Fair use/Case law

The US Congress in the legislation of 1976 attempted to define fair use in § 107:

"Notwithstanding the provisions of section 106, 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 —

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

(2) the nature of the copyrighted work;

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

(4) the effect of the use upon the potential market for or value of the copyrighted work."

"Section 101 makes it clear that the four factors listed in this section are "illustrative and not limitative."" Sony Corp. of America v. Universal City Studios, Inc., 464 US 417 - Supreme Court 1984

Wikimedia Foundation

"The vision statement of the Wikimedia Foundation describes our dreams, hopes and ambitions; our most radical conception of our organization and community — 20, 50, 100 years from today. It stands in contrast to the mission statement, which aims to be a more realistic description of the status quo."

"The mission of the Wikimedia Foundation is to empower and engage people around the world to collect and develop [neutral] educational content under a free [content] license or in the public domain, and to disseminate it effectively and globally."

"In collaboration with a network of chapters, the [Wikimedia] Foundation provides the essential infrastructure and an organizational framework for the support and development of multilingual wiki projects and other endeavors which serve this mission. The Foundation will make and keep useful information from its projects available on the Internet free of charge, in perpetuity."

"The Wikimedia Research Index is the main research hub for wiki researchers and the Wikimedia community. It's run by the Wikimedia Research Committee and collaboratively maintained by its participants."

"Directive 2001/29/EC enables Member States to implement in their national legislation limitations and exceptions for the purpose of illustration for non-commercial teaching. Such exceptions would typically allow a teacher to use parts of or full works to illustrate his course, e.g. by distributing copies of fragments of a book or of newspaper articles in the classroom or by showing protected content on a smart board without having to obtain authorisation from the right holders. The open formulation of this (optional) provision allows for rather different implementation at Member States level. The implementation of the exception differs from Member State to Member State, with several Member States providing instead a framework for the licensing of content for certain educational uses. Some argue that the law should provide for better possibilities for distance learning and study at home."

Unauthorized uses of a copyrighted works

"Even unauthorized uses of a copyrighted work are not necessarily infringing. An unlicensed use of the copyright is not an infringement unless it conflicts with one of the specific exclusive rights conferred by the copyright statute. Twentieth Century Music Corp. v. Aiken, 422 U. S., at 154-155. Moreover, the definition of exclusive rights in § 106 of the present Act is prefaced by the words "subject to sections 107 through 118." Those sections describe a variety of uses of copyrighted material that "are not infringements of copyright" "notwithstanding the provisions of section 106." The most pertinent in this case is § 107, the legislative endorsement of the doctrine of "fair use."[29]" Sony Corp. of America v. Universal City Studios, Inc., 464 US 417 - Supreme Court 1984

"We do not deal with the question of copying by an individual, for personal use in research or otherwise (not for resale), recognizing that under the fair use doctrine or the de minimis doctrine, such a practice by an individual might well not constitute an infringement." American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994

"In other words, our opinion does not decide the case that would arise if Chickering were a professor or an independent scientist engaged in copying and creating files for independent research, as opposed to being employed by an institution in the pursuit of his research on the institution's behalf." American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994

"Fair use is a doctrine the application of which always depends on consideration of the precise facts at hand, see Campbell v. Acuff-Rose Music, Inc., ___ U.S. ___, ___, 114 S.Ct. 1164, 1170, 127 L.Ed.2d 500 (1994); Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 549, 105 S.Ct. 2218, 2225, 85 L.Ed.2d 588 (1985); Wright v. Warner Books, Inc., 953 F.2d 731, 740 (2d Cir.1991); H.R.Rep. No. 1476, 94th Cong., 2d Sess. 65-66 (1976) ("no generally applicable definition [of fair use] is possible, and each case raising the question must be decided on its own facts")". American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994

"Fair use serves as an affirmative defense to a claim of copyright infringement, and thus the party claiming that its secondary use of the original copyrighted work constitutes a fair use typically carries the burden of proof as to all issues in the dispute. See Campbell, ___ U.S. at ___, 114 S.Ct. at 1177." American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994

"For example, if Chickering had asked the library to buy him a copy of the pertinent issue of Catalysis and had placed it on his shelf, and one day while reading it had noticed a chart, formula, or other material that he wanted to take right into the lab, it might be a fair use for him to make a photocopy, and use that copy in the lab (especially if he did not retain it and build up a mini-library of photocopied articles). This is the sort of "spontaneous" copying that is part of the test for permissible nonprofit classroom copying. See Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions, quoted in Patry, The Fair Use Privilege, at 308.[5]" American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994

Notes

[5] These guidelines were included in the legislative history of the 1976 revision of the Copyright Act, see H.R.Rep. No. 1476, 94th Cong., 2d Sess. 68-71 (1976), U.S.Code Cong. & Admin.News 1976, p. 5659, and were endorsed by the House Judiciary Committee as "a reasonable interpretation of the minimum standards of fair use." Id. at 72, U.S.Code Cong. & Admin.News 1976, at 5686. Though these guidelines are not considered necessarily binding on courts, see Marcus v. Rowley, 695 F.2d 1171, 1178 (9th Cir.1983), they exist as a persuasive authority marking out certain minimum standards for educational fair uses, see Basic Books, Inc. v. Kinko's Graphics Corp., 758 F.Supp. 1522-36 (S.D.N.Y.1991). See generally 3 Nimmer on Copyright § 13.05[E][3][a], at 13-226.1 to 13-226.2 (discussing nature and impact of guidelines); Patry, The Fair Use Privilege, at 307-09, 404-07 (same).

[29] The Copyright Act of 1909, 35 Stat. 1075, did not have a "fair use" provision. Although that Act's compendium of exclusive rights "to print, reprint, publish, copy, and vend the copyrighted work" was broad enough to encompass virtually all potential interactions with a copyrighted work, the statute was never so construed. The courts simply refused to read the statute literally in every situation. When Congress amended the statute in 1976, it indicated that it "intended to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way." H. R. Rep. No. 94-1476, p. 66 (1976).

Purposes of fair use

"It is noteworthy that the statute does not list "convenience" or "entertainment" or "increased access" as purposes within the general scope of fair use." Universal City Studios v. Sony Corp. of America, 659 F. 2d 963 - Court of Appeals, 9th Circuit 1981

"The fair use doctrine is an "equitable rule of reason." Sony Corp. of America v. Universal City Studios, 464 U.S. 417, 448 & n. 31, 104 S.Ct. 774, 792 & n. 31, 78 L.Ed.2d 574 (1984). Applying the doctrine requires a case-by-case review that includes the four factors listed in section 107; but the statutory list is not exhaustive or exclusive. See Harper & Row, 471 U.S. at 549, 105 S.Ct. at 2225. The purpose of this equitable rule is "'to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.'" Harper & Row, 471 U.S. at 550 n. 3, 105 S.Ct. at 2225 n. 3 (quoting Iowa State University Research Foundation, Inc. v. American Broadcasting Cos., 621 F.2d 57, 60 (2d Cir.1980))." American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994, JACOBS, Circuit Judge, dissenting.

This indicates it is more than a defense with which an accused infringer must prove their innocence. But a law for which the copyright holder must prove does not apply.

""'[T]he author's consent to a reasonable use of his copyrighted works ha[s] always been implied by the courts as a necessary incident of the constitutional policy of promoting the progress of science and the useful arts, since a prohibition of such use would inhibit subsequent writers from attempting to improve upon prior works and thus ... frustrate the very ends sought to be attained.'" Harper & Row, 471 U.S. at 549, 105 S.Ct. at 2225 (quoting H. Ball, Law of Copyright and Literary Property 260 (1944)). "[T]he fair use doctrine [is] predicated on the author's implied consent to 'reasonable and customary' use when he release[s] his work for public consumption...." Id. at 550, 105 S.Ct. at 2225. All facts bearing upon the terms of that consent are germane to this analysis." American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994, JACOBS, Circuit Judge, dissenting.

"The single fact that evidences the fair use expectation of the people whose creativity Congress seeks to stimulate, is that they give away their copyright in order to promote their work, their ideas and their reputations. The district court found that the "publishers do not pay authors money to publish their articles...." American Geophysical, 802 F.Supp. at 26. The majority finds, "[n]o form of money payment is ever provided to authors whose works are published." 60 F.3d at 915; see also id. at 928 ("[P]ublishers do not make any payment to authors for the right to publish their articles or to acquire their copyrights....")." American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994, JACOBS, Circuit Judge, dissenting.

