P company is a major publisher of medical journals and books.
The National Institute of Health (NIH, D) subscribes to some of the journals published by P. They get two subscriptions to each of P's journals in the suit.
Demand by NIH is usually not met by the subscriptions, so the NIH library runs a photocopy service.
The library policy is that only a single copy of a journal article will be made, and each request is limited to 40-50 pages.
Also, requests are limited to only a single article from a journal issue, though exceptions are made.
The National Library of Medicine (NLM) is a repository of much of the world's medical literature. They also run a photocopy service.
They will only photocopy one article per request and will not photocopy an entire journal issue.
Also, they will not fill requests for articles from any of the 104 journals on the "widely-available list." The four journals in this suit are on this list.
P sued NIH/NLM, US by proxy, for copyright infringement.
Lower court found for P, infringement.
U.S. Court of Claims found for D, fair use applied.
SCOTUS affirmed 4-4.
Is photocopying done for research a violation of copyright law and inconsistent with the doctrine of fair use?
Photocopying done for research is not a violation of copyright law and falls under the fair use doctrine.
There are four factors to consider when determining whether use is fair use…
The purpose and character of the use
The nature of the copyrighted work
The amount and substantiality of the material used in relation to the copyrighted work as a whole
The effect of the use on a copyright owner's potential market for and value of his work
The fundamental purpose of copyright law is to benefit the public; reward to the owner of a copyright is a secondary consideration.
The suggestion that the copying of an entire copyrighted work can never be fair use is an overbroad generalization.
Handwritten or typed copies are one such exception.
Three main reasons for decision…
P has not shown that it is being harmed substantially by these specific practices.
The libraries have strict limitations which keep the duplication within appropriate confines.
Indeed, copying has been done ever since the 1909 Act was adopted; there was a gentlemen's agreement between publishes and libraries allowing the libraries to make a copy to send to another library instead of loaning the book.
D's expert testified that the photocopying here had not damaged P and may actually have helped it. P's business has been growing during the time of heaviest copying. P never rebutted this testimony with hard evidence. Instead P relied on a causal argument: if more copying is done, fewer subscriptions will be ordered.
If photocopying were forbidden, the researchers, instead of ordering more subscriptions, might expend extra time in note-taking or waiting their turn for the original. This does not benefit P, only hurts science.
Medicine and medical research will be injured by holding these particular practices to be an infringement.
D uses the articles not for profit but for scientific research. In general, the law gives copying for scientific purposes a wide scope.
Since the problem of accommodating interests of scientists with those of publishers calls fundamentally for legislative solution or guidance, the courts should not place such a risk of harm on science.
The policies in place to limit copying were riddled with exceptions.
The majority's finding that there was no economic harm to P was false.
The trial judge found it reasonable to infer that unauthorized copying led to some loss in revenue for P. In the appellate setting, the court should accept these findings as presumptively correct.
The majority relies on the fact that P's total profits have grown faster than the GNP; this is irrelevant since the journals in question here are only a small part of P's business.
Proof of actual damages is not required, and the defense of fair use may be overcome where potential injury is shown.
Handcopying cannot be analogized to photocopying; photocopying has a much larger aggregate effect on P and the market.
P's representative testified that a number of journals have failed, and that he believed that photocopying was a cause.
The majority is right that medical science would be hurt if photocopying were discontinued; however, a judgment for P would not necessarily lead to this result.
It is fair to give P a reasonable royalty for the right to photocopy its journals. The cost would be relatively small.
In order to promote science, not only must the authors be induced to write new works, but also publishers must be induced to disseminate those works to the public.