b'Whether Government Reproduction of Copyrighted Materials\nis a Noninfringing \xe2\x80\x9c Fair Use\xe2\x80\x9d\nAlthough governm ent reproduction o f copyrighted m aterial for governm ental use w ould in m any co n \xc2\xad\ntexts be a noninfringing fair use under section 107 o f the C opyright A ct o f 1976, such governm ent\nreproduction o f copyrighted m aterial does not invariably qualify as a \xe2\x80\x9c fair use \xe2\x80\x9d\n\nApril 30, 1999\nM e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l\nD epa rtm en t o f C o m m erce\n\nYou have requested an opinion from this Office on a legal question raised in\nconnection with an attempt by the Copyright Clearance Center, Inc. (\xe2\x80\x9c CCC\xe2\x80\x9d )\nto negotiate licenses with the Department of Commerce and other federal govern\xc2\xad\nment agencies, pursuant to which such agencies would, in exchange for a fee,\nobtain permission to reproduce certain copyrighted materials by photocopying.\'\nSee Letter for Dawn E. Johnsen, Acting Assistant Attorney General, Office of\nLegal Counsel, from Andrew J. Pincus, General Counsel, Department of Com\xc2\xad\nmerce at 1 (June 23, 1998) (\xe2\x80\x9c Pincus Letter\xe2\x80\x9d ). You inform us that a \xe2\x80\x9c key factor\nin our decision whether such negotiations [with the CCC] even are appropriate\nis whether there are any circumstances under which the Copyright Act might\nrequire a government agency to obtain such a license: if a license is never nec\xc2\xad\nessary, there would be no reason to consider entering into negotiations with the\nCCC, or with individual authors of works.\xe2\x80\x9d Id. Accordingly, you have asked for\nour opinion on the following question: \xe2\x80\x9c whether a government agency ever is\nrequired to secure either permission or licensing before making unauthorized\nreproduction and use of materials that are protected by copyright law, or whether\nall government reproduction and use of such materials per se qualifies for the\n\xe2\x80\x98fair use\xe2\x80\x99 exception from the obligations of the Copyright Act.\xe2\x80\x9d Id. You further\nassert that \xe2\x80\x9c [t]here appears to be substantial disagreement within the government\nwith-respect to this issue.\xe2\x80\x9d Id. In particular, you suggest that the Commercial\nLitigation Branch of the Department of Justice\xe2\x80\x99s Civil Division may have con\xc2\xad\nveyed to certain agencies the view that \xe2\x80\x9c virtually all photocopying for government\nuse is permitted under the fair use doctrine,\xe2\x80\x9d and that that view of the Commercial\n\xe2\x80\x98 The CCC, a nonprofit consortium, or \xe2\x80\x9c clearing house,\xe2\x80\x9d established in 1977, acts as an agent for participating\npublishers. Under one of the CCC\xe2\x80\x99s offered services, a user pays a flat fee, in exchange for which it receives a\nblanket annual license to make photocopies for internal use of any copyrighted material contained in any o f the\nworks registered with the CCC. The license fee is based on a limited photocopying survey that accounts for the\nlicense\xe2\x80\x99s employee population and the copying fees for the journals regularly copied by that licensee Upon payment\nof the fee, the licensee is authorized for a specified term to make unlimited numbers of photocopies, for internal\nuse, from CCC-registered publications The revenue that the CCC derives from the licensee then is allocated among\nthe publishers that have registered publications with the CCC, with the CCC retaining certain service charges See\nAmerican Geophysical Union v. Texaco, Inc., 802 F. Supp 1, 7 -8 (S.D N.Y 1992) (discussing this CCC licensing\npractice), a jfd , 60 F.3d 913 (2d C ir 1994), cert, dismissed, 516 U.S. 1005 (1995)\n\n87\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nLitigation Branch was \xe2\x80\x9c based upon the decision in Williams & Wilkins Co. v.\nUnited States, 487 F.2d 1345 (Ct. Cl. 1973), a f f d by an equally divided Court,\n420 U.S. 376 (1975).\xe2\x80\x9d Id. at 2.\nAs we explain below, while government reproduction of copyrighted material\nfor governmental use would in many contexts be noninfringing because it would\nbe a \xe2\x80\x9c fair use\xe2\x80\x9d under section 107 of the Copyright Act of 1976, 17 U.S.C. \xc2\xa7 107\n(1994), there is no \xe2\x80\x9c per se\xe2\x80\x9d rule under which such government reproduction of\ncopyrighted material invariably qualifies as a fair use.2 It is important to note,\nhowever, that we have been unable to discern any disagreement within the federal\ngovernment on this specific question: To our knowledge, no agency of the execu\xc2\xad\ntive branch has argued, or advised, that government copying is per se a fair use.\nIn particular, the Department o f Justice did not urge such a categorical rule in\nthe Williams & Wilkins litigation, see infra note 15 (brief for the United States\nin the Supreme Court did not dispute that photocopying by the government may\nin some circumstances constitute copyright infringement); and, to our knowledge,\nthe Department has not thereafter proffered any arguments, nor provided any\nadvice, inconsistent with the views expressed in that brief.3\nWe do not, in this opinion, reach any conclusions about the circumstances under\nwhich government agencies should negotiate to obtain photocopying licenses. We\ncaution, however, that a general practice of government agencies entering into\nlicensing agreements in which they pay licensing fees for uses that are fair may,\nover time, undermine the government\xe2\x80\x99s ability to argue successfully that such uses\nare fair. For this and other reasons, government agencies may wish to ensure that,\nif they do negotiate licensing arrangements, such arrangements cover only those\ngovernment photocopying practices that otherwise would, in fact, be infringing.\nIn Part I of this opinion, we provide some background on the fair use doctrine.\nIn Part II, we review the case law regarding government photocopying and fair\nuse, as well as Congress\xe2\x80\x99s enactment of the Copyright Act of 1976, and conclude\nthat government photocopying o f copyrighted materials does not invariably qualify\nas a fair use. Finally, in Part III, we provide some guidance on the factors that\nan agency should consider in determining whether a particular photocopying prac\xc2\xad\ntice would be a fair use and whether to negotiate a license with respect to par\xc2\xad\nticular photocopying practices.\n2 In framing the particular question you have asked us to consider, you refer to \xe2\x80\x9c unauthorized reproduction and\nuse o f materials that are protected by copyright law.\xe2\x80\x9d Pincus Letter at 1. The bulk o f your letter and supporting\nmaterials, however, indicates that your inquiry specifically concerns \xe2\x80\x9c photocopying for government u s e \xe2\x80\x9d Id at\n2 Accordingly, we will in this opinion focus, not on all potential federal government uses of copyrighted materials,\nbut instead, on government photocopying o f copyrighted materials for internal government use. We note, in particular,\nthat this opinion does not specifically consider the circumstances under which it would be a fair use for an agency\nto republish copyrighted materials in government publicauons or in publicly available databases.\n3 Indeed, a Department o f Energy memorandum that you provided as an attachment to your letter indicates that\nthe Commercial Litigation Division of the Department o f Justice has informed the Department of Energy that, in\nits view, som e cases o f government photocopying likely would not be fair uses. See Memorandum for Jim Chafin\nand All Field Offices, from Paul A G ottlieb, Assistant G eneral Counsel for Technology Transfer and Intellectual\nProperty, U nited States Department of Energy, Re: Copyright Clearance Center at 2 (May 23,1995).\n\n88\n\n\x0cWhether Government Reproduction o f Copyrighted Materials is a Noninfringing \xe2\x80\x9cFair Use\'\n\nI. The Fair Use Doctrine\nArticle I, Section 8 of the Constitution empowers Congress to \xe2\x80\x9c promote the\nProgress of Science and useful Arts, by securing for limited Times to Authors\nand Inventors the exclusive Right to their respective Writings and Discoveries.\xe2\x80\x9d\nU.S. Const, art. I, \xc2\xa7 8, cl. 8. Pursuant to that power, Congress enacted the Copy\xc2\xad\nright Act of 1976, Pub. L. No. 94-553, 90 Stat. 2541 (1976) (codified as amended\nat 17 U.S.C. \xc2\xa7101 et seq. (1994)) (the \xe2\x80\x9c Copyright Act\xe2\x80\x9d or the \xe2\x80\x9c 1976 Act\xe2\x80\x9d ).\nSection 106 of the Copyright Act provides, inter alia, that the owner of a copy\xc2\xad\nright under Title 17 of the United States Code \xe2\x80\x9c has the exclusive rights . . .\nto reproduce the copyrighted work in copies,\xe2\x80\x9d and to \xe2\x80\x9c authorize\xe2\x80\x9d such reproduc\xc2\xad\ntion. 17 U.S.C. \xc2\xa7 106(1) (1994). Those \xe2\x80\x9c exclusive rights,\xe2\x80\x9d however, are\n\xe2\x80\x9c [sjubject to\xe2\x80\x9d limitations codified in \xe2\x80\x9c sections 107 through 120\xe2\x80\x9d of the 1976\nAct. Id. \xc2\xa7 106. For present purposes, the most important of those limitations is\nfound in section 107 of the Copyright Act, id. \xc2\xa7 107. That section, which is entitled\n\xe2\x80\x9c Limitations on exclusive rights: Fair use,\xe2\x80\x9d provides, in pertinent part:\nNotwithstanding the provisions of section[] 106 . . ., the fair use\nof a copyrighted work, including such use by reproduction in copies\n. . ., for purposes such as criticism, comment, news reporting,\nteaching (including multiple copies for classroom use), scholarship,\nor research, is not an infringement of copyright. In determining\nwhether the use made of a work in any particular case is a fair\nuse the factors to be considered shall include \xe2\x80\x94\n(1) the purpose and character of the use, including whether such\nuse is of a commercial nature or is for nonprofit educational pur\xc2\xad\nposes;\n(2) the nature of the copyrighted work;\n(3) the amount and substantiality of the portion used in relation\nto the copyrighted work as a whole; and\n(4) the effect of the use upon the potential market for or value\nof the copyrighted work.\nSection 107\xe2\x80\x99s \xe2\x80\x9c fair use\xe2\x80\x9d limitation on copyright, and the particular factors\nenumerated in that section, reflect and incorporate a longstanding common law\ndoctrine. See Harper & Row, Publishers, Inc. v. The Nation Enters ., 471 U.S.