"This is not to say, however, that the authors derive no benefit from the use of their works. To the contrary: "[T]he authors derive benefit from the publication of their works far more important than any small royalty the traffic might bear." American Geophysical, 802 F.Supp. at 26. The authors of scientific articles work and publish in order to gain distinction, appointment, resources, tenure. But they seek and derive absolutely no direct cash benefit from publication. It seems to me that this fact is of great importance: it means that, so long as the copyright system assures sufficient revenue to print and distribute scientific journals, the level of copyright revenue is not among the incentives that drive the authors to the creative acts that the copyright laws are intended to foster." American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994, JACOBS, Circuit Judge, dissenting.

"As to this issue, the majority adopts the district court's view that it is "irrelevant" because the authors have assigned the copyright to publishers who risk capital to achieve the wide dissemination of the articles that the authors want and need. 802 F.Supp. at 27. The district court greatly overstates the case in concluding that "[o]nce an author has assigned her copyright, her approval or disapproval of photocopying is of no further relevance." Id. As a commercial proposition, that is unassailable. But equitable considerations under the copyright law justify an inquiry into the incentives for creating the work — here, the scientific journal articles. See Harper & Row, 471 U.S. at 550 n. 3, 105 S.Ct. at 2225 n. 3 (equitable rule of reason permits inquiry into whether "rigid application of the copyright statute ... would stifle the very creativity which that law is designed to foster."). "`The immediate effect of our copyright law is to secure a fair return for an `author's' creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.'" Fogerty v. Fantasy, Inc., ___ U.S. ___, ___, 114 S.Ct. 1023, 1029, 127 L.Ed.2d 455 (1994) (quoting Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156, 95 S.Ct. 2040, 2044, 45 L.Ed.2d 84 (1975)). To that end, we are reminded that:

"The primary objective of copyright is not to reward the labor of authors, but `[t]o promote the Progress of Science and useful Arts.' To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work."

Id. at ___, 114 S.Ct. at 1030 (quoting Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 349-50, 111 S.Ct. 1282, 1290, 113 L.Ed.2d 358 (1991))." American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994, JACOBS, Circuit Judge, dissenting.

"The CCC's licensing fees unquestionably benefit the copyright holders, but no argument has been made that this additional revenue will fuel scientific creativity. According to Kapitza, "[e]very 10-15 years, the number of journals doubles and it has now reached the imposing number of 200,000." Experiment, Theory, Practice at 174. This proliferation of journals has been accomplished through sales and subscriptions. Clearly, the incentives currently in place for journal publishing assure a fair return, or else we would not see the exponential growth in scientific journals reported by Kapitza. Under the current system, publishers sell journals and subscriptions. They can, and do, charge institutional users more money, and are free to charge what they like." American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994, JACOBS, Circuit Judge, dissenting.

"Since the copyright laws seek to stimulate creativity, we should consider the incentives chiefly from the perspective of the authors and scientists. It has been recognized by this Court that in the scientific community, "what is valuable [to the authors] is recognition because it so often influences professional advancement and academic tenure." Weissmann v. Freeman, 868 F.2d 1313, 1324 (2d Cir.), cert. denied, 493 U.S. 883, 110 S.Ct. 219, 107 L.Ed.2d 172 (1989). From their point of view, then, what is truly important is the wide dissemination of their works to their colleagues." American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994, JACOBS, Circuit Judge, dissenting.

"The incentives for scientific publication have been in place since the project of science began to be perceived as a cooperative venture more than three centuries ago. See E. Zilsel, "The Sociological Roots of Science," in Hugh F. Kearney, ed., Origins of the Scientific Revolution, at 97 (1968) ("In his Nova Atlantis Bacon depicted an ideal state in which technological and scientific progress is reached by planned co-operation of scientists, each of whom uses and continues the investigations of his predecessors and fellow workers.").[2] Scientists communicate through journals, and use them to stake claims to new ideas, disseminate their ideas, and advance their careers and reputations. These "authors have a far greater interest in the wide dissemination of their work than in royalties...." American Geophysical, 802 F.Supp. at 27. That, evidently, is why they do not seek or expect royalties, and that is why licensing fees cannot be expected to increase or diminish their creativity or their drive to publish. The majority's ruling on fair use will add to the cost, time and effort that scientists spend to scan, keep and use journal articles, and will therefore tend to diminish the only reward that the authors seek from publication." American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994, JACOBS, Circuit Judge, dissenting.

"Nowhere in the case law is there support for the proposition that the monopoly granted by copyright is designed to ensure the holder a maximum economic return; rather, the law's purpose is to balance competing interests — assuring the author a fair return, while permitting creative uses that build upon the author's work. See, e.g., Fogerty, ___ U.S. at ___, 114 S.Ct. at 1029 ("While it is true that one of the goals of the Copyright Act is to discourage infringement, it is by no means the only goal of that Act.... `The immediate effect of our copyright law is to secure a fair return for an `author's' creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity....'") (quoting Twentieth Century Music, 422 U.S. at 156, 95 S.Ct. at 2044); Harper & Row, 471 U.S. at 546, 105 S.Ct. at 2223 ("The rights conferred by copyright are designed to assure contributors to the store of knowledge a fair return for their labors."). More fundamentally, Dr. Chickering's photocopying is part of a creative enterprise that Dr. Chickering conducts in common with the authors of the articles. For that reason, and the others stated in this dissent, I conclude that Dr. Chickering's photocopying of isolated journal articles to assist his own research inquiries is fair use." American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994, JACOBS, Circuit Judge, dissenting.

Notes

[2] The Royal Society of London, founded in 1662, was the first to give institutional validity to the Baconian principles of verified experimentation and public reporting of theories and experimental results. See William Eamon, "From the Secrets of Nature to Public Knowledge," reprinted in David C. Lindberg and Robert S. Westman, eds. Reappraisals of the Scientific Revolution, at 349-57 (1991). The "ideal of cooperative research" allowed scientists to approach their work more methodically, and the project of science evolved into the system of experimentation, reporting, verification, and modification that is the scientific method. Id. The first scientific journal, Philosophical Transactions, was published in London in the 1660s. A. Rupert Hall, The Revolution in Science, 1500-1700, 230-31 (1983). The publisher, Henry Oldenburg, "created the scientific journal and the scientific paper as a means of communication," providing a vehicle for international communication between scientists about the results of their experiments. Id. at 231. In Philosophical Transactions, "[f]requent controversies over moot theoretical issues directed experimental interest to the testing of the conflicting theories; new hypotheses were broadcast; recent scientific works were critically reviewed; and plans for initiating research along certain lines were made public." Robert K. Merton, Science, Technology & Society in Seventeenth Century England, 224 (1978).

Transformative uses

"The traditional fair use notion has had to do with the sort of access that the mind of a user has to a copyrighted work: the work is instantly accessible on sight or hearing, and the question is what the second user would or should be allowed to 'do' with it — or, more accurately, what the creator of the work ought to have expected him freely to do with it." Leon Seltzer, Exemptions and Fair Use in Copyright (1978).

"(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes", if it's for nonprofit educational purpose such as a lecture on a .org website dedicated to education, teaching, and research, the courts have no justification to look further. All case law found so far has a commercial defendant; thereby, justifying the court to look further.

"This factor focuses on whether the new work merely replaces the object of the original creation or instead adds a further purpose or different character. In other words, this factor asks "whether and to what extent the new work is 'transformative.'" See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994)." A & M RECORDS, INC. v. Napster, Inc., 239 F. 3d 1004 - Court of Appeals, 9th Circuit 2001.

"Courts have been reluctant to find fair use when an original work is merely retransmitted in a different medium. See, e.g., Infinity Broadcast Corp. v. Kirkwood, 150 F.3d 104, 108 (2d Cir.1998) (concluding that retransmission of radio broadcast over telephone lines is not transformative); UMG Recordings, Inc. v. MP3.com, Inc., 92 F.Supp.2d 349, 351 (S.D.N.Y.) (finding that reproduction of audio CD into MP3 format does not "transform" the work), certification denied, 2000 WL 710056 (S.D.N.Y. June 1, 2000) ("Defendant's copyright infringement was clear, and the mere fact that it was clothed in the exotic webbing of the Internet does not disguise its illegality.")." A & M RECORDS, INC. v. Napster, Inc., 239 F. 3d 1004 - Court of Appeals, 9th Circuit 2001.

