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Digital Learning Legal Background Paper:

Fair Use and Educational Uses of Content[1]

Over the last thirty years, and especially with the advent of digital copying technology, fair use has been a particularly contentious issue for educational users of content and right holders, often publishers. Although Section 107 of the current Copyright Act lists teaching, specifically “multiple copies for classroom use,” among its exemplary fair uses, educational uses of copyrighted material are not universally privileged. Educators reproduce copyrighted material—in the classroom, in coursepacks or electronic reserves, in their writing —often without an accurate understanding of the law governing their actions. This lack of legal clarity, in turn, creates obstacles to realizing the full potential of digital technology in education.

I. Statutes and Guidelines

Copyright law combines a “rule” with a “standard” to determine infringement. A “rule” is a legal provision that turns on only a few facts to apply, such as a speed limit. Rules give clear advance guidance about legal and illegal behavior. A driver needs to know only two facts to determine whether he or she is driving at a legal speed: the posted speed limit and the speed on his or her speedometer. While giving clear guidance, rules tend to lead to unjust results in some cases. A person speeding to the hospital in an emergency is still speeding even if such conduct should be deemed lawful.

“Standards” are legal provisions that are more sensitive to context. It often is more difficult to predict how a standard will apply in a given situation, but when applied, a standard is likely to yield more just results in particular cases. If a speed limit were stated as a legal standard, it might be “Drive Reasonably.” A driver would be less certain whether his or her speed would be considered reasonable at any given time, but the person speeding to the hospital would have some degree of confidence that such behavior is legal.

Copyright law begins its infringement analysis with a rule and then provides a standard (fair use) as a defense. To prove infringement, the copyright owner must show only that he or she (1) owns a valid copyright, and (2) the defendant exercised one or more of the owner’s exclusive rights to reproduce, to publicly distribute, to publicly perform, to publicly display or to adapt the copyrighted work. Left unchecked, this rule would deem every unlicensed act of photocopying, every unlicensed display of a visual work in a classroom, and even substantial quotations in a book review to be infringing.

Copyright law responds to the concerns such application would undoubtedly raise by creating a number of limitations. Fair use is among the most important of these. Fair use is a context-sensitive standard. If the unauthorized use of a copyrighted work satisfies the standard, the user is deemed to be acting legally. This feature of fair use serves an important function in rendering the application of copyright law more just, but it is a source of uncertainty or frustration for institutional educational users who feel pressure to make rules for educators, librarians, and students concerning the use of copyrighted works. Much of the contention surrounding fair use in education concerns the tension between demand for clear advance guidance about whether a type of use infringes copyright and the need to adjust the scope of copyright law for particular educational circumstances.

A. Section 107

Fair use originated in the courts, rather than in Congress, as an equitable doctrine of reasonableness which excepts from liability those infringements to copyright found on balance to be in the “public interest.” The doctrine aims “to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which the law is designed to foster.”[2] Most commentators credit Justice Story with articulating the modern test for fair use in the 1841 case of Folsom v. Marsh.[3] By recasting what had been a somewhat broad right of abridgement as a narrower right of fair use, Justice Story held that a biography infringed upon the copyrighted letters of George Washington. He wrote:

The question, then, is whether this is a justifiable use of the original materials, such as the law recognizes as no infringement of the copyright of the plaintiffs. It is said, that the defendant has selected only such materials, as suited his own limited purpose as a biographer. This is, doubtless, true; and he has produced an exceedingly valuable book. But that is no answer to the difficulty…[W]e must often, in deciding questions of this sort, look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the same, or diminish the profits, or supersede the objects, of the original work. Many mixed ingredients enter into the discussion of such questions.[4]

This passage articulates the contours of what eventually became the modern fair use doctrine. In it, Justice Story also identifies a tension that remains today: while the educational use of content is an important consideration, scholarly works such as biography are not per se fair use of copyrighted materials just because they are “exceedingly valuable.”

In 1976, against the background of increasingly available photocopying technologies that enabled users to reproduce content much more easily, Congress substantially revised the Copyright Act. Section 107 of the new 1976 Copyright Act codified fair use for the first time, without modifying the doctrine or removing the power to determine the boundaries of fair use from the judiciary. The statutory provision currently reads:

the fair use of a copyrighted work…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.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.[5]

On its face, the text of the statute seems to favor educational uses of works as fair uses. It first lists a variety of educational purposes such as criticism, comment, teaching, scholarship, and research as prototypical fair uses. It then identifies the use of content for “nonprofit educational purposes” as an explicit consideration in the first of the four enumerated factors for consideration in a fair use analysis.

In practice, however, courts have not consistently found that educational uses qualify as fair uses. Because the doctrine is applied on a case-by-case basis and resists reduction to a per-se rule,[6] it provides limited assurance to scholars and teachers seeking bright-line guidance. As will be discussed in a following section, even scholars well-read in precedent may be hard-pressed to find consistent analyses, across different federal courts, of educational copying and other scholarly uses.

