were making coursepacks for college students;[1] one of the lawsuits reportedly settled for $40,000.[2]
On first blush, looking at all of these cases may give those who work in the private sector more shivers than actors performing Hair in Central Park in February. But remember that every fact counts in a fair use analysis, and no two cases are the same.
Take, for example, the status of the defendants. In the lawsuits against the pharmaceutical companies, the defendants were corporations that were not in the business of directly profiting from making copies. These lawsuits resulted in settlements, not in court decisions. By contrast, the other lawsuits targeted for-profit document delivery companies and for-profit copyshops which directly profit from making copies of copyrighted works. The latter group—companies whose business is making money from making copies—are on much thinner ice than pharmaceutical or oil companies or other businesses that do nor directly profit from copying copyrighted works.
So what should we make of Texaco? The court of appeals did not say that all copying in for-profit companies is infringing. The Association of American Publishers and the Copyright Clearance Center might believe—and they also may want librarians to believe—that all corporate copying requires permission or payment of royalties. But that is not what the court wrote, and it is not how fair use is applied. The appeals court noted that its decision was limited to the facts before it:
Our ruling does not consider photocopying for personal use by an individual. Our ruling is confined to the institutional, systematic, archival multiplication of copies revealed by the record—the precise copying that the parties stipulated should be the basis for the District Court’s decision now on appeal and for which licenses are in fact available.[3]
The Bottom Line: If you have a situation identical to that in Texaco—(1) systematic and extensive routing of journals to corporate researchers; (2) who make copies of entire articles; (3) without even reading them or otherwise using them for any purpose: and (4) merely file them away for
