PRINCETON UNIVERSITY PRESS v. MICHIGAN DOC., 99 F.3d 1381 (6th Cir. 1996)

Before: MARTIN, Chief Judge; MERRITT, KENNEDY, NELSON, RYAN, BOGGS, NORRIS, SUHRHEINRICH, SILER, BATCHELDER, DAUGHTREY, MOORE, and COLE, Circuit Judges.

NELSON, J., delivered the opinion of the court, in which KENNEDY, BOGGS, NORRIS, SUHRHEINRICH, SILER, BATCHELDER and COLE, JJ., joined. MARTIN, C. J. (pp. 23-25), MERRITT, J. (pp. 26-33), and RYAN, J. (pp. 34-64), delivered separate dissenting opinions, with Judge DAUGHTREY joining in Judge MERRITT'S and Judge RYAN'S dissents, and Judge MOORE joining in Judge MERRITT'S dissent

DAVID A. NELSON, Circuit Judge.

[1] This is a copyright infringement case. The corporate defendant, Michigan Document Services, Inc., is a commercial copy shop that reproduced substantial segments of copyrighted works of scholarship, bound the copies into "coursepacks," and sold the coursepacks to students for use in fulfilling reading assignments given by professors at the University of Michigan. The copyshop acted without permission from the copyright holders, and the main question presented is whether the "fair use" doctrine codified at 17 U.S.C. Section(s) 107 obviated the need to obtain such permission.

[2] Answering this question "no," and finding the infringement willful, the district court entered a summary judgment order in which the copyright holders were granted equitable relief and were awarded damages that may have been enhanced for willfulness. Princeton Univ. Press v. Michigan Document Servs., Inc., 855 F. Supp. 905 (E.D. Mich. 1994). A three-judge panel of this court reversed the judgment on appeal, but a majority of the active judges of the court subsequently voted to rehear the case en banc. The appeal has now been argued before the full court.

[3] We agree with the district court that the defendants' commercial exploitation of the copyrighted materials did not constitute fair use, and we shall affirm that branch of the district court's judgment. We believe that the district court erred in its finding of willfulness, however, and we shall vacate the damages award because of its possible linkage to that finding.

I.

[4] Thanks to relatively recent advances in technology, the coursepack - an artifact largely unknown to college students when the author of this opinion was an undergraduate - has become almost as ubiquitous at American colleges and universities as the conventional textbook. From the standpoint of the professor responsible for developing and teaching a particular course, the availability of coursepacks has an obvious advantage; by selecting readings from a variety of sources, the professor can create what amounts to an anthology perfectly tailored to the course the professor wants to present.

[5] The physical production of coursepacks is typically handled by a commercial copyshop. The professor gives the copyshop the materials of which the coursepack is to be made up, and the copyshop does the rest. Adding a cover page and a table of contents, perhaps, the copyshop runs off as many sets as are needed, does the necessary binding, and sells the finished product to the professor's students.

[6] Ann Arbor, the home of the University of Michigan, is also home to several copyshops. Among them is defendant Michigan Document Services (MDS), a corporation owned by defendant James Smith. We are told that MDS differs from most, if not all, of its competitors in at least one important way: it does not request permission from, nor does it pay agreed royalties to, copyright owners.

[7] Mr. Smith has been something of a crusader against the system under which his competitors have been paying agreed royalties, or "permission fees" as they are known in the trade. The story begins in March of 1991, when Judge Constance Baker Motley, of the United States District Court for the Southern District of New York, decided the first reported case involving the copyright implications of educational coursepacks. See Basic Books, Inc. v. Kinko's Graphics Corp., 758 F. Supp. 1522 (S.D.N.Y. 1991), holding that a Kinko's copyshop had violated the copyright statute by creating and selling coursepacks without permission from the publishing houses that held the copyrights. After Kinko's, we are told, many copyshops that had not previously requested permission from copyright holders began to obtain such permission. Mr. Smith chose not to do so. He consulted an attorney, and the attorney apparently advised him that while it was "risky" not to obtain permission, there were flaws in the Kinko's decision. Mr. Smith also undertook his own study of the fair use doctrine, reading what he could find on this subject in a law library. He ultimately concluded that the Kinko's case had been wrongly decided, and he publicized this conclusion through speeches, writings, and advertisements. His advertisements stressed that professors whose students purchased his coursepacks would not have to worry about delays attendant upon obtaining permission from publishers.

[8] Not surprisingly, Mr. Smith attracted the attention of the publishing industry. Three publishers - Princeton University Press, MacMillan, Inc., and St. Martin's Press, Inc. - eventually brought the present suit against Mr. Smith and his corporation.

[9] Each of the plaintiff publishers maintains a department that processes requests for permission to reproduce portions of copyrighted works. (In addition, copyshops may request such permission through the Copyright Clearance Center, a national clearinghouse.) MacMillan and St. Martin's, both of which are for-profit companies, claim that they generally respond within two weeks to requests for permission to make copies for classroom use. Princeton, a non-profit organization, claims to respond within two to four weeks. Mr. Smith has not put these claims to the test, and he has not paid permission fees.

[10] The plaintiffs allege infringement of the copyrights on six different works that were excerpted without permission. The works in question, and the statistics on the magnitude of the excerpts, are as follows: Nancy J. Weiss, Farewell to the Party of Lincoln: Black Politics in the Age of FDR (95 pages copied, representing 30 percent of the entire book); Walter Lippmann, Public Opinion (45 pages copied, representing 18 percent of the whole); Robert E. Layne, Political Ideology: Why the American Common Man Believes What He Does (78 pages, 16 percent); Roger Brown, Social Psychology (52 pages, 8 percent); Milton Rokeach, The Nature of Human Values (77 pages, 18 percent); James S. Olson and Randy Roberts, Where the Domino Fell, America and Vietnam, 1945-1950 (17 pages, 5 percent). The extent of the copying is undisputed, and the questions presented by the case appear to be purely legal in nature.

II.