B. Introduction to Analysis of the Fair Use Factors

The Supreme Court has articulated its view of the four factors listed in § 107 several times, but never specifically in the context of education. However, holdings in other cases may apply in educational contexts.[7]

Under the first factor listed in §107, courts consider the transformative nature of the use at issue, and whether it was a commercial or non-commercial use. Some type of transformation of the content from its original form or context counts in favor of a defendant; the more “transformative” a use, the less significant other factors—such as commercial nature—in favor of the plaintiff.[8] In determining whether a use is “commercial,” courts generally find that the “distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.”[9] Thus, despite the fact the statutory text contrasts commercial with nonprofit educational purposes, courts may exclude schools and universities from the protection of the fair use doctrine if they “benefit” from such uses.[10]

The second factor traditionally allows greater appropriation of factual works than of creative works of fiction or art, because of a perceived “greater need to disseminate factual works than works of fiction or fantasy.”[11] Although many scholars have argued that scholarly quotation of fictional works should be equally privileged, use of fictional works remains disfavored under this factor. Although Congress added language to the provision in 1992 declaring that unpublished works were not automatically beyond the reach of fair use, use of unpublished letters or other materials, even in works of news or scholarship, also may be less likely to be found fair under this factor.[12]

When assessing the third factor, the Court has indicated that there is no universal quantity past which uses are always unfair, or within which uses are always fair.[13] Rather, the quantity and quality of material which may be copied fairly varies with the type of use to which it is put.[14] Regarding parody, the Supreme Court has stated that the quantity permissible “turns [on] the persuasiveness of a parodist’s justification for the particular copying done.”[15] Other courts, as discussed below, have applied a similar rule to scholarly or critical quotation.

Finally, under the fourth factor, in the context of non-commercial use—such as non-profit scholarship—the Court has held that “a challenge [of a use]…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.”[16] Though the Supreme Court has retreated from its one-time position that the fourth factor was “undoubtedly the single most important element of fair use,”[17] other courts continue to heavily emphasize commercial impact, often defined broadly.[18]

C. Non-Statutory Guidelines

The context-sensitivity of fair use works to the advantage of the occasional user of copyrighted works, but educational users require use of copyrighted works on a routine basis to carry out their educational function. Representatives of copyright owners and educational users responded to the effort to codify fair use and the emergence of new technologies by attempting to give the fair use standard a more “rule-like” application for at least some types of educational uses. However, several good faith efforts to produce authoritative or comprehensive guidelines clarifying fair use have resulted in bitter disputes rather than clarity.

Representatives of rights holders (typically publishers) and educational users (typically consortia of university libraries) engaged in a series of negotiations surrounding the 1976 Act and agreed upon three sets of Guidelines that were incorporated into the legislative history of the Act: for Classroom Copying, Off-Air Recording, and Educational Uses of Music.[19] Many stakeholders were unhappy with the resulting Guidelines, however. Proponents suggested that the Guidelines could define easily understood “safe harbors” for would-be fair users who might otherwise be deterred by the amorphous nature of the fair use standard. Critics respond that the Guidelines themselves are just as complex, and ultimately represent an overly narrow and judicially unfounded view of fair use tilted towards the interests of rights holders.[20]

The Guidelines for Classroom Copying have received the most scholarly and judicial attention. While recognizing that some photocopying of copyrighted material for classroom distribution is fair use, the Guidelines require that such copying, in addition to having clear copyright notice on each copy, fall within three specifically described limits: “brevity,”[21] “spontaneity,”[22] and “cumulative effect.”[23] The American Association of University Professors and Association of American Law Schools vigorously opposed these Guidelines, stressing that they “restrict the doctrine of fair use so substantially as to make it almost useless for classroom teaching purposes.”[24] Meanwhile, in a series of strategic lawsuits filed soon after the passage of the 1976 Act, publishing interests succeeded in persuading some courts to view those Guidelines as an authoritative gauge of fair use.[25]

Most influentially, in Addison-Wesley Publishing v. New York University[26], several publishers brought a copyright infringement suit against New York University, a local copy shop, and several professors over their classroom photocopying. The case settled in 1983, when NYU instituted a new photocopying policy identical to the Guidelines.[27] While some commentators have rightly noted that this settlement, like the Guidelines themselves, lack the force of law, the settlement has nevertheless had “disproportionate prominence”[28] in the academic community. “[F]ueled largely by the threat of legal action by publishers’ groups,” as well as published decisions against for-profit copy shops making coursepacks without authorization[29], more than 80 percent of American universities now adhere to internal policies derived from the Classroom Guidelines[30] that university lobbying groups has rejected.[31] Some enforce even stricter guidelines, all but prohibiting reliance upon fair use.[32] At least one commentator has predicted that, in this environment, “current trends…will eventually eliminate fair use for schools, colleges and universities.”[33]

Interested parties convened again at the Conference on Fair Use in the mid-1990s in hopes of coming to a more universally-accepted agreement about fair use practices relevant to uses of digital technology. Working groups attempted to develop multiple additional guidelines[34] in a series of negotiations from 1994 to 1998, but only one—Guidelines for Educational Multimedia—was ultimately developed in full by participants.[35] Even these Guidelines met significant resistance from educational institutions and libraries.[36] As stated at the closing of the final report summarizing the CONFU meetings: “it was clear that fair use was alive and well in the digital age, and that attempts to draft widely supported guidelines will be complicated by the often competing interests of the copyright owner and user communities.”[37]

II. Cases on Education

In spite of myriad cases that have considered educational fair use defenses, educators have little judicial guidance for their activity: first, because these cases have come from different geographic circuits, often emphasizing different aspects of the statutory test[38]; and, second, because fair use continues to be a “rule of reason” applied on a case-by-case basis. Small factual differences may make large judicial differences.[39]

A. Copying for Classroom Use

1. General Copying

In a landmark case decided under the 1909 Copyright Act and on the eve of the enactment of the 1976 Act, Williams & Wilkins v. United States ,[40] the Court of Claims deemed it fair use for the National Institute of Health (NIH) to engage in organized, wholesale copying of medical journals for the internal use of their scientists. Noting that “medical science would be seriously hurt” if the practice were prohibited, the court relied on the plaintiff’s lack of showing of actual harm, and the defendant’s internal regulations limiting the quantity of copying and any dissemination beyond NIH scientists, to support its judgment. Publishers have since emphasized that the case was all-but-overturned by the enactment of §108 of the 1976 Act and, in any case, that the NIH’s copying extended far beyond that allowed under the Guidelines. The case continues to emerge in fair use arguments over classroom and other copying, however, supporting a higher allowable quantity of use for non-profit institutions.[41] The dissent in Williams & Wilkins emphasized, much as in the later case of Michigan Document Services,[42] that the NIH did not stand in the shoes of individual scientists—and that, given its scale of activity and the potential for harm, it hurt the incentive system necessary for the dissemination of new works and the progress of arts and sciences.[43]

