Page:The librarian's copyright companion, by James S. Heller, Paul Hellyer, Benjamin J. Keele, 2012.djvu/65

Chapter Four. Fair Use (Section 107) agreement may permit you to distribute electronic copies within your institution.

Here we need to talk about Texaco, a case coordinated by the Association of American Publishers in the name of five publishers. In 1992, a federal district court in New York held that Texaco’s routing of journals to researchers within the corporation, who subsequently photocopied articles and filed them away for later use, was not a fair use. Two years later the U.S. Court of Appeals for the Second Circuit upheld the lower court decision.

Although Texaco employed hundreds of scientists, before trial the parties agreed that the trial would focus on the activities of one, Dr. Donald H. Chickering, who photocopied eight articles from the Journal of Catalysis and placed them in his personal filing cabinet. Let’s see how the trial and appellate courts addressed the main issue in Texaco: Was the routing of journals to corporate scientists, who copied articles and filed them away for possible later use, a fair use under section 107 of the Act?

The trial court judge spent considerable time examining the first factor—the purpose and character of the use. As for the purpose of the use, the judge wrote that because the defendant was a for-profit company, its copying was “commercial.” As for the character of the use, the judge was struck by the fact that Dr. Chickering did not transform the copyrighted articles in any way. Chickering copied the articles and filed them away for possible later use, but there was no evidence that he ever used the articles in his research.

The appeals court had to decide if Dr. Chickering’s copying was, as the district court concluded, commercial copying. Noting that Texaco did not directly profit from the copying, the court concluded that the purpose was neither “for-profit” nor “non-profit educational,” calling it instead an “intermediate” use. The appeals court also pointedly called into question