\n539, 549 (1985). From the \xe2\x80\x9c infancy of copyright protection,\xe2\x80\x9d courts have found\nit necessary to provide some opportunity for fair use of copyrighted materials\nin order \xe2\x80\x9c to fulfill copyright\xe2\x80\x99s very purpose, \xe2\x80\x98[t]o promote the Progress of Science\n89\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nand useful Arts.\xe2\x80\x99 \xe2\x80\x9d Cam pbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575 (1994).\nBefore enactment of the 1976 Act, however, the fair-use doctrine was \xe2\x80\x9c exclu\xc2\xad\nsively [a] judge-made doctrine.\xe2\x80\x9d Id. at 576. When it codified the fair use doctrine\nin section 107 of the 1976 Act, \xe2\x80\x9c Congress meant \xe2\x80\x98to restate the present judicial\ndoctrine of fair use, not to change, narrow, or enlarge it in any way\xe2\x80\x99 and intended\nthat courts continue the common-law tradition of fair use adjudication.\xe2\x80\x9d Id. at\n577 (quoting H.R. Rep. No. 94-1476, at 66 (1976) ( \xe2\x80\x9c House Report\xe2\x80\x9d ), reprinted\nin 1976 U.S.C.C.A.N. 5659, 5679; S. Rep. No. 94-473, at 62 (1975) ( \xe2\x80\x9c Senate\nReport\xe2\x80\x9d )); accord H arper & Row, 471 U.S. at 554.4\nAs noted above, the fair use doctrine, like the copyright protections that it quali\xc2\xad\nfies, is necessary in order \xe2\x80\x9c to fulfill copyright\xe2\x80\x99s very purpose, \xe2\x80\x98[t]o promote the\nProgress of Science and useful Arts.\xe2\x80\x99 \xe2\x80\x9d Campbell, 510 U.S. at 575; see also, e.g.,\nH arper & Row, 471 U.S. at 545 ( \xe2\x80\x9c copyright is intended to increase and not to\nimpede the harvest of knowledge\xe2\x80\x9d ). As the Supreme Court recently emphasized,\n\xe2\x80\x9c [t]he fair use doctrine thus \xe2\x80\x98permits [and requires] courts to avoid rigid applica\xc2\xad\ntion of the copyright statute when, on occasion, it would stifle the very creativity\nwhich that law is designed to foster.\xe2\x80\x99 \xe2\x80\x9d Campbell, 510 U.S. at 577 (quoting\nStew art v. Abend, 495 U.S. 207, 236 (1990) (internal quotation marks and citation\nomitted)).5\n\n4 In 1992, Congress added the following senience to the end o f 17 U S C \xc2\xa7107, in order to clanfy that the\nfair-use limitation is applicable to unpublished works: \xe2\x80\x9c The fact that a work is unpublished shall not itself bar\na finding o f fair use if such finding is m ade upon consideration o f all the above factors \xe2\x80\x9d Pub L No. 102-492,\n106 Stat 3145 (1992). Arguably, application of the fair use doctrine to unpublished works is one way in which\nsection 107 departs from the common law. See, e g , H.R Rep No 102-836, at 4 (1992) ( \xe2\x80\x9c The common law,\ngoing back to late eighteenth century English cases, had been stnct in prohibiting fair use of unpublished works\nunder the theory that the author should decide when and in what form his or her work should first reach the public \xe2\x80\x9d ),\nreprinted in 1992 U S C.C A.N. 2553, 2556; Salinger v Random House, In c , 811 F.2d 90, 95 (2d Cir.) (\xe2\x80\x9c Though\ncom m on law, especially as developed in England, appears to have denied the defense of fair use to unpublished\nworks, see W. Patry, The Fair Use Privilege in Copyright Law 436\xe2\x80\x9441 (1985), the 1976 Act explicitly makes all\nof the rights protected by copynght, including the right o f first publication, subject to the defense of fair use.\xe2\x80\x9d ),\ncert denied, 484 U.S. 890 (1987); New Era Publications In t\xe2\x80\x99l, AP S v Henry Holt & C o , 695 F Supp. 1493,\n1502 (S D N.Y 1988) (Copyright Act\xe2\x80\x99s application o f fair use doctnne to unpublished work was \xe2\x80\x9c in departure\nfrom the common law rule\xe2\x80\x9d ), a jfd , 873 F.2d 576 (2d Cir. 1989), cert denied, 493 U.S 1094 (1990) But see\nH arper &. Row, 471 U.S. at 550-51 (although \xe2\x80\x9c fair use traditionally was not recognized [at common law] as a\ndefense to charges o f copying from an author\xe2\x80\x99s as yet unpublished works . . . [t]his absolute rule . . was tempered\nin practice by the equitable nature of the fair use doctnne\xe2\x80\x9d )\n5 See also Pierre N. Leval, Toward a F air Use Standard, 103 Harv L Rev 1105, 1110 (1990) ( \xe2\x80\x9c The doctnne\no f fair use limits the scope o f the copynght monopoly in furtherance of its utibtanan objective.\nFair use should\nnot be considered a bizane, occasionally tolerated departure from the grand conception of the copynght monopoly\nTo the contrary, it is a necessary part o f the overall design \xe2\x80\x9d ); Fogerty v Fantasy, Inc., 510 U S 517, 526-27\n(1994) (quoting Twentieth Century Music Corp. v. Aiken, 422 U S 151, 156 (1975))1\nT he limited scope o f the copynght holder\xe2\x80\x99s statutory monopoly\nreflects a balance of competing claims\nupon the public interest: CreaUve w ork is to be encouraged and rewarded, but pnvate motivation must\n\xe2\x80\xa2ultimately serve the cause of promoting broad public avajlability o f literature, music, and the other arts.\nThe immediate effect o f our copyright law is to secure a fair return for an \xe2\x80\x98author\xe2\x80\x99s\xe2\x80\x99 creative labor But\nthe ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good\n\n90\n\n\x0cWhether Government Reproduction o f Copyrighted Materials is a Noninfringing \xe2\x80\x98 \xe2\x80\x98Fair U se\'\n\nII. Fair Use and Government Photocopying\nThe federal government can be liable for violation of the copyright laws. Con\xc2\xad\ngress has expressly provided that a work protected by the copyright laws can\nbe \xe2\x80\x9c infringed by the United States,\xe2\x80\x9d 28 U.S.C. \xc2\xa7 1498(b) (1994),6 and further\nhas provided that \xe2\x80\x9c the exclusive action which may be brought for such infringe\xc2\xad\nment shall be an action by the copyright owner against the United States in the\nCourt of Federal Claims for the recovery of his reasonable and entire compensa\xc2\xad\ntion as damages for such infringement,\xe2\x80\x9d 28 U.S.C. \xc2\xa7 1498(b) (Supp. Ill 1997).\nAt the same time, it cannot be disputed that the federal government\xe2\x80\x99s copying\n(and other use) of copyrighted materials is subject to the fair use doctrine codified\nin 17 U.S.C. \xc2\xa7 107.7 It follows that any federal government photocopying that\nis a fair use is not infringing. However, there is no basis for concluding that\nthe photocopying of copyrighted materials by the federal government automati\xc2\xad\ncally or invariably constitutes a fair use.\nThe case law provides very little guidance on the question of when government\nphotocopying is a fair use. Reported cases involving application of the fair use\ndoctrine to governmental conduct are rare. Indeed, the Williams & Wilkins deci\xc2\xad\nsion, to which your letter refers and which we discuss below, is one of the only\npublished opinions containing a significant discussion of governmental fair use.8\nAnd, outside the context of public schools, we have found only one case \xe2\x80\x94\ninvolving circumstances far removed from those at issue in this opinion \xe2\x80\x94 in\nwhich a court has rejected a government\xe2\x80\x99s assertion that its use of copyrighted\nmaterials was fair.9 What is more, even outside the context of governmental use,\n6 See also H.R. Rep. No 86-624, at 2 (1959) (\xe2\x80\x9c When the Government deliberately publishes a copyrighted article\nwithout obtaining the prior consent o f the copynght proprietor, the general assumption would be lhat the holder,\npursuant to the pnnciples o f \xe2\x80\x98just compensation\xe2\x80\x99 under the fifth amendment of our Constitution, should be entitled\nto an action against the Government for infringement \xe2\x80\x9d )\n7 There is nothing in the statute to suggest that the federal government cannot invoke the fair use doctnne. The\nlegislative history indicates lhat cenain governmental uses can be fair. See infra notes 19, 24 And the courts uni\xc2\xad\nformly have assumed that the fair use analysis provided in section 107 o f the Act applies to government uses of\ncopynghted matenals See, e.g., the cases cited in note 8, infra\n8 A few other cases contain less extensive discussion o f governmental fair use. See, e g . Association o f Am. Med.\nColleges v. Cuomo, 928 F.2d 519, 523-26 (2d Cir.), cert denied, 502 U.S 862 (1991), College Entrance Examination\nBd. v Pataki, 889 F. Supp 554, 564-75 (N.D N Y 1995), Sinai v California Bureau o f Automotive Repair, No\nC -92-0274\xe2\x80\x94VRW, 1992 WL 470699, at *3-*4 (N.D. Cai. Dec 21, 1992), College Entrance Examination Bd. v\nCuomo, 788 F. Supp 134, 140-^3 (N.D.N Y. 1992), West v City o f New York, No 78 Civ. 1981 (MJL). 1985\nWL 202, at *24\xe2\x80\x94*25 (S.D N Y Jan. 18, 1985), Key Maps, Inc. v. Pruitt, 470 F. Supp 33, 37-38 (S.D Tex. 1978).\nO f these, only West and Key M aps involved decisions, necessary to the judgment, on the ments o f the fair use\nquestion; and only Key M aps involved a government entity making and distnbuiing multiple copies o f copynghted\nmaterials for internal government use\n9 See College Entrance Examination B d , 889 F Supp at 564-75. In that case, the distnct court, on a motion\nfor preliminary injunction, found a likelihood o f success on plaintiffs\xe2\x80\x99 infringement claim against a state government.\nThat case did not involve government copying for internal government use. See supra note 2. Instead, the case\ninvolved a challenge to a state statute that required testing organizations to disclose copies of their copynghted,\nconfidential tests and related materials, and that further provided that such materials, once disclosed, would become\npublic records.\nThere also are at least two decisions in which courts have found that a distnbution of multiple copies o f copyrighted\nmaterials to students in a public school was not a fair use. See Marcus v Rowley, 695 F.2d 1171, 1174\xe2\x80\x9479 (9th\nContinued\n\n91\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nthere is only a small handful of reported cases involving whether and under what\ncircumstances photocopying is a fair use.10\nThe sole reported decision (apart from the classroom context) concerning\nwhether government photocopying is a fair use is Williams & Wilkins Co. v.