2. Audiovisual Works

For taping of television programs from the air, there are two pillars of guidance for teachers. The Supreme Court’s decision in Sony Corp. v. Universal City Studios, Inc.[44], in which it ruled that “home time shifting”—the recording of broadcast television programs by individuals on their VCRs—was fair use, is binding and authoritative. Although the facts in Sony are somewhat sui generis, the rationale for the fair use finding there has been repeated in many subsequent cases concerning new technology, with mixed results.[45] In addition, the Guidelines for Off-Air Videotaping[46], may be informative in the eyes of some courts and plaintiffs, although they are not binding as law.

While the impact of Sony on educational institutions wishing to record television programs or copy tapes is not clear from the case itself, at least one other case, Encyclopedia Britannica v. Crooks,[47] has indicated that a school may not tape and “library” public television programs under Sony. The court in Crooks distinguished Sony because, in Crooks, an educational cooperative created by New York State was engaging in large-scale video reproduction. The taping did not occur at home or for the purpose of time shifting, but was instead intended to archive public television works in an organized, institutional fashion. Though the defendants pointed out the public television is “free,” the courts found harm to the plaintiff documentary producers’ market based on licenses available for just such educational uses, some showing of decreased profits since the creation of the VCR, and a lack of “absolute necessity” on the part of the cooperative.[48]

3. Coursepacks

Two high-profile cases brought against copy shops located near, and marketing to, universities for the creation of coursepacks have resulted in rejections of fair use, at least for for-profit copy shops. In Princeton University Press v. Michigan Document Services,[49] a copy shop serving the University of Michigan had actively advertised lower prices because licenses from publishers of the articles incorporated in course packs were not necessary—apparently out of a sincere belief that such use was, or should be, covered by fair use. The District court both rejected the fair use defense and found the owner’s conduct “willful”—worthy of increased damages—because of his contravention of the Guidelines. The Court of Appeals reversed on the issue of willfulness but affirmed the rejection of fair use. The appeals court noted that the for-profit copy shop did not stand in the shoes of professors who might engage in the same activity; rather, though the activity was educational vis-à-vis professors, it was commercial vis-à-vis the copy shop, acting for commercial gain. Similar reasoning led to an identical result in Basic Books v. Kinko’s,[50] where in addition to finding the use non-transformative, commercial, and contrary to the Guidelines, the court noted that the portions copied were important to the work (shown, somewhat circularly, by the fact that professors had demanded them in the first place). A vigorous dissent by Judge Ryan in Michigan Document Services, equally applicable to Kinko’s, criticized the majority argument as overlooking the transformative nature of coursepacks, accepting a circular argument that the possibility of licensing fees amounts to harm to the publisher[51], and giving undue weight to the Guidelines .

As noted above, these cases have greatly increased risk averse behavior by universities, many of which have constricted their copyright policies, often adopting the Guidelines for Classroom Copying as internally-enforced limits on fair use by teachers.[52]

4. Study Aids and Derivative Works

Courts, for the most part, have been hostile to claims of fair use in the context of study aids for copyrighted tests and textbooks. One court, rejecting the defense for an author of a manual of solutions for a popular physics textbook’s problems, wrote dramatically: “It is clear that the defendant’s parasitical excrescence upon plaintiff’s distinguished and useful works profits defendants alone. In this symbiosis, defendants thrive, while their manual kills the host it feeds on.”[53] In Educational Testing Services v. Simon,[54] a court rejected the fair use defense for a test preparation company that compiled questions from the MSAT exam as a study aid for students in a private tutoring course. The court determined that the compilation interfered with a purpose of copyright to prohibit use of questions as teaching aids (without discussing its derivation for this extension of copyright law).

B. Quotation for Scholarly Writing and Other Products

1. Scholarly Writing

At least in the abstract, courts identify quotation for scholarly work as a paradigmatic fair use which must be allowed to future authors in order to avoid the monopolization of ideas or the retardation of artistic and scientific progress. “No one can doubt,” wrote Justice Story, “that a reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism.”[55]

Multiple cases have allowed defendant authors to use plaintiff’s material under the doctrine of fair use. In Penelope v. Brown[56] a defendant author successfully pled fair use where she used quotes from another English professor’s book on persuasive speech in her own book as examples of particular grammatical forms. The court found this to be a productive use with no risk of superseding the original, and which did not stand to profit specifically from the quoted passages. Similarly, a defendant author’s use of multiple quotations by General George Patton in a book on personal management, taken from plaintiff’s own book on management, was deemed fair use in Williamson v. Pearson Education.[57] The court determined that the defendant’s commercial motive should be deemphasized where the underlying work is scholarly.

Courts become particularly receptive to fair use claims where rights holders may use their copyrights to prevent use of content by authors trying to criticize the original work or present different viewpoints. In Maxtone-Graham v. Burtchaell[58] an author of a book of collected interviews of pro-choice women about their experiences with abortion and subsequently sued a priest who quoted heavily from those interviews in a later book of his own pro-life essays. The court found the substantial use of the plaintiff’s work was not “determinative” where the later author’s use was educational (albeit also commercial, as most publishing now is) and posed no economic threat to the plaintiff’s book.