[11] The fair use doctrine, which creates an exception to the copyright monopoly, "permits [and requires] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster." Campbell v. Acuff-Rose Music, Inc., 114 S.Ct. 1164, 1170 (1994), quoting Stewart v. Abend, 495 U.S. 207, 236 (1990). Initially developed by the courts, the doctrine was codified at 17 U.S.C. Section(s) 107 in 1976. Congress used the following formulation in Section 107:

[12] "[T]he fair use of a copyrighted work, including such use by reproduction in copies . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -

[13] (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

[14] (2) the nature of the copyrighted work;

[15] (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4)the effect of the use upon the potential market for or value of the copyrighted work. . . ."

[16] This language does not provide blanket immunity for "multiple copies for classroom use." Rather, "whether a use referred to in the first sentence of Section 107 is a fair use in a particular case . . . depend[s] upon the application of the determinative factors." Campbell, 114 S.Ct. at 1170 n.9, quoting S. Rep. No. 94-473, p. 62.[n1]

[17] The four statutory factors may not have been created equal. In determining whether a use is "fair," the Supreme Court has said that the most important factor is the fourth, the one contained in 17 U.S.C. Section(s) 107(4). See Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 566 (1985), citing 3 M. Nimmer, Copyright Section(s) 13.05[A], at 13-76 (1984). (But see American Geophysical Union v. Texaco Inc., 60 F.3d 913, 926 (2d Cir. 1994), cert. dismissed, 116 S.Ct. 592 (1995), suggesting that the Supreme Court may now have abandoned the idea that the fourth factor is of paramount importance.) We take it that this factor, "the effect of the use upon the potential market for or value of the copyrighted work," is at least primus inter pares, figuratively speaking, and we shall turn to it first.

[18] The burden of proof as to market effect rests with the copyright holder if the challenged use is of a "noncommercial" nature. The alleged infringer has the burden, on the other hand, if the challenged use is "commercial" in nature. Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 451 (1984). In the case at bar the defendants argue that the burden of proof rests with the publishers because the use being challenged is "noncommercial." We disagree.

[19] It is true that the use to which the materials are put by the students who purchase the coursepacks is noncommercial in nature. But the use of the materials by the students is not the use that the publishers are challenging. What the publishers are challenging is the duplication of copyrighted materials for sale by a for-profit corporation that has decided to maximize its profits - and give itself a competitive edge over other copyshops - by declining to pay the royalties requested by the holders of the copyrights.[n2]

[20] The defendants' use of excerpts from the books at issue here was no less commercial in character than was The Nation magazine's use of copyrighted material in Harper & Row, where publication of a short article containing excerpts from the still unpublished manuscript of a book by President Ford was held to be an unfair use. Like the students who purchased unauthorized coursepacks, the purchasers of The Nation did not put the contents of the magazine to commercial use - but that did not stop the Supreme Court from characterizing the defendant's use of the excerpts as "a publication [that] was commercial as opposed to nonprofit. . . ." Harper & Row, 471 U.S. at 562. And like the use that is being challenged in the case now before us, the use challenged in Harper & Row was "presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright." Id., quoting Sony, 464 U.S. at 451.[n3]

[21] The strength of the Sony presumption may vary according to the context in which it arises, and the presumption disappears entirely where the challenged use is one that transforms the original work into a new artistic creation. See Campbell, 114 S.Ct. at 1176. Perhaps the presumption is weaker in the present case than it would be in other contexts. There is a presumption of unfairness here, nonetheless, and we are not persuaded that the defendants have rebutted it.

[22] If we are wrong about the existence of the presumption - if the challenged use is not commercial, in other words, and if the plaintiff publishers have the burden of proving an adverse effect upon either the potential market for the copyrighted work or the potential value of the work - we believe that the publishers have carried the burden of proving a diminution in potential market value.

[23] One test for determining market harm - a test endorsed by the Supreme Court in Sony, Harper & Row, and Campbell - is evocative of Kant's categorical imperative. "[T]o negate fair use," the Supreme Court has said, "one need only show that if the challenged use `should become widespread, it would adversely affect the potential market for the copyrighted work.'" Harper & Row, 471 U.S. at 568, quoting Sony, 464 U.S. at 451 (emphasis supplied in part). Under this test, we believe, it is reasonably clear that the plaintiff publishers have succeeded in negating fair use.

[24] As noted above, most of the copyshops that compete with MDS in the sale of coursepacks pay permission fees for the privilege of duplicating and selling excerpts from copyrighted works. The three plaintiffs together have been collecting permission fees at a rate approaching $500,000 a year. If copyshops across the nation were to start doing what the defendants have been doing here, this revenue stream would shrivel and the potential value of the copyrighted works of scholarship published by the plaintiffs would be diminished accordingly.

[25] The defendants contend that it is circular to assume that a copyright holder is entitled to permission fees and then to measure market loss by reference to the lost fees. They argue that market harm can only be measured by lost sales of books, not permission fees. But the circularity argument proves too much. Imagine that the defendants set up a printing press and made exact reproductions - asserting that such reproductions constituted "fair use" - of a book to which they did not hold the copyright. Under the defendants' logic it would be circular for the copyright holder to argue market harm because of lost copyright revenues, since this would assume that the copyright holder had a right to such revenues.

[26] A "circularity" argument indistinguishable from that made by the defendants here was rejected by the Second Circuit in American Geophysical, 60 F.3d at 929-31 (Jon O. Newman, C.J.), where the photocopying of scientific articles for use by Texaco researchers was held to be an unfair use. It is true, the Second Circuit acknowledged, that "a copyright holder can always assert some degree of adverse [e]ffect on its potential licensing revenues as a consequence of [the defendant's use] . . . simply because the copyright holder has not been paid a fee to permit that particular use." Id. at 929 n. 17. But such an assertion will not carry much weight if the defendant has "filled a market niche that the [copyright owner] simply had no interest in occupying." Id. at 930 (quoting Twin Peaks Prods., Inc. v. Publications Int'l, Ltd., 996 F.2d 1366, 1377 (2d Cir. 1993)). Where, on the other hand, the copyright holder clearly does have an interest in exploiting a licensing market - and especially where the copyright holder has actually succeeded in doing so - "it is appropriate that potential licensing revenues for photocopying be considered in a fair use analysis." American Geophysical, 60 F.3d at 930. Only "traditional, reasonable, or likely to be developed markets" are to be considered in this connection, and even the availability of an existing system for collecting licensing fees will not be conclusive. Id. at 930-31.[n4] But Congress has implicitly suggested that licensing fees should be recognized in appropriate cases as part of the potential market for or value of the copyrighted work, and it was primarily because of lost licensing revenue that the Second Circuit agreed with the finding of the district court in American Geophysical that "the publishers have demonstrated a substantial harm to the value of their copyrights through [Texaco's] copying." Id. at 931 (quoting the district court opinion (Pierre N. Leval, J.) reported at 802 F.Supp. 1, 21 (S.D.N.Y. 1992)).

