Excel Test Preparation, a university course pack copy shop
located in Ann Arbor, Michigan, has lost a copyright infringement lawsuit
brought by five publishing companies, including Oxford University Press and
SAGE Publications. Unlike other
local copy shows that copy and bind course packs provided by professors (and
pay licensing fees to do so), Excel allowed students to make copies of a master
course pack that was provided by a professor. Excel argued that its actions were covered by the fair use
defense under the Copyright Act.
Under the Copyright Act’s fair use defense located at 17 USC §107, teaching and scholarship are both enumerated as fair use. Copy shops typically acquire licenses to the content that professors provide in their course packs through the Copyright Clearance Center, Inc. Excel, however, did not acquire licenses and, instead, allowed students to copy the course pack. Interestingly, Excel was held liable for direct copyright infringement and not contributory copyright infringement, which is the typical cause of action asserted for knowingly facilitating the copying of another.
As we have stated time and time again, fair use is one of the most complex areas of copyright law. If you intend to use the copyrighted material of another, the best way to mitigate your risk is to have a copyright lawyer analyze your situation and give you an assessment of the likelihood of success of a fair use defense. If you seek a copyright fair use assessment, please contact one of our expert copyright lawyers today.
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