Through the copyright looking glass

It is getting both monotonous and annoying to write repeatedly about badly reasoned court decisions in the area of copyright.  Unfortunately, when they directly impact higher education, we cannot ignore these pernicious errors by our federal courts.

Earlier this month, a district court in Michigan handed down such a decision in yet another “course pack” case in that state.  There was a twist this time, however, which the court chose to ignore.  In this case, brought by Blackwell, Elsevier, Oxford, Sage and John Wiley publishers, the copy shop received photocopied course packs from professors, than handed them to individual students who made copies for their own use.  Amazingly, the court found that this practice constituted direct infringement by the copy shop of the copyright holder’s exclusive rights of reproduction and distribution.

The problem, of course, is that no employee of the copy shop took any action that actually implicated either of these rights.  The shop, owned by Excel Research Group, actually made no copies of any of the material over which the suit was brought.   Judge Avern Cohn contemptuously dismisses this point, asserting that “the fact that the students push a button on a copier in the manner described is of no significance.”  But such facts are exactly what are significant in legal reasoning, and the judge offers no principled reason for ignoring this fact other than his apparent desire to see the plaintiffs win their case.

Even more troubling was the treatment of the distribution right, which the court said was infringed by the shop handing out the course packs it was given.  For this to be true, those copies would have to be unlawfully made, so that the doctrine of first sale did not apply to them.  But Judge Cohn made no such finding; he simply noted that the packs were brought to the shop by professors who assigned the readings to their students.  Again, the judge seems disinterested in either the details of the law or the facts before him; he simply appears anxious to arrive at the conclusion he thinks is desirable.

This startlingly bad reasoning serves a purpose for both the court and the publishers, of course.  It is the only way, albeit one that requires ignoring both law and facts, to hold the copy shop liable without also saying that the copies made by faculty members and students were themselves infringing.  The shop’s liability, if any, is clearly contributory to direct infringement by students and their instructors.  But the court did not want to hold this way, and I am sure the publishers did not ask them to.  To find direct infringement would be so obviously to attack the basic necessities of education, and would so clearly contravene the intention of Congress when they included “multiple copies for classroom use” in the list of examples of fair use, that it was too politically dangerous.  And publishers would fear, no doubt, a decision that would suggest to their customers that their products truly are unusable. So rather than find direct infringement by teachers and students so as to hold the copy shop indirectly liable, the court rendered an incoherent decision in which Excel is held liable for directly infringing copyright without making a single copy.

There is some excellent analysis of this decision by Peter Hirtle here and by Shourin Sen here.

The result of this case is similar to what we have been decrying for some time now — a creeping expansion of the exclusive rights in copyright way beyond the boundaries Congress set for them.  Here that expansion has been abeted by a judge who apparently sees his role as a kind of knight-errant, righting every wrong he perceives, regardless of the legal foundation.