[27] The approach followed by Judges Newman and Leval in the American Geophysical litigation is fully consistent with the Supreme Court case law. In Harper & Row, where there is no indication in the opinion that the challenged use caused any diminution in sales of President Ford's memoirs, the Court found harm to the market for the licensing of excerpts. The Court's reasoning - which was obviously premised on the assumption that the copyright holder was entitled to licensing fees for use of its copyrighted materials - is no more circular than that employed here. And in Campbell, where the Court was unwilling to conclude that the plaintiff had lost licensing revenues under the fourth statutory factor, the Court reasoned that a market for critical parody was not one "that creators of original works would in general develop or license others to develop." Campbell, 114 S.Ct. at 1178.

[28] The potential uses of the copyrighted works at issue in the case before us clearly include the selling of permission to reproduce portions of the works for inclusion in coursepacks - and the likelihood that publishers actually will license such reproduction is a demonstrated fact. A licensing market already exists here, as it did not in a case on which the plaintiffs rely, Williams & Wilkins Co. v. United States, 487 F.2d 1345 (Ct. Cl. 1973), aff'd by an equally divided Court, 420 U.S. 376 (1975). Thus there is no circularity in saying, as we do say, that the potential for destruction of this market by widespread circumvention of the plaintiffs' permission fee system is enough, under the Harper & Row test, "to negate fair use." Our final point with regard to the fourth statutory factor concerns the affidavits of the three professors who assigned one or more of the copyrighted works to be read by their students. The defendants make much of the proposition that these professors only assigned excerpts when they would not have required their students to purchase the entire work. But what seems significant to us is that none of these affidavits shows that the professor executing the affidavit would have refrained from assigning the copyrighted work if the position taken by the copyright holder had been sustained beforehand.

[29] It is true that Professor Victor Lieberman, who assigned the excerpt from the Olson and Roberts book on America and Vietnam, raises questions about the workability of the permission systems of "many publishers." In 1991, Professor Lieberman avers, a Kinko's copyshop to which he had given materials for inclusion in a coursepack experienced serious delays in obtaining permissions from unnamed publishers. Professor Lieberman does not say that timely permission could not have been obtained from the publisher of the Olson and Roberts book, however, and he does not say that he would have refrained from assigning the work if the copyshop had been required to pay a permission fee for it.

[30] It is also true that the publisher of one of the copyrighted works in question here (Public Opinion, by Walter Lippmann) would have turned down a request for permission to copy the 45-page excerpt included in a coursepack prepared to the specifications of Professor Donald Kinder. The excerpt was so large that the publisher would have preferred that students buy the book itself, and the work was available in an inexpensive paperback edition. But Professor Kinder does not say that he would have refrained from assigning the excerpt from the Lippmann book if it could not have been included in the coursepack. Neither does he say that he would have refrained from assigning any of the other works mentioned in his affidavit had he known that the defendants would be required to pay permission fees for them.

[31] The third professor, Michael Dawson, assigned a 95-page excerpt from the book on black politics by Nancy Weiss. Professor Dawson does not say that a license was not available from the publisher of the Weiss book, and he does not say that the license fee would have deterred him from assigning the book.

III.

[32] 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.

[33] 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. Section(s) 107(1), we have already explained our reasons for concluding that the challenged use is of a commercial nature.

[34] 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.

[35] 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,

[36] "[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." H.R. Rep. No. 1476, 94th Cong., 2d Sess. at 74 (1976).

[37] 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.

B.

[38] The second statutory factor, "the nature of the copyrighted work," is not in dispute here. The defendants acknowledge that the excerpts copied for the coursepacks contained creative material, or "expression;" it was certainly not telephone book listings that the defendants were reproducing. This factor too cuts against a finding of fair use.

C.

[39] The third statutory factor requires us to assess "the amount and substantiality of the portion used in relation to the copyrighted work as a whole." Generally speaking, at least, "the larger the volume (or the greater the importance) of what is taken, the greater the affront to the interests of the copyright owner, and the less likely that a taking will qualify as a fair use." Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1122 (1990).

[40] The amounts used in the case at bar - 8,000 words in the shortest excerpt - far exceed the 1,000-word safe harbor that we shall discuss in the next part of this opinion. See H.R. Rep. No. 1476, 94th Cong., 2d Sess. (1976), reprinted after 17 U.S.C.A. Section(s) 107. The defendants were using as much as 30 percent of one copyrighted work, and in no case did they use less than 5 percent of the copyrighted work as a whole. These percentages are not insubstantial. And to the extent that the third factor requires some type of assessment of the "value" of the excerpted material in relation to the entire work, the fact that the professors thought the excerpts sufficiently important to make them required reading strikes us as fairly convincing "evidence of the qualitative value of the copied material." Harper & Row, 471 U.S. at 565. We have no reason to suppose that in choosing the excerpts to be copied, the professors passed over material that was more representative of the major ideas of the work as a whole in preference to material that was less representative.

[41] The third factor may have more significance for the 95-page excerpt from the black politics book than for the 17-page excerpt from the Vietnam book. In each instance, however, the defendants have failed to carry their burden of proof with respect to "amount and substantiality."[n5]

IV.

