissenting).  This use
is consistent with the expectations of the authors of these articles,
who "work and publish in order to gain distinction, appointment,
resources, tenure.....[but] and derive absolutely no direct
cash benefit from publication" and "do not seek or expect royalties"
from photocopying.  Id.  at 907, 908.  Typically, the authors have
themselves used photocopied journal articles and excerpts in the
creative process that led to the insights and advances that are subject
of their articles. 
The majority's decision holding that the photocopying of journal
articles by Texaco's researchers without a license is infringement
upsets a long-standing equilibrium between the interests of the owners
of copyright in such publications and the needs of researchers and
others users.  It threatens to impose a regime that Judge Jacobs
accurately observes would subject users "on a day to day basis to
burdens that cannot be satisfied without a team of intellectual property
lawyers and researchers." Id.  at 906.  Moreover, the addition "to the
cost, time and effort that scientists [and others] spend to scan, keep
and use journal articles" (id.  at 908) resulting from the liability
imposed by the majority is a non-productive economic rent that would
significantly impede progress in science and the arts in the United
States.  This result is of serious concern to the Library and Academic
Amici, whose members have an interest and responsibility to assure that
information is made available to scholars, teachers, and researchers to
the maximum possible extent. 
It is a result that is not mandated -- or even authorized -- by
statute, precedent, or reason.  The opinion of Judge Jacobs and the
petition submitted by Texaco point out several flaws in the assumptions
and reasoning that led the majority to its erroneous conclusion.  In
this statement, therefore, the Library and Academic Amici simply express
their support for Texaco's petition and comment briefly on two respects
in which the majority decision misconceives express provisions of the
governing statute and its legislative history --- in the development of
which several of the Library and Academic Amici participated --- which
errors provide further reasons why the majority's decision should be
1.  	The Making Of Single Photocopies Of Journal Articles Is Not
Inherently Suspect Or Disfavored Under The Copyright Act, When Done For
Personal Use In Teaching, Scholarship, Or Research
The majority makes a serious error early in the development of
its rationale, in its basic assessment of the application of the
doctrine of fair use to the photocopying of documents.  See id.  at
885-886.  The Majority's error is to consider photocopying a new
development, which threatens the balance struck in the Copyright Act
between the rights of copyright proprietors and the rights of users, to
which the fair use doctrine is of questionable application, and about
which Congress has provided "scant guidance." Id.  at 886.  In each of
these particulars the Majority is mistaken.  The Majority's error is
significant, because it skews the Majority's application of the fair use
There is no evidence to support the Majority's statement that
"the invention and widespread availability of photocopying technology
threatens to disrupt the delicate balances established by the Copyright
Act" (id.  at 885).  That statement is mistaken in its historical and
factual assumptions.  When the Copyright Act was considered in the
1970's and enacted in 1976, the photocopy machine was already
ubiquitous.  Photocopying of articles and excerpts had widely supplanted
hand or type-written notes as a way of making personal use copies of
materials of interest to scholars and researchers; transmissions of
photocopies of journal articles had largely replaced the physical
transfer of journal issues as a means of inter-library loan of those
materials; and photocopies of articles and excerpts were in general use
by teachers in classrooms.  This is apparent from Williams and Wilkins
Co.  v.  United States, 487 F.2d 1345 (Ct.  Cl.  1973), aff'd by equally
divided Court, 420 U.S.  376 (1975), and the legislative history of
sections 107 and 108 of the Act (which to a very large extent is devoted
to issues raised by the photocopying of copyrighted works).[1]
The Act expressly took photocopying and other forms of
mechanical reproduction into account, not only in section 108, which
addresses reproduction and distribution of copies in and by libraries
and archives, but also in the general fair use provisions of section
107.  Section 107 states that the exclusive rights of a copyright holder
are limited by the right of the public to make 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 .  .  ." 17 U.S.C.  sect.  107. 
The legislative history of this provision adds that "the reference to
fair use 'by reproduction in copies or phonorecords or by any other
means' is mainly intended to make clear that THE DOCTRINE HAS AS MUCH
" H.R.  Rep.  No.  1476, 94th Cong., 3d Sess.  66 (1976) (emphasis
added).  See S.  Rep.  473, 94th Cong., 1st Sess.  62 (1975). 
It is also clear from the provisions of section 107 and its
legislative history that the Majority is mistaken in considering that
Congress has "provided scant guidance for resolving fair use issues
involving photocopying, legislating specifically only as to library
copying." American Geophysical, 37 F.3d at 886.  Congress, in section
107, legislated specifically that:
1) photocopying is a fair use when done in appropriate degree and
2) uses involving photocopying are to be treated the same as more
traditional uses in fair use analysis;[2] and
3) in some circumstances, fair use extends to the making of even
multiple photocopies of the same work. 