\nUnited States, 487 F.2d 1345 (Ct. Cl. 1973), a j f d by an equally divided Court,\n420 U.S. 376 (1975). The plaintiff in that case challenged certain practices of\nthe National Institutes of Health ( \xe2\x80\x9c NIH\xe2\x80\x9d ) and the National Library of Medicine\n(\xe2\x80\x9c N LM \xe2\x80\x9d ). The NIH library ran a photocopying service for the benefit of its\nresearch staff: On request, researchers could obtain a photocopy of an article from\nany of the journals in the library\xe2\x80\x99s collection, typically to assist them in their\non-going projects or for background reading. As a general matter, NIH would\nagree to provide a requester only one copy of a particular article, only one article\nper journal issue, and no article o f over 50 pages. In 1970, the library filled 85,744\nrequests for photocopies of journal articles (including journals published by W il\xc2\xad\nliams & Wilkins), constituting about 930,000 pages. See 487 F.2d at 1348. NLM\nis a repository of much of the w orld\xe2\x80\x99s medical literature, in essence a \xe2\x80\x9c librarians\xe2\x80\x99\nlibrary.\xe2\x80\x9d Id. Upon request, NLM would provide photocopies of journal articles,\nfree of charge, to other libraries and like research- and education-oriented institu\xc2\xad\ntions, both public and private (including commercial organizations, such as drug\ncompanies). NLM provided only one photocopy of a particular article per request,\nand would not honor a request for photocopying of an entire journal issue. In\n1968, a representative year, NLM filled about 120,000 requests by photocopying\njournal articles. NLM made no effort to ascertain the ultimate use to which the\nCir. 1983), Wihtol v. Crow, 309 F.2d 777, 780-81 (8lh C ir 1962) Such classroom cases may be instructive on\nthe general matter o f fair use in the context o f reproduction for nonprofit purposes However, such cases typically\ninvolve archival collection o r distribution o f multiple copies o f copynghted materials that were, in the first instance,\nprepared and marketed primarily for use in the very same classroom setting. See, e.g., Marcus, 695 F.2d at 1175\nW e assume that the government photocopying practices about which you are concerned will rarely, if ever, involve\nfederal government duplication for educational use m a classroom, or practices that fairly can be said to be analogous\nto those at issue in Marcus O f course, insofar as certain federal government practices are akin to those at issue\nin the classroom cases, then the courts\xe2\x80\x99 reasoning in decisions such as Marcus would be germane to the fair use\nanalysis (The holding in Wihtol is of less practical value, since the court in that case merely held that \xe2\x80\x9c [w]hatever\nmay be the breadth o f the doctnne of \xe2\x80\x98fair use,\xe2\x80\x99 it is not conceivable to us that the copying of all, or substantially\nall, o f a copynghted song can be held to be a \xe2\x80\x98fair use\xe2\x80\x99 merely because the infnnger had no intent to infringe \xe2\x80\x9d\n309 F.2d at 780.) Furthermore, with respect to such cases it may be mstrucuve to look to the legislative history\no f the 1976 Act, m which the House Committee on the Judiciary reproduced (i) an \xe2\x80\x9c Agreement on Guidelines\nfor C lassroom Copying in Not-for-Profit Educational Institutions with Respect to Books and Periodicals,\xe2\x80\x9d which\nhad been drafted by representatives of author/publisher and educational organizations, and (n) a similar, more special\xc2\xad\nized set o f \xe2\x80\x9c Guidelines for Educational Uses o f M usic,\xe2\x80\x9d which had been drafted by representatives of music pub\xc2\xad\nlishing and educational organizations See House Report at 66-72, reprinted in 1976 U.S.C.C.A.N at 5680-86. The\nH ouse Committee expressed its belief that \xe2\x80\x9c the guidelines are a reasonable interpretation of the minimum standards\no f fair use\xe2\x80\x9d in the classroom context, id. at 72, reprinted in 1976 U.S C C A N at 5686, and the House and Senate\nConferees \xe2\x80\x9c accept[ed]\xe2\x80\x9d the guidelines \xe2\x80\x9c as part o f their understanding of fair use,\xe2\x80\x9d H R Rep No. 94-1733, at\n70 (1976), reprinted in 1976 U.S.C.C A N . 5810, 5811. (On the question of the legal effect, if any, of these guidelmes,\nsee, e.g., Princeton Univ. Press v M ichigan Document Servs., Inc., 99 F 3 d 1381, 1390-91 (6th Cir 1996) (en\nbanc), cert, denied, 520 U S 1156 (1997); id at 1410-12 (Ryan , J., dissenting); 4 Melville B Nimmer & David\nNimmer, Nim m er on Copynght \xc2\xa7 13 05[E][3][a), at 13-241-42 (1998))\nl0 See, e g , Princeton Univ. Press, 99 F.3d 1381; American Geophysical Union v Texaco, I n c , 60 F.3d 913\n(2d C ir 1994), cert, dismissed, 516 U .S. 1005 (1995); D uffy v. Penguin Books USA Inc., 4 F. Supp 2d 268, 27 4 75 (S D N.Y 1998), Television Digest, Inc. v United States Telephone A ss\'n, 841 F. Supp. 5, 9-11 (D.D.C 1993);\nBasic Books, Inc v K inko\'s Graphics Corp., 758 F Supp 1522 ( S D N Y 1991)\n\n92\n\n\x0cWhether Government Reproduction o f Copyrighted Materials is a Noninfringing \' \'Fair Use \xe2\x80\x99\n\ncopied articles were put. Although NLM did provide some photocopies to institu\xc2\xad\ntions outside the government, NLM declined to provide to non-government\nlibraries copies of articles published within the preceding five years in any of\n104 journals included on a so-called \xe2\x80\x9c widely-available list.\xe2\x80\x9d Id. at 1348-49.\nThe Court of Claims, in a 4-to-3 decision, held that the NIH and NLM\nphotocopying practices were noninfringing because such practices were fair uses.\nThe majority discussed at length eight separate \xe2\x80\x9c considerations which merge to\nthat conclusion,\xe2\x80\x9d id. at 1353:\n(i) NIH and NLM are nonprofit institutions, see id. at 1354;\n(ii) the libraries\xe2\x80\x99 photocopying policies were \xe2\x80\x9c within appropriate\nconfines\xe2\x80\x9d \xe2\x80\x94 in particular, the libraries did not sell the copies, dis\xc2\xad\ntribute them broadly, or, with slight exceptions by NLM, distribute\nthe copies to nongovernmental entities, id. at 1354-55;\n(iii) such library photocopying practices had long been carried out\nacross the nation \xe2\x80\x9c with apparent general acceptance,\xe2\x80\x9d id. at 135556;\n(iv) medical science would be seriously hurt by a finding that such\nlibrary photocopying was infringing, see id. at 1356-57;\n(v) the plaintiff had failed to prove economic detriment as a result\nof the libraries\xe2\x80\x99 practices, see id. at 1357-59;\n(vi) the statutory language and history were singularly unclear on\nthe question, and it would be \xe2\x80\x9c less dangerous\xe2\x80\x9d to rule in favor\nof the libraries until Congress acted to clarify the fair use question,\nid. at 1359-61;\n(vii) contemporaneous legislative history of proposed legislation\n(that had not yet resulted in the 1976 amendment of the copyright\nlaw) \xe2\x80\x9c indicate[dj the correctness of our general approach,\xe2\x80\x9d id. at\n1361; and\n(viii) the law in many foreign countries was that such practices\nwere not infringing, see id. at 1361-62.\nThe Court of Claims in its decision also urged Congress to enact legislation to\nresolve the difficult fair use questions raised by the increasingly prevalent practice\nof photocopying \xe2\x80\x94 questions that were, in the court\xe2\x80\x99s words, \xe2\x80\x9c preeminently a\nproblem for Congress.\xe2\x80\x9d 487 F.2d at 1360; see also id. at 1353, 1363 (\xe2\x80\x9c Hopefully,\n93\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nthe result in the present case will be but a \xe2\x80\x98holding operation\xe2\x80\x99 in the interim period\nbefore Congress enacts its preferred solution.\xe2\x80\x9d ).\nWilliams & Wilkins appealed to the Supreme Court. In that Court, the Depart\xc2\xad\nment of Justice argued that the Court of Claims correctly analyzed the fair use\nquestion, and that the Court should affirm the judgment in favor of the United\nStates. See Brief for the United States, Williams & Wilkins Co. v. United States,\n420 U.S. 376 (1975) (No. 73-1279); Paul Goldstein, Copyright\xe2\x80\x99s Highway 113\xe2\x80\x94\n26 (1994) (describing Supreme Court proceedings). An equally divided Court,\nwithout opinion, affirmed the low er court judgment. See 420 U.S. 376 (1975).\nCongress was well aware of the dispute in Williams & Wilkins and of the Court\no f Claims\xe2\x80\x99 plea that Congress enact legislation to resolve the difficult fair use\nquestions raised in that case. See, e.g., Senate Report at 71. And, in the 1976\nAct, Congress did take three steps with respect to the matter of photocopying.\nFirst, in section 106 of the Act, Congress expressly affirmed that the rights of\na copyright owner include the rights \xe2\x80\x9c to reproduce the copyrighted work in\ncopies\xe2\x80\x9d and to \xe2\x80\x9c authorize\xe2\x80\x9d such reproduction. 17 U.S.C. \xc2\xa7106(1) (1994).11\nSecond, the text of section 107 of the Act \xe2\x80\x94 in which Congress for the first time\nformally codified the fair use doctrine \xe2\x80\x94 expressly provides that \xe2\x80\x9c reproduction\nin copies . . . for purposes such as . . . news reporting, teaching . . ., scholar\xc2\xad\nship, or research,\xe2\x80\x9d can be \xe2\x80\x9c the fair use of a copyrighted work.\xe2\x80\x9d Finally, in section\n108 of the Act, Congress provided that certain forms of library and archival\nphotocopying are not infringing, see 17 U.S.C.A. \xc2\xa7 108 (West 1996 & Supp.\n1999), thereby creating a discrete carve-out, or safe harbor, that does not \xe2\x80\x9c in\nany way affect[] the right o f fair use as provided by section 107,\xe2\x80\x9d 17 U.S.C.\n\xc2\xa7 108(f)(4) (1994). However, Congress did not otherwise resolve the fair use ques\xc2\xad\ntions raised in Williams <\xc2\xa3 Wilkins, and, in particular, did not identify the cir\xc2\xad\ncumstances under which photocopying \xe2\x80\x94 and government photocopying in par\xc2\xad\nticular\xe2\x80\x94 would, or would not, constitute fair use under section 107 of the 1976\nA ct.12 Instead, as explained above, Congress simply enacted 17 U.S.C. \xc2\xa7107 in\n11 As the court in Williams & Wilkins indicated, see 487 F.2d at 1350-51, 1359, there had been some question\nwhether, under the then-existing copynght laws, the exclusive nghts of the copyright owner included the right to\ncontrol the copying o f books and penodicals for personal use. See also B nef for the United States at 16 n26,\nWilliams & Wilkins Co. v. United States, 420 U.S 376 (1975) (No 73-1279) (discussing this question).