RE: Stan Gardner's Question

["John T. Mitchell" <jmitchell@xxxxxxxxxxxxxxxxxxx>]

Implicit in Marc Lindsey's response is that the conduct at issue here -
a "reproduction" regardless whether by making photocopies or digital
reproductions via e-mail - is the same.  That is, the copyright
implicated is the right of reproduction, and there is nothing inherent
in reproduction of X copies by e-mail to students that alters the fair
use analysis that would have been applied to making X photocopies to
hand out in class to those same students.

John

John T. Mitchell
Public Policy Director
Public Knowledge
www.publicknowledge.org


-----Original Message-----
From: lindseym@xxxxxxx [mailto:lindseym@xxxxxxx] 
Sent: Thursday, September 12, 2002 12:02 PM
To: digital-copyright@xxxxxxxxxxxxxx
Subject: Stan Gardner's Question

This is responding to Stan Gardner's question.Whether or not the
multiple
emails of an entire article for a classroom assignment qualifies as fair
use could be decided either way depending on what federal appellate
circuit
you're in. The Second Circuit (ruling in the American Geophysical Union
case) and the Sixth Circuit (ruling in the Michigan Document Services
case)
would tend to rule against this as fair use, I think. Let's look at the
four fair use factors: The purpose is educational and nonprofit so this
factor votes FOR fair use. The second factor, nature of the article
copied,
we don't know. If it's scientific or technical it votes FOR fair use. If
it's a purely fictional or dramatical article it votes AGAINST fair use.
The third factor is, how much of the original is copied. Because the
entire
article was copied, this votes AGAINST fair use. I believe the outcome
would be decided on the final factor, potential effect on the
author/publisher's commercial market for the article. If many classes in
many colleges did the same thing, the market for selling subscriptions
could potentially be affected adversely since students might otherwise
purchase a subscription to complete the assignment.

So I believe the scenario BARELY tips against fair use. But...if the
college is a state institution, it's only an ethical issue because state
institutions are immune from infringement suits.Sovereign Immunity,
folks.
For state colleges, it's time to consider what is ethical and
reasonable,
not what is legal liability.

Marc Lindsey
Copyright Specialist
Washington State University


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