American Geophysical Union v. Texaco Inc.
1994 WL 814622, 60 F.3d 913 (1994)
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Rule of Law:
The systematic, archival photocopying of entire copyrighted scientific journal articles by employees at a for-profit corporation does not constitute fair use under the Copyright Act, particularly when a viable market for licensing such copies exists.
Facts:
- Texaco Inc., a for-profit corporation, employed between 400 and 500 research scientists to develop new products and technology.
- Texaco subscribed to numerous scientific and technical journals, including the Journal of Catalysis, which was published by plaintiff Academic Press, Inc.
- Authors of articles published in the Journal of Catalysis were required to transfer their copyrights to Academic Press and received no monetary payment.
- Texaco's library circulated issues of the journal to its scientists, who were encouraged to make photocopies of articles relevant to their research.
- Dr. Donald H. Chickering, a Texaco research scientist, made or requested photocopies of eight complete articles from the Journal of Catalysis.
- Chickering made the copies primarily for his personal convenience, to create an accessible personal file in his office for potential future reference, rather than for immediate use in an experiment.
- The copies were placed in Chickering's files; he did not have occasion to use five of the eight copied articles at all.
Procedural Posture:
- American Geophysical Union and 82 other publishers filed a class-action lawsuit against Texaco Inc. in the U.S. District Court for the Southern District of New York, alleging copyright infringement.
- The parties agreed to a limited-issue bench trial to adjudicate Texaco's affirmative defense of fair use.
- The case was submitted to the trial court on a stipulated written record focused on the photocopying of eight articles by a single representative scientist, Dr. Chickering.
- The District Court found that Texaco’s photocopying did not constitute fair use.
- The District Court certified its ruling for an interlocutory appeal, allowing Texaco to appeal the fair use holding before resolving the remainder of the case.
- Texaco (appellant) appealed the District Court's order to the U.S. Court of Appeals for the Second Circuit, with the publishers (appellees) defending the lower court's ruling.
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Issue:
Does the systematic photocopying of entire copyrighted scientific journal articles by a scientist at a for-profit corporation for archival research purposes constitute fair use under Section 107 of the Copyright Act?
Opinions:
Majority - Newman, J.
No. The systematic, archival photocopying of entire scientific journal articles by researchers at a for-profit corporation does not constitute fair use. The court's analysis of the four statutory factors led to this conclusion. Factor one, the purpose and character of the use, weighs against Texaco because the copying was primarily 'archival' and 'superseded' the original's purpose rather than being transformative. It was part of a systematic, institutional process to multiply available copies while avoiding payment for additional subscriptions or licenses. The commercial nature of Texaco's enterprise, while not dispositive, also weighs against fair use. Factor two, the nature of the copyrighted work, favors Texaco because the articles were predominantly factual. Factor three, the amount and substantiality of the portion used, weighs against Texaco because the entirety of each article was copied. Factor four, the effect on the potential market, weighs heavily against Texaco. While the effect on journal subscriptions was minimal, the court found significant harm to the potential market for licensing revenues. The existence and availability of a workable market for obtaining licenses to photocopy articles through the Copyright Clearance Center (CCC) demonstrated that widespread, uncompensated copying of this nature would directly undermine the value of the publishers' copyrights. Aggregating these factors, the court concluded the copying was not fair use.
Dissenting - Jacobs, J.
Yes. The photocopying of journal articles by a scientist for personal research files should be considered fair use. The majority mischaracterizes the nature of the use and the effect on the market. Factor one, the purpose of the use, strongly favors Texaco because the copying is for 'research,' a purpose explicitly favored by the statute. Creating a personal file of articles is an integral and transformative part of the scientific process, akin to modern note-taking, not mere 'archiving.' The institutional setting does not change the fundamental research character of the individual scientist's actions. Factor four, the effect on the market, also favors Texaco because the alleged harm is illusory. There is no significant impact on journal subscriptions, and the market for licensing fees through the CCC is neither traditional, reasonable, nor fully developed. It is circular reasoning to find a use unfair simply because a mechanism has been created to charge for it. Furthermore, equitable considerations, such as the fact that the article authors receive no royalties and seek only wide dissemination of their work, support a finding of fair use. The court's holding will impede the progress of science, the very goal copyright law is meant to foster.
Analysis:
This decision significantly narrowed the scope of the fair use defense for photocopying within a for-profit, institutional setting. It established the principle that even when copying is for research purposes, if it is systematic and serves an archival function that substitutes for purchasing additional subscriptions or licenses, it is unlikely to be considered fair. The court's heavy reliance on the existence of a workable licensing market (the CCC) in its fourth-factor analysis was particularly impactful. This created a precedent suggesting that as markets for licensing uses of copyrighted works develop, the scope of fair use for those same uses may shrink, making it more difficult to justify uncompensated copying.
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