\n12 In a memorandum attached to your letter, counsel for the CCC argue that section 108 of the 1976 Act \xe2\x80\x9c expressly\nproscnbes the copymg at issue in W illiams & Wilkins,\xe2\x80\x9d and that congressional enactment of section 108 \xe2\x80\x9c signalled\nC ongressional disapproval o f [Williams & Wilkins] on fair use grounds, and instead indicated that the photocopying\nactivities in question should be covered by a separate statutory provision, namely Section 108.\xe2\x80\x9d Memorandum of\nW eil, Gotshal & M anges LLP, Re* Government Photocopying as Copyright Infringement at 22-23 (July 30, 1997)\n(\xe2\x80\x9c Weil, Gotshal M em o\xe2\x80\x9d ). See also U nited States Information Infrastructure Task Force, Intellectual Property and\nthe National Information Infrastructure: The Report o f the Working Group on Intellectual Property Rights, at 82\nn.262 (Sept. 1995) ( \xe2\x80\x9c W hite Paper\xe2\x80\x9d ) ( \xe2\x80\x9c precedential value o f Williams & Wilkins\nmay be reduced\xe2\x80\x9d because\nof, inter aha, \xe2\x80\x9c Section 108\xe2\x80\x99s proscnption on most \xe2\x80\x98systematic\xe2\x80\x99 photocopying\xe2\x80\x9d ), quoted with approval in Weil,\nGotshal M emo at 22; William F. Patry, The Fair Use Privilege in Copyright Law 210 (2d ed 1995) ( \xe2\x80\x9c In 1976,\nCongress by subjecting the activity before the Court o f Claims to a statutory exemption m Section 108 of the Copy\xc2\xad\nnght Act, available only to hbranes and archives qualifying under Section 108(a) and then only in the enumerated\ninstances described in Sections 108(d), 108(e), and further subject to the conditions of Section 108(g), indicated\nits disapproval o f the Court of Claims\xe2\x80\x99 fair use holding.\xe2\x80\x9d ).\n\n94\n\n\x0cWhether Government Reproduction o f Copyrighted Materials is a Noninfringing \' \xe2\x80\x98Fair Use \xe2\x80\x99\n\norder to \xe2\x80\x9c codify the common-law doctrine.\xe2\x80\x9d H arper & Row , 471 U.S. at 549.\nAccordingly, the Court of Claims decision in Williams & Wilkins remains binding\nprecedent in the Federal Circuit, where infringement claims against the federal\ngovernment must be brought.13\nThe continued vitality of Williams & Wilkins in the Federal Circuit does not,\nhowever, mean that all federal government photocopying is a fair use. The Wil\xc2\xad\nliams & Wilkins court, after discussing at length the eight different considerations,\nor \xe2\x80\x9c elements,\xe2\x80\x9d that contributed to its decision, 487 F.2d at 1353-62, emphasized\nthat its holding (that the library copying practices at issue were noninfringing)\nThis is incorrect, because section 108 of the 1976 Act does not narrow the protection for fair use provided by\nthe common-law doctnne codified in section 107 Section 108(a) o f the Act, 17 U.S.C A \xc2\xa7 108(a) (West 1996 &\nSupp 1999), provides that, under certain conditions, it is \xe2\x80\x9c not an infringement of copynght for a library or archives\n. to reproduce no more than one copy or phonorecord o f a work, or to distribute such copy or phonorecord,\xe2\x80\x9d\n\xe2\x80\x9c [notw ithstanding the provisions o f section 106.\xe2\x80\x9d Section 108(g)(2), in turn, states that \xe2\x80\x9c (t]he rights of reproduction\nand distnbution under this section . . . do not extend\xe2\x80\x9d to certain cases involving the \xe2\x80\x9c systematic reproduction\nor distribution of single or multiple copies.\xe2\x80\x9d (Emphasis added) Section 108(g)(2) does not \xe2\x80\x9c expressly proscnbe[]\xe2\x80\x9d\nthe copying practices at issue in Williams & Wilkins \xe2\x80\x94 indeed, nothing in section 108 \xe2\x80\x9c proscnbes\xe2\x80\x9d any practice\nat all. Nor is there anything in section 108 suggesting that \xe2\x80\x9c systematic\xe2\x80\x9d reproduction is \xe2\x80\x9c lawful only via the [section\n108(g)(2)] proviso, [and] could not be a fair use \xe2\x80\x9d United States Copynght Office, Report o f the Register o f Copy\xc2\xad\nrights\' Library Reproduction o f Copyrighted Works (17 U.S.C. 108), at 98 (1983) ( \xe2\x80\x9c 1983 Register Report\xe2\x80\x9d ) At\nmost, section 108(g)(2) merely provides that the \xe2\x80\x9c n ghts\xe2\x80\x9d to copy and distribute that are provided \xe2\x80\x9c under\xe2\x80\x9d section\n108 \xe2\x80\x9c do not extend to\xe2\x80\x9d the \xe2\x80\x9c systematic\xe2\x80\x9d practices descnbed in section 108(g)(2) To be sure, \xe2\x80\x9c section 108 author\xc2\xad\nizes certain photocopying practices which may not qualify as a fair use,\xe2\x80\x9d House Report at 74 (emphasis added),\nreprinted in 1976 U.S C.C.A N. at 5688, see also Senate Report at 67 However, the statute does not provide, or\neven suggest, that the circumstances under which copying is noninfringing under section 108(a) are those \xe2\x80\x9c lhat\nwould typically not amount to fair use [under section 107],\xe2\x80\x9d White Paper at 84-85 (emphasis added), nor that\n\xe2\x80\x9c Section 108 was enacted to make lawful some types o f copying which would otherwise be infringements o f copy\xc2\xad\nright, fair use notwithstanding,\xe2\x80\x9d 1983 Register Report at 96 (emphasis added) Indeed, by its express terms, nothing\nin section 108 \xe2\x80\x9c in any way affects the nght of fair use as provided by section 107.\xe2\x80\x9d 17 U.S.C \xc2\xa7 108(f)(4) (1994);\nsee uiso House Report at 74 ( \xe2\x80\x9c No provision of section 108 is intended to lake away any nghts existing under\nthe fair use doctrine.\xe2\x80\x9d ), reprinted in 1976 U .S C C .A N at 5687-88, Senate Report at 67 (same); 122 Cong. Rec.\n3836 (1976) (statement o f Sen Magnuson) ( \xe2\x80\x9c the Judiciary Committee clearly sel out in iheir report\nthat the\nfair use doctrine not only applies to reproduction practices of libraries, but that in no way did they intend section\n108 to be a limitation upon the fair use doctnne\xe2\x80\x9d ).\nAccordingly, whether section 108 renders certain copying practices \xe2\x80\x9c not an infringement\xe2\x80\x9d does not affect w hether\nsuch practices are noninfringing fair uses under section 107 See Texaco, 802 F. Supp. at 28 & n 26 (emphasizing\nthat \xe2\x80\x9c Section 108 is a separate special statutory exemption governed by an entirely different set of standards [than\nunder section 107],\xe2\x80\x9d and rejecting the argument \xe2\x80\x9c that the understanding o f Section 107 should be influenced by\nwhat is permitted under Section 108\xe2\x80\x9d ); accord 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright\n\xc2\xa7 13.05[E][2], at 13-240 (1998) A certain copying practice can be \xe2\x80\x9c noninfnnging\xe2\x80\x9d under section 107, under section\n108, under both provisions, or under neither. In ils 1983 Report, the Register of Copyrights suggested that such\na construction o f the statute, in which practices permissible under section 108 might also be permissible under section\n107, would \xe2\x80\x9c render \xc2\xa7108 superfluous.\xe2\x80\x9d 1983 Register Report at 96 n.4 That is not the case, however. As the\nRegister noted, \xe2\x80\x9c the library community sought \xc2\xa7 108 to permit copying that had not been spelled out in the proposed\nfair use provision \xe2\x80\x9d Id. (emphasis added). Section 108 identifies (\xe2\x80\x9c spell[s] out\xe2\x80\x9d ) as noninfnnging a category of\nlibrary photocopying that may, or may not, constitute fair use Section 108 thus fairly can be viewed as a very\nvaluable\xe2\x80\x94 and not superfluous\xe2\x80\x94 safe harbor: If a certain library practice is noninfringing under the specific and\ndetailed provisions of section 108(a) (as confined by section 108(g)(2)), a library need not be concerned about how\nthat particular photocopying practice would fare under section 107\xe2\x80\x99s more complex and indeterminate fair use stand\xc2\xad\nards.\n13 Section 1498(b) o f title 28 provides that \xe2\x80\x9c the exclusive action which may be brought for mfnngement [by\nthe federal government] shall be an action by the copynght owner against the United States in the Court of Federal\nClaims \xe2\x80\x9d 28 U.S.C \xc2\xa7 1498(b) (Supp. Ill 1997). Decisions o f lhat court are appealable to the United States Court\no f Appeals for the Federal Circuit, see 28 U S C \xc2\xa7 1295(a)(3) (1994), which in turn considers itself bound by\ndecisions (such as Williams & Wilkins) that the former Court of Claims issued pnor to October 1982. See South\nCorp v. United States, 690 F 2d 1368, 1370 & n.2 (Fed Cir 1982); see also, e.g., Gargoyles, Inc. v. United States,\n113 F 3d 1572, 1576 (Fed C ir 1997).\n\n95\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nwas based upon all of the elements present in that case, and that its decision\nwould not necessarily resolve different cases \xe2\x80\x9c with other significant variables,\xe2\x80\x9d\nid. at 1362. The court expressly noted that it was not determining whether any\nof the particular elements in the Williams & Wilkins case would be sufficient\nfor a finding of fair use, nor whether all of the relevant elements cumulatively\nwere \xe2\x80\x9c essential\xe2\x80\x9d to the finding o f fair use: It sufficed for the court simply to\ndecide that \xe2\x80\x9c at least when all co-exist in combination a \xe2\x80\x98fair use\xe2\x80\x99 is made out.\xe2\x80\x9d\nId.\\ see also id. ( \xe2\x80\x9c we feel a strong need to obey the canon of judicial parsimony,\nbeing stingy rather than expansive in the reach of our holding\xe2\x80\x9d ).14 Implicitly,\nthen, the decision in Williams & Wilkins itself suggests that there may be some\ncircumstances under which government photocopying might be infringing. See\nalso Brief for the United States at 14, Williams. & Wilkins Co. v. United States,\n420 U.S. 376 (1975) (No. 73-1279) (\xe2\x80\x9c The doctrine is applied as its rationale\ndictates in each case, and has no sharp edges.\xe2\x80\x9d ).15\nA \xe2\x80\x98 \xe2\x80\x98per se\xe2\x80\x99 \xe2\x80\x99 rule also would be inconsistent with the approach that the Supreme\nCourt subsequently has taken in its decisions involving section 107 of the Copy\xc2\xad\nright Act. The Court repeatedly has emphasized that the task of determining\nwhether a particular use is fair \xe2\x80\x9c is not to be simplified with bright-line rules,\nfor the statute, like the doctrine it recognizes, calls for case-by-case analysis.\xe2\x80\x9d\nCam pbell, 510 U.S. at 577; accord id. at 584 (Congress \xe2\x80\x9c \xe2\x80\x98eschewed a rigid,\nbright-line approach to fair use,\xe2\x80\x99 \xe2\x80\x9d in favor of \xe2\x80\x9c a \xe2\x80\x98sensitive balancing of\ninterests.