In addition, the legislative history of section 107 specifically
endorses guidelines that approve, among other things, the making by or
for a teacher of single copies of periodical articles for his or her
RESEARCH, as "a reasonable interpretation of the MINIMUM standards of
fair use." H.R.  Rep.  1476 at 68, 72 (emphasis added). 
Therefore, the majority erred in stating that the advent of
photocopying technology "threatens to disrupt the delicate balances
established by the Copyright Act." The balances between the rights of
authors and the rights of users of copyrighted works struck in the
Copyright Act were devised well after the invention of photocopying
technology; they took account of the availability and widespread use of
photocopying technology; and they contemplated that, in appropriate
circumstances, uses involving photocopying would be fair uses.  This
should have been the starting place for the court's analysis.[3]
2.  	The Majority Erred In Holding That Congress Has Suggested That
Royalty Fees For Photocopying Should Be Recognized As Part Of The
"Potential Market For Or Value Of" Journal Articles
The Majority is guilty of a second significant misreading of the
Copyright Act and its legislative history.  This arises in the
Majority's effort to defend the circular reasoning by which it concludes
that the publishers' development of a (seriously flawed) mechanism for
collecting royalties for journal article photocopying has radically
expanded the publishers' monopoly and correspondingly eroded the
public's fair use rights.  The Majority asserts that: 
[i]n two ways, Congress has impliedly suggested that the law
should recognize licensing fees for photocopying as part of the
"potential market for or value of" journal articles. 
American Geophysical, 37 F.3d at 899.  This assertion is not supported
by the statutory and legislative history provisions cited by the
The Majority claims the first source in which it finds the
implied suggestion is section 108, which, the Majority asserts,
"narrowly circumscribes the conditions under which libraries are
permitted to make copies of copyrighted works." Id.  The Majority states
the very fact that Congress restricted the rights of libraries
to make copies implicitly suggests that Congress views journal
publishers as possessing the right to restrict photocopying, or
at least the right to demand a licensing royalty from non-public
institutions that engage in photocopying. 
Id. at 899.
This is a misreading of section 108, in two respects.  First,
section 108 does not restrict the rights of libraries to make copies. 
It provides express rights as a "safe harbor" for libraries.  While the
rights accorded under section 108 are specific and finite, the statute
makes clear that they do not limit libraries' rights of fair use under
section 107, which may be more extensive.  See 17 U.S.C.  SECT. 
Second, the finite character of the rights to reproduce and
distribute copyrighted works expressly granted by section 108 does not
in any way suggest that Congress sought to protect potential royalty
revenues of journal publishers.  Section 108 makes very clear that
Congress' focus was on publishers' subscription revenues.  Section
108(g)(2) provides that libraries may engage in systematic reproduction
of single or even multiple copies of journal articles, provided that a
library does not receive copies of articles in such aggregate quantities
as to "substitute for a subscription to or purchase of such work."
Congress considered that, while a library (or a researcher) would not
purchase a volume or subscription simply to obtain a single journal
article or excerpt, or even several articles or extracts sporadically
over time from the same journal, if the need for articles from a
particular journal was substantial and frequent enough, then a
subscription or purchase would be considered, and at that point
continued recourse to photocopies might cause copyright proprietors
economic harm.  This is a very different concern from that inferred by
the Majority. 
As its second point, the Majority states that "Congress
apparently prompted the development of CCC by suggesting that an
efficient mechanism be established to license photocopying." American
Geophysical, 37 F.3d at 899.  The doubt about this assertion expressed
by the Majority's use of the word "apparently" is warranted.  The
legislative history cited by the Majority contains no Congressional
directive to establish a royalty collection mechanism.  Two of the
legislative history references cited by the Majority were in reports
regarding early versions of the Copyright Act, which were not adopted by
Congress.  The reference in the House Judiciary Committee report cited
was deleted from the Committee's report regarding the provisions
ultimately enacted.[4] The suggestion made by the Senate Judiciary
Committee in its 1974 and 1975 reports, that "workable clearance and
licensing procedures be developed," was made in the context of
provisions that accorded libraries significantly more limited rights to
make inter-library loans of photocopies of journal articles than were
contained in section 108 as enacted.[5] Thus, the cited comments do not
reflect the balance ultimately struck in the Copyright Act and do not
support the Majority's inference that Congress contemplated and
instigated, as a complement to that balance, the establishment of a
mechanism for collecting copyright royalties on photocopies. 
