****Begin File******************Begin File*******************Begin File**** *************************************************************************** ISSN 1069-7799 ALAWON ALA Washington Office Newsline An electronic publication of the American Library Association Washington Office Volume 3, Number 68 November 21, 1994 In this issue: (177 lines) EDUCATION/LIBRARY COALITION MOVES FORWARD WITH PROPOSAL TO FCC DECISION RENDERED IN TEXACO FAIR USE CASE APPEAL *************************************************************************** EDUCATION/LIBRARY COALITION MOVES FORWARD WITH PROPOSAL TO FCC ALA President Arthur Curley spoke at at press conference on November 17 in Washington, D.C. to press the Federal Communications Commission (FCC) to revise its price cap plan as a means of financing the development of the National Information Infrastructure. ALA is one of five national education organizations to make the innovative proposal earlier this year to help the federal government provide incentives to link the nation's classrooms and libraries to the NII. The coalition's growing sense of urgency was expressed by Curley, who is also the director of the Boston Public Library, and other leaders of the coalition in a November 17 letter to Vice President Al Gore and FCC Chairman Reed Hundt. Also signing the letter with ALA were the Council of Chief State School Officers, the National Association of Secondary School Principals, the National Education Association and the National School Boards Association. As reported in previous issues of ALAWON, numerous other organizations have endorsed the proposal including the Council of State Library Administrators and the Oregon Library Association. Executive Director of the ALA Washington Office, Carol C. Henderson moderated the press conference. She explained that the coalition's proposal was presented after the FCC asked for comments on whether the current rate structure local telephone companies use to provide long distance companies access to their networks could be redirected to schools and libraries seeking access to the NII. The coalition maintains those dividends have not been going to consumers. The solution, according to the coalition's proposal, is simple: The FCC should dedicate the consumer productivity dividend funds (CPDs) to ensure that local telephone companies are given incentives to link schools and libraries as the information superhighway is built through the nation's neighborhoods. "The first hookup is always the hardest to get," said Curley. "However, our plan to establish this missing link is an important vital first step. We must fulfill our vision by using every available tool including the information superhighway. There is wide agreement with the public policy goal of linking up every school and library for lifelong learning. "We cannot afford as a nation - or as a partner in the global community, to have a society of INFORMATION HAVES vs. INFORMATION HAVE NOTS. Our VISION in offering this proposal is to provide equitable and lifelong access for all. This proposal is just one tool to assist us in accomplishing what we believe is a national goal: to connect every library and school to the national information infrastructure by the year 2000." Several other library and education organizations are involved with endorsing this proposal. Additional endorsements are welcomed. For further information contact Carol C. Henderson, executive director of the ALA Washington Office (202-547-4440) or email: cch@alawash.org. **************************************************************************** DECISION RENDERED IN TEXACO FAIR USE CASE APPEAL On October 28, 1994, the U.S. Court of Appeals for the Second Circuit issued a decision in the long awaited fair use case, _American Geophysical Union v. Texaco, Inc._. This report relies heavily on material provided by attorney Susan Braden of Ingersoll and Bloch Chartered, who prepared ALA's _amicus curiae_ brief filed in March 1993 in the case. At that time ALA maintained that the original opinion did not consider the likely effect on libraries and their users. The lawsuit was initiated in 1985 by a group of publishers with copyrights in scientific and technical journals that were registered with the Copyright Clearance Center (CCC). The publishers filed a class action against Texaco for making routine photocopies from these journals without paying CCC more than minimal payments. The CCC is a clearinghouse mechanism that allows members to make license payments for the privilege of making unrestricted photocopies of registered publications. To facilitate the suit, the parties agreed to a stipulated fact situation to test whether Texaco's conduct was fair use. The issue was whether photocopies of eight articles from _Journal of Catalysis_ made by one of Texaco's scientists for future reference constituted fair use when Texaco had paid for subscription to that publication. In 1992, then district court Judge Pierre Leval found that Texaco's conduct was not fair use. Texaco appealed; subsequently President Clinton appointed Judge Leval to the Second Circuit. U.S. Court of Appeal Judges Winter, Stewart, and Jacobs heard oral argument in the spring of 1993. The opinion, however, was long in coming, and was written by Chief Judge Newman, replacing Judge Stewart, who for unstated reasons subsequently recused himself. The fact that Judge Jacobs wrote a forceful 17-page dissent evidences the difficulty the panel had with the case. In affirming Judge Leval's decision, the majority opinion opened with a strong disclaimer that the Court was not deciding whether all photocopying of scientific articles was exempt from the fair use exception. Nor was the Court deciding that issue with respect to nonprofit institutions. Judge Newman was careful to limit the decision to the specific factual case presented. Following the four factor statutory analysis required by the Supreme Court's 1984 decision in _Sony Corp. v. Universal City_, 468 Y,S, 417 (1984), the Second Circuit's analysis began with the "purpose and character of the use" test. Judge Newman agreed with Texaco that this factor was incorrectly decided, relying too heavily on the profit/nonprofit nature of Texaco's business. Instead, Judge Newman stated that the actual use of the copied copyrighted material and whether the secondary user received some economic gain were more important elements. With this in mind, Judge Newman found Texaco's photocopying as a production cost reducing its overhead, thereby justifying some payment by Texaco. As to the "transformative use" element, Judge Newman relied on the rationale in the recent Two Live Crew parody case, _Campbell v. Acuff-Rose Music Inc._, 114 S. Ct. 1164 (1994), finding that Texaco's copying was not of that nature, but instead was "archival" in purpose. Judge Newman agreed with Judge Leval that the second factor, "the nature of the copyrighted work" was factual and therefore "fair use," but rejected Texaco's third factor argument that its use was fair since only a small portion of the entire journal was copied. Some have observed that the fourth factor considered, "the effect of the use on the potential market' for the copyrighted work, is the weakest link in Judge Newman's analysis. Although he agreed with Texaco that the