[42] We turn now to the pertinent legislative history. The general revision of the copyright law enacted in 1976 was developed through a somewhat unusual process. Congress and the Register of Copyrights initiated and supervised negotiations among interested groups - groups that included authors, publishers, and educators - over specific legislative language. Most of the language that emerged was enacted into law or was made a part of the committee reports. See Jessica Litman, Copyright, Compromise, and Legislative History, 72 Cornell L. Rev. 857 (1987). The statutory fair use provisions are a direct result of this process. Id. at 876-77. So too is the "Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions With Respect to Books and Periodicals" - commonly called the "Classroom Guidelines" - set out in H.R. Rep. No. 1476 at 68-71, 94th Cong., 2d Sess. (1976). The House and Senate conferees explicitly accepted the Classroom Guidelines "as part of their understanding of fair use," H.R. Conf. Rep. No. 1733, 94th Cong. 2d Sess. at 70 (1976), and the Second Circuit has characterized the guidelines as "persuasive authority. . . ." American Geophysical, 60 F.3d at 919 n.5, citing Kinko's, 758 F.Supp. at 1522-36.

[43] There are strong reasons to consider this legislative history. The statutory factors are not models of clarity, and the fair use issue has long been a particularly troublesome one. See Acuff-Rose Music, Inc. v. Campbell, 972 F.2d 1429, 1439 (6th Cir. 1992) (Nelson, J., dissenting), rev'd, 114 S.Ct. 1164 (1994). Not surprisingly, courts have often turned to the legislative history when considering fair use questions. See Harper & Row, 471 U.S. at 549-53, where the Supreme Court looked not only to the House report cited above, but to an earlier Senate report "discussing fair use of photocopied materials in the classroom. . . ." And see Campbell, 114 S.Ct. at 1170, where the Court likewise sifted through the congressional committee reports.

[44] Although the Classroom Guidelines purport to "state the minimum and not the maximum standards of educational fair use," they do evoke a general idea, at least, of the type of educational copying Congress had in mind. The guidelines allow multiple copies for classroom use provided that (1) the copying meets the test of brevity (1,000 words, in the present context); (2) the copying meets the test of spontaneity, under which "[t]he inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness [must be] so close in time that it would be unreasonable to expect a timely reply to a request for permission;" (3) no more than nine instances of multiple copying take place during a term, and only a limited number of copies are made from the works of any one author or from any one collective work; (4) each copy contains a notice of copyright; (5) the copying does not substitute for the purchase of "books, publishers' reprints or periodicals;" and (6) the student is not charged any more than the actual cost of copying. The Classroom Guidelines also make clear that unauthorized copying to create "anthologies, compilations or collective works" is prohibited. H.R. Rep. No. 1476 at 69.

[45] In its systematic and premeditated character, its magnitude, its anthological content, and its commercial motivation, the copying done by MDS goes well beyond anything envisioned by the Congress that chose to incorporate the guidelines in the legislative history. Although the guidelines do not purport to be a complete and definitive statement of fair use law for educational copying, and although they do not have the force of law, they do provide us general guidance. The fact that the MDS copying is light years away from the safe harbor of the guidelines weighs against a finding of fair use.

[46] Although the Congress that passed the Copyright Act in 1976 would pretty clearly have thought it unfair for a commercial copyshop to appropriate as much as 30 percent of a copyrighted work without paying the license fee demanded by the copyright holder, the changes in technology and teaching practices that have occurred over the last two decades might conceivably make Congress more sympathetic to the defendants' position today. If the law on this point is to be changed, however, we think the change should be made by Congress and not by the courts.

V.

[47] 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" (see Sony, 464 U.S. at 431-32) in the copyright law:

[48] "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 this basic purpose." Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975) (footnotes and citations omitted).

[49] The defendants attach considerable weight to the assertions of numerous academic authors that they do not write primarily for money and that they want their published writings to be freely copyable. The defendants suggest that unlicensed copying will "stimulate artistic creativity for the general public good." This suggestion would be more persuasive if the record did not demonstrate that licensing income is significant to the publishers. It is the publishers who hold the copyrights, of course - and the publishers obviously need economic incentives to publish scholarly works, even if the scholars do not need direct economic incentives to write such works.

[50] The writings of most academic authors, it seems fair to say, lack the general appeal of works by a Walter Lippmann, for example. (Lippmann is the only non-academic author whose writings are involved in this case.) One suspects that the profitability of at least some of the other books at issue here is marginal. If publishers cannot look forward to receiving permission fees, why should they continue publishing marginally profitable books at all? And how will artistic creativity be stimulated if the diminution of economic incentives for publishers to publish academic works means that fewer academic works will be published? The fact that a liberal photocopying policy may be favored by many academics who are not themselves in the publishing business has little relevance in this connection. As Judge Leval observed in American Geophysical,

[51] "It is not surprising that authors favor liberal photocopying; generally such authors have a far greater interest in the wide dissemination of their work than in royalties - all the more so when they have assigned their royalties to the publisher. But the authors have not risked their capital to achieve dissemination. The publishers have. Once an author has assigned her copyright, her approval or disapproval of photocopying is of no further relevance." 802 F.Supp. at 27.

[52] In the case at bar the district court was not persuaded that the creation of new works of scholarship would be stimulated by depriving publishers of the revenue stream derived from the sale of permissions. Neither are we. On the contrary, it seems to us, the destruction of this revenue stream can only have a deleterious effect upon the incentive to publish academic writings.

VI.

[53] The district court's conclusion that the infringement was willful is somewhat more problematic, in our view. The Copyright Act allows the collection of statutory damages of between $500 and $20,000 for each work infringed. 17 U.S.C. Section(s) 504(c)(1). Where the copyright holder establishes that the infringement is willful, the court may increase the award to not more than $100,000. 17 U.S.C. Section(s) 504(c)(2). If the court finds that the infringement was innocent, on the other hand, the court may reduce the damages to not less than $200. Id. Here the district court awarded $5,000 per work infringed, characterizing the amount of the award as "a strong admonition from this court." 855 F. Supp. at 913.

[54] Willfulness, under this statutory scheme, has a rather specialized meaning. As Professor Nimmer explains,

[55] "In other contexts [`willfulness'] might simply mean an intent to copy, without necessarily an intent to infringe. It seems clear that as here used, `willfully' means with knowledge that the defendant's conduct constitutes copyright infringement. Otherwise, there would be no point in providing specially for the reduction of minimum awards in the case of innocent infringement, because any infringement that was nonwillful would necessarily be innocent. This seems to mean, then, that one who has been notified that his conduct constitutes copyright infringement, but who reasonably and in good faith believes the contrary, is not `willful' for these purposes." Melville B. Nimmer & David Nimmer, 3 Nimmer on Copyright Section(s) 14.04[B][3] (1996).