However, scholars can go too far, according to courts, particularly where plaintiffs can raise some doubt as to the “scholarly,” rather than purely commercial, motives underlying the product. Fair use was rejected as a defense in Rubin v. Boston Magazine,[59] where a popular magazine claimed to have reprinted plaintiff’s “love scales”—developed in his Ph.D. thesis—in order to educate the public. The court found the magazine non-educational, and found specific harm to plaintiff’s negotiations with Readers Digest to publish the love scales exclusively.[60] Likewise, the fair use defense may fail to justify verbatim copying of significant portions of a previous scholarly work in a subsequent scholarly work with the “same intrinsic purpose”.[61] Such situations appear to give rise to a sense of unjust enrichment and unfair appropriation, and may spur lawsuits more frequently than the typical situation of mere “quotation”.

2. Biography

Biographers—who perhaps suffer increased risk of litigation from profit-minded estates of famous persons of interest to the public—have fared especially poorly when asserting fair use defenses in the courts. Courts claim to be wary of hobbling biographers. As one court noted, biographers of authors should not be limited to simply declaring, “This Mickey Spillane, boy, he sure can write!”[62] Despite this reasonable concern, however, actual rulings are not sympathetic to the biographer’s plight.

In the canonical case Folsom v. Marsh, Justice Story rejected a fair use defense where the defendant-biographer’s 856-page book was comprised of 653 pages copied verbatim from the copyrighted letters of George Washington. This use was “beyond fair quotation,” particularly in light of the demonstrated value of the letters; they had recently been sold to Congress for $25,000. Likewise, in Craft v. Kobler,[63] the court rejected a fair use defense for a biography of Stravinsky that relied on multiple quotations from Stravinsky; though some particular quotes (those with which the author demonstrated points about Stravinsky’s language itself) might have been fair, the court found the takings otherwise “far too numerous and with too little instructional justification” for fair use. Similarly, a lower court’s finding of fair use was reversed and remanded in Meeropol v. Fawcett,[64] where the estate of Julius and Ethel Rosenberg successfully showed possible harm to the market for the Rosenbergs’ letters and, furthermore, that “commercial exploitation”—rather than scholarship—was motivating the pop-biographer defendant.

Biographers do win under unusual circumstances. The “sparing” use of unpublished letters for a biography of Richard Wright in Wright v. Warner Books, Inc.,[65] was ultimately deemed fair use by the court, largely because of the minimal use, their “insubstantial” role in the resulting biography, and the good faith of the author.[66] Faced with a censorious plaintiff and an unusual set of facts,[67] the court likewise found fair use in another case involving Howard Hughes, noting that the commercial motive of a biographer was unimportant where the work was scholarly and that “courts…must occasionally subordinate the copyright holder’s interest in a maximum financial return to the greater public interest.”[68]

3. Documentary

Although film-makers, perhaps more than other academics, suffer under an institutionalized system of insurers and content-producers that does not allow for reliance on fair use, at least for incidental uses of copyrighted work, courts have found fair use to protect them. In Italian Book Company v. ABC,[69] a court ruled that the incidental recording of a song, played by a band in a parade being filmed for news footage, was fair use of the composition; similarly, in Higgins v. Detroit Educational Television,[70] an educational television station’s use of 45 seconds of a song as soft background music to a documentary was ruled fair use, due to its non-profit teaching purpose, insubstantial quantity of copying, and lack of likelihood that such use occupied a “niche” of interest to the copyright owner.

In an attempt to clarify fair use as it pertains to documentary, and to place audiovisual fair use on equal footing with literary fair use in spite of a licensing culture among studios, the Center for Social Media at American University has organized filmmakers to create and disseminate a Statement of Best Practices in Fair Use.[71] Focusing in particular on the first and third factors in the §107 test—in particular, the transformativity and amount of use—the report attempts to educate documentary filmmakers about both the theoretical underpinnings and exemplary applications of the doctrine.[72]

C. Libraries

Though beyond the scope of this paper, libraries have particularly complicated interaction with copyright and fair use. According to one librarian’s view, a “principal purpose—in some senses the principal purpose—for which research libraries exist is to facilitate the copying of relevant documents.”[73] Inter-library loan, institutional copying and other regular activities of research libraries are heavily influenced by copyright regulations and university policies. Though the Association of American publishers at one time argued that enactment of §108 of the Copyright Act—explicitly providing for some exceptions to copyright infringement for libraries—was meant to supersede all application of fair use to libraries,[74] it is well established that fair use does apply to library activities, including archiving, on-demand photocopying, and inter-library loan.[75] Libraries, in order to avoid liability for infringements by their patrons, institute copyright policies designed to notify patrons of copyright restrictions—for instance, in the vicinity of xerox machines or equipment for the display of audiovisual materials.[76] Additionally, such policies often establish per se rules—similar to the Guidelines for Classroom Copying—to clarify fair use practices for their staff.[77]

III. Practical Considerations

A. The Role of Intermediaries: Insurance, Publishers, Universities

Because academics, acting either as authors or as teachers, often work within larger publishing or educational institutions, their actions may be controlled—and their ability to use fair use curtailed—by the policies of those institutions. As already noted, many universities have adopted Copyright policies for copying and use of classroom materials that are possibly more restrictive than fair use as it is enforced in the courts, and often resemble the Guidelines for Classroom Copying.[78] One commentator has noted that a “major force contributing to the erosion of fair use is the culture of gatekeeper-intermediaries—publishers, broadcasters, distributors and many ISPs—who care less about legal niceties or the rights of users than about avoiding expensive lawsuits.”[79]

Academics wishing to publish their articles in academic journals may run into internal journal policies requiring them to obtain permissions for quotation and use of material.[80] In some cases, where publication is achieved after the writing of an article, this can involve significant “un-writing” on the part of an author incapable of obtaining permissions or paying required fees.[81]

