the course e-reserves practices constituted copyright infringement.[1] For many of those excerpts, the publishers failed to make licenses for electronic copies available. The Eleventh Circuit found this significant in weighing the fourth factor:
… if a copyright holder has not made a license available to use a particular work in a particular manner, the inference is that the author or publisher did not think that there would be enough such use to bother making a license available. In such a case, there is little damage to the publisher’s market when someone makes use of the work in that way without obtaining a license, and hence the fourth factor should generally weigh in favor of fair use.[2]
In so concluding, the Eleventh Circuit framed its analysis in terms of the incentive effects of copyright; in this case, whether allowing the use would “frustrate the purposes of copyright by materially impairing Defendant’s incentive to publish the work.”[3] The Supreme Court has endorsed that approach:
… [t]he 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.[4]
- ↑ Note that in Cambridge Univ. Press v. Patton, the district court found fair use even where the excerpts were distributed with no control over the physical original nor any limitation on the number of students who could view the copy at any given time, making the market effect potentially more severe than what would be experienced with CDL. 769 F.3d 1232 (11th Cir. 2014).
- ↑ Id. at 1277. Untapped markets have been cited as persuasive evidence of no or minimal market harm in other cases as well. Sony Corp of Am. v. Universal City Studios, Inc., 464 U.S. 417, 451–55 (1984) (no market for home video recording for time-shifting); Kelly v. Arriba Soft Corp., 336 F. 3d 811, 821–22 (9th Cir. 2002); Field v. Google Inc., 412 F. Supp. 2d 1106, 1122 (D. Nev. 2006) (no evidence a “market for licensing search engines to access Web pages through ‘cached’ links”). See also Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 592 (1994) (market for licensing critical commentary of copyrighted work is unlikely).
- ↑ Id. at 1276.
- ↑ Sony Corp. of Am., 464 U.S. at 450–51. For large numbers of books in research libraries, the incentives of U.S. copyright protection played no role in their creation. Millions were in the public domain immediately upon publication until that public domain status was rescinded many years later under the Uruguay Round Agreements Act. 17 U.S.C. § 104A (2018).