[56] The plaintiffs do not contest the good faith of Mr. Smith's belief that his conduct constituted fair use; only the reasonableness of that belief is challenged. "Reasonableness," in the present context, is essentially a question of law. The facts of the instant case are not in dispute, and the issue is whether the copyright law supported the plaintiffs' position so clearly that the defendants must be deemed as a matter of law to have exhibited a reckless disregard of the plaintiffs' property rights. We review this issue de novo.

[57] Fair use is one of the most unsettled areas of the law. The doctrine has been said to be "so flexible as virtually to defy definition." Time Inc. v. Bernard Geis Assoc., 293 F. Supp. 130, 144 (S.D.N.Y. 1968). The potential for reasonable disagreement here is illustrated by the forcefully argued dissents and the now-vacated panel opinion. In the circumstances of this case, we cannot say that the defendants' belief that their copying constituted fair use was so unreasonable as to bespeak willfulness. Accordingly, we shall remand the case for reconsideration of the statutory damages to be awarded.

VII.

[58] Insofar as injunctive relief is concerned, the judgment of the district court has not been set forth on a separate document in the manner required by Rule 58, Fed. R. Civ. P. The penultimate sentence of the concluding paragraph of the district court's order - a sentence evidently intended to serve the office of a separate injunction - reads as follows:

[59] "Further, defendants are ENJOINED from copying any of plaintiffs' existing or future copyrighted works without first obtaining the necessary permission." 855 F. Supp. at 913.

[60] The district court clearly did not intend to prohibit the defendants from copying without permission works not protected by copyright. We are uncertain whether the district court gave any consideration to copying of a sort that could not be anything other than fair use. On remand the district court should set forth its judgment in a separate document stating the scope of the injunction more precisely.

[61] Before the initial panel that heard this case - but not before the en banc court - the defendants argued that the district court exceeded its powers by enjoining them from reproduction of future copyrighted works. We do not find the argument persuasive. The weight of authority supports the extension of injunctive relief to future works. See, e.g., Olan Mills, Inc. v. Linn Photo Co., 23 F.3d 1345 (8th Cir. 1994); Pacific and Southern Co., Inc. v. Duncan, 744 F.2d 1490 (11th Cir. 1984), cert. denied, 471 U.S. 1004 (1985); Basic Books, 758 F. Supp. at 1542; Melville B. Nimmer & David Nimmer, 3 Nimmer on Copyright Section(s) 1406[B] (1995). The view taken by these authorities seems the better one to us.

VIII.

[62] The grant of summary judgment on the fair use issue is AFFIRMED. The award of damages is VACATED, and the case is REMANDED for reconsideration of damages and for entry of a separate judgment not inconsistent with this opinion.

1. Judge Merritt's dissent rejects this proposition and asserts, in effect, that under the plain language of the copyright statute the making of multiple copies for classroom use constitutes fair use ipso facto. Judge Merritt's reading of the statute would be unassailable if Congress had said that "the use of a copyrighted work for purposes such as teaching (including multiple copies for classroom use) is not an infringement of copyright." But that is not what Congress said. It said, rather, that "the fair use of a copyrighted work, including such use [i.e. including "fair use"] . . . for purposes such as . . . teaching (including multiple copies for classroom use) . . . is not an infringement of copyright."

When read in its entirety, as Judge Ryan's dissent correctly recognizes, the quoted sentence says that fair use of a copyrighted work for purposes such as teaching (including multiple copies for classroom use) is not an infringement. And the statutory factors set forth in the next sentence must be considered in determining whether the making of multiple copies for classroom use is a fair use in "any particular case," just as the statutory factors must be considered in determining whether any other use referred to in the first sentence is a fair use in a particular case. To hold otherwise would be to subvert the intent manifested in the words of the statute and confirmed in the pertinent legislative history.

2. Two of the dissents suggest that a copyshop merely stands in the shoes of its customers and makes no "use" of copyrighted materials that differs materially from the use to which the copies are put by the ultimate consumer. But subject to the fair use exception, 17 U.S.C. Section(s) 106 gives the copyright owner the "exclusive" right "to reproduce the copyrighted work in copies. . . ." And if the fairness of making copies depends on what the ultimate consumer does with the copies, it is hard to see how the manufacture of pirated editions of any copyrighted work of scholarship could ever be an unfair use. As discussed in Part III A, infra, the dissenters' suggestion - which proposes no limiting principle - runs counter to the legislative history of the Copyright Act and has properly been rejected by the courts.

.3. Judge Ryan's dissent maintains that there cannot be an "exploitation" of a copyrighted work unless the exploiter assesses the work's market potential, makes a selection based on content, and realizes a profit from the substance of the work. But the dictionary defines "exploit" in terms that include "to take advantage of, utilize," see Webster's Third New International Dictionary (Unabridged), and nothing in Harper & Row suggests that the Supreme Court intended a narrower or more idiosyncratic meaning.

The dissent also points out that it was magazine employees, not outsiders, who obtained the unpublished manuscript of the Ford book and selected the portions that were included in the offending article. But nothing turns on the "in house" character of such activities. If a college professor had obtained the manuscript, selected the excerpts and peddled the article on a free-lance basis, can anyone doubt that it would have been a violation of the copyright for The Nation to publish the professor's article?

4. Although not conclusive, the existence of an established license fee system is highly relevant:

"[I]t is sensible that a particular unauthorized use should be considered `more fair' when there is no ready market or means to pay for the use, while such an unauthorized use should be considered `less fair' when there is a ready market or means to pay for the use. The vice of circular reasoning arises only if the availability of payment is conclusive against fair use." Id. at 931.

5. "Fair use serves as an affirmative defense to a claim of copyright infringement, and thus the party claiming that its secondary use of the original copyrighted work constitutes a fair use typically carries the burden of proof as to all issues in the dispute." American Geophysical, 60 F.3d at 918, citing Campbell, 114 S.Ct. at 1177.