Academics working in film or other media, particularly those interacting with major studios, run into particularly restrictive rules promulgated under studio “errors and omissions” insurance policies demanding either explicit clearance for all copyrighted work and/or indemnification for any copyright suit.[82] And, under the Digital Millennium Copyright Act, internet service providers may take down allegedly infringing material—including material that might be covered by fair use—upon a copyright owner’s assertion of suspected infringement.[83]

B. Speech Restrictions by Content Owners

In some situations, fair use mitigates against rights holders’ ability to control later academic discourse about, or criticism of, themselves or their products.[84] Many biography cases, as noted above, arise from disputes over particular uses of material, or particular opinions taken in works incorporating them. For academics who study new media—television, film, music or advertising—such restrictions become particularly problematic, as they deal with large media corporations with significant legal resources and, often, distaste for criticism. In a particularly egregious example, in the mid-1970s, by taking advantage of certain restrictions on imports of copyrighted material then in place, Disney attempted to block the importation of a Chilean book critical of the capitalist messages in their cartoons on the grounds that it violated their copyright in their cartoon characters.[85] Fifteen years later, Disney denied the author of an article about the incident permission to reprint quotations from their copyrighted letters sent during the course of negotiations with the Center for Constitutional Rights and the Treasury Department.[86] Other academic authors studying advertising,[87] film[88] and television[89] regularly encounter similar resistance from corporate rights holders unwilling to grant permissions, or affordable permissions, to scholars studying their medium.

IV. Conclusion

“Unfortunately, good teaching practice may not always be legal copyright practice.”[90] As many commentators point out, though scholars have great interest in fair use, they also have even greater confusion about the specific legal parameters of the doctrine.[91] As fair use, in an era of increasing copyright protection, plays a role as the primary mediator between academic users and academic providers of content, it should be no surprise that it produces debate.[92]

Without satisfyingly concrete guidance in either statutory form or court opinion, and in light of increased threat of litigation by content owners, many academics have called for drastic changes to copyright law, or guidelines more forgiving to their purposes.[93] To many, who are highly distrustful of publishing interests,[94] it seems that “traditional” practices have suddenly become threatened.[95] “There are many who believe…that the public domain of free information…has been eroding steadily since the enactment of the first U.S. copyright statute in 1790.”[96] Publishers have responded, in due course, noting the importance of incentives to create and disseminate works, the essential role of revenue in allowing distribution of scholarly writing—and revenue from academics, in particular, for works only of interest to that population.[97] The technological advances of recent decades which, in a sense, increase access, also for publishers create new risks; “[m]ore vigorous efforts to protect American copyrights in creative products…have followed as a strategy of helping to restore balance.”[98]

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[1] This legal background paper was produced as part of the Digital Learning project by the Berkman Center for Internet and Society at Harvard Law School. Primary research and drafting was conducted by Harvard Law student Ashley Aull. This work is licensed under a Creative Commons Attribution/Non-Commercial/ShareAlike License, as explained further at .

[2] Stewart v. Abend, 495 U.S. 207, 236 (US 1990) (internal citations omitted).

[3] 9 F. Cas. 342 (D. Mass. 1841).

[4] Id. at 348.

[5] 17 U.S.C. §107 (West 2006).

[6] Congress specifically noted their intent to avoid per-se rules in the codification of fair use in a 1992 report: “The purpose of [this report] is to clarify the intent of Congress that there be no per se rule barring claims of fair use of published works. Instead, consistent with Congress's codification of fair use in the 1976 Copyright Act, the courts are to determine the affirmative defense of fair use of unpublished works on a case-by-case basis, after consideration of all the factors set forth in Section 107, title 17 United States Code, as well as any other factors a court may find relevant…Copyright legislation involves a balancing of many interests: the public, authors of unpublished works, and authors seeking to use portions of other authors' unpublished works. The goal of [this report] is to direct the courts to strike the correct balance on the facts before it, free from any per se rules.” H.R. Rep. 102-836, 1992 U.S.C.C.A.N. 2553, 2553-54.

[7] See generally William W. Fisher III, “Reconstructing the Fair Use Doctrine,” 101 Harv. L. Rev. 1661 (June, 1988).

[8] Campbell v Acuff-Rose Music, Inc., 510 U.S. 569, 578-81 (1994). Though transfer between media—as, say, making an online copy of a print source—typically does not count as “transformative,” the Ninth Circuit recognizes an exception where the media-transferred copy serves an “entirely different function.” Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2003). This holding, as with Nunez v. Caribbean Int’l News Corp., 235 F.3d 18 (1st Cir. 2000) (holding a modeling photograph “transformed” in its use for news media), might be seen as justifying leeway granted to scholars incorporating sources in new academic or intellectual contexts. But cf. frustrating experiences of academics seeking permission to use “new media” sources for their academic works, infra.

[9] Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1984). See also A&M Records v. Napster, Inc., 239 F.3d 1004, 1015 (9th Cir. 2001) (representing an extreme example of equating potential but un-actualized profit with commercial use). Many academic critics of assessment of harm caused by lost licensing fees complain that this analysis, as it applies to fair use, is circular, insofar as publishers—in cases determining whether academics must pay licensing fees for use of works—can show harm by noting that they did not receive licensing fees.

[10] And, of course, one might strain to find a situation in which educators would use content without benefiting from it somehow.

[11] Harper & Row, 471 U.S. at 563.

[12] Id. See also Meeropol v. Fawcett, 560 F.2d 1061 (2d Cir. 1977) (discussed infra).

[13] Compare the Guidelines for Classroom Copying, infra, Section I.C.

[14] Harper & Row, 471 U.S. at 539. See also Kelly, 336 F.3d at 811.

[15] Campbell, 510 U.S. at 569.