The history and provisions of the Copyright Act simply cannot be
read as the Majority's decision seeks to interpret them.  There is no
evidence whatsoever from which it reasonably can be concluded that
Congress considered that the expectation of photocopy licensing fees
should be a part of the fair use calculus, much less that an expectation
of royalties should play the pivotal role attributed to it by the
For the foregoing reasons and those cited by Texaco and other
amici, the Library and Academic Amici respectfully urge the Second
Circuit to rehear this appeal and reconsider, en banc, this court's 2-1
decision of October 28, 1994, affirming the district court's finding
that Dr.  Chickering's copying was not fair use. 
Respectfully submitted,
Ritchie T. Thomas
James V. Dick
1201 Pennsylvania Ave., N.W.
P.O. Box 407
Washington, D.C.  20004
(202) 626-6600
Dated:  December 14, 1994
[1] "The specific wording of section 107 as it now stands is the result
of a process of accretion, resulting from the long controversy over the
related problems of fair use and the reproduction (mostly by
photocopying) of copyrighted material for educational and scholarly
purposes.  .  .  Although the works and uses to which the doctrine of
fair use is applicable are as broad as the copyright law itself, most of
the discussion of section 107 has centered around questions of classroom
reproduction, particularly photocopying." H.R.  Rep.  No.  1476, 94th
Cong., 2d Sess.  66 (1976).  See S.  Rep.  473, 94th Cong., 1st Sess. 
61-63 (1975); H.R.  Rep.  1733, 94th Cong., 2d Sess.  (1976) (Conference
[2] While both the House and Senate reports state that Congress did not
intend by section 107's express reference to "reproduction in copies" to
give that use a special or preferred status as compared with other kinds
of uses, Congress also intended that a use involving reproductions in
copies was not to be given an inferior status.  As stated in the House
Judiciary report quoted above, in applying the fair use doctrine, a use
by reproduction in copies (such as photocopying) was to be treated the
same as older forms of use. 
[3] The majority's error in assessing the fair use status of
photocopying under the Copyright Act has significant implications for
other elements of the Majority's analysis.  In view of the statute's
express recognition of fair use photocopying, it is inappropriate when
photocopying is involved to emphasize the "transformative" or
"non-transformative" character of the use in analysis of the first fair
use factor.  This is particularly true if the photocopying is associated
with a research or scholarly use, where accurate reproduction of the
original is essential.  The Majority's emphasis on what it claimed was
the non- transformative nature of the use in this case effectively
nullified the statute's declaration that photocopying is to be treated
like older forms of uses in fair use analysis.  The concept of a
"transformative use" may be central to analysis under the first factor
in many situations, but the Supreme Court in Campbell v.  Acuff-Rose
Music, Inc., 114 S.  Ct.  1164 (1994) recognized that "the obvious
exception to this focus on transformative use is the straight
reproduction of multiple copies for classroom distribution." 114 S.  Ct. 
117 n.  11.  The straight reproduction of single copies for research use
is another obvious exception, for similar reasons.  The Majority,
however, failed to consider in its decision this important element of
the Supreme Court's decision in Campbell. 
[4] The Committee stated in its 1976 report that its discussion in the
earlier report of the consideration lying behind the fair criteria
listed in the amended section 107 remained valuable as an analysis of
aspects of the problem.  H.R.  Rep.  1476 at 67.  However, that comment
does not apply to matters in the earlier report that are not a part of
the Committee's analysis of the four factors. 
[5] The suggestion also clearly relates to circumstances where multiple
copies are being made, which the Committee expressly distinguishes from
"isolated single spontaneous" copies, such as those made by Dr. 
Chickering.  See S.  Rep.  473 at 20. 
[6] The Majority falls into a similar error with respect to the Supreme
Court's holding in Sony Corporation of America v.  Universal City
Studios, Inc., 464 U.S.  417, 456 (1984), that the plaintiffs in that
case had not shown that home-use video taping of copyrighted television
programs and movies "would cause any likelihood of non-minimal harm to
the potential market for, or value of, [the movie and TV program
producers'] copyrighted works." The Majority asserted that this finding
implied a conclusion by the Court that the potential market in
videotaping licensing royalties that Justice Blackmun's dissent claimed
to exist was insubstantial.  The Supreme Court could more reasonably and
more likely have concluded that the alleged royalties were not relevant,
because it would be inappropriate to engage in the circular reasoning by
which conduct loses its fair use status if it is assumed that royalties
can be extracted from that conduct in the event it is declared not to be
fair use.  In fact, it appears that copyright owners did not consider
the potential royalty market involved in Sony to be insubstantial,
because they fought an ultimately unsuccessful battle to persuade
Congress to levy a copyright royalty on sales of blank VCR tapes.