"In contrast, to the extent that the secondary use "adds something new, with a further purpose or different character," the value generated goes beyond the value that inheres in the original and "the goal of copyright, to promote science and the arts, is generally furthered." Campbell, ___ U.S. at ___, 114 S.Ct. at 1171; see also Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L.Rev. 1105, 1111 (1990) [hereinafter Leval, Toward a Fair Use Standard]. It is therefore not surprising that the "preferred" uses illustrated in the preamble to section 107, such as criticism and comment, generally involve some transformative use of the original work. See 3 Nimmer on Copyright § 13.05[A][1][b], at 13-160." American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994

"Even though Texaco's photocopying is not technically a transformative use of the copyrighted material, we should not overlook the significant independent value that can stem from conversion of original journal articles into a format different from their normal appearance. See generally Sony, 464 U.S. at 454, 455 n. 40, 104 S.Ct. at 795 n. 40 (acknowledging possible benefits from copying that might otherwise seem to serve "no productive purpose"); Weinreb, Fair's Fair, at 1143 & n. 29 (discussing potential value from nontransformative copying). As previously explained, Texaco's photocopying converts the individual Catalysis articles into a useful format. Before modern photocopying, Chickering probably would have converted the original article into a more serviceable form by taking notes, whether cursory or extended;[10] today he can do so with a photocopying machine." American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994

"Replication of laboratory experiments is of course a form of scientific research, but it is not the whole or main part of it. Often, a researcher needs to know what others have thought and done in order to steer clear of repetition and dead ends, to evaluate theories and hypotheses for possible theoretical development or commercial application, to give credit to others, and much else. None of this requires a scientist to enter a laboratory. In any event, to describe Dr. Chickering's file as "archival," as the majority does, is a misnomer: an archive is ordinarily a bulk of documents accumulated by a bureaucratic process and serving as a resource for public or institutional reference. By contrast, Dr. Chickering's personal file contains articles available for reference to assist the memory, curiosity and ongoing inquiries of a single researcher. As such, it is part of a transformative process of scientific research that has a long history." American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994, JACOBS, Circuit Judge, dissenting.

"The scientific method, properly conceived, is much more than a system of repeated laboratory experimentation. Rather, it is a dynamic process of "planned cooperation of scientists, each of whom uses and continues the investigations of his predecessors...." Edgar Zilsel, "The Sociological Roots of Science," in Hugh F. Kearney, ed. Origins of the Scientific Revolution, 97 (1968). The scientific journal is an essential tool in this incremental, ongoing, transformative process. The physicist Peter L. Kapitza has noted the central role that journals play in it:

"[T]he fundamental factor determining the collective work of scientists is the organization of information exchange. The more effectively this is carried out, the greater its scale and the more intensively science develops. The most effective method of scientific information up to date [sic] appears to be its dissemination through periodicals, since one can most widely and quickly communicate the scientific achievements in this way to a large number of interested scientists."

"The majority recognizes that, while the photocopying of the Catalysis articles was "not technically a transformative use," there is "significant independent value" in converting the articles to a photocopied format. 60 F.3d at 923." American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994, JACOBS, Circuit Judge, dissenting.

"In my view, however, the "archival purpose" is just a step in the process of taking and keeping notes, which should ordinarily entail no transformation of the material. Good notes, being as precise and copious as time allows, do not aspire to transform the original text, but are useful in research only to the extent that they faithfully record the original. Such notes, however, are important raw material in the synthesis of new ideas. Accordingly, I find the nature and purpose of the use to be fully transformative." American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994, JACOBS, Circuit Judge, dissenting.

"(2) Licensing Revenues and Fees. The majority states that "[o]nly an impact on potential licensing revenues for traditional, reasonable, or likely to be developed markets should be legally cognizable when evaluating a secondary use's `effect upon the potential market for or value of the copyrighted work.'" 60 F.3d at 930. That statement of the law, with which I fully agree, supports the conclusion that the availability of a CCC license has little to do with fair use. The Supreme Court, in Harper & Row, held that this fourth factor addresses "`use that supplants any part of the normal market for a copyrighted work....'" 471 U.S. at 568, 105 S.Ct. at 2235 (quoting S.Rep. No. 473, 94th Cong., 1st Sess. 65 (1975)). The Court has more recently declared, in considering the fair use ramifications of parody, that "[t]he market for potential derivative uses includes only those that creators of original works would in general develop or license others to develop." Campbell v. Acuff-Rose Music, Inc., ___ U.S. ___, ___, 114 S.Ct. 1164, 1178, 127 L.Ed.2d 500 (1994). One factor deemed to make parody eligible for treatment as a fair use is that copyright holders do not ordinarily license artistic criticisms of their own works. However, even if authors were to seek to license these secondary works, it is not clear that they would succeed, because the Court found the secondary works to be a fair use: "when ... the second use is transformative, market substitution is at least less certain, and market harm may not be so readily inferred." Id. at ___, 114 S.Ct. at 1177." American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994, JACOBS, Circuit Judge, dissenting.

Productive use of copyrighted material

"As the first sentence of § 107 indicates, fair use has traditionally involved what might be termed the "productive use" of copyrighted material. See 66 Va.L.Rev. at 1012-1014. The purposes listed in § 107 are simply illustrative and not limitative, but they do give some idea of the general orientation of the doctrine." Universal City Studios v. Sony Corp. of America, 659 F. 2d 963 - Court of Appeals, 9th Circuit 1981

"Leon Seltzer, in his illuminating book Exemptions and Fair Use in Copyright (1978) states: "The list, casual or studied as it may be, reflects what in fact the subject matter of fair use has in the history of its adjudication consisted in: it has always had to do with the use by a second author of a first author's work. Fair use has not heretofore had to do with the mere reproduction of a work in order to use it for its intrinsic purpose — to make what might be called the `ordinary' use of it. When copies are made for the work's `ordinary' purposes, ordinary infringement has customarily been triggered, not notions of fair use." Id. at 24." Universal City Studios v. Sony Corp. of America, 659 F. 2d 963 - Court of Appeals, 9th Circuit 1981

"The traditional fair use notion has had to do with the sort of access that the mind of a user has to a copyrighted work: the work is instantly accessible on sight or hearing, and the question is what the second user would or should be allowed to `do' with it — or, more accurately, what the creator of the work ought to have expected him freely to do with it." Leon Seltzer, Exemptions and Fair Use in Copyright (1978).

"This factor focuses on whether the new work merely replaces the object of the original creation or instead adds a further purpose or different character. In other words, this factor asks "whether and to what extent the new work is 'transformative.'" See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994)." A & M RECORDS, INC. v. Napster, Inc., 239 F. 3d 1004 - Court of Appeals, 9th Circuit 2001

"Courts have been reluctant to find fair use when an original work is merely retransmitted in a different medium. See, e.g., Infinity Broadcast Corp. v. Kirkwood, 150 F.3d 104, 108 (2d Cir.1998) (concluding that retransmission of radio broadcast over telephone lines is not transformative); UMG Recordings, Inc. v. MP3.com, Inc., 92 F.Supp.2d 349, 351 (S.D.N.Y.) (finding that reproduction of audio CD into MP3 format does not "transform" the work), certification denied, 2000 WL 710056 (S.D.N.Y. June 1, 2000) ("Defendant's copyright infringement was clear, and the mere fact that it was clothed in the exotic webbing of the Internet does not disguise its illegality.")." A & M RECORDS, INC. v. Napster, Inc., 239 F. 3d 1004 - Court of Appeals, 9th Circuit 2001

"Direct economic benefit is not required to demonstrate a commercial use. Rather, repeated and exploitative copying of copyrighted works, even if the copies are not offered for sale, may constitute a commercial use. See Worldwide Church of God v. Philadelphia Church of God, 227 F.3d 1110, 1118 (9th Cir.2000) (stating that church that copied religious text for its members "unquestionably profit[ed]" from the unauthorized "distribution and use of [the text] without having to account to the copyright holder"); American Geophysical Union v. Texaco, Inc., 60 F.3d 913, 922 (2d Cir.1994) (finding that researchers at for-profit laboratory gained indirect economic advantage by photocopying copyrighted scholarly articles)." A & M RECORDS, INC. v. Napster, Inc., 239 F. 3d 1004 - Court of Appeals, 9th Circuit 2001

Formulation of exact rules

"It is noteworthy that the legislative history of § 107 makes it clear that its statements of the fair use doctrine offer some guidance to users in determining when the principles of the doctrine apply. However, it is there emphasized that the endless variety of situations and combinations of circumstances that can arise in particular cases precludes the formulation of exact rules." Universal City Studios v. Sony Corp. of America, 659 F. 2d 963 - Court of Appeals, 9th Circuit 1981

Does "precludes the formulation of exact rules" also apply to "source", "author", "rationale", "non-free use rationale", or any "exemption doctrine policy"?

