The Copier Wars: Fair Use’s Rude Awakening

Ernie Smith of Tedium has done a longer more detail deep-dive into the history of the photocopier and its implications, a follow-up on our previous post on the subject.

In a world where copying and pasting is as easy as moving a cursor from one place to another, it’s easy to underestimate the importance of the photocopier as a disruptive force.

After all, it wasn’t like we didn’t have ways to copy materials from one page to another previously. Just ask anyone who’s ever held a quiz created from the chemicals of a ditto machine.

But the 1942 invention of xerography, the dry-photocopying technique that made it possible to easily reprint documents, had a strange effect on society. It made the reproduction of printed material not only easy, but cost-effective—particularly in offices.

And for businesses that relied on the scarcity of information as a business model, the photocopier was bad news—and, in many ways, it showed cracks in the copyright system.

A 1975 Supreme Court decision, Williams & Wilkins Co. v. United States, created a “fair use” gap for copying in some cases—and that gap wasn’t wide enough to answer every question about this disruptive technology. (It was one of the first examples of the court taking a cautious approach to disruptive technology, a trend that would continue in the decades to come.)

The somewhat narrow finding of Williams & Wilkins meant that copyright challenges around the copier often played out in public, in the media, and in the courtroom. And even the Copyright Act of 1976, which codified the common law doctrine of “fair use,” didn’t fully clear up the details of an emerging area of law.

Strangely enough, one of the first places where these problems showed themselves wasn’t in a library or in a giant office—but in the Catholic Church.

Some might see suing a religious institution claiming copyright infringement as unsavory. FEL Publications would disagree.

In the late 1970s, the tiny religious music publisher sued 15 separate American Roman Catholic archdioceses—including the Archdiocese of Chicago—for sharing copies of the publisher’s music with their parishioners without permission.

Dennis Fitzpatrick, the company’s president, made a religious argument for the lawsuits in a UPI story:

I believe on the Day of Judgment I will be asked—like the servant entrusted with the silver pieces (Matthew 25:14-30)—what I did with the copyrights that were entrusted to my care. Did I sue to protect them?

Unfortunately for Fitzpatrick, a federal judge disagreed with FEL, dismissing the claims in its lawsuit against the Catholic Bishop of Chicago, on grounds that it used its position in the market to monopolize access to songs. (The ruling is interesting, by the way—apparently, FEL required churches to destroy every copy of the music at the end of the license period—which seems particularly wasteful!)

The ripple effects of the lawsuit, even with FEL’s loss, showed themselves throughout the religious field. Protestant churches also had to navigate this messy mix of legal precedent and morality. As one pastor put it in a 1983 Atlanta Constitution piece: “The rationalization is this: ‘God gave you a song. You don’t have the right to charge for it.’”

Of course, churches weren’t the only institutions struggling with the complexities the copier created for its vendors. Also in this category were universities, which, as anyone who has paid hundreds of dollars for a textbook can tell you, suffer from a captive-audience problem that professors and students alike spent years trying to work around.

Whether the play is buying used books, purchasing books online at cheaper prices than in-person bookstores can offer, or “renting” books, there is a desire not to pay publishers tons of money for books that add significant costs to higher education. And copyright regulations, such as fair use and the first sale doctrine, were the cudgels that students, whether they realized it or not, were leveraging.

Also an important tool for cost-conscious students? Copy machines. Copiers made it possible to work around this system in a fair-use way. Here’s how: One student buys the book, then copies a single chapter—the only one on the syllabus. Someone makes a copy of the copy, and suddenly, the whole class has a copy. Heck, maybe the professor is the one that makes the copy. It doesn’t look as good as the original, but as long as they get the necessary information, does it really matter?

The answer to whether copying a textbook is fair use is somewhat complicated, but the short answer is essentially this: Yes, but only an excerpt. If you commandeered a copier for three hours to copy the whole thing, that wouldn’t be allowed.

The risk of such willing infringement, though, created a lasting problem. Throughout the 1970s and 1980s, these suddenly ubiquitous machines became a liability for universities and the businesses that served them.

And the publishing industry, suddenly concerned that this was going to affect their bottom line, looked to legal action to resolve some of these issues.

One of the first conflicts of its kind emerged at New York University in the early ’80s, when numerous publishers—backed by the Association of American Publishers—sued the university, along with a handful of professors, for using copies as teaching materials. Eventually, the threat of legal action led to an agreement—the publishers would drop the suit if the school agreed to prudent copying limitations.

“We’re not out to hang faculty members from a lamppost and cut out all photocopying,” said Jon A. Baumgarten, a lawyer for the association, in comments to The New York Times in a 1983 article. “The assumption is not that photocopying should be stopped, but that the rights of copyright owners should be respected.”

