cyckV4

494 LIMITATIONS ON EXCLUSIVE RIGHTS: FAIR USE
In Sony, the Court held:
A challenge to a noncommercial use of a copyrighted work requires
proof either that the particular use is harmful, or that if it should become
widespread, it would adversely affect the potential market for the copyrighted
work. . . . What is necessary is a showing by a preponderance of
the evidence that some meaningful likelihood of future harm exists. If
the intended use is for commercial gain, that likelihood may be
presumed. But if it is for a noncommercial purpose, the likelihood must
be demonstrated.
Accordingly, because we have determined that the use of the excerpts at issue in
the coursepacks is for nonprofit educational purposes, we do not apply a presumption of
market harm against MDS’s use.
Rather, it is the publishers’ burden to demonstrate at least a meaningful likelihood
that future harm to a potential market for the copyrighted works will occur. Works or uses
that creators of original works would “in general develop or license others to develop”
make up the market for potential derivative uses. Campbell, 114 S.Ct. at 1178. The
plaintiffs did not demonstrate that the coursepacks affected the market for the original
copyrighted works or the potential market for derivative works, such as published
anthologies, nor did they demonstrate any “meaningful likelihood of future harm,” to any
market. Rather, the plaintiffs limited their allegations and demonstrations of “market
effect” to evidence of lost permission fees resulting from defendants’ refusal to seek
permission and pay fees for the copying and selling of excerpts from copyrighted works.
Evidence of lost permission fees does not bear on market effect. The right to
permission fees is precisely what is at issue here. It is circular to argue that a use is unfair,
and a fee therefore required, on the basis that the publisher is otherwise deprived of a
fee. The publishers must demonstrate a likelihood that MDS’s use of the excerpts
replaces or affects the value of the copyrighted works, not just that MDS’s failure to pay
fees causes a loss of fees, to which the plaintiffs may or may not have been entitled in
the first instance. Given the uncontroverted fact that professors would not have assigned
the copyrighted works in the absence of available coursepack compilations of excerpts,
it appears that there is no damage to the market for the original work.
Photoreproductions of limited excerpts, even if bound, are poor substitutes for a
published work for any use beyond the precise scope of the course. For example, it is
unlikely that students who wish to build a personal library of books from their college
years for future reference will retain loosely bound photoreproduction coursepacks of
limited excerpts; unwieldy coursepacks may be inconvenient and unattractive to display
and may or may not contain the material sought later in life.
Moreover, the students who used the coursepacks were not a market for purchase
of the original works; the professors would not otherwise have required students to
purchase the original works. If it had any effect at all, use of the excerpted materials
enhanced the prospect that the original works might later be of interest to the student.
Students might purchase the copyrighted works when, for example, taking other courses
in the same discipline, conducting more extensive research into a subject “touched upon”
in an excerpt, or doing graduate work in a broader field to which the excerpted material
later appeared relevant and was recalled.
Therefore, we must conclude that there is no evidence of market effect and that the
fourth, and most important factor, weighs decisively in favor of “fair use.”