"Prior to Campbell, the Supreme Court had characterized the fourth factor as "the single most important element of fair use," Harper & Row, 471 U.S. at 566, 105 S.Ct. at 2233; accord 3 Nimmer on Copyright § 13.05[A][4], at 13-183. However, Campbell's discussion of the fourth factor conspicuously omits this phrasing. Apparently abandoning the idea that any factor enjoys primacy, Campbell instructs that `[a]ll [four factors] are to be explored, and the results weighed together, in light of the purposes of copyright.' [___ U.S. at ___] 114 S.Ct. at 1171." American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994

Non-free use rationales

"If an alleged infringer has reproduced a copyrighted work to use it for its intrinsic purpose, fair use has not generally been applied. Nimmer notes, however, that the courts have not adhered to this notion in recent years, and cites two cases as authority — Williams & Wilkins Co. v. United States, 487 F.2d 1345 (Ct.Cl.1973), aff'd by an equally divided court, 420 U.S. 376, 95 S.Ct. 1344, 43 L.Ed.2d 264 (1975), and the district court's opinion in this case. Nimmer, supra, § 13.05[A][1] at 13-58 n. 23.3. Williams & Wilkins Co., which has been appropriately regarded as the "Dred Scott decision of copyright law", 487 F.2d at 1387 (Nichols, J., dissenting), is clearly not binding in this circuit, and, in any event, we find its underlying rationale singularly unpersuasive." Universal City Studios v. Sony Corp. of America, 659 F. 2d 963 - Court of Appeals, 9th Circuit 1981

The "rationale for the Court's narrow standard of contributory infringement reveals that, once again, the Court has confused the issue of liability with that of remedy." Sony Corp. of America v. Universal City Studios, Inc., 464 US 417 - Supreme Court 1984

This suggests that a voluntarily supplied rationale may be considered by a court, but a compulsory demand for a rationale obligates the uploader to be a lawyer or attorney.

Purposes and character of uses

"Courts have traditionally applied this factor by asking whether the copyrighted material is used for criticism, research or other independent work." 480 F.Supp. at 453.

"The fact that the use involved does not further a traditionally accepted purpose clearly weighs against a finding of fair use." Universal City Studios v. Sony Corp. of America, 659 F. 2d 963 - Court of Appeals, 9th Circuit 1981

"If the Betamax were used to make copies for a commercial or profitmaking purpose, such use would presumptively be unfair." Sony Corp. of America v. Universal City Studios, Inc., 464 US 417 - Supreme Court 1984

"Moreover, when one considers the nature of a televised copyrighted audiovisual work, see 17 U. S. C. § 107(2) (1982 ed.), and that time-shifting merely enables a viewer to see such a work which he had been invited to witness in its entirety free of charge, the fact that the entire work is reproduced, see § 107(3), does not have its ordinary effect of militating against a finding of fair use.[33]" Sony Corp. of America v. Universal City Studios, Inc., 464 US 417 - Supreme Court 1984

"The purpose of copyright is to create incentives for creative effort. Even copying for noncommercial purposes may impair the copyright holder's ability to obtain the rewards that Congress intended him to have. But a use that has no demonstrable effect upon the potential market for, or the value of, the copyrighted work need not be prohibited in order to protect the author's incentive to create. The prohibition of such noncommercial uses would merely inhibit access to ideas without any countervailing benefit.[34]" Sony Corp. of America v. Universal City Studios, Inc., 464 US 417 - Supreme Court 1984

"Thus, although every commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright, noncommercial uses are a different matter. A challenge to a noncommercial use of a copyrighted work requires proof either that the particular use is harmful, or that if it should become widespread, it would adversely affect the potential market for the copyrighted work. Actual present harm need not be shown; such a requirement would leave the copyright holder with no defense against predictable damage. Nor is it necessary to show with certainty that future harm will result. What is necessary is a showing by a preponderance of the evidence that some meaningful likelihood of future harm exists. If the intended use is for commercial gain, that likelihood may be presumed. But if it is for a noncommercial purpose, the likelihood must be demonstrated." Sony Corp. of America v. Universal City Studios, Inc., 464 US 417 - Supreme Court 1984

"The scholar's work, in other words, produces external benefits from which everyone profits. In such a case, the fair use doctrine acts as a form of subsidy — albeit at the first author's expense — to permit the second author to make limited use of the first author's work for the public good. See Latman Fair Use Study 31; Gordon, Fair Use as Market Failure: A Structural Analysis of the Betamax Case and its Predecessors, 82 Colum. L. Rev. 1600, 1630 (1982)." Sony Corp. of America v. Universal City Studios, Inc., 464 US 417 - Supreme Court 1984

"Ultimately, the somewhat cryptic suggestion in section 107(1) to consider whether the secondary use "is of a commercial nature or is for nonprofit educational purposes" connotes that a court should examine, among other factors, the value obtained by the secondary user from the use of the copyrighted material. See Rogers, 960 F.2d at 309 ("The first factor ... asks whether the original was copied in good faith to benefit the public or primarily for the commercial interests of the infringer."); MCA, Inc. v. Wilson, 677 F.2d 180, 182 (2d Cir.1981) (court is to consider "whether the alleged infringing use was primarily for public benefit or for private commercial gain"). The commercial/nonprofit dichotomy concerns the unfairness that arises when a secondary user makes unauthorized use of copyrighted material to capture significant revenues as a direct consequence of copying the original work. See Harper & Row, 471 U.S. at 562, 105 S.Ct. at 2231 ("The crux of the profit/nonprofit distinction is ... whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.")." American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994

"Consistent with these principles, courts will not sustain a claimed defense of fair use when the secondary use can fairly be characterized as a form of "commercial exploitation," i.e., when the copier directly and exclusively acquires conspicuous financial rewards from its use of the copyrighted material. See Harper & Row, 471 U.S. at 562-63, 105 S.Ct. at 2231-32; Twin Peaks, 996 F.2d at 1375; Rogers, 960 F.2d at 309; Iowa State University Research Foundation, Inc. v. American Broadcasting Companies, Inc., 621 F.2d 57, 61 (2d Cir.1980); Meeropol v. Nizer, 560 F.2d 1061, 1069 (2d Cir.1977) (examining whether use was "predominantly for commercial exploitation"), cert. denied, 434 U.S. 1013, 98 S.Ct. 727, 54 L.Ed.2d 756 (1978). Conversely, courts are more willing to find a secondary use fair when it produces a value that benefits the broader public interest. See Twin Peaks, 996 F.2d at 1375; Sega Enterprises, 977 F.2d at 1523; Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303, 307-09 (2d Cir.1966), cert. denied, 385 U.S. 1009, 87 S.Ct. 714, 17 L.Ed.2d 546 (1967). The greater the private economic rewards reaped by the secondary user (to the exclusion of broader public benefits), the more likely the first factor will favor the copyright holder and the less likely the use will be considered fair." American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994

"In contrast, to the extent that the secondary use "adds something new, with a further purpose or different character," the value generated goes beyond the value that inheres in the original and "the goal of copyright, to promote science and the arts, is generally furthered." Campbell, ___ U.S. at ___, 114 S.Ct. at 1171; see also Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L.Rev. 1105, 1111 (1990) [hereinafter Leval, Toward a Fair Use Standard]. It is therefore not surprising that the "preferred" uses illustrated in the preamble to section 107, such as criticism and comment, generally involve some transformative use of the original work. See 3 Nimmer on Copyright § 13.05[A][1][b], at 13-160." American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994

"Even though Texaco's photocopying is not technically a transformative use of the copyrighted material, we should not overlook the significant independent value that can stem from conversion of original journal articles into a format different from their normal appearance. See generally Sony, 464 U.S. at 454, 455 n. 40, 104 S.Ct. at 795 n. 40 (acknowledging possible benefits from copying that might otherwise seem to serve "no productive purpose"); Weinreb, Fair's Fair, at 1143 & n. 29 (discussing potential value from nontransformative copying). As previously explained, Texaco's photocopying converts the individual Catalysis articles into a useful format. Before modern photocopying, Chickering probably would have converted the original article into a more serviceable form by taking notes, whether cursory or extended;[10] today he can do so with a photocopying machine." American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994

"The critical facts adduced by the majority are that Dr. Chickering is a chemical engineer employed at a corporate research facility who keeps abreast of developments in his field by reviewing specialized scientific and technical journals, and who photocopies individual journal articles in the belief that doing so will facilitate his current or future professional research. 60 F.3d at 915. I agree with the majority that the immediate goal of the photocopying was "to facilitate Chickering's research in the sciences, an objective that might well serve a broader public purpose." 60 F.3d at 922-23. The photocopying was therefore integral to ongoing research by a scientist. In my view, all of the statutory factors organize themselves around this fact. The four factors listed in section 107 (and reviewed one by one in the majority opinion) are considerations that bear upon whether a particular use is fair; but those factors are informed by a preamble sentence in section 107 that recites in pertinent part that "the fair use of a copyrighted work, including such use by reproduction in copies ... for purposes such as ... scholarship, or research, is not an infringement of copyright."" American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994, JACOBS, Circuit Judge, dissenting.