[16] Sony Corp. of America v. Universal City Studios Inc., 464 U.S. 417 (1984).

[17] Harper & Row, 511 U.S. at 569; Campbell, 510 U.S. at 594.

[18] Greenberg v. National Geographic Society, 1999 U.S. Dist LEXIS 13874, Case No. 97-3924-CIV (S.D. Fl. 1999), is a typically complicated application of this commercial/non-commercial distinction. A photographer successfully sued National Geographic for having without authorization incorporated—via verbatim and near-verbatim sketches—his underwater photographs into an educational game. Rejecting National Geographic’s defense of fair use, the court noted that the product, albeit educational, was marketed not as a classroom tool but a “toy,” which used without transforming the heart of plaintiff’s photographs within what the court considered a “potential market” for the photographs.

[19] See United States Copyright Office, Circular 21: Reproduction of Copyrighted Works by Educators and Librarians (1995). Groups were unable to come to agreement over Guidelines for Multimedia Uses.

[20] See generally Kenneth D. Crews, “The Law of Fair Use and the Illusion of Fair-Use Guidelines,” 62 Ohio State L.J. 599 (2001); Dwayne K. Butler, “CONFU-sed: Security, Safe Harbors, and Fair Use Guidelines,” Journal of the American Society for Information Science 50(14): 1308-12 (1999). Mary Levering, speaking for the Copyright Office which supports the Guidelines, emphasizes that the Guidelines are considered only a minimum application of fair use and as a practical matter make fair use easier to rely upon by more individuals assured of a practical “safe harbor” within the Guidelines’ bounds. Mary Levering, “What’s Right About Fair-Use Guidelines for the Academic Community?” Journal of the American Society for Information Science 50(14): 1313-1319 (1999). Responding to Levering in the same publication, Kenneth Frazier has argued that the Guidelines “set the stage for a more restrictive and expensive system of scholarly and research communication.” “What’s Wrong With Fair Use Guidelines for the Academic Community?” Journal of the American Society for Information Science 50(14): 1320-23 (1999).

[21] Allowing copying of complete works only if they are under 2500 words and allowing copying of portions of longer works limited to the lesser of 1,000 words or 10%. Copying of up to 500 words is always permissible.

[22] The photocopying must be at the “instance and inspiration of the individual teacher,” with a time span between the decision to use a work and the actual use to be “so close in time that it would be unreasonable to expect a timely reply to a request for permission.”

[23] With the exception of works contained in newspapers and news periodicals, a single teacher may only engage in up to nine instances of non-authorized copying per course. Further limitations restrict repeated reliance on one volume or author’s work.

[24] Letter from Professor Francis A. Allen to Rep. Robert W. Kastenmeier (May 25, 1976), reprinted in H. Tseng, New Copyright U.S.A. 402 (1979).

[25] See infra, discussion of the Princeton University Press v. Michigan Document Services and Basic Books v. Kinko’s cases. Though Kenneth Crews minimizes their impact in the courts, noting—accurately—that the Guidelines generally are addressed after courts assess the four regular factors, their repeat appearance in judicial opinions would seem to grant them increasing authority and weight as against teachers nervous about violating them. Kenneth D. Crews, “The Law of Fair Use and the Illusion of Fair-Use Guidelines,” 62 Ohio State L.J. 599, 664 (2001).

[26] 1983-1984 Copyright L. Dec. (CCH) P25, 544 (S.D.N.Y. 1983) (stipulated order and final judgment pursuant to settlement agreement between publishers and named defendant copy shop). The NYU settlement is unpublished, but reprinted, in part, in Eric D. Brandfonbrener, “Fair Use and University Photocopying: Addison-Wesley Publishing v. New York University” 19 U. Mich J.L. Reform 669.

[27] One professor noted: “NYU has a phenomenally restrictive fair use policy…[though] [i]t certainly has not been as restrictive as other places I’ve taught. NYU’s policy is that it’s fair use is [sic] if a student is in your office and you think of something they should read and you take a book off the shelf and take it down the hall—anything more premeditated than that must go through copyright clearance….Most professors don’t actually abide by that policy, because it gets in our way of dealing with our students. What it means is if I’m ever sued, NYU won’t lift a finger.” Professor Clay Shirky, quoted in quoted in Marjorie Heins & Tricia Beckles, Will Fair Use Survive? Free Expression in the Age of Copyright Control 26-27 (2005).

[28] Brandfonbrener, supra, at 672.

[29] See infra, discussion of Princeton University Press v. Michigan Document Services and Basic Books v. Kinko’s.

[30] Bernard Zidar, “Fair Use and the Code of the Schoolyard: Can Copyshops Compile Coursepacks Consistent with Copyright?” 46 Emory L.J. 1363, 1386 (Summer 1997). For a discussion of a hypothetical case, such as NYU, and how it would be actually treated in a court, see Samuel E. Trosow, “When is a Use a Fair Use? University Liability for Educational Copying,” I Libraries and the Academy 47-57 (2001).

[31] Marc Lindsey, Copyright Law on Campus 27 (2003).

[32] See Joann Stevens, “The Multimedia Guidelines,” Journal of the American Society for Information Science 50(14): 1324-27 (noting that Howard County Community College does not allow an educator to convert one media format into another without permission, or transmit any audiovisual works without a license).

[33] Carol M. Silberberg, “Preserving Educational Fair Use in the Twenty-First Century,” 74 Southern California L. Rev. 617, 618. See also Judith L. Marley, “Guidelines Favoring Fair Use: An Analysis of Legal Interpretations Affecting Higher Education,” 25 Journal of Academic Librarianship 5:367 at 371; Kenneth D. Crews, “The Law of Fair Use and the Illusion of Fair-Use Guidelines,” 62 Ohio State L.J. 599, 611 (2001).

