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510 LIMITATIONS ON EXCLUSIVE RIGHTS: FAIR USE
compilation would be devalued by defendant’s production of coursepacks; that is, there
is no evidence that such a compilation would earn less because of the existence of
coursepacks. In Campbell, for instance, the Court declined to find market harm based
solely on undisputed evidence that the unauthorized user created a profitable product—
rap-parody—from the original; the Court noted that the rap-parody version was not
shown to affect the market for an authorized, non-parodic rap version of the original. It
might at first appear that the publishers are, by definition, able to design and market a
collection of excerpts and that the existence of other, unauthorized, collections will
necessarily replace some of the authorized copies and thereby leach profits that the
publishers could otherwise capture. However, neither the facts on this record nor any
case law support such a leap in logic.
The fact is that the plaintiffs are not able to create a market for the product that
MDS produces. To the extent that MDS serves a market at all, it is one created by the
individual professors who have determined which excerpts from which writers they wish
to comprise the required reading for a particular course. If the publishers decided to
create an anthology of excerpts from its copyrighted works on, for example, “The Black
Experience,” it would not fill the market niche created by Professor X who is interested
in very different materials. Indeed, the publishers do not claim to have lost an account
for customized materials with a specific professor because of a copyshop coursepack;
nor do they claim to be prepared to enter this highly-customized market. The argument
that the publishers seek to enter the derivative market of customized materials by
licensing MDS and other copyshops, who create such compilations, and that MDS’s
publication of unauthorized compilations interferes with their ability to obtain licensing
fees from other copyshops simply returns the publishers to their original circular
argument that they are entitled to permission fees, in part, because they are losing
permission fees. . . .
The majority opinion stresses the fact that Congress “initiated and supervised
negotiations among interested groups—groups that included authors, publishers, and
educators—over specific legislative language [and that m]ost of the language that
emerged was enacted into law or was made a part of the committee reports.” However,
what were not “enacted into law,” but only made a part of the conference committee
reports, are the Classroom Guidelines upon which the majority so heavily relies to decide
how the language enacted into law applies. Indisputably, the Classroom Guidelines
assure educators that nonprofit copying for educational purposes of “not more than 1,000
words” is fair use when “[t]he inspiration and decision to use the work and the moment
of its use for maximum teaching effectiveness are so close in time that it would be
unreasonable to expect a timely reply to a request for permission.” The Classroom
Guidelines “prohibit[ ] . . . [c]opying . . . used to create . . . anthologies, compilations or
collective works.” But, as the majority opinion acknowledges, that language did not
survive congressional debate and was not enacted into law.
Despite the well-settled rule that legislative history is irrelevant and inappropriate
to consider except to clarify an ambiguity in the text of a statute, the majority relies upon
the legislative history without identifying any ambiguity in the statute, but only because
“[t]he statutory factors are not models of clarity, . . . the fair use issue has long been a
particularly troublesome one . . ., [and other] courts have often turned to the legislative
history when considering fair use questions.” I wish to emphasize in the strongest terms
that it is entirely inappropriate to rely on the Copyright Act’s legislative history at all.
As Justice Scalia has observed, “The greatest defect of legislative history is its