\xe2\x80\x99 \xe2\x80\x9d ) (quoting Sony Corp. o f America v. Universal City Studios, Inc., 464\nU.S. 417, 449 n.31, 455 n.40 (1984)); H arper & Row, A ll U.S. at 552 (\xe2\x80\x9c fair\nuse analysis must always be tailored to the individual case\xe2\x80\x9d ).\nIII. D eterm ining Whether a Particular Government Photocopying Practice is a\nFair Use\n\nOur conclusion that government photocopying is not invariably noninfringing\ndoes not, of course, answer the question whether government agencies should\nenter into licensing agreements for photocopying, and if so, what the terms and\n14 M ore recent fair use decisions involving photocopying similarly have been confined narrowly to the particular\ncopying practices in dispute See, e g , Texaco, 60 F.3d at 931 ( \xe2\x80\x9c Our ruling is confined to the institutional, systematic,\narchival multiplication o f copies revealed by the record\xe2\x80\x94 the precise copying that the parties stipulated should be\nthe basis for . . .d e c is io n .\n\xe2\x80\x9d)\n15 As we discuss supra p. 88, we have no reason to believe that any agency of the executive branch has argued,\nor advised, that government copying is \xe2\x80\x9c per se a fair use.\xe2\x80\x9d In this respect, it is notable in particular lhat, in its\nSupreme Court brief in Williams <6 Wilkins, the United States cited a House Report as \xe2\x80\x9c indicating]\n. that\nphotocopying by the government may in som e circumstances constitute copynght infringement \xe2\x80\x9d B nef for the United\nStates at 15 n 24, Williams & Wilkins Co. v. United States, 420 U.S. 376 (1975) (No 73-1279) (citing H.R. Rep.\nNo 86-624, at 5 (1959)) In the cited House Report, a House Committee indicated that the federal government\ncould infringe a copyright when it \xe2\x80\x9c publishes\xe2\x80\x9d an article without permission See supra note 6. The Committee\ndid not indicate what it meant by \xe2\x80\x9c publishes,\xe2\x80\x9d and did not expressly mention photocopying At the page of the\nH ouse Report (page 5) that the Solicitor General cited, however, a letter wntten by the Department of Commerce\nassumes that government photocopying could be infringing. See also id. at 8 (reflecting a similar assumption conveyed\nby the Librarian o f Congress) There is no suggestion in the House Report that the House Committee disagreed\nw ith this assumption.\n\n96\n\n\x0cWhether Government Reproduction o f Copyrighted Materials is a Noninfringing \xe2\x80\x9cFair Use \xe2\x80\x99\n\nconditions of such agreements should be. In answering that question, there is an\ninescapable tension. On the one hand, because of the highly fact-bound nature\nof the fair use inquiry, it is difficult to ascertain in advance which governmental\npractices will, or will not, be fair uses: There is an \xe2\x80\x9c endless variety of situations\nand combinations of circumstances that can rise in particular cases.\xe2\x80\x9d House Report\nat 66, reprinted in 1976 U.S.C.C.A.N. at 5680. Such uncertainty, when viewed\nin isolation, might weigh in favor of entering into relatively broad licensing agree\xc2\xad\nments, so as to ensure that an agency\xe2\x80\x99s photocopying will never be infringing.\nOn the other hand, and in addition to the desire to avoid unnecessary costs, there\nis an important legal consideration that counsels against entering into unnecessary\nlicensing agreements and in favor of limiting such agreements to encompass only\nthose photocopying practices that are infringing \xe2\x80\x94 namely, the concern that gen\xc2\xad\neral custom and usage may be integral to the fair use analysis.16 Indeed, at least\none court has opined, in particular, that whether it is \xe2\x80\x9c fair,\xe2\x80\x9d under the copyright\nlaw, to engage in a photocopying practice without compensation may depend,\nin part, on whether similarly situated entities customarily agree to pay a fee to\nthe copyright holders.17 We have no occasion here to consider whether that court\nwas correct in this regard; but it is possible that other courts may follow suit.\nAccordingly, if government agencies routinely agree to pay licensing fees to\nengage in photocopying practices that were fair uses at the time, there is a chance\nsome courts may conclude that a growing or longstanding custom o f paying such\nfees weighs against a finding that such photocopying practices are fair uses when\nunlicensed. Thus, an agency that decides to negotiate a photocopying license\nshould seek to limit the scope of the licensing agreement so as not to cover those\nphotocopying practices that the agency, in good faith, concludes are not infringing.\nIn the end, each agency must do its best to evaluate whether any o f its\nphotocopying practices are infringing, and, if so, to obtain proper authorization\nfor such uses of copyrighted materials. Although, as we have explained, there\nmay be many government photocopying practices that are fair uses (or that are,\nfor other reasons, not infringing), under some circumstances government\nphotocopying may not be a fair use. In evaluating whether their practices are\ninfringing, agencies should be guided by Williams & Wilkins, which, as noted\nabove, is still binding precedent in the Federal Circuit. However, as explained\nabove, the holding in Williams & Wilkins itself was dependent on the particular\nfacts of that case, and the 8150 calculus may be different with respect to govern\xc2\xad\n16 See, e g , Williams & Wilkins * 487 F 2 d at 1355-56, see also Harper & Row, 471 U S . at 550 (the fair use\ndoctnne traditionally \xe2\x80\x9c was predicated on the author\xe2\x80\x99s implied consent to \xe2\x80\x98reasonable and customary\xe2\x80\x99 use when he\nreleased his work for public consum ption\xe2\x80\x9d )\n17 See Princeton Univ. Press, 99 F.3d at 1387 (consideration of the potential licensing revenues for photocopying\nin a fair use analysis is \xe2\x80\x9c especially\xe2\x80\x9d appropnate where the copynght holder not only has an interest in exploiting\nthe licensing market, but also \xe2\x80\x9c has actually succeeded in doing so\xe2\x80\x9d ) But c f Campbell, 510 U.S. at 585 n.18 (defend\xc2\xad\nants\xe2\x80\x99 request for permission to use copyrighted song in a parody does \xe2\x80\x9c not necessarily suggest that they believed\ntheir version was not fair use; the offer may simply have been made in a good-faith effort to avoid this litiganon\xe2\x80\x9d ).\n\n97\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nment photocopying practices that diverge in material ways from the NIH and NLM\npractices at issue in Williams & Wilkins .18\nMoreover, agencies should be aware that, in two important recent cases in other\ncircuits, sharply divided courts o f appeals have held that certain commercial\nphotocopying practices were not fair uses. In Princeton Univ. Press v. Michigan\nDocument Servs., Inc., 99 F.3d 1381 (6th Cir. 1996) (en banc), cert, denied, 520\nU.S. 1156 (1997), the United States Court of Appeals for the Sixth Circuit held\nthat a commercial copyshop had engaged in willful infringement by reproducing\nsubstantial segments of copyrighted works of scholarship and binding such repro\xc2\xad\nductions into coursepacks that the copyshop then sold to students. In American\nGeophysical Union v. Texaco, Inc., 60 F.3d 913 (2d Cir. 1994), cert, dismissed,\n516 U.S. 1005 (1995), the United States Court of Appeals for the Second Circuit\nheld that Texaco\xe2\x80\x99s systematic photocopying o f scientific journal articles for its\nresearchers\xe2\x80\x99 archival use was infringing. Even if the United States Court of\nAppeals for the Federal Circuit were to adopt the reasoning of these decisions,\nthe rationale of those decisions would not apply with full force in the context\nof government photocopying, since the decisions each rested, in part, on the fact\nthat each of the defendants \xe2\x80\x9c acquire[d] conspicuous financial rewards from its\nuse of the copyrighted material.\xe2\x80\x9d Id. at 922; see also Princeton Univ. Press, 99\nF.3d at 1386, 1389. Moreover, as the Texaco court noted, \xe2\x80\x9c courts are more willing\nto find a secondary use [i.e., the use that is made of the photocopies] fair when\nit produces a value that benefits the broader public interest.\xe2\x80\x9d 60 F.3d at 922.\nNevertheless, the ongoing debate among the judges in cases such as these (and\nin W illiams & Wilkins) demonstrates that the boundaries of fair use in the\nphotocopying context are uncertain, highly contested, and especially dependent\nupon the particulars of a given case. And, while in some cases it might be fairly\neasy for an agency to determine that a government practice is noninfringing,19\nusually that will not be the case: Whether a particular government photocopying\npractice is a fair use often will depend upon a \xe2\x80\x9c \xe2\x80\x98sensitive balancing of\n18 M oreover, the subsequent advent of the CCC, and the possibility of reasonable licensing agreements with that\norganization, may affect at least one of the factors that led the Court of Claims to rule against the copyright holder\nin Williams & Wilkins. The Court of C laim s reasoned that medical science would be seriously hurt by a finding\nthat the NIH and NLM photocopying was infringing, since the result of such a holding could have been that libraries\nw ould have to cease their photocopying practices. See 487 F.2d at 1356-57 But insofar as such libraries now could\navoid a finding o f fair use by agreeing to pay a reasonable and affordable licensing fee \xe2\x80\x94 that is, a fee that would\nnot materially deter the actual making and use o f valuable photocopies \xe2\x80\x94 the harm that the Williams & Wilkins\ncourt foresaw could be diminished See Texaco, 60 F 3d at 924 (\xe2\x80\x9c To the extent the copying practice was \xe2\x80\x98reasonable\xe2\x80\x99\nin 1973 [when Williams & Wilkins was decided], it has ceased to be \xe2\x80\x98reasonable\xe2\x80\x99 as the reasons that justified it\nbefore [photocopying licensing] have ceased to exist \xe2\x80\x99) (quoting the district court opinion, 802 F. Supp. at 25)\nBut see id at 934 (Jacobs, J , dissenting).\n19 For an example outside the context o f photocopying, see, e.g., House Report at 73 ( \xe2\x80\x9c The Committee has consid\xc2\xad\nered the question o f publication, in Congressional hearings and documents, of copynghted material. Where the length\nof the work or excerpt published and the number of copies authonzed are reasonable under the circumstances, and\nthe work itself is directly relevant to a matter o f legitimate legislative concern, the Committee believes that the\npublication would constitute fair use.