[63] BOYCE F. MARTIN, JR., Chief Judge, dissenting.

[64] This case presents for me one of the more obvious examples of how laudable societal objectives, recognized by both the Constitution and statute, have been thwarted by a decided lack of judicial prudence. Copyright protection as embodied in the Copyright Act of 1976 is intended as a public service to both the creator and the consumer of published works. Although the Act grants to individuals limited control over their original works, it was drafted to stimulate the production of those original works for the benefit of the whole nation. The fair use doctrine, which requires unlimited public access to published works in educational settings, is one of the essential checks on the otherwise exclusive property rights given to copyright holders under the Copyright Act.

[65] The Copyright Clause grants Congress the power to create copyright interests that are limited in scope.

[66] Michigan Document Services provided a service to the University of Michigan that promoted scholarship and higher education. Requiring Michigan Document Services to pay permission fees in this instance is inconsistent with the primary mission of the Copyright Act. The individual rights granted by the Act are subservient to the Act's primary objective, which is the promotion of creativity generally.

[67] That the majority lends significance to the identity of the person operating the photocopier is a profound indication that its approach is misguided. Given the focus of the Copyright Act, the only practical difference between this case and that of a student making his or her own copies is that commercial photocopying is faster and more cost-effective. By charging permission fees on this kind of job, publishers will pass on expenses to colleges and universities that will, of course, pass such fees on to students. Students may also be harmed if added expenses and delays cause professors to opt against creating such specialized anthologies for their courses.

[68] The Copyright Act does not suggest such a result. Rather, the fair use doctrine contemplates the creation and free flow of information; the unhindered flow of such information through, among other things, education in turn spawns the creation and free flow of new information.

[70] MERRITT, Circuit Judge, dissenting.

[71] The copying done in this case is permissible under the plain language of the copyright statute that allows "multiple copies for classroom use: Also, the injunction the Court has upheld exceeds the protections provided by the Copyright Act of 1976 regardless of whether the use was a fair use and is so grossly overbroad that it violates the First Amendment.

I.

[72] There is no legal precedent and no legal history that supports our Court's reading of this phrase in a way that outlaws the widespread practice of copying for classroom use by teachers and students.

I do not see why we should so construe plain statutory language that on its face permits "multiple copies for classroom use." The custom of making copies for classroom use for a fee began during my college and law school days forty years ago and is now well-established. I see no justification for overturning this long-established practice.

[74] Except for "teaching," the statute is cast in general, abstract language that allows fair use for "criticism," "comment," "news reporting" and "research." The scope or extent of copying allowed for these uses is left undefined. Not so for "teaching." This purpose, and this purpose alone, is immediately followed by a definition. The definition allows "multiple copies for classroom use" of copyrighted material. Our political economy generally encourages the division and specialization of labor. There is no reason why in this instance the law should discourage high schools, colleges, students and professors from hiring the labor of others to make their copies any more than there is a reason to discourage lawyers from hiring paralegals to make copies for clients and courts. The Court's distinction in this case based on the division of labor - who does the copying - is short sighted and unsound economically.

[75] Our Court cites no authority for the proposition that the intervention of the copyshop changes the outcome of the case. The Court errs by focusing on the "use" of the materials made by the copyshop in making the copies rather than upon the real user of the materials - the students.

[76] Rights of copyright owners are tempered by the rights of the public. The copyright owner has never been accorded complete control over all possible uses of a work.

II.

[79] Money changes hands and makes the transaction "commercial" because the copyshop has freed the student from undertaking the physical task of copying. The copyshop makes its money based on the number of pages copied, not the content of those pages. The students paid the copyshop solely for the time, effort and materials that each student would otherwise have expended in copying the material himself or herself. The money paid is not money that would otherwise go to the publishers.

[82] The Court also errs in analyzing the market effect of the classroom copying. The Court erroneously shifts the burden of proof as to market effect to the defendant by labeling the use "commercial" in nature. Maj. op. at 6. Generally the burden is on the plaintiff to demonstrate the alleged harm to the potential market value for the copyrighted work. The Court strains to relieve the plaintiffs of their normal burden of proof. Plaintiffs have met their burden only because the Court has lifted the burden and put it onto the shoulders of the defendant.

[83] Turning to the effect of the use upon the potential market for or value of the copyrighted work, plaintiffs here have failed to demonstrate that the photocopying done by defendant has caused even marginal economic harm to their publishing business. The excerpts copied were a small percentage of the total work, and, as the professors testified, it seems more likely that they would have omitted the work altogether instead of requiring the students to purchase the entire work.

[84] The use complained of by plaintiffs here has been widespread for many years and the publishers have not been able to demonstrate any significant harm to the market for the original works during that time. The publishing industry tried to persuade Congress in 1976 to ban the type of copying done by defendant here. Congress declined to do so and the publishing industry has been trying ever since to work around the language of the statute to expand its rights.

[86] Simply because the publishers have managed to make licensing fees a significant source of income from copyshops and other users of their works does not make the income from the licensing a factor on which we must rely in our analysis. If the publishers have no right to the fee in many of the instances in which they are collecting it, we should not validate that practice by now using the income derived from it to justify further imposition of fees. Our job is simply to determine whether the use here falls within the Section(s) 107 exception for "multiple copies for classroom use." If it does, the publisher cannot look to us to force the copyshop to pay a fee for the copying.

III.

[89] The gross overbreadth of the injunction appears to violate the First Amendment. The purpose of the First Amendment is to facilitate the widest possible dissemination of information.

[90] In sum, the injunction imposed here - an injunction that provides blanket copyright protection for all the works of a given publisher without regard to the limitations on copyright protection - is overbroad. The injunction is inappropriate because it prohibits the public from using defendant's copyshop for noninfringing copying of plaintiffs' works.

[91] RYAN, Circuit Judge, dissenting.

[92] It is clear from the application of the four fair use factors of 17 U.S.C. Section(s) 107 that MDS's copying of the publishers' copyrighted works in this case is fair use

[93] In my judgment, my colleagues have erred in

[94] 1. focusing on the loss of permission fees in evaluating "market effect" under section 107(4);

[95] 2. finding that the evidence supports the conclusion that permission fees provide an important incentive to authors to create new works or to publishers to publish new works; and

[96] 3. using legislative history, specifically the "Classroom Guidelines," to decide the issue of classroom use.