""[T]here is a strong presumption that factor one favors the defendant if the allegedly infringing work fits the description of uses described in section 107." Wright v. Warner Books, Inc., 953 F.2d 731, 736 (2d Cir.1991). Much of our fair use case law has been generated by the use of quotation in biographies, a practice that fits "`comfortably within' the[] statutory categories `of uses illustrative of uses that can be fair.'" New Era Publications Int'l, ApS v. Carol Pub. Group (New Era II), 904 F.2d 152, 156 (2d Cir.) (quoting Salinger v. Random House, Inc., 811 F.2d 90, 96 (2d Cir.), cert. denied, 484 U.S. 890, 108 S.Ct. 213, 98 L.Ed.2d 177 (1987)), cert. denied, 498 U.S. 921, 111 S.Ct. 297, 112 L.Ed.2d 251 (1990). The photocopying of journal articles as part of ongoing scientific research fits just as squarely within the scope of these illustrative fair uses. This court has stated on several occasions: "`[I]f a book falls into one of these categories [i.e., criticism, scholarship or research], assessment of the first fair use factor should be at an end....'" Wright, 953 F.2d at 736 (quoting New Era II, 904 F.2d at 156 (quoting New Era Publications Int'l, APS v. Henry Holt & Co., 884 F.2d 659, 661 (2d Cir.1989) (Miner, J., concurring in denial of rehearing in banc))). This is so "even though, as will often be the case," the copyist "`anticipates profits.'" Wright, 953 F.2d at 736-7 (quoting New Era II, 904 F.2d at 156 (quoting Salinger, 811 F.2d at 96))." American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994, JACOBS, Circuit Judge, dissenting.

"Replication of laboratory experiments is of course a form of scientific research, but it is not the whole or main part of it. Often, a researcher needs to know what others have thought and done in order to steer clear of repetition and dead ends, to evaluate theories and hypotheses for possible theoretical development or commercial application, to give credit to others, and much else. None of this requires a scientist to enter a laboratory. In any event, to describe Dr. Chickering's file as "archival," as the majority does, is a misnomer: an archive is ordinarily a bulk of documents accumulated by a bureaucratic process and serving as a resource for public or institutional reference. By contrast, Dr. Chickering's personal file contains articles available for reference to assist the memory, curiosity and ongoing inquiries of a single researcher. As such, it is part of a transformative process of scientific research that has a long history." American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994, JACOBS, Circuit Judge, dissenting.

"The scientific method, properly conceived, is much more than a system of repeated laboratory experimentation. Rather, it is a dynamic process of "planned cooperation of scientists, each of whom uses and continues the investigations of his predecessors...." Edgar Zilsel, "The Sociological Roots of Science," in Hugh F. Kearney, ed. Origins of the Scientific Revolution, 97 (1968). The scientific journal is an essential tool in this incremental, ongoing, transformative process. The physicist Peter L. Kapitza has noted the central role that journals play in it:

"[T]he fundamental factor determining the collective work of scientists is the organization of information exchange. The more effectively this is carried out, the greater its scale and the more intensively science develops. The most effective method of scientific information up to date [sic] appears to be its dissemination through periodicals, since one can most widely and quickly communicate the scientific achievements in this way to a large number of interested scientists."

Peter L. Kapitza, Experiment, Theory, Practice, 173 (1980). Today there are some 200,000 scientific journals published worldwide. Id. at 174." American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994, JACOBS, Circuit Judge, dissenting.

"A use that is reasonable and customary is likely to be a fair one. See Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 550, 105 S.Ct. 2218, 2225, 85 L.Ed.2d 588 (1985) ("the fair use doctrine was predicated on the author's implied consent to `reasonable and customary' use"). The district court, the majority and I start from the same place in assessing whether Dr. Chickering's photocopying is a reasonable and customary use of the material: making single photocopies for research and scholarly purposes has been considered both reasonable and customary for as long as photocopying technology has been in existence. See Williams & Wilkins Co. v. United States, 487 F.2d 1345, 1355-56, 203 Ct.Cl. 74 (1973), aff'd by an equally divided court, 420 U.S. 376, 95 S.Ct. 1344, 43 L.Ed.2d 264 (1976). The majority quotes the district court's short answer to this important insight: "To the extent the copying practice was `reasonable' in 1973 [when Williams & Wilkins was decided], it has ceased to be `reasonable' as the reasons that justified it before [photocopying licensing] have ceased to exist." 802 F.Supp. at 25. I do not agree at all that a reasonable and customary use becomes unfair when the copyright holder develops a way to exact an additional price for the same product. Moreover, I view the advent of the CCC as an event that bears analytically upon the distinct question of whether Dr. Chickering's use supersedes the original (the fourth factor)." American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994, JACOBS, Circuit Judge, dissenting.

"Consider what Dr. Chickering actually does with scientific journals. As a research scientist, he routinely sifts through the latest research done by his peers, much of which is printed in journals such as Catalysis. He determines which articles potentially assist his specific trains of thought and lines of inquiry, and he photocopies them. Relative to the volume of articles in each issue, his photocopying is insubstantial. He then files the articles for possible future use or study. As the majority observes, "[b]efore modern photocopying, Chickering probably would have converted the original article into a more serviceable form by taking notes, whether cursory or extended; today he can do so with a photocopying machine." 60 F.3d at 923-24. The majority's footnote 10, appended to this passage, questions whether or not a scholar's handwritten copy of a full work is "necessarily" a fair use. As the majority adds, however, Williams & Wilkins says:

[I]t is almost unanimously accepted that a scholar can make a handwritten copy of an entire copyrighted article for his own use, and in the era before photoduplication it was not uncommon (and not seriously questioned) that he could have his secretary make a typed copy for his personal use and files. These customary facts of copyright-life are among our givens.

Williams & Wilkins, 487 F.2d at 1350. What Dr. Chickering does is simply a technologically assisted form of note-taking, such as has long been customary among researchers: the photocopy machine saves Dr. Chickering the toil and time of recording notes on index cards or in notebooks, and improves the accuracy and range of the data, charts, and formulas he can extract from the passing stream of information; but the note-taking purpose remains the same." American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994, JACOBS, Circuit Judge, dissenting.

"The anthropologist Bruno Latour spent two years studying scientists at the Salk Institute for Biological Sciences. During the course of his study, he conducted anthropological observations of a neurobiologist working on an article for a journal. This scientist's desk was littered with copies of journal articles authored by other scientists:

Xeroxed copies of articles, with words underlined and exclamation marks in the margins, are everywhere. Drafts of articles in preparation intermingle with diagrams scribbled on scrap paper, letters from colleagues and reams of paper spewed out by the computer in the next room; pages cut from articles are glued to other pages; excerpts from draft paragraphs change hands between colleagues while more advanced drafts pass from office to office being altered constantly, retyped, recorrected, and eventually crushed into the format of this or that journal.

Bruno Latour and Steve Woolgar, Laboratory Life: The Social Construction of Scientific Facts, 49 (1979). One essential step toward this drafting process is the accumulation over time of the journal articles that reflect the current state of knowledge that the journal author seeks to advance. Latour confirms that the photocopying of journal articles, and the use of them, is customary and integral to the creative process of science." American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994, JACOBS, Circuit Judge, dissenting.

"The majority emphasizes that, as it happened, Dr. Chickering did not "use" the photocopied articles because, in five out of eight instances, he filed them away. There is nothing odd about making notes one does not immediately use, or that one may never consult again. Photocopies, which to Dr. Chickering are the functional counterpart of notes, are used (or not, as the case may be) in the same way. Dr. Chickering's filing away of these photocopies does not subvert his claim of fair use. Like the majority, I am convinced that his deposit of the photocopied articles in his personal file, pending his personal use of them in the future, is an important fact bearing upon fair use; but the dominant significance of that fact, under the first factor of section 107, is that (whether he "uses" them or files them) the articles are not re-sold or retailed in any way. If the copies were sold by Dr. Chickering, that would be a telling — possibly determinative — fact. What Dr. Chickering has done reinforces the view that his photocopying was not commercial in purpose or character." American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994, JACOBS, Circuit Judge, dissenting.

"The majority recognizes that, while the photocopying of the Catalysis articles was "not technically a transformative use," there is "significant independent value" in converting the articles to a photocopied format. 60 F.3d at 923." American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994, JACOBS, Circuit Judge, dissenting.

"In my view, however, the "archival purpose" is just a step in the process of taking and keeping notes, which should ordinarily entail no transformation of the material. Good notes, being as precise and copious as time allows, do not aspire to transform the original text, but are useful in research only to the extent that they faithfully record the original. Such notes, however, are important raw material in the synthesis of new ideas. Accordingly, I find the nature and purpose of the use to be fully transformative." American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994, JACOBS, Circuit Judge, dissenting.

"For all the reasons adduced above, I conclude that the institutional environment in which Dr. Chickering works does not alter the character of the copying done by him or at his instance, and that the selection by an individual scientist of the articles useful to that scientist's own inquiries is not systematic copying, and does not become systematic because some number of other scientists in the same institution — four hundred or four — are doing the same thing." American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994, JACOBS, Circuit Judge, dissenting.