\xe2\x80\x9d ), reprinted in 1976 U .S C.C A.N at 5687\n\n98\n\n\x0cWhether Government Reproduction o f Copyrighted Materials is a Noninfringing "Fair U se\xe2\x80\x99\n\ninterests.\xe2\x80\x99 \xe2\x80\x9d Cam pbell, 510 U.S. at 584 (quoting Sony Corp. o f America v. Uni\xc2\xad\nversal City Studios, Inc., 464 U.S. 417, 455 n.40 (1984)).\nIn the text of section 107 of the Copyright Act itself, Congress has instructed\nthat, in determining whether the use made of a work in any particular case is\na fair use, \xe2\x80\x98\xe2\x80\x98the factors to be considered shall include\xe2\x80\x99\xe2\x80\x99 the following:\n(1) the purpose and character of the use, including whether such\nuse is of a commercial nature or is for nonprofit educational pur\xc2\xad\nposes;\n(2) the nature of the copyrighted work;\n(3) the amount and substantially of the portion used in relation\nto the copyrighted work as a whole; and\n(4) the effect of the use upon the potential market for or value\nof the copyrighted work.\nThese four statutory factors should not be treated in isolation, one from another.\nCampbell , 510 U.S. at 578. Nor are those factors exhaustive. See H arper & Row,\n471 U.S. at 560; H.R. Rep. No. 102-836, at 9-10 (1992), reprinted in 1992\nU.S.C.C.A.N. 2553, 2561-62.20 Most importantly, it is critical that the statutory\nfactors, as well as all other pertinent factors and considerations, \xe2\x80\x9c be explored,\nand the results weighed together, in light o f the purposes o f copyright." Campbell,\n510 U.S. at 578 (emphasis added); see also id. at 581 (the fair use inquiry requires\nthat any particular use of copyrighted material \xe2\x80\x9c be judged, case by case, in light\nof the ends of the copyright law\xe2\x80\x9d ).21 Accordingly, before turning to particular\nfactors and considerations that agencies should consider in the context of govern\xc2\xad\nment photocopying, it is important once again to identify the \xe2\x80\x9c purposes of copy\xc2\xad\nright.\xe2\x80\x9d\nCopyright law \xe2\x80\x9c ultimately serves the purpose of enriching the general public\nthrough access to creative works.\xe2\x80\x9d Fogerty v. Fantasy, Inc., 510 U.S. 517-18,\n527 (1994); see also H arper <\xc2\xa3 Row, 471 U.S. at 545 (\xe2\x80\x9c copyright is intended\nto increase and not to impede the harvest of knowledge\xe2\x80\x9d ). Thus, in determining\nwhether a particular photocopying practice is a fair use, the ultimate question to\nbe answered is whether permitting the government to continue to engage in the\npractice without paying a licensing fee would \xe2\x80\x9c serve[] the copyright objective\n20 Section 107 expressly provides that \xe2\x80\x9c the factors to be considered shall include\xe2\x80\x9d the four enumerated factors\n(emphasis added), and the 1976 Act elsewhere provides that the term \xe2\x80\x9c including\xe2\x80\x9d is \xe2\x80\x9c illustrative and not limitative,\xe2\x80\x9d\n17 U S.C. \xc2\xa7 101 (1994)\n21 See also 4 Melville B. Nimmer & David Nimmer, N immer on Copyright \xc2\xa7 13 05[A][5], at 13-195 (1998) (\xe2\x80\x9c the\nprotean factors enumerated in Section 107, standing by themselves, lack the concreteness to provide definite answers\nto difficult cases\xe2\x80\x9d ); Lloyd L Weinreb, Fair Use, 61 Fordham L. Rev 1291, 1306 (1999) ( \xe2\x80\x9c fair use depends on\na calculus of incommensurables\xe2\x80\x9d ).\n\n99\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nof stimulating productive thought and public instruction without excessively\ndiminishing the incentives for creativity.\xe2\x80\x9d Pierre N. Leval, Toward a Fair Use\nStandard, 103 Harv. L. Rev. 1105, 1110 (1990), cited with approval in Campbell,\n510 U.S. at 5 7 8 .2 2\nMoreover, although the point is less clearly established, the fair use doctrine\nmay be understood to contemplate permitting uses that serve \xe2\x80\x9c not only . . . the\npurpose of copyright but also . . . other socially recognized purposes.\xe2\x80\x9d Lloyd\nL. Weinreb, F a ir\xe2\x80\x99s Fair: A Comment on the Fair Use Doctrine, 103 Harv. L.\nRev. 1137, 1144 (1990). For example, the Supreme Court in the Sony case held\nthat consumer videotaping of television broadcasts for purposes of \xe2\x80\x9c time-shifting\xe2\x80\x9d\nwas a fair use, in part because such a practice \xe2\x80\x9c yields societal benefits.\xe2\x80\x9d 464\nU.S. at 454. Elaborating on this point, the Court cited the example of using a\nvideotaping machine \xe2\x80\x9c to enable a [hospital] patient to see programs he would\notherwise miss,\xe2\x80\x9d which, as the Court explained, \xe2\x80\x9c has no productive purpose other\nthan contributing to the psychological well-being of the patient.\xe2\x80\x9d Id. at 455 n.40.\nO f greater pertinence to the subject matter at hand \xe2\x80\x94 namely, government\ncopying \xe2\x80\x94 the Court further suggested that \xe2\x80\x9c a legislator who copies for the sake\no f broadening her understanding o f what her constituents are watching; or a con\xc2\xad\nstituent who copies a news program to help make a decision on how to vote,\xe2\x80\x9d\nare examples of uses that could be \xe2\x80\x9c fair.\xe2\x80\x9d Id.\nThus, it fairly can be argued that, as a general matter, \xe2\x80\x9c courts are more willing\nto find a secondary use fair when it produces a value that benefits the broader\npublic interest,\xe2\x80\x9d Texaco, 60 F.3d at 922, in contrast with a use that \xe2\x80\x9c can fairly\nbe characterized as a form o f \xe2\x80\x98commercial exploitation,\xe2\x80\x99 i.e., when the copier\ndirectly and exclusively acquires conspicuous financial rewards from its use of\nthe copyrighted material,\xe2\x80\x9d id .23 For instance, the federal government typically\nphotocopies materials in order to facilitate some other, \xe2\x80\x9c secondary\xe2\x80\x9d use of such\nmaterials, and such secondary use generally is aimed at providing a public benefit,\nor at serving a \xe2\x80\x9c broad[] public purpose.\xe2\x80\x9d Id. Insofar as an agency\xe2\x80\x99s photocopying\nis intended to facilitate such public purposes, that should weigh in favor of a\nfinding of fair use.24 See a lso infra p. 101 (discussing whether purpose of the\nphotocopying is to enhance profitmaking).\n22 See also, e.g., Atari Games Corp. v Nintendo o f Am., Inc., 975 F 2 d 832, 843 (Fed. Cir 1992) (where, m\n\xe2\x80\x9c reverse engineering\xe2\x80\x9d o f computer softw are, \xe2\x80\x9c intermediate\xe2\x80\x9d copying permitted the user to study that software and\nthereafter design new video game program s, the resultant \xe2\x80\x9c growth in creative expression\xe2\x80\x9d weighed in favor of\nfinding that the copying was a fair use).\n23See also, e g ., N im m er, \xc2\xa7 13.05[B][4], at 13-205 ( \xe2\x80\x9c The public interest is also a factor that continually informs\nthe fair use analysis \xe2\x80\x9d ) (footnote omitted).\n24 See, e.g., Williams & Wilkins, 487 F 2 d at 1353 ( \xe2\x80\x9c W e cannot believe, for instance, that a judge who makes\nand gives to a colleague a photocopy o f a law review article, m one o f the smaller or less available journals, which\nbears directly on a problem both ju d g es are then considering in a case before them is infringing the copynght,\nrather than making \xe2\x80\x98fair use\xe2\x80\x99 of his issue o f that journal.\xe2\x80\x9d ), Key Maps, I n c , 470 F. Supp at 38 (county fire marshal\xe2\x80\x99s\ndistribution o f copies o f copynghted m aps to 50 fire departments, law enforcement agencies, and civil defense units\nin the county was \xe2\x80\x9c legitimate, fair, and reasonable,\xe2\x80\x9d since the copies were disseminated \xe2\x80\x9c solely for internal purposes\nwhich related to a discemable public interest,\xe2\x80\x9d namely, \xe2\x80\x9c the coordination of fire prevention activities in the unincor\xc2\xad\nporated areas o f [the] county\xe2\x80\x9d ), see also House Report at 65 (noting that, under section 107 of the 1976 Act,\n\n100\n\n\x0cWhether Government Reproduction o f Copyrighted Materials is a Noninfringing \xe2\x80\x9cFair Use\'\n\nIn order to decide whether a particular government use of copyrighted materials\nwould, on the whole, \xe2\x80\x9c promote the Progress of Science and useful Arts,\xe2\x80\x9d it is\nnecessary to take into account an \xe2\x80\x9c ample view of the universe of relevant evi\xc2\xad\ndence.\xe2\x80\x9d Campbell, 510 U.S. at 575, 584. Similarly, in order to determine whether\nany other benefits to the broader public interest would sufficiently outweigh the\ncosts of any reduction in the incentives for creativity, it is necessary to engage\nin a comprehensive evaluation of all pertinent factors. We think that, in the par\xc2\xad\nticular context of government photocopying, the following specific considerations\n(each of which bears on the four enumerated statutory factors) might have a\nsignificant impact on the fair use calculus:\n(a)\nOne important consideration that courts typically address under the first\nstatutory factor (\xe2\x80\x9c the purpose and character of the use, including whether such\nuse is of a commercial nature or is for nonprofit educational purposes\xe2\x80\x9d ) is whether\nthe use in question is undertaken in order to increase the user\xe2\x80\x99s profits. In most,\nif not all, cases, the purposes for which the government makes photocopies do\nnot include profitmaking or commercial exploitation. Although the nonprofit\nnature of the government\xe2\x80\x99s use of photocopies would not be dispositive, see\nCampbell, 510 U.S. at 584, it certainly would be \xe2\x80\x9c one element,\xe2\x80\x9d id., germane\nto the fair use question.25 The commercial/nonprofit distinction may be especially\nsignificant where, as in most cases of photocopying, the secondary use is not\n\xe2\x80\x9c transformative\xe2\x80\x9d \xe2\x80\x94 i.e., where the copyrighted material is merely copied in its\noriginal form and is not transformed into another valuable product. See id. at 579\n(the more transformative the use, the less significant to the analysis will be the\nquestion of commercialism).26\n\xe2\x80\x9c courts might regard as fair\xe2\x80\x9d the \xe2\x80\x9c reproduction o f a [copynghted] work in legislative or judicial proceedings or\nreports\xe2\x80\x9d ), reprinted in 1976 U.S C.C.A N. at 5678-79; Senate Report at 61-62 (same). Harper & Row, 471 U.S.