Campbell case made clear that the Sony presumption was of greatest applicability in the context of verbatim copying, thus giving greater leeway to commercial but transformative uses. For the most part, "mere reproduction" has fared rather badly in court under the Copyright Act, even in actual and ostensible educational contexts. 239 Courts have denied fair use, 240 for example, to: a teacher's reproduction, in text materials, of the copyrighted material of another teacher; 241 a school system's practice of taping educational broadcasts for later use in classrooms;22 and off-campus copy shops' manufacture teachers' specifications - per and distribution of photocopies of anthologies containing portions of textbooks and periodicals.243 239 Congress has expressly declined to enact a specific exemption from copyright liability for educational uses. See HOUSE REPORT at 66-67, reprinted in 1976 U.S.C.C.A.N. 5680. Cases holding reproduction of an entire work as a fair use are few. In Haberman v. Hustler Magazine, Inc., 626 F. Supp. 201, 212 (D. Mass. 1986) a magazine's reproduction of an artist's post cards was found to be fair use because there was no market harm. 240 The consequences of denying a fair use defense in certain legitimate educational contexts are far smaller than in the commercial context. Under the provisions of Section 504(c)(2), statutory damages (damages that may be imposed without proof of the quantum of actual harm to the copyright owner) may not be imposed against a nonprofit educational institution, its employees or agents when acting within the scope of their employment in respect of copying that they performed with reasonably based grounds for believing the copying was fair use. 17 U.S.C. § 504(c)(2) (1988). 241 242 Marcus v. Rowley, 695 F.2d 1171 (9th Cir. 1983). Encyclopaedia Britannica Educ. Corp. v. Crooks, 558 F. Supp. 1247 (W.D.N.Y. 1983). 243 Basic Books, Inc. v. Kinko's Graphics Corp., 758 F. Supp. 1522 (S.D.N.Y. THE NATURE OF THE COPYRIGHTED WORK 244 245 This second factor tends to play a less significant role than the first in fair use litigation. Courts have held that this factor weighs in the copyright owner's favor when works of fiction and unpublished works" are copied, and in the defendant's favor when factual works24% and published works247 are copied. In the NII context, it is quite possible that a court might evaluate whether a work in digital form should be treated differently from a work in a conventional print or other analog form for the purposes of evaluating this factor. THE AMOUNT AND SUBSTANTIALITY OF THE PORTION USED This is probably the least important factor, given that the taking of even a small amount -- if it is considered the "heart" of the work can lead to a finding of Indeed, the most frequently cited copyright treatise devotes only four sentences to its discussion: infringement.248 The third factor listed in § 107 is "the 244 See Twin Peaks Prods., Inc. v. Publications Int'l, Ltd., 996 F.2d 1366, 1376 (2d Cir. 1993). 245 See New Era Publications Int'l, ApS v. Henry Holt & Co., 873 F.2d 576 (2d Cir. 1989), cert. denied, 493 U.S. 1094 (1990). 246 See National Rifle Ass'n v. Handgun Control Fed'n, 15 F.3d 559, 562 (6th Cir. 1994). 247 See New Era Publications Int'l, ApS v. Carol Publishing Group, 904 F.2d 152, 157 (2d Cir. 1990). 248 See Harper & Row, supra note 34, at 569 (taking of some 300 words held infringing). copying that constitutes infringement], and THE ECONOMIC EFFECT OF THE USE Courts have repeatedly identified this as the most significant of the four factors.250 It is important to recall that it weighs against a defendant not only when a current market exists for a particular use, but also when a potential market could be exploited by the copyright owner. Harm in either market will, in most instances, render a use unfair.2 251 The Supreme Court's decisions demonstrate the significant weight given this factor: In Sony, the absence of any market for home taping licenses, combined with the testimony of some copyright owners that they were indifferent to home copying, led the Court to conclude that there was no cognizable harm.252 249 250 251 3 NIMMER ON COPYRIGHT § 13.05 [A] (1993) (footnotes omitted). Cf. American Geophysical Union v. Texaco, Inc., 37 F.3d 881, 895 (2d Cir. 1994) ("analysis under the fourth factor must focus on the effect of [defendant's] photocopying upon the potential market for or value of these individual articles"); Salinger v. Random House, Inc., 811 F.2d 90, 99 (2d Cir.), cert. denied, 484 U.S. 890 (1987) (protecting potential market for author's letters notwithstanding author's profound disinclination ever to publish them). 252 See Sony, supra note 22, at 443-47 (plaintiffs "failed to carry their burden with regard to [the harm of] time-shifting.... Harm from time-shifting is speculative and, at best, minimal"). ་་ In Harper & Row, the Court accepted the argument that the defendant's "scooping" of "Time' magazine's right to make the first serial publication of President Ford's memoirs, which caused cancellation of the magazine's contract with Harper & Row, caused harm to the copyright owner. 253 In Stewart v. Abend, performances of a movie palpably harmed the economic interests of the owner of the copyright in the underlying short story. 254 "transformative" - - In Campbell, the Court because the parody was rejected the court of appeals' determination that the commercial purpose of the parody required the parodist to overcome Sony's presumption of market harm.255 It is reasonable to expect that courts would approach claims of fair use in the context of the NII just as they do in "traditional" environments. Commercial uses that involve no "transformation" by users and harm actual or potential markets will likely always be infringing, while nonprofit educational transformative uses will likely often be fair. Between these extremes, courts will have to engage in the same type of fact-intensive analysis that typifies fair use litigation and frustrates those who seek "bright lines" clearly separating the lawful from the unlawful.2 256 256 See Campbell, supra note 229, at 1173. The inability of our common law system to provide guidance covering every possible permutation of behavior is not necessarily a weakness. By permitting courts to reach decisions on a case-by-case basis, our system permits both necessary gap-filling and jurisprudential evolution without requiring repeated pleas to Congress for additional elaboration. Courts in two cases decided to date concerning the unauthorized "uploading" and "downloading" of copyrighted materials to and from bulletin board services have held that such uses were not fair uses.257 In the Playboy case, the court characterized the issue as whether "unrestricted and widespread conduct of the sort engaged in by the defendant bulletin board system operator (whether in fact engaged in by the defendant or others) would result in a substantially adverse impact on the potential market for or value of [Playboy's copyrighted photographs],"258 and determined that it would. This, in turn, led the court to conclude that there was market harm and, thus, infringement. In the MAPHIA case, 259 the court found that Sega established a prima facie case of direct and contributory infringement in the operation of the defendant's bulletin board system (where Sega's copyrighted video game programs were uploaded and downloaded). In issuing a preliminary injunction, the court found that each of the four factors weighed against a finding of fair use, but found that the fourth factor, in particular, weighed "heavily" against such a finding: Based on Defendants' own statement that 45,000 260 257 See supra notes 210-16 and accompanying text (discussing Playboy and MAPHIA decisions). |