"Research is largely an institutional endeavor nowadays, conducted by employees pursuing the overall goals of corporations, university laboratories, courts and law firms, governments and their agencies, think-tanks, publishers of newspapers and magazines, and other kinds of institutions. The majority's limitation of its holding to institutional environments may give comfort to inventors in bicycle shops, scientists in garage laboratories, freelance book reviewers, and solo conspiracy theorists, but it is not otherwise meaningful." American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994, JACOBS, Circuit Judge, dissenting.

"The majority deems Texaco's photocopying systematic because Texaco uses circulation lists to route a copy of each journal issue to the scientists interested in the field. The majority, however, ignores the one determinative issue: whether the decision to photocopy individual articles is made by the individual researcher, as Dr. Chickering did here. Journal issues may be systematically circulated to all scientists in a given group, rather than (say) at random, but the circulation of journal issues is not photocopying, systematic or otherwise. The journal issues circulated by Texaco are procured by subscription. Once Texaco receives the subscription copies from the publisher, Texaco is free to circulate them in-house so that they can be seen by as many scientists as can lay eyes on them. This circulation of copies allows individual scientists to select individual articles for copying. The majority opinion, which leaves open the idea that this practice may comport with copyright law if done by an individual scientist, does not explain why it is impermissible when done by more than one." American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994, JACOBS, Circuit Judge, dissenting.

Notes

[10] In stating that a handwritten copy would have been made, we do not mean to imply that such copying would necessarily have been a fair use. Despite the 1973 dictum in Williams & Wilkins asserting that "it is almost unanimously accepted that a scholar can make a handwritten copy of an entire copyrighted article for his own use ...," 487 F.2d at 1350, the current edition of the Nimmer treatise reports that "[t]here is no reported case on the question of whether a single handwritten copy of all or substantially all of a book or other protected work made for the copier's own private use is an infringement or fair use." 3 Nimmer on Copyright § 1305[E][4][a], at 13-229.

[33] It has been suggested that "consumptive uses of copyrights by home VTR users are commercial even if the consumer does not sell the home-made tape because the consumer will not buy tapes separately sold by the copyrightholder." Home Recording of Copyrighted Works: Hearing before the Subcommittee on Courts, Civil Liberties and the Administration of Justice of the House Committee on the Judiciary, 97th Cong., 2d Sess., pt. 2, p. 1250 (1982) (memorandum of Prof. Laurence H. Tribe). Furthermore, "[t]he error in excusing such theft as noncommercial," we are told, "can be seen by simple analogy: jewel theft is not converted into a noncommercial veniality if stolen jewels are simply worn rather than sold." Ibid. The premise and the analogy are indeed simple, but they add nothing to the argument. The use to which stolen jewelry is put is quite irrelevant in determining whether depriving its true owner of his present possessory interest in it is venial; because of the nature of the item and the true owner's interests in physical possession of it, the law finds the taking objectionable even if the thief does not use the item at all. Theft of a particular item of personal property of course may have commercial significance, for the thief deprives the owner of his right to sell that particular item to any individual. Time-shifting does not even remotely entail comparable consequences to the copyright owner. Moreover, the time-shifter no more steals the program by watching it once than does the live viewer, and the live viewer is no more likely to buy prerecorded videotapes than is the time-shifter. Indeed, no live viewer would buy a prerecorded videotape if he did not have access to a VTR.

[34] Cf. A. Latman, Fair Use of Copyrighted Works (1958), reprinted in Study No. 14 for the Senate Committee on the Judiciary, Copyright Law Revision, Studies Prepared for the Subcommittee on Patents, Trademarks, and Copyrights, 86th Cong., 2d Sess., 30 (1960):

"In certain situations, the copyright owner suffers no substantial harm from the use of his work. . . . Here again, is the partial marriage between the doctrine of fair use and the legal maxim de minimus non curat lex."

Nature of the copyrighted work

The "scope of fair use is greater when informational type works, as opposed to more creative products, are involved. Seltzer, supra, at 33-34; Nimmer, supra, § 13.05[A][2] at 13-61." Universal City Studios v. Sony Corp. of America, 659 F. 2d 963 - Court of Appeals, 9th Circuit 1981

"While this attribute of the broadcast industry complicates the economic harm analysis, it has no bearing on society's interest in the dissemination of the material or the author's reasonable expectation of compensation for repeated use of his material. These issues, basic to the rationale of the fair use doctrine, implicate the intrinsic qualities of the work, not the medium of its presentation. The Sony court's analysis obfuscated the real issue at stake: whether the public interest in promoting the development of art and science dictates disregarding a copyright holder's interest in controlling the use of his product." 66 Va.L.Rev. at 1020-21.

"The rationale guiding application of this factor is that certain types of works, typically those involving "more of diligence than of originality or inventiveness," New York Times Co. v. Roxbury Data Interface, Inc., 434 F. Supp. 217, 221 (NJ 1977), require less copyright protection than other original works. Thus, for example, informational works, such as news reports, that readily lend themselves to productive use by others, are less protected than creative works of entertainment." Sony Corp. of America v. Universal City Studios, Inc., 464 US 417 - Supreme Court 1984

"Works that are creative in nature are "closer to the core of intended copyright protection" than are more fact-based works. See Campbell, 510 U.S. at 586, 114 S.Ct. 1164." A & M RECORDS, INC. v. Napster, Inc., 239 F. 3d 1004 - Court of Appeals, 9th Circuit 2001

"Though a significant measure of creativity was undoubtedly used in the creation of the eight articles copied from Catalysis, even a glance at their content immediately reveals the predominantly factual nature of these works.[11] Moreover, though we have previously recognized the importance of strong copyright protection to provide sufficient incentives for the creation of scientific works, see Weissmann, 868 F.2d at 1325, nearly every category of copyrightable works could plausibly assert that broad copyright protection was essential to the continued vitality of that category of works." American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994

"Ultimately, then, the manifestly factual character of the eight articles precludes us from considering the articles as "within the core of the copyright's protective purposes," Campbell, ___ U.S. at ___, 114 S.Ct. at 1175; see also Harper & Row, 471 U.S. at 563, 105 S.Ct. at 2232 ("The law generally recognizes a greater need to disseminate factual works than works of fiction or fantasy.")." American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994

Notes

[11] Not only are the Catalysis articles essentially factual in nature, but the evidence suggests that Chickering was interested exclusively in the facts, ideas, concepts, or principles contained within the articles. Though scientists surely employ creativity and originality to develop ideas and obtain facts and thereafter to convey the ideas and facts in scholarly articles, it is primarily the ideas and facts themselves that are of value to other scientists in their research.

Amount and substantiality of the portions used in relation to the copyrighted work as a whole

""Home use recording off-the-air usually involves copying the entire work," 480 F.Supp. at 454, and that this typically precludes a finding of fair use." Universal City Studios v. Sony Corp. of America, 659 F. 2d 963 - Court of Appeals, 9th Circuit 1981

"The copyright laws afford the author the right to control access to his work, and, absent compelling justifications, this right should not be abridged." Universal City Studios v. Sony Corp. of America, 659 F. 2d 963 - Court of Appeals, 9th Circuit 1981

"Fair use is intended to allow individuals engaged in productive uses to copy small portions of original works that will facilitate their own productive endeavors." Sony Corp. of America v. Universal City Studios, Inc., 464 US 417 - Supreme Court 1984

"Time-shifting bears no resemblance to such activity, and the complete duplication that it involves might alone be sufficient to preclude a finding of fair use." Sony Corp. of America v. Universal City Studios, Inc., 464 US 417 - Supreme Court 1984

"Copying a news broadcast may have a stronger claim to fair use than copying a motion picture. And, of course, not all uses are fungible. Copying for commercial gain has a much weaker claim to fair use than copying for personal enrichment." Sony Corp. of America v. Universal City Studios, Inc., 464 US 417 - Supreme Court 1984

"The issue of library copying is now covered by § 108 of the 1976 Act. That section, which Congress regarded as "authoriz[ing] certain photocopying practices which may not qualify as a fair use," 1975 Senate Report 67; 1976 House Report 74, permits the making of copies only for "private study, scholarship, or research." §§ 108(d)(1) and (e)(1)." Sony Corp. of America v. Universal City Studios, Inc., 464 US 417 - Supreme Court 1984

