On appeal to the entire 6th Circuit, the original opinion was withdrawn , the case was reheard en banc , and the subsequent decision affirmed the lower court finding of infringement . The discussion of the theory of fair use that underlies the first 6th Circuit opinion is important to a full understanding of this difficult issue. This is a case about parody, a special kind of fair use. In its opinion, the Supreme Court twice made favorable references to educational and research uses. This is very little to go on, but may give some indication of the Court's attitude towards those uses.
Fair use appears to play little or no role in negotiating access to electronic information.
Regardless of the confused state of the law, we still must apply it. Comment, criticism, news reporting, parody These uses are core fair uses and should be relatively unaffected. The imposition of an obligation to ask or pay for permission is inimical to the processes these uses facilitate. Ultimately, Universities will need to take a more active role in licensing and copyright management to have an effect on costs to acquire and use digital information. In either case, for most Universities and their students, faculty and staff, these costs represent additional payments.