I.

[97] Professors may make the judgment that only fractional portions of much larger copyrighted works need to be examined by their students to explain the theories, facts, and historical developments in which the professors are interested, or the professors may conclude that the educational benefit to the students does not justify requiring the students to purchase the entire original work. Alternatively, they might require their students to spend their own time going to the library, waiting their turn to gain access to sometimes scarce library reserve materials, going to the coin operated photocopying machines, and making their own copies, a practice that the publishers have not challenged.

II.

[102] The Copyright Act both establishes a general grant of monopoly powers to holders of copyrights and codifies the "fair use" doctrine as an exception to that broad grant.

[105] For progress in "Science and useful Arts" to occur, others must be permitted to build upon and refer to the creations of prior thinkers.

[106] Thus, the "fair use" concept embodied in section 107 may be understood generally to permit a secondary use that "serves the copyright objective of stimulating productive thought and public instruction without excessively diminishing the incentives for creativity." Leval, supra, at 1110.

III.

A.

[109] Plainly, the Copyright Act explicitly anticipates that use of a work by "reproduction in copies . . . for purposes such as . . . teaching (including multiple copies for classroom use)," will sometimes be a fair use even though teaching is commonly conducted for profit. 17 U.S.C. Section(s) 107.

[110] Thus, MDS's copying of materials, which indisputably are for "teaching (including multiple copies for classroom use)," must be tested for fair use under the four "factors to be considered" in section 107. Id.

[113] The "purpose and character of the use" is examined to determine whether the questioned use would tend to advance or to thwart the goals of copyright law. The inquiry into the transformative aspect of the use assesses the likely benefit to society from the use - the more the original work has been transformed, the more likely it is that a distinct and valuable new product has been created. Thus, the ultimate inquiry under the first fair use factor is whether the type of use being challenged is, by its nature, likely to benefit society without excessively diminishing the incentives to create new works.

i.

ii.

[116] As a preliminary matter, we must first decide whose use of the coursepacks must be evaluated. The majority accepts the publishers' position that the only relevant "use" under the first factor is MDS's sale of the coursepacks to students, not the use of the purchased coursepacks by the professors and students. I do not find support for this abbreviated analysis in either the statutory text or the case law.

[117] MDS, considered apart from the professors and students, does not "use" the "copyrighted work" in the sense primarily addressed in section 107; it uses a "master copy" of the excerpted material delivered to it by the professor, copy paper, ink, photocopying machines, mechanical binders, and related production materials to make the number of copies the professor has ordered. MDS could not care less whether Professor X asks it to copy selections from Walter Lippmann's Public Opinion or the 1996 University of Michigan Varsity Football roster.

[118] it is obvious that the use that is to be evaluated for fairness in this case is the use to which the protected substantive text is put, not the mechanical process of copying it. Neither the language of section 107 nor simple common sense warrant examining the production of multiple copies in a vacuum and ignoring their educational use on the facts of this case.

[120] There are two critical facts that distinguish Harper & Row from this case. First, in Harper & Row, the profit-seeking entity that sold excerpts to the nonprofit users - the members of the general public who purchased the magazine and "used" the copied material to educate themselves - was the same entity that obtained the original manuscript and selected portions for reproduction. Thus, The Nation Magazine both directed the copying and profited from the copying. That is not this case. Here, a nonprofit entity (the professors) obtained the originals and selected portions for reproduction. The Nation Magazine, carefully selected the material to be copied for its content/substance and sought to profit from the content/substance of the material that it reproduced, not from the mechanical service of reproduction itself. In this case, on the other hand, the profit-seeking defendant, MDS, neither selected the material to be copied for its content/substance nor sought to profit from the copyrighted material because of its substance; its purpose was to profit only from the mechanical services of photo reproduction and assembly.

[121] With these distinctions in mind, I would approach the "commercial purpose" determination under section 107's first factor in a different way than the majority does. A use is "commercial" within the meaning of section 107 if the user seeks to profit from "exploiting" the copyrighted material. Harper & Row, 471 U.S. at 562.

[123] The business of producing and selling coursepacks is more properly viewed as the commercial exploitation of professional copying technologies and of the inability of academic parties to reproduce printed materials efficiently, not the exploitation of copyrighted, creative materials.

[129] To repeat, the content of the coursepacks was not controlled by MDS but by the professors; and "the nature and objects of the selections made" by the professors were plainly nonprofit and educational. Campbell, 114 S.Ct. at 1171 (internal quotation marks and citation omitted). The professors selected excerpts, not out of any motive for financial gain, but solely in order to enrich the educational experiences of their students.

[131] With regard to the professor-directed creation of coursepacks, it is not appropriate to presume that the practice of excerpting some materials harms the authors' rightful market and secures a benefit only to the excerpters. The more reasonable presumption is that society benefits from the additional circulation of ideas in the educational setting when those who direct the practice have no personal financial interests that would drive them to copy beyond the parameters of purely educational, and fair, use. Society benefits when professors provide diverse materials that are not central to the course but that may enrich or broaden the base of knowledge of the students. Society is not benefitted by establishing a presumption that discourages professors from exposing their students to anything but complete original works even when most of the work is irrelevant to the pedagogical purposes, and students are not benefitted or authors/publishers justly compensated if students are required to purchase entire works in order to read the 5% or 30% of the work that is relevant to the course.

[133] The first factor therefore favors a finding of fair use.

B.

[134] I agree with the majority that the materials copied in this case are much closer to the core of work protected by copyright than to the mere compilations of raw data in the phone books in Feist.

[135] The second factor, on these facts, does little more than confirm that the works at issue are protected by copyright and may only be used "fairly." Thus, the fair use examination properly proceeds to factors three and four to determine whether this use of the excerpts is fair.

C.