""While 'wholesale copying does not preclude fair use per se,' copying an entire work 'militates against a finding of fair use.'" Worldwide Church, 227 F.3d at 1118 (quoting Hustler Magazine, Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1155 (9th Cir.1986)). The district court determined that Napster users engage in "wholesale copying" of copyrighted work because file transfer necessarily "involves copying the entirety of the copyrighted work." Napster, 114 F.Supp.2d at 913. We agree. We note, however, that under certain circumstances, a court will conclude that a use is fair even when the protected work is copied in its entirety. See, e.g., Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 449-50, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984) (acknowledging that fair use of time-shifting necessarily involved making a full copy of a protected work)." A & M RECORDS, INC. v. Napster, Inc., 239 F. 3d 1004 - Court of Appeals, 9th Circuit 2001

"Specifically, by focussing on the amount and substantiality of the original work used by the secondary user, we gain insight into the purpose and character of the use as we consider whether the quantity of the material used was "reasonable in relation to the purpose of the copying." See Campbell, ___ U.S. at ___, 114 S.Ct. at 1175." American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994

Effect of the use upon the potential market for or value of the copyrighted work

"Nimmer has suggested that "the central question in the determination of fair use is whether the infringing work tends to diminish or prejudice the potential sale of plaintiff's work." 3 Nimmer, supra, § 13.05[E][4][c] at 13-84. [Emphasis added] [Footnote omitted.]^[12] " Universal City Studios v. Sony Corp. of America, 659 F. 2d 963 - Court of Appeals, 9th Circuit 1981

"Since the copies made by home videorecording are used for the same purpose as the original, a finding of fair use is not justified.^[13]" Universal City Studios v. Sony Corp. of America, 659 F. 2d 963 - Court of Appeals, 9th Circuit 1981

Appellants "will have to take affirmative steps to compete with the appropriated versions of their work. That such competition is necessary supports appellants' allegations of harm; at the least, it makes clear that the "infringing" activity tends to prejudice the potential sale of appellants' work." Universal City Studios v. Sony Corp. of America, 659 F. 2d 963 - Court of Appeals, 9th Circuit 1981

"The development of the VTR has created a new market for the works produced by the Studios. That market consists of those persons who desire to view television programs at times other than when they are broadcast, and who therefore purchase VTR recorders to enable them to time-shift.[50] Because time-shifting of the Studios' copyrighted works involves the copying of them, however, the Studios are entitled to share in the benefits of that new market. Those benefits currently go to Sony through Betamax sales. Respondents therefore can show harm from VTR use simply by showing that the value of their copyrights would increase if they were compensated for the copies that are used in the new market." Sony Corp. of America v. Universal City Studios, Inc., 464 US 417 - Supreme Court 1984

""Fair use, when properly applied, is limited to copying by others which does not materially impair the marketability of the work which is copied." Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 566-67, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985). "[T]he importance of this [fourth] factor will vary, not only with the amount of harm, but also with the relative strength of the showing on the other factors." Campbell, 510 U.S. at 591 n. 21, 114 S.Ct. 1164." A & M RECORDS, INC. v. Napster, Inc., 239 F. 3d 1004 - Court of Appeals, 9th Circuit 2001

"However, not every effect on potential licensing revenues enters the analysis under the fourth factor.[17] Specifically, courts have recognized limits on the concept of "potential licensing revenues" by considering only traditional, reasonable, or likely to be developed markets when examining and assessing a secondary use's "effect upon the potential market for or value of the copyrighted work." See Campbell, ___ U.S. at ___, 114 S.Ct. at 1178 ("The market for potential derivative uses includes only those that creators of original works would in general develop or license others to develop."); Harper & Row, 471 U.S. at 568, 105 S.Ct. at 2235 (fourth factor concerned with "use that supplants any part of the normal market for a copyrighted work") (emphasis added) (quoting S.Rep. No. 473, 94th Cong., 1st Sess. 65 (1975)); see also Mathieson v. Associated Press, 23 U.S.P.Q.2d 1685, 1690-91, 1992 WL 164447 (S.D.N.Y.1992) (refusing to find fourth factor in favor of copyright holder because secondary use did not affect any aspect of the normal market for copyrighted work)." American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994

"For example, the Supreme Court recently explained that because of the "unlikelihood that creators of imaginative works will license critical reviews or lampoons" of their works, "the law recognizes no derivative market for critical works," Campbell, ___ U.S. at ___, 114 S.Ct. at 1178. Similarly, other courts have found that the fourth factor will favor the secondary user when the only possible adverse effect occasioned by the secondary use would be to a potential market or value that the copyright holder has not typically sought to, or reasonably been able to, obtain or capture. See Twin Peaks, 996 F.2d at 1377 (noting that fourth factor will favor secondary user when use "filled a market niche that the [copyright owner] simply had no interest in occupying"); Pacific and Southern Co. v. Duncan, 744 F.2d 1490, 1496 (11th Cir.1984) cert. denied, 471 U.S. 1004, 105 S.Ct. 1867, 85 L.Ed.2d 161 (1985) (noting that the fourth factor may not favor copyright owner when the secondary user "profits from an activity that the owner could not possibly take advantage of").[18]" American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994

"(1) Subscriptions and sales. The majority makes clear that, considered solely in terms of journal subscriptions and sales, this factor is a toss-up that may tip in the publisher's favor, but only after teetering for a while: "At best, the loss of a few journal subscriptions tips the fourth factor only slightly toward the publishers because evidence of such loss is weak evidence that the copied articles themselves have lost any value." 60 F.3d at 929. The majority pointedly observes that no evidence is offered that the photocopying at issue here, "if widespread, would impair the marketability of journals...." 60 F.3d at 928. Since Dr. Chickering's use maximizes the utility of a Catalysis subscription for the only audience it is ever likely to capture, I do not consider that the failure of proof in this respect is an oversight by the publishers or their able counsel." American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994, JACOBS, Circuit Judge, dissenting.

"As to the individual articles photocopied by Dr. Chickering, I agree with the majority — as I read the opinion — that one cannot put a finger on any loss suffered by the publisher in the value of the individual articles or in the traditional market for subscriptions and back issues. The district court found that Texaco would not purchase back-issues or back volumes in the numbers needed to supply individual copies of articles to individual scientists." American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994, JACOBS, Circuit Judge, dissenting.

"Finally, the circulation of Catalysis among a number of Texaco scientists can come as no surprise to the publisher of Catalysis, which charges double the normal subscription rate to institutional subscribers. The publisher must therefore assume that, unless they are reading Catalysis for pleasure or committing it to memory, the scientists will extract what they need and arrange to copy it for personal use before passing along the institutional copies." American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994, JACOBS, Circuit Judge, dissenting.

"(2) Licensing Revenues and Fees. The majority states that "[o]nly an impact on potential licensing revenues for traditional, reasonable, or likely to be developed markets should be legally cognizable when evaluating a secondary use's `effect upon the potential market for or value of the copyrighted work.'" 60 F.3d at 930. That statement of the law, with which I fully agree, supports the conclusion that the availability of a CCC license has little to do with fair use. The Supreme Court, in Harper & Row, held that this fourth factor addresses "`use that supplants any part of the normal market for a copyrighted work....'" 471 U.S. at 568, 105 S.Ct. at 2235 (quoting S.Rep. No. 473, 94th Cong., 1st Sess. 65 (1975)). The Court has more recently declared, in considering the fair use ramifications of parody, that "[t]he market for potential derivative uses includes only those that creators of original works would in general develop or license others to develop." Campbell v. Acuff-Rose Music, Inc., ___ U.S. ___, ___, 114 S.Ct. 1164, 1178, 127 L.Ed.2d 500 (1994). One factor deemed to make parody eligible for treatment as a fair use is that copyright holders do not ordinarily license artistic criticisms of their own works. However, even if authors were to seek to license these secondary works, it is not clear that they would succeed, because the Court found the secondary works to be a fair use: "when ... the second use is transformative, market substitution is at least less certain, and market harm may not be so readily inferred." Id. at ___, 114 S.Ct. at 1177." American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994, JACOBS, Circuit Judge, dissenting.

"In this case the only harm to a market is to the supposed market in photocopy licenses. The CCC scheme is neither traditional nor reasonable; and its development into a real market is subject to substantial impediments. There is a circularity to the problem: the market will not crystallize unless courts reject the fair use argument that Texaco presents; but, under the statutory test, we cannot declare a use to be an infringement unless (assuming other factors also weigh in favor of the secondary user) there is a market to be harmed. At present, only a fraction of journal publishers have sought to exact these fees. I would hold that this fourth factor decisively weighs in favor of Texaco, because there is no normal market in photocopy licenses, and no real consensus among publishers that there ought to be one." American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994, JACOBS, Circuit Judge, dissenting.

"The majority holds that photocopying journal articles without a license is an infringement. Yet it is stipulated that (a) institutions such as Texaco subscribe to numerous journals, only 30 percent of which are covered by a CCC license; (b) not all publications of each CCC member are covered by the CCC licenses; and (c) not all the articles in publications covered by the CCC are copyrighted. It follows that no CCC license can assure a scientist that photocopying any given article is legal. I will separately consider the Transactional Reporting Service (the per-copy transactional license) and the Annual Authorization Service (the blanket license). I confine my discussion here to scientists, although I note that the record reflects CCC's intention to pursue licensing arrangements in other sectors as well." American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994, JACOBS, Circuit Judge, dissenting.

