Chicago Board of Education v. Substance, Inc. And George N. Schmidt
69 U.S.P.Q. 2d (BNA) 1447, 354 F.3d 624, 2003 U.S. App. LEXIS 26451 (2003)
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Rule of Law:
The fair use defense does not protect the wholesale copying of a copyrighted work for criticism if the amount copied exceeds what is reasonably necessary to make the criticism intelligible, particularly when the copying destroys the value of the original work.
Facts:
- The Chicago Board of Education created and copyrighted a series of standardized tests called the 'Chicago Academic Standards Exams' (CASE) at considerable expense.
- The tests were classified as 'secure tests,' meaning they were not sold or publicly distributed and were collected after administration to maintain secrecy for reuse.
- Reusing questions from the tests was essential for validating the exams' effectiveness and avoiding the cost of creating entirely new sets of questions.
- George Schmidt, a public school teacher and editor of a newspaper named 'Substance,' opposed the use of standardized tests.
- To demonstrate his belief that the tests were inadequate, Schmidt published six complete CASE tests in his newspaper without the Board's permission.
- Schmidt's stated purpose for the publication was to criticize the quality and effectiveness of the tests.
Procedural Posture:
- The Chicago Board of Education filed a suit for copyright infringement against George Schmidt in federal district court.
- Schmidt asserted the affirmative defense of fair use.
- The district court dismissed Schmidt's fair use defense on the pleadings.
- A magistrate judge issued an injunction, titled a 'Permanent Restraining Order,' against Schmidt.
- The district court subsequently entered a final judgment, awarding the Board $500 in damages.
- Schmidt (appellant) appealed the final judgment to the U.S. Court of Appeals for the Seventh Circuit, where the Board was the appellee.
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Issue:
Does a teacher's unauthorized publication of entire copyrighted secure school tests, for the stated purpose of criticism, constitute fair use under copyright law?
Opinions:
Majority - Posner, Circuit Judge
No, the teacher's publication of entire copyrighted tests does not constitute fair use. While criticism is a legitimate purpose under the fair use doctrine, a copier may only take as much of the work as is reasonably necessary to make the criticism effective. Schmidt failed to provide any evidence or explanation as to why publishing six entire tests, including both good and bad questions, was necessary for his critique. By publishing the complete tests, he destroyed their value as secure, reusable exams, causing significant harm to the copyright holder that went beyond the impact of the criticism itself. This harm is analogous to destroying the market for a work. Allowing such extensive copying would create a 'floodgates' problem where any dissenting teacher could publish tests, rendering the entire system of standardized testing unworkable and usurping the school board's educational policy decisions. The court affirmed the finding of infringement but found the district court's injunction to be overbroad and poorly written, remanding the case for the injunction to be rewritten more specifically.
Analysis:
This case significantly clarifies the limits of the fair use defense for criticism, especially concerning unpublished or 'secure' works. It establishes that the purpose of criticism does not grant an unlimited right to copy; the amount and substantiality of the portion used must be proportional to the critical purpose. The court's focus on whether the copying was 'reasonably necessary' provides a flexible but firm standard, placing the burden of justification squarely on the defendant. The decision also underscores the importance of the fourth fair use factor—the effect on the potential market or value of the copyrighted work—by recognizing that destroying a work's utility (like a test's security) is equivalent to destroying its market value.