[34] Guidelines for Digital Images, Distance Learning, Educational Multimedia, Electronic Reserve Systems, Interlibrary Loan and Document Delivery, and Use of Computer Software in Libraries.

[35] The process additionally resulted in proposals for guidelines for digital images and “some aspects” of distance learning and a statement of scenarios dealing with computer software use. See The Conference on Fair Use: Final Report to the Commissioner on the Conclusion of the Conference on Fair Use 10 (Nov. 1998), available at (last accessed 7 February 2006).

[36] Conference on Fair Use, supra note 35, at 15.

[37] Id. at 18.

[38] Compare Meeropol, finding commercial exploitation of a scholarly work possibly determinative, to Rosemont and Williamson, explicitly rejecting commercialism as a reason to overlook scholarly purpose, infra.

[39] Compare Williams & Wilkins to Michigan Document Services, infra.

[40] Williams & Wilkins Co. v. United States, 203 Ct. Cl. 74 (Court of Claims 1973).

[41] But c.f. Encyclopedia Britannica v. Crooks, 542 F. Supp. 1156 (W.D.N.Y. 1982), infra, denying fair use for a similar non-profit educational use of taped television programs.

[42] Infra.

[43] Williams & Wilkins, 203 Ct. Cl. at 107.

[44] 464 U.S. 417 (1984).

[45] Courts applying Sony have declined to extend its ruling to “space-shifting” of electronic media files, see A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1019 (9th Cir. 2001), or “librarying” such recorded programs for educational institutions, see infra text accompanying notes 47-48.

[46] Similarly to the Guidelines for Classroom Copying, the Guidelines for Off-Air Videotaping lay down quantifiable standards for amounts of recording from television broadcasts which, to the parties involved in negotiation, comprised a minimum standard for fair use. See United States Copyright Office, Circular 21: Reproduction of Copyrighted Works by Educators and Librarians, 22 (Sept. 1995).

[47] 542 F. Supp. 1156 (W.D.N.Y. 1982).

[48] Cf. Williams & Wilkins.

[49] 99 F.3d 1381 (6th Cir. 1996).

[50] 758 F. Supp. 1522 (S.D.N.Y. 1991).

[51] Judge Ryan argued that the publishers succeeded in convincing the court that they were “entitled to permission fees…because they are losing permission fees.” For a highly critical analysis of this case and its impact on educational fair use, see Ann Bartow, “Educational Fair Use in Copyright: Reclaiming the Right to Photocopy Freely,” 60 U. Pitt. L. Rev. 149, 190 (Fall 1998).

[52] Whether professors consistently follow such guidelines is a different matter, however. As one professor notes: “I know the university is concerned about copyright issues. We can’t make course packs without sending for permission for every article, and so many professors I know run to the copy machine and make copies themselves, or to the few little shops that don’t require copyright. I have sought permissions from Art in America and different magazines, and they charge an arm and a leg, even for articles that I wrote!” Professor Carol Jacobsen, quoted in Marjorie Heins & Tricia Beckles, Will Fair Use Survive? Free Expression in the Age of Copyright Control 26 (2005).

[53] Adison Wesley v. Brown, 223 F. Supp. 219 (E.D.N.Y. 1963).

[54] 95 F. Supp. 2d 1081 (C.D. Cal. 1999).

[55] Folsom, 9 F. Cas. at 344. As early as 1896, even only abstractly addressing the idea of fair use, it was recognized that a later author of a Physiognomy textbook was privileged to rely on a predecessor’s work, so long as not to an excessive extent, or in order to unjustly rely upon another’s labor. Simms v. Stanton, 75 F. 6 (N.D. Cal. 1896). Many earlier cases addressing scholarly use of copyrighted material rely upon labor-based arguments to draw the line between acceptable and unacceptable uses. See e.g. Toksvig v. Bruce Publishing, 181 F.2d 64 (7th Cir. 1950), rejecting fair use where a defendant biographer of Hans Christian Andersen, who could not read Danish, relied upon an earlier, Danish-fluent biographer’s book for access to Danish sources. These labor-based arguments, though perhaps still appealing to some, likely would have little sway in a modern court after Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340 (1991), in which the Supreme Court explicitly rejected “sweat of the brow”-based arguments about copyright. Arguably, market value has simply replaced labor-based intrinsic value as a measure in copyright disputes.

[56] 792 F. Supp. 132 (D. Mass. 1992).

[57] 60 U.S.P.Q.2d 1723 (S.D.N.Y. 2001).

[58] 803 F.2d 1253 (2d Cir. 1986).

[59] 645 F.2d 80 (1st Cir. 1981).

[60] Cf. Harper & Row.

[61] See Marcus v. Rowley, 695 F.2d 1171 (9th Cir. 1983).

[62] Craft v. Kobler, 667 F. Supp. 120, 128 (S.D.N.Y. 1987).

[63] Id.

[64] 560 F.2d at 1061.

[65] 953 F.2d 731 (2d Cir. 1991).

[66] Id. at 733. The concurrence also noted that the biographer had been a friend of the subject. Id. at 742.

[67] A sham corporation, incorporated by notoriously and aggressively media-shy Howard Hughes, bought the rights to articles that had been heavily relied upon in a to-be-published biography of Hughes. The sham corporation then sued for infringement of those articles, seeking to enjoin the publication of the biography.

[68] Rosemont Enterprises v. Random House, Inc., 366 F.2d 303 (2d Cir. 1966). The concurring opinion, likely articulating that which had motivated the majority as well, heavily emphasized the plaintiffs unclean hands in bringing suit to suppress speech.

[69] 458 F. Supp. 65 (S.D.N.Y. 1978)

[70] 4 F. Supp. 2d 701 (E.D. Mich. 1996).