But the concern wasn’t just professors—also a major worry were nearby “copy shops,” which allowed students to copy to their heart’s content. One could imagine the model: A student buys a used book, goes to a copy shop, spends a few hours copying, then returns and sells the book back, saving lots of money in the process. Eventually, the bookstores realized they could cut out the middle man and do the copying themselves, which they then turned into a service called “course packs.” Professors eventually got in on the scheme, and boom, nobody has to buy the book this semester.

This model put a target on the back of these copy centers, and publishers—whether focused on books or periodicals—were ready to sue to protect their copyrights.

The most dramatic such case came about in the mid-1990s, when Michigan Document Services, a copy shop serving the University of Michigan, was sued by Princeton University Press and other publishers for offering a service that copied different books and other reading materials into inexpensive “course packs.” Unlike the NYU case, this one actually went to trial.

Eventually reaching the Sixth Circuit Court of Appeals, the court sided with the publishers, finding the use case was not fair use, because Michigan Document Services was willfully copying materials for profit-making purposes—rather than what the Archdiocese of Chicago was doing, which was making copies for its own parishioners to sing.

But even that decision wasn’t cut and dry, with the ruling only coming after the full Sixth Circuit ruled on the case—an appellate panel originally favored the copy center, 2-1, meaning that things could have played out much differently.

The case, among others, helped give momentum to legal arguments against copy shops. By the early 2000s, publishers were aggressively going after “course pack” businesses. Even the Times got in on the action, taking part in a lawsuit against a San Diego copy shop in 2004. During the late 2000s, when the internet had already supplanted aggressive copying, publishers were still going after copy shops.

Students, for obvious reasons, sided with the copy shops. As Noam B. Katz wrote in a 2002 essay in The Harvard Crimson: “Barring a change in legislation or jurisprudence, then, we must strive for creative, effective and legal solutions to lift these crushing and senseless financial burdens from our student body.”

Everyone wants their piece.

These days, newsletters like this one are seen as easy-to-copy digital works—after all, you just need to forward one to share it—but that’s actually only been a recent part of the newsletter’s history.

In the past, newsletters were treated as more exclusive works, sent via the mail. They were often much more niche and exclusive—and expensive—in nature.

And of course, newsletter publishers hated copying machines. These newsletters focused on extremely niche information that their recipients paid top-dollar for. And in some offices, that one newsletter could spread to numerous people—and cut them out of a bunch of revenue.

The Newsletter Association, a trade group for newsletter publishers, actually considered using its lobbying might to push for increased fines—something the Copyright Act of 1976 didn’t give strong-enough teeth in the view of newsletter publishers.

“This is from our standpoint one of the most important issues in the newsletter industry,” said Paul Warren, who led the association’s copyright committee, in a 1986 UPI interview.

Sometimes, the newsletter publishers would get litigious. The UPI story discussed a $130 million lawsuit the company Princeton Economic Consultants filed against a Toronto brokerage firm.

Even law firms felt the wrath of the newsletter industry. A May 1991 ABA Journal story told the story of the law firm Collier, Shannon & Scott, the target of a $14 million lawsuit for willfully making copies of the $675-per-year Product Safety News and sharing them around the office. Unlike most of the companies Product Safety News’ publisher, Washington Business Information, Inc. sued, the law firm refused to settle.

Perhaps this stance explains why the printed newsletter industry largely disappeared when the internet came about, making this kind of reproduction issue nearly impossible to police.

Ultimately, copying changed culture for ways better and worse, depending on your vantage point. It gave people access to information they would have had to pay good money for previously.

It led to some complaints of overexposure to information. Jerry V. Wilson, a former Washington, D.C. police chief who later served as a Washington Post columnist while working at American University, called the Supreme Court’s then-recent Williams & Wilkins ruling a “non-decision” and pointed out how committee meetings were often filled with wasteful copying that wasted people’s resources and time.

“Much of the copyright infringement of photocopy is probably of that sort—the careless broadcast of matter only marginally or not at all wanted by the recipient,” he wrote in a piece titled “The Plague of the Photocopier.” “A plausible argument might be made that this is practically no infringement at all, since it doesn’t supplant a sale.”

(Wilson would most assuredly find the internet’s natural information overload particularly problematic.)

The copy machine, in many ways, was an appetizer for the main course of decaying copyright—the internet, where restrictive approaches to publishing run head-first into the chaotic winds of digital media, where laws like the Digital Millennium Copyright Act are less effective rule-making and more bandages on a restrictive approach to copyright law.

It’s hard to imagine that companies once sued churches for making copies.

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Ernie Smith