"Under a transactional license, the user must undertake copyright research every time an article is photocopied. First, one must consult a directory to determine whether or not the publisher of the journal is a member of the CCC. If it is, one must ascertain whether the particular publication is one that is covered by the CCC arrangement, because not all publications of participating publishers are covered. Then one must somehow determine whether the actual article is one in which the publisher actually holds a copyright, since there are many articles that, for such reasons as government sponsorship of the research, are not subject to copyright. The production director of plaintiff Springer-Verlag testified at trial that it is almost impossible to tell which articles might be covered by a copyright. Since even an expert has difficulty making such a determination, the transactional scheme would seem to require that an intellectual property lawyer be posted at each copy machine. Finally, once it is determined that the specific article is covered, the copyist will need to record in a log the date, name of publication, publisher, title and author of article, and number of pages copied." American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994, JACOBS, Circuit Judge, dissenting.

"It may be easier to hand copy the material. The transactions costs alone would compel users to purchase a blanket license. However, if (as the majority holds) three of the fair use factors tip in favor of the publishers even without considering the market for license fees, a blanket license offers Texaco no safe harbor. Individual publishers remain free to stand upon the rights conferred in this Court's opinion, and negotiate separate licenses with separate terms, or sell offprints and refuse any license at all. Unless each publisher's licensing rights are made to depend upon whether or not that publisher participates in the CCC, we have the beginnings of a total market failure: with many thousands of scientific publications in circulation, a user cannot negotiate licensing fees individually with numerous publishers — unless it does nothing else. For many publications, licenses are simply not available. As to those, Dr. Chickering has the choice of hand copying, typescript, or the photocopying of selected pages only." American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994, JACOBS, Circuit Judge, dissenting.

"The blanket license fares no better. The CCC license cannot confer absolution for the photocopying of articles published by nonmembers of the CCC. Nor can the participating publishers properly collect fees for the photocopying of articles for which they do not hold the copyright. The district court found that there is currently a viable market for licensing, chiefly for the following reasons:

(a) "[M]any of the largest corporations involved in research have become licensees under a CCC Annual Authorization." 802 F.Supp. at 24. However, until this case is decided, companies have had little choice but to become licensees or defendants.

(b) The CCC has developed an Annual Authorization arrangement that "permits free copying without any administrative burden of recordkeeping or reporting." Id. That system works, however, only if one ignores the rights of publishers who are non-members of the CCC.

(c) "[P]ublishers and individual users have ... developed private annual licensing agreements. For example, AT & T Bell Labs, in addition to its membership in the CCC, has over 200 agreements with publishers covering photocopying with respect to some 350 journals that are not registered with the CCC. Furthermore, publishers have extended photocopying licenses to document delivery services." Id. at 24-25.

These developments "(and the other parallel steps taken by the owner-user communities)", satisfy the district court that "[r]easonably priced, administratively tolerable licensing procedures are available...." Id. at 25." American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994, JACOBS, Circuit Judge, dissenting.

"It is hard to escape the conclusion that the existence of the CCC — or the perception that the CCC and other schemes for collecting license fees are or may become "administratively tolerable" — is the chief support for the idea that photocopying scholarly articles is unfair in the first place. The majority finds it "sensible" that a use "should be considered `less fair' when there is a ready market or means to pay for the use." 60 F.3d at 931. That view is sensible only to a point. There is no technological or commercial impediment to imposing a fee for use of a work in a parody, or for the quotation of a paragraph in a review or biography. Many publishers could probably unite to fund a bureaucracy that would collect such fees. The majority is sensitive to this problem, but concludes that "[t]he vice of circular reasoning arises only if the availability of payment is conclusive against fair use." 60 F.3d at 931. That vice is not avoided here. The majority expressly declines to "decide how the fair use balance would be resolved if a photocopying license for Catalysis articles were not currently available." 60 F.3d at 931. Moreover, the "important" fourth factor, 60 F.3d at 931, tips in favor of the publishers (according to the majority) "[p]rimarily because of lost licensing revenue" and only "to a minor extent" on the basis of journal sales and subscriptions. 60 F.3d at 931." American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994, JACOBS, Circuit Judge, dissenting.

"I do not agree with the majority that the publishers "have created, primarily through the CCC, a workable market for institutional users to obtain licenses for the right to produce their own copies of individual articles via photocopying." 60 F.3d at 930. By the CCC's admission, in its correspondence with the Antitrust Division of the Justice Department, "the mechanism for the negotiation of a photocopy license fee is often not even in place.... Nor can it be said that CCC's current licensing programs have adequately met the market's needs."[1] There is nothing workable, and there is no market." American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994, JACOBS, Circuit Judge, dissenting.

"Even if the CCC is or becomes workable, the holder of a CCC blanket license is not thereby privileged to photocopy journal articles published by non-members of the CCC, as to which articles there is no "ready market or means to pay for the fair use". See 60 F.3d at 931. This Court has ended fair-use photocopying with respect to a large population of journals, but the CCC mechanism allows fair-use photocopying only of some of them. The facts before us demonstrate that the holder of a blanket license must still deal separately with CCC-member Bell Labs as to certain hundreds of its publications. With respect to the journals for which the publishers do not market licenses, users will either (a) research which publications are in this category and copy them longhand, in typescript or in partial photocopy, or (b) ignore our fair-use doctrine as unworkable. Neither option serves scientific inquiry or respect for copyright. In any event, it seems to me that when a journal is used in a customary way — a way that the authors uniformly intend and wish — the user should not be subjected on a day to day basis to burdens that cannot be satisfied without a team of intellectual property lawyers and researchers." American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994, JACOBS, Circuit Judge, dissenting.

"The fourth factor tips decidedly in Texaco's favor because there is no appreciable impairment of the publishing revenue from journal subscriptions and sales; because the publisher captures additional revenue from institutional users by charging a double subscription price (and can presumably charge any price the users will pay); and because the market for licensing is cumbersome and unrealized." American Geophysical Union v. Texaco Inc., 60 F. 3d 913 - Court of Appeals, 2nd Circuit 1994, JACOBS, Circuit Judge, dissenting.

Notes

[12] The Second Circuit has used this approach. Meeropol v. Nizer, 560 F.2d 1061, 1070 (C.A.2 1977).

[13] Put another way, because the copies serve the same function as the original, the "functional test" suggests that fair use is not available. 3 Nimmer, supra, § 13.05[B]; Metro-Goldwyn-Mayer, Inc. v. Showcase Atlanta Cooperative Productions, Inc., 479 F.Supp. 351 (N.D.Ga.1979).

[17] As Texaco notes and others have recognized, a copyright holder can always assert some degree of adverse affect on its potential licensing revenues as a consequence of the secondary use at issue simply because the copyright holder has not been paid a fee to permit that particular use. See Leval, Toward a Fair Use Standard, at 1124 ("By definition every fair use involves some loss of royalty revenue because the secondary user has not paid royalties."); Fisher, Reconstructing Fair Use, at 1671 (noting that in almost every case "there will be some material adverse impact on a `potential market'" since the secondary user has not paid for the use). Thus, were a court automatically to conclude in every case that potential licensing revenues were impermissibly impaired simply because the secondary user did not pay a fee for the right to engage in the use, the fourth fair use factor would always favor the copyright holder. See Leval, Toward a Fair Use Standard, at 1125; Fisher, Reconstructing Fair Use, at 1672.

[18] The Supreme Court's holding in Sony implicitly recognizes limits on the concept of "potential market for or value of the copyrighted work." Despite Justice Blackmun's dissenting view that the copying of television programs to enable private viewing at a more convenient time, i.e., "time-shifting," deprived copyright holders of the ability to exploit the "sizable market" of persons who "would be willing to pay some kind of royalty" for the "privilege of watching copyrighted work at their convenience," Sony, 464 U.S. at 485, 104 S.Ct. at 811, the majority found that the copyright holders "failed to demonstrate that time-shifting would cause any likelihood of non-minimal harm to the potential market for, or the value of, their copyrighted works." Id. at 456, 104 S.Ct. at 796. The Court thus implicitly ruled that the potential market in licensing royalties enunciated by Justice Blackmun should be considered too insubstantial to tilt the fourth fair use factor in favor of the copyright holder.

[50] The Court implicitly has recognized that this market is very significant. The central concern underlying the Court's entire opinion is that there is a large audience who would like very much to be able to view programs at times other than when they are broadcast. Ante, at 446. The Court simply misses the implication of its own concerns.

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