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A Fair Use Case-Study: Multiple Copies for Classroom Use 491
slight, the fact that the coursepacks are “multiple copies for classroom use” preserves
MDS’s claim of “fair use.”
Further, the transformative value is slight but not nonexistent. The coursepack is
essentially a new product comprising selected portions of other works, and perfectly
customized to the classroom professor’s individualized purpose. A professor may select
precisely the materials that he feels are most instructive in the course, with constant
opportunity to alter the whole, from time-to-time, by altering the mix. Coursepacks are
particularly helpful in newly conceived interdisciplinary courses that draw small portions
from a number of traditional, established disciplines. The publishing industry does not
offer such highly customized and current materials, and indeed is not equipped to do so.
The other element of the first “fair use” factor is whether the purpose of the use is
commercial or nonprofit and educational. The “fact that a publication [is] commercial as
opposed to nonprofit is a separate factor that tends to weigh against a finding of fair use.”
Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 562 (1985). The
central inquiry “is not whether the sole motive of the use is monetary gain but whether
the user stands to profit from exploitation of the copyrighted material without paying the
customary price.” Id.
The coursepacks at issue are “used” at two levels. One “use,” MDS’s production
and sale of the coursepacks, is clearly a for-profit “use,” and one, the students’ use of the
coursepacks in the classroom, is entirely non-profit and educational. The publishers
argue that the only relevant “use” under the first factor in this suit against MDS is MDS’s
sale of the coursepacks to students, not the use of the purchased coursepacks in the
classroom. We disagree. Congress specifically mentioned “teaching (including multiple
copies for classroom use),” § 107 (emphasis added), as an illustration of a possible fair
use. The language of section 107 incorporates copying (implicit in “multiple copies”)
within the illustrative use of “teaching.” Congress specifically anticipated the use of
“multiple copies” for the purpose of “teaching”; we cannot examine the production of
multiple copies in a vacuum, ignoring their educational use. The copying in this case is
not a use unto itself; it is the mechanical component of the process that makes the
material available for classroom use. The language of the statute, “including multiple
copies for classroom use,” requires us to consider copying as an integral part of
“teaching.” Therefore, we consider both the mechanical production of the copies and the
classroom use of the excerpts in evaluating “the purpose and character of the use” and
its commercial or nonprofit educational nature.
Because Congress “eschewed a rigid, bright-line approach to fair use,” Sony, 464
U.S. at 448 n. 31, our mandate is to conduct “a sensitive balancing of interests,” id. at 455
n.40, considering all the circumstances. We must determine whether MDS stood “to profit
from exploitation of the copyrighted material without paying the customary price.” Harper
& Row, 471 U.S. at 562. In the context of this case, we find the undisputed fact that MDS
can produce “multiple copies for classroom use,” at a profit, for less than it would cost the
professors or students to produce them to be significant. The publishers declined at oral
argument to argue that the professors and students may not copy these excerpts and
assemble them privately for their own educational purposes. The professors and students,
who might otherwise copy the materials themselves, have assigned the task of copying to
a professional service that can perform the copying more efficiently. On these facts, the
for-profit provision of this service does not weigh against a finding of fair use. Here, MDS
obtains a profit by providing a service. MDS charges on a per-page basis, regardless of
content; MDS does not extract an extra fee for reproducing materials that are copyrighted.