[136] The third factor considers "the amount and substantiality of the portion used in relation to the copyrighted work as a whole." 17 U.S.C. Section(s) 107(3). I will not comment at length on this issue but will only note that I believe the majority has misunderstood this factor. To the extent that the professors' decision to excerpt the material has any meaning, it suggests that the excerpts stand separate from the entire work, not that they are central and substantial to the entire work. The strongest inference is that the unassigned balance of the work bears minimal relevance to the assigned excerpt; if it were otherwise, the whole would likely have been assigned.

[137] There is no bright-line rule to tell us how large of an excerpt renders it unfair as a matter of law, nor how small an excerpt is so small as to be conclusively fair. In Sony, the Court found the use to be fair even though the entire work was reproduced, whereas in Harper & Row the use was found to be unfair even though only 300 words of copyrighted material - an insubstantial portion of President Ford's memoirs - were reproduced without permission.

[140] There is no evidence whatsoever that any of the six excerpts in the coursepacks are so substantial as to supersede the original works. The only evidence of record is the professors' declarations that they do not excerpt material when they would otherwise assign the entire work and the expressed preference of one publisher to have the entire work assigned rather than excerpted. The fact that the publisher would prefer the book to be purchased is not relevant to the third-factor analysis. Each of the professors who delivered the materials to MDS signed a statement that he would not otherwise have assigned the copyrighted work to the class. Nothing in the record contradicts these declarations.

[143] There is absolutely no evidence in the record to support a finding that the copyrighted works at issue were excerpted so substantially that the coursepacks superseded the original works or otherwise exceeded the proper educational purposes that could justify the reproduction. Thus, the third factor favors a finding of fair use.

D.

[146] For plaintiffs to prevail, there must be at least a meaningful likelihood that future harm to a potential market for the copyrighted works will occur.

[148] The plaintiffs certainly have not demonstrated that the coursepacks affected the market for the original copyrighted works. Neither have they presented any evidence of likely harm to their potential market for derivative works, such as published anthologies. Remarkably, they have limited their showing of "market effect" to the loss of permission fees that they would like to receive from copyshops like MDS. But that is not a "market harm" within the meaning of section 107(4). To prove entitlement to permission fees, the publishers must show market harm and the market harm they claim is the loss of permission fees. MDS's coursepacks would inflict "market harm" if they damaged the value of the original work or the value of derivative products such as coursepacks the publishers might wish to market.

[149] The original panel opinion, now vacated, stated:

[150] [E]vidence 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.

[155] In Harper & Row there was proof that the copyright holder conceived of a potential derivative work (the planned Time Magazine articles) and took meaningful steps to aid in the creation of that derivative work and to capture profits from that creation. The value of the planned derivative work was harmed by the defendants' unauthorized use of the original work; the copyright holder lost its contract with Time Magazine - and concomitant fees - for the exclusive right to print prepublication excerpts of President Ford's memoirs when The Nation Magazine illicitly obtained a copy of the unpublished manuscript and produced a short article quoting from the heart of the manuscript. Thus, in Harper & Row, the value of the original work in a derivative market that was targeted by the copyright holder was harmed by the unauthorized use of the work. There is no similar evidence of injury to the value of a work in this case.

[156] In Campbell, 114 S.Ct. at 1178-79, 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.

[157] 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.

[159] The guiding principle of the Copyright Act is that the financial earnings of original works be channeled exclusively to the creators of the works insofar - and only insofar - as they are necessary to motivate the creation of original works and do not excessively impede the advancement of science and the arts through the public dissemination of knowledge, research, scholarship, news-reporting, teaching, criticism, and the like. The copyright holder's statutory monopoly does not encompass profits from derivative works that the copyright holders do not themselves seek to market or that do not harm the value of works that the copyright holders do seek to market; the monopoly privileges need not include these profits because these profits do not function as incentives to prospective creators.

E.

[164] More than one hundred authors declared on the record that they write for professional and personal reasons such as making a contribution to a particular discipline, providing an opportunity for colleagues to evaluate and critique the authors' ideas and theories, enhancing the authors' professional reputations, and improving career opportunities. These declarants stated that the receipt of immediate monetary compensation such as a share of licensing fees is not their primary incentive to write. The inclusion of excerpts in coursepacks without the payment of permission fees does not deprive authors of the rewards that the record indicates authors value, such as recognition.

[165] The majority dismisses the motives of the authors - the actual creators - and concludes that what matters is the incentives to the publishers who hold the copyrights.

[166] Despite the initial appeal of this reasoning, it is far from clear that the licensing income is significant to publishers in their decisions about whether to publish marginally profitable books. The fact that licensing income provides some welcome income in the aggregate does not mean that it provides an incentive to publishers to act in individual cases. There is, in fact, no indication that the paltry permission fees affect the publishers' decisions about whether to publish in individual cases. Given that the per-page fee currently demanded by publishers - and, until now, successfully extracted from other copyshops perhaps too timid to "make a federal case" of the issue - is so small that it is almost inconceivable that this fee, or the anticipation of this fee, affects in any meaningful way the publishers' decisions about whether to publish any given work.

F.

[168] The Classroom Guidelines "prohibit[] . . . [c]opying . . . used to create . . . anthologies, compilations or collective works." H.R. Rep. No. 1476 at 69. But, as the majority opinion acknowledges, that language did not survive congressional debate and was not enacted into law.

[169] 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,

[170] As Justice Scalia has observed, "The greatest defect of legislative history is its illegitimacy. We are governed by laws, not by the intentions of legislators." Conroy v. Aniskoff, Jr., 507 U.S. 511, 519 (1993) (Scalia, J., concurring). Committee Reports are unreliable "as a genuine indicator of congressional intent" and "as a safe predictor of judicial construction." Wisconsin Pub. Intervenor v. Mortier, 501 U.S. 597, 617, (1991) (Scalia, J., concurring).

[171] The statutory language of section 107, like most statutory language, may not be a "model of clarity," and the fair use issue, like many issues of law we face, may be a difficult or "troublesome" one, but neither of these inconveniences is a substitute for the requisite ambiguity that, alone, justifies recourse to legislative history.

[172] The case for copyright infringement is very weak indeed if the court must rely on the unenacted theater of Committee Reports to find infringement.

IV.

[174] For all the foregoing reasons, I conclude that MDS did not infringe upon the copyrights of the publishers.