\nat 584-85 n.8 (Brennan, J., dissenting) (example of a judicial opinion quoting extensively from copynghted materials),\nSinai, 1992 WL 470699, at *3 (state Bureau o f Automotive Repairs used matenals for a \xe2\x80\x9c public purpose\xe2\x80\x9d when\nit disseminated an auto emissions chart to field offices throughout the state so that those offices could assist smog\ncheck stations and consumers in complying with the state\xe2\x80\x99s emission laws).\n25 See also Harper & Row, 471 U.S at 562, Texaco, 60 F 3d at 921-22\n26 Counsel for the CCC, citing Campbell, suggest that nontransformative uses \xe2\x80\x9c are unlikely to be regarded as\nfair ones.\xe2\x80\x9d Weil, Gotshal Memo at 8 However, the Court in Campbell simply indicated that, because \xe2\x80\x9c the goal\nof copynght, to promote science and the arts, is generally furthered by the creation of transformative works, . . .\n(sjuch works thus lie at the heart o f the fair use doctnne\xe2\x80\x99s guarantee o f breathing space within the confines of\ncopyright, . . . and the more transformative the new work, the less will be the significance of other factors, like\ncommercialism, that may weigh against a finding o f fair u s e \xe2\x80\x9d 510 U.S. at 579. The Court expressly cautioned\nthat such transformative use \xe2\x80\x9c is not absolutely necessary for a finding o f fair use,\xe2\x80\x9d id., and in support of that\nproposition, the Court cited (i) a case (Sony Corp o f Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984))\nin which the Court found a nontransformative use to be noninfringing, and (n) the express indication in section\n107 of the 1976 Act that reproduction o f multiple copies for classroom distnbution can be a fair use. Id at 579\n& n .ll, see also id. at 584\xe2\x80\x9485 (eschewing fair use analysis that relies on a \xe2\x80\x9c hard evidentiary presumption,\xe2\x80\x9d in\nlight of the need for a \xe2\x80\x9c sensitive balancing\xe2\x80\x9d o f interests). It is important to note, as well, that the very first example\nthat section 107 provides of a use that can be \xe2\x80\x9c fair\xe2\x80\x9d is \xe2\x80\x9c reproduction in copies or phonorecords,\xe2\x80\x9d even though\nsuch \xe2\x80\x9c reproduction\xe2\x80\x9d in most cases would not be \xe2\x80\x9c transformative\xe2\x80\x9d in the sense the Court described in Campbell\nSee also House Report at 66 ( \xe2\x80\x9c the reference [m 17 U.S C. \xc2\xa7107] to fair use \xe2\x80\x98by reproduction in copies or\nphonorecords or by any other m eans\xe2\x80\x99 is mainly intended to make clear that the doctrine has as much application\nto photocopying and taping as to older forms o f use\xe2\x80\x9d ), reprinted in 1976 U.S C C A.N. at 5679.\n\n101\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\n(b) Photocopying more likely will be deemed \xe2\x80\x9c fair\xe2\x80\x9d where the photocopies\nare disseminated to a discrete and limited audience within the government. To\nthe extent that copies are sold, or distributed broadly, especially outside the\ngovernment, that likely would weigh against a finding of fair use. See Williams\n& Wilkins, 487 F.2d at 1353 & n.12, 1354\xe2\x80\x9455. (This consideration likely would\nbe germane to the first ( \xe2\x80\x9c purpose and character of the use\xe2\x80\x9d ) and fourth ( \xe2\x80\x9c effect\nof the use upon the potential market for or value of the copyrighted work\xe2\x80\x9d ) statu\xc2\xad\ntory factors.)\n(c) Copying that is done \xe2\x80\x9c spontaneously],\xe2\x80\x9d for the purpose of facilitating an\nimmediate and discrete objective, is more likely to be a fair use than systematic\n\xe2\x80\x9c archival\xe2\x80\x9d copying of extensive materials for possible future use. See Texaco,\n60 F.3d at 919-20. (This consideration, too, would bear on the first and fourth\nstatutory factors.) And, as the third statutory factor expressly indicates, \xe2\x80\x9c the\namount and substantiality of the portion used in relation to the copyrighted work\nas a whole\xe2\x80\x99\xe2\x80\x99 also is relevant to determining whether a use is fair.\n(d) Copying materials for the purpose of collecting or studying certain facts\nor ideas contained therein \xe2\x80\x94 as opposed to the work\xe2\x80\x99s original expression \xe2\x80\x94\nincreases the likelihood that the reproduction will be a fair use. In Feist Publ \xe2\x80\x99ns,\nInc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991), the Court emphasized that,\nas a matter of constitutional law, \xe2\x80\x9c facts are not copyrightable.\xe2\x80\x9d Id. at 344. All\nfacts \xe2\x80\x94 scientific, historical, biographical, and news of the day \xe2\x80\x94 \xe2\x80\x98\xe2\x80\x98 \xe2\x80\x98may not be\ncopyrighted and are part of the public domain available to every person.\xe2\x80\x99 \xe2\x80\x9d Id.\nat 348 (citation omitted); accord H arper & Row, 471 U.S. at 556 (\xe2\x80\x9c No author\nmay copyright his ideas or the facts he narrates.\xe2\x80\x9d ). Furthermore, 17 U.S.C.\n\xc2\xa7 102(b) (1994) provides that \xe2\x80\x9c [i]n no case does copyright protection for an\noriginal work of authorship extend to any idea, procedure, process, system, method\nof operation, concept, principle, or discovery.\xe2\x80\x9d The exclusion of facts and ideas\nfrom copyright protection, like the fair use doctrine, serves the goal of promoting\nthe progress of science and useful arts. See Campbell, 510 U.S. at 575 n.5.27\nAccordingly, copyright protection for a work containing facts or ideas \xe2\x80\x9c is limited\nto those aspects of the work \xe2\x80\x94 termed \xe2\x80\x98expression\xe2\x80\x99 \xe2\x80\x94 that display the stamp of\nthe author\xe2\x80\x99s originality.\xe2\x80\x9d H arper & Row, 471 U.S. at 547. Indeed, as the Court\nreemphasized in Campbell, \xe2\x80\x9c \xe2\x80\x98facts contained in existing works may be freely\ncopied.\xe2\x80\x99 \xe2\x80\x9d 510 U.S. at 575 n.5 (quoting Feist, 499 U.S. at 359).28 Thus, where\nthe government\xe2\x80\x99s copying is limited to the bare facts contained in particular mate\xc2\xad\n27 Moreover, the Copyright Act\xe2\x80\x99s distinction between copyrightable expression and uncopynghtable facts and ideas\nis necessary in order to reconcile the restrictions o f the Act with the First Amendment. See Harper & Row, 471\nU.S. at 556, 560, see also New York Tim es Co. v. United States, 403 U.S. 713, 726 n.* (1971) (Brennan, J., concur\xc2\xad\nring), cited with approval in Harper &. Row, 471 U.S. at 556\n28 Thus, for exam ple, the Court in H arper & Row implied that although direct quotations from President Ford\xe2\x80\x99s\nbiography were subject to copynght protection, the histoncal facts contained in that biography were not entitled\nto such protection and could be freely copied. See 471 U.S at 565-66 & n.8 (applying copynght analysis only\nto \xe2\x80\x9c verbatim quotes\xe2\x80\x9d from the biography, and excluding from infringement consideration historical quotations attnbuted to third parties and to government documents)\n\n102\n\n\x0cWhether Government Reproduction o f Copynghted Materials is a Noninfringing \xe2\x80\x98 \xe2\x80\x98Fair Use \xe2\x80\x99\n\nrials, and there is no copying of protected expression, there is no possibility o f\ncopyright infringement, and the fair-use question is inapposite.\nMoreover, even if a document or book is entitled to some copyright protection,\nnevertheless, as a general matter \xe2\x80\x9c fair use is more likely to be found in factual\nworks than in fictional works.\xe2\x80\x9d Stewart v. Abend, 495 U.S. 207, 237 (1990).\nAccordingly, even where the government copies materials that contain protected\n\xe2\x80\x9c expression,\xe2\x80\x9d or factual compilations that arrange or select facts in a manner\nsufficiently original to trigger some limited, \xe2\x80\x9c thin\xe2\x80\x9d copyright protection,29 the\nphotocopying more likely will be a fair use if the purpose of the copying is simply\nto obtain, collect, or study the facts and ideas contained in the materials. This\nwill be the case especially where, for purposes of photocopying, the facts and\nideas cannot readily be segregated from the protected expression, and where the\ngovernment\xe2\x80\x99s copying of the protected expression therefore is merely incidental\nto its copying of unprotected facts and ideas.30\n(e) The fourth factor that the statute expressly identifies as relevant to the fairuse analysis is the \xe2\x80\x9c effect of the use upon the potential market for or value of\nthe copyrighted work.\xe2\x80\x9d This factor requires courts \xe2\x80\x9c to consider not only the extent\nof the market harm caused by the particular actions of the alleged infringer, but\nalso \xe2\x80\x98whether unrestricted and widespread conduct of the sort engaged in by the\ndefendant . . . would result in a substantially adverse impact on the potential\nmarket\xe2\x80\x99 for the original.\xe2\x80\x9d Campbell, 510 U.S. at 590 (quoting 3 Nimmer\n\xc2\xa7 13.05[A][4], at 13-102.61 (1993)). The importance of this factor \xe2\x80\x9c will vary,\nnot only with the amount of harm, but also with the relative strength of the\nshowing on the other [fair-use] factors.\xe2\x80\x9d Id. at 590 n.21.\n29\xe2\x80\x9c [T]he copynght in a factual compilation is thin,\xe2\x80\x9d extending only to the selection or arrangement of the facts,\nif any, that is original or expressive Feist, 499 U S at 348 As the Court explainedThe mere fact that a work is copynghted does not mean that every element of the work may be protected\nOriginality remains the sine qua non of copyright, accordingly, copyright protection may extend only to\nthose components o f a work that are original to the author. . . Thus, if the compilation author clothes\nfacts with an onginal collocation o f words, he or she may be able to claim a copynght in this written\nexpression. Others may copy the underlying facts from the publication, but not the precise words used\nto present them.\nId at 348-49\n30 See. eg., Texaco, 60 F 3d at 925 & n .ll. National Rifle A s s \xe2\x80\x99n o f Am v Handgun Control Fed. o f Ohio, 15\nF 3d 559, 562 (6th Cir.), cert, denied, 513 U.S 815 (1994), Texaco, 802 F Supp at 15 (although such a factcentered justification for photocopying \xe2\x80\x9c has some m erit,\'\xe2\x80\x99 and is \xe2\x80\x9c ingenious,\xe2\x80\x9d it \xe2\x80\x9c simply does not fit the facts\nof the case\xe2\x80\x9d ); see also, e g , Atari Games Corp , 975 F 2d at 843 ( \xe2\x80\x9c When the nature of a work requires intermediate\ncopying to understand the ideas and processes in a copyrighted work, that nature supports a fair use for intermediate\ncopying Thus, reverse engineenng object code to discern the unprotectable ideas in a computer program is a fair\nu s e \xe2\x80\x9d ); Sega Enters. Ltd. v. Accolade, In c , 977 F.2d 1510, 1524\xe2\x80\x9426 (9th Cir. 1992). By analogy, in the context\nof publication (rather than mere reproduction) o f copynghted materials, the Supreme Court has indicated that it\nmay be permissible to copy protected expression verbatim where \xe2\x80\x9c necessary adequately to convey the facts,\xe2\x80\x9d or\nwhere particular expression is \xe2\x80\x9c so integral to the idea expressed as to be inseparable from it \xe2\x80\x9d Harper & Row,\n471 U S at 563, see also Leval, Toward a Fair Use Standard, 103 Harv L Rev. at 1113-15. Perhaps the most\nfamous case of this sort is Time Inc v Bernard Geis A sso cs, 293 F. Supp. 130 (S D N Y 1968), in which the\ncourt held that it was fair use to depict frames from the copyrighted Zapruder film in a book about the Kennedy\nassassination, where there was \xe2\x80\x9c a public interest in having the fullest information available on the murder of President\nKennedy,\xe2\x80\x9d and where such photographs made the author\xe2\x80\x99s theory o f the assassination \xe2\x80\x9c easier to understand,\xe2\x80\x9d id\nat 146.\n\n103\n\n\x0cOpinions o f the Office o f L egal Counsel in Volume 23\n\nThe most obvious way in which copying can have an adverse market effect\nis where it directly curtails demand for purchase of the original work, such as\nwhere an entity uses photocopying in lieu of additional subscriptions of the\noriginal work that it otherwise would purchase. See, e.g., Texaco , 60 F.3d at 92729. Furthermore, with the advent of the CCC, it now can be argued that the failure\nto pay a licensing fee for the photocopying of materials covered by the CCC\nhas an adverse effect on another potential \xe2\x80\x9c market\xe2\x80\x9d that was not present at the\ntime of W illiams & Wilkins \xe2\x80\x94 namely, the potential \xe2\x80\x9c licensing fee\xe2\x80\x9d market. See,\ne.g., Princeton Univ. Press, 99 F.3d at 1387-88; Texaco, 60 F.3d at 929-31.\nBecause this sort of \xe2\x80\x9c harm \xe2\x80\x9d to a licensing fee \xe2\x80\x9c market\xe2\x80\x9d could, by definition,\nexist whenever an entity refuses to provide the requested compensation for its\ncopies, what is significant is not the simple question of whether any such market\nharm exists, but rather, the magnitude and effect of the harm. \xe2\x80\x9c Market harm is\na matter of degree.\xe2\x80\x9d Campbell, 510 U.S. at 590 n.21.31 Harm to this potential\n\xe2\x80\x9c licensing fee\xe2\x80\x9d market, like other forms of market harm, should be germane to\nthe fair-use analysis only if, and to the extent that, such harm would deter \xe2\x80\x9c \xe2\x80\x98the\ncreation and publication of edifying matter.\xe2\x80\x99 \xe2\x80\x9d Id. at 578 n.10 (quoting Leval,\nToward a F air Use, 103 Harv. L. Rev. at 1134). If \xe2\x80\x9c unrestricted and widespread\n[photocopying] o f the sort engaged in by the [government],\xe2\x80\x9d Campbell, 510 U.S.\nat 590 (internal quotation marks omitted) would not appreciably alter the incen\xc2\xad\ntives to create and disseminate the underlying works (and other \xe2\x80\x9c edifying\xe2\x80\x9d\noriginal creations), the harm to the fee \xe2\x80\x9c market\xe2\x80\x9d should have correspondingly\nlimited impact when evaluating this fair use factor.\n\nConclusion\nThere is no \xe2\x80\x9c per se\xe2\x80\x9d rule that government reproduction of copyrighted mate\xc2\xad\nrial\xe2\x80\x94 including, in particular, government photocopying of copyrighted materials\nfor internal government use \xe2\x80\x94 automatically qualifies as a fair use under section\n107 of the Copyright Act of 1976. However, government photocopying would\nin many contexts be noninfringing because it would be a \xe2\x80\x9c fair use\xe2\x80\x9d ; and there\nare good reasons that, if an agency decides to negotiate photocopying licensing\nagreements, it should seek to limit the scope of any such arrangement to cover\nonly those government photocopying practices that otherwise would, in fact, be\ninfringing.\nRANDOLPH D. MOSS\nActing Assistant Attorney General\nOffice o f Legal Counsel\n31 See also W illiam W Fisher III, Reconstructing the Fair Use D octnne, 101 Harv L. Rev 1659, 1671-72 (1988).\n\n104\n\n\x0c'


b"Acting Attorneys General\nFrom 1870 until 1953, the Solicitor General served as Acting Attorney General in the event that\nthe office o f Attorney General was vacant or the Attorney General was absent or disabled.\nThis plan o f succession was modified by Reorganization Plan No. 4 of 1953 and by the\ncodification in 1977 at 28 U.S.C. \xc2\xa7 508 providing for the following statutory succession:\nDeputy Attorney General, Associate Attorney General, and in such order as the Attorney\nGeneral shall designate, the Solicitor General and the Assistant Attorneys General.\n\nMarch 30, 1984\nM\n\nem orandum\n\nO p in io n\n\nfor th e\n\nAttorney G\n\neneral\n\nWe have prepared in the time available a list of all of the documented\noccasions in which individuals have served as Acting Attorney General be\xc2\xad\ncause of a vacancy in the office of the Attorney General.1 From the time of the\nestablishment of the Department of Justice in 1870 until 1953, the statute\ngoverning succession to the office of Attorney General designated the Solicitor\nGeneral as the individual who would be Acting Attorney General in case of the\nabsence or disability, of the Attorney General, or of a vacancy in the office.2\nReorganization Plan No. 4 of 1953, \xc2\xa7 2, 67 Stat. 636 (1953), designated the\nDeputy Attorney General to be the first in order of succession, followed by the\nSolicitor General. This change was subsequently codified in 28 U.S.C. \xc2\xa7 508.\nIn 1977, the statute was amended to include the Associate Attorney General as\nthe official who is next in line immediately after the Deputy Attorney General.\nThe Solicitor General and Assistant Attorneys General were listed as the\nofficials next in the line of succession, subject to the Attorney General\xe2\x80\x99s\ndiscretion as to their sequence. The statute now reads as follows:\n(a) In case of a vacancy in the office of Attorney General, or\nof his absence or disability, the Deputy Attorney General may\nexercise all the duties of that office, and for the purpose of\nsection 3345 of title 5 the Deputy Attorney General is the first\nassistant to the Attorney General.\n(b) When, by reason of absence, disability, or vacancy in\noffice, neither the Attorney General nor the Deputy Attorney\nGeneral is available to exercise the duties of the office of Attor\xc2\xad\n1 U ndoubtedly there are other occasions that are not as well docum ented but that could be located with\nfurther research. This list should not be view ed as exhaustive.\n2 See A ct o f July 20, 1870, ch. 150, \xc2\xa7 2, 16 Stat. 162, 162; Rev. Stat. \xc2\xa7 347 (1873); 5 U .S.C . \xc2\xa7 293 (1952).\n\n39\n\n\x0cney General, the Associate Attorney General shall act as Attor\xc2\xad\nney General. The Attorney General may designate the Solicitor\nGeneral and the Assistant Attorneys General, in further order of\nsuccession, to act as Attorney General.\n28 U.S.C. \xc2\xa7 508.\nWe have found records of the following officials having acted as Attorney\nGeneral during vacancies in that office pursuant to these various provisions:\nNam e\n\nD ates o f Service\n\nReason fo r Vacancy\n\nSolicitor General\nRobert H. Bork3\n\nOctober 21, 1973 to\nJanuary 3, 1974\n\nResignation of\nElliot L. Richardson\n\nDeputy Attorney\nGeneral Richard\nG. Kleindienst\n\nMarch 2, 1972 to\nJune 12, 1972\n\nResignation of\nJohn N. Mitchell\n\nDeputy Attorney\nGeneral Ramsey\nClark\n\nOctober 3, 1966 to\nMarch 2, 1967\n\nResignation of\nNicholas deB.\nKatzenbach\n\nDeputy Attorney\nGeneral Nicholas\ndeB. Katzenbach\n\nSeptember 4, 1964\nto February 10,\n1965\n\nResignation of\nRobert F. Kennedy\n\nSolicitor General\nPhillip B. Perlman\n\nApril 7, 1952 to\nMay 27, 1952\n\nResignation of\nJ. Howard McGrath\n\nSolicitor General\nFrancis Biddle\n\nJuly 10, 1941 to\nSeptember 5, 1941\n\nResignation of\nRobert H. Jackson\n\nSolicitor General\nJames M. Beck\n\nMarch 4, 1925 to\nMarch 16, 1925\n\nResignation of\nHarlan Fiske Stone\n\nSolicitor General\nJohn K. Richards\n\nApril 1, 1901 to\nApril 5, 1901\n\nResignation of\nJoseph McKenna\n\nSolicitor General\nJohn K. Richards\n\nJanuary 18, 1898 to\nFebruary 1, 1898\n\nResignation of\nJohn W. Griggs\n\nSolicitor General\nSamuel H. Phillips\n\nOctober 24, 1881 to\nJanuary 2, 1882\n\nResignation of\nWayne MacVeagh\n\nSecretary of the\nInterior Orville\nH. Browning\n\nMarch 3, 1868 to\nJuly 14, 1868\n\nResignation of\nHenry Stanberry\n\n3 At the tim e o f M r. B o rk 's service, there w ere vacancies in the offices o f both the A ttorney G eneral and the\nD eputy A ttorney G eneral, each having resigned on the sam e day. The office o f the A ssociate Attorney\nG eneral had not yet been created. In United States v. Halmo, 386 F. Supp. 593 (E.D. Wis. 1974), the court\nheld that Mr. B ork becam e A cting A ttorney G eneral pursuant to 28 U.S.C. \xc2\xa7 508(b). The court also upheld his\nservice as A cting A ttorney General for an unlim ited period o f time.\n\n40\n\n\x0cName\n\nD ates o f Service\n\nReason fo r Vacancy\n\nAssistant Attorney\nGeneral J. Hubley\nAshton\n\nJuly 17, 1866 to\nJuly 23, 1866\n\nResignation of\nJames Speed\n\nSecretary of the\nNavy John Y.\nMason4\n\nMarch 18, 1848 to\nJuly 1, 1848\n\nResignation of\nNathan Clifford\n\nThere is only one period on this list (for two-and-a-half months in late 1973)\nduring which there was a sustained vacancy in both of the Department\xe2\x80\x99s two\ntop positions. The longest absence we have documented in the office of\nAttorney General during which an Acting Attorney General served is approxi\xc2\xad\nmately five months. We are aware of no other hiatus between confirmed\nAttorneys General in excess of five months.\nT h eo do re B. O lso n\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n4 The President designated Mr. Brow ning, Mr. A shton, and Mr. M ason prior to the establishm ent o f the\nDepartment o f Justice. M r. Mason had previously served as A ttorney General from M arch 4, 1845 until\nSeptember 9, 1846.\n\n41\n\n\x0c"