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A Fair Use Case-Study: Multiple Copies for Classroom Use 501
III
In the context of nontransformative uses, at least, and except insofar as they touch
on the fourth factor, the other statutory factors seem considerably less important. We
shall deal with them relatively briefly.
A
As to “the purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes,” 17 U.S.C. § 107(1), we have
already explained our reasons for concluding that the challenged use is of a commercial
nature.
The defendants argue that the copying at issue here would be considered
“nonprofit educational” if done by the students or professors themselves. The defendants
also note that they can profitably produce multiple copies for less than it would cost the
professors or the students to make the same number of copies. Most of the copyshops
with which the defendants compete have been paying permission fees, however, and we
assume that these shops too can perform the copying on a more cost-effective basis than
the professors or students can. This strikes us as a more significant datum than the ability
of a black market copyshop to beat the do-it-yourself cost.
As to the proposition that it would be fair use for the students or professors to make
their own copies, the issue is by no means free from doubt. We need not decide this
question, however, for the fact is that the copying complained of here was performed on
a profit-making basis by a commercial enterprise. And “[t]he courts have . . . properly
rejected attempts by for-profit users to stand in the shoes of their customers making
nonprofit or noncommercial uses.” Patry, Fair Use in Copyright Law, at 420 n. 34. As
the House Judiciary Committee stated in its report on the 1976 legislation,
“[I]t would not be possible for a non-profit institution, by means of
contractual arrangements with a commercial copying enterprise, to
authorize the enterprise to carry out copying and distribution functions
that would be exempt if conducted by the non-profit institution itself.”
It should be noted, finally, that the degree to which the challenged use has
transformed the original copyrighted works—another element in the first statutory
factor—is virtually indiscernible. If you make verbatim copies of 95 pages of a 316-page
book, you have not transformed the 95 pages very much—even if you juxtapose them to
excerpts from other works and package everything conveniently. This kind of mechanical
“transformation” bears little resemblance to the creative metamorphosis accomplished
by the parodists in the Campbell case. . . .
V
We take as our text for the concluding part of this discussion of fair use Justice
Stewart’s well-known exposition of the correct approach to “ambiguities” in the
copyright law:
“The immediate effect of our copyright law is to secure a fair return for
an ‘author’s’ creative labor. But the ultimate aim is, by this incentive, to
stimulate artistic creativity for the general public good. ‘The sole interest
of the United States and the primary object in conferring the monopoly,’
this Court has said, ‘lie in the general benefits derived by the public from
the labors of authors.’ . . . When technological change has rendered its
literal terms ambiguous, the Copyright Act must be construed in light of