the library’s systematically routing journals to Texaco scientists so that each person could build a mini-library of photocopied articles. It called this
“archival”—i.e., done for the primary purpose of providing numerous Texaco scientists each with his or her own copy of each article without Texaco having to purchase another additional journal subscriptions. The photocopying “merely supersede[s] the objects of the original creation” [quoting Campbell and Folsom v. Marsh] and tilts the first fair use factor against Texaco.[1]
Weighing its words carefully, the court continued
We do not mean to suggest that no instance of archival copying would be fair use, but the first factor tilts against Texaco in this case because the making of copies to be placed on the shelf in Chickering’s office is part of a systematic process of encouraging employee researchers to copy articles so as to multiply available copies while avoiding payment.[2]
As for the character of the use, the appeals court agreed with the district court that the copying was not transformative. Chickering had merely made copies. As the court explained, the transformative use concept is important when considering the character of the use, because a transformative use creates something new, thereby contributing to copyright’s goal of promoting the arts and sciences.[3]
The second fair use factor, you will recall, examines the nature of the work copied. Both the district and appeals courts characterized the articles in the Journal of Catalysis as factual in nature, and concluded that the second factor favored Texaco. As for the third factor—the amount used—
- ↑ Id. at 919–20.
- ↑ Id. at 920.
- ↑ Id. at 922–24.
Our concern here is that the [trial] court let the for-profit nature of Texaco’s activity weigh against Texaco without differentiating between a direct commercial use and the more indirect relation to commercial activity that occurred here. Texaco was not gaining direct or immediate commercial advantage from the photocopying at issue in this case, i.e. Texaco’s profits, revenues, and overall commercial performance were not tied to making copies of eight Catalysis articles for Chickering. … Rather, Texaco’s photocopying served, at most, to facilitate Chickering’s research, which in turn might have led to the development of new products and technology that could have improved Texaco’s commercial performance.
Texaco, 60 F.3d at 921.