[71] “Documentary Filmmakers’ Statement of Best Practices in Fair Use,” available at (last accessed 6 February 2006).

[72] For background information about the genesis of the report and underlying research, see “Docu Makers Rallying for Fair Use of Fair Use,” The Hollywood , available at (last accessed 6 February 2006).

[73] Verner W. Clapp, Copyright—A Librarian’s View 1 (1968).

[74] See Association of American Publishers and Author’s League of America, Photocopying by Academic, Public and Nonprofit Research Libraries (May 1978).

[75] For a comprehensive review of copyright law, and particularly fair use, affecting libraries, see Laura N. Gassaway & Sarah K. Wiant, Libraries and Copyright: A Guide to Copyright Law in the 1990s (1994). See also Arlene Bielefield & Lawrence Cheeseman, Libraries and Copyright Law (1993).

[76] See Bielefield & Cheeseman, supra note 77 at 64-65 (suggesting such practices in order to limit possible liabilities).

[77] See generally Kenneth D. Crews, Copyright Policies at American Research Universities: Balancing Information Needs and Legal Limits (1990); Kenneth D. Crews, University Copyright Policies in ARL Libraries (1987).

[78] For an exhaustive analysis of university copyright policies and their effects, see Crews, Copyright Policies, supra note 79; Kenneth D. Crews, Copyright, Fair Use, and the Challenge for Universities (1993).

[79] Heins & Beckles, supra note 52 at 55.

[80] “Publishers have generally declined to print imagery, diagrams, and other nonverbal communication structures without obtaining permissions and paying fees. Even the Association of American University Presses extends no fair use waiver of permission to ‘maps, charts, tables, drawings, or other illustrative materials, in whatever form they may be reproduced.’” John Shelton Lawrence, “Copyright Law, Fair Use, and the Academy: An Introduction,” Fair Use and Free Inquiry 12 (1989).

[81] See Carl Belz, “Unwriting the Story of Rock,” Fair Use and Free Inquiry: Copyright Law and the New Media 38 (1989). Though rare, however, it may be possible for individual authors to convince publishers of their own fair use policies pertaining to quotation. See Gerland Mast, “Fair Use and Popular Song Lyrics: A Note,” Fair Use and Free Inquiry: Copyright Law and the New Media 47 (1989).

[82] Heins & Beckles, supra note 52, at 5-6.

[83] See id. at 29-36.

[84] See id. at 48-51 (providing examples of works and art displays abandoned because of lack of permission on the part of artists’ estates).

[85] See John Shelton Lawrence, “Donald Duck v. Chilean Socialism: A Fair Use Exchange,” Fair Use and Free Inquiry: Copyright Law and the New Media, 53 (1999).

[86] Id. at 68-69.

[87] See William Stott, “Other People’s Images: A Case History,” Fair Use and Free Inquiry: Copyright Law and the New Media 72 (1989).

[88] See Gerald Mast, “Film Study and Copyright Law,” Fair Use and Free Inquiry: Copyright Law and the New Media, 83 (1989).

[89] See Douglas Kellner, “Television Research and Fair Use,” Fair Use and Free Inquiry: Copyright Law and the New Media 148 (1989).

[90] Attorney Harry N. Rosenfield, as quoted in “The Copyright Controversy and Education,” Educational Research Service Publication (1975).

[91] Heins & Beckles, supra note 52, at ii.

[92] Gerald J. Sophar and Laurence B. Heillprin, in a rare, empirical study of publisher-user conflicts over use, recognize that the educational fair use problem may be exacerbated by a lack of unbiased studies of the underlying problem and practices. “The kinds of documents most needed to prevent further deterioration of the social, economic and legal relationship between the publisher and user are clear, non-self-serving studies, based on the recognition of two inescapable facts: (1) that the author and publisher, when all is said and done, will still have their essential bundle of rights and (2) the user will continue to violate these rights with comparative impunity.” Gerald J. Sophar & Laurence B. Heilprin, “The Determination of Legal Facts and Economic Guidelines with Respect to the Dissemination of Scientific and Educational Information as It is Affected by Copyright—A Status Report” (Dec. 1967).

[93] See, e.g., Marley, “Guidelines Favoring Fair Use,” supra note 33.

[94] See Peter J. Wasilko, Workshop and Analysis: Access to Intellectual Property and Its Fair Use for Research and Teaching: Copyright in the Digital Age 14 (“Academic publishing is controlled by a small number of publishers, many overseas who grow fat by reselling us research that we gave away for free in the hopes of achieving tenure”).

[95] See, e.g., Christine L. Sundt, “Testing the Limits: The CONFU Digital-Images and Multimedia Guidelines and Their Consequences for Libraries and Educators,” Journal of the American Society for Information Science 50(14): 1328-36 (1999). Though such arguments seem to have been buried in precedent, debate in fact raged for some time whether the newly-added prohibition against “copying” in the 1909 Copyright Act was meant in fact to prohibit small-scale, non-commercial copying, or merely copying from “plates” at a level that would amount to competitive distribution of works. See Brief Amicus Curiae of the Association of Research Libraries, Medical Library Association and American Association of Law Libraries in Williams & Wilkins v. United States, reprinted in Drexel Library Quarterly 8:4, Appendix A 68 (October 1972). Cf. Brief Amicus Curiae of the Author’s League of America, reprinted in Drexel Library Quarterly 8:4, Appendix B (October 1972).

[96] Marc Lindsey, Copyright Law on Campus 7 (2003).

[97] Colin Day, “The Economics of Publishing: The Consequences of Library and Research Copying,” Journal of the American Society for Information Science 50(14): 1346-49 (1999).

[98] John Shelton Lawrence, “Copyright Law, Fair Use, and the Academy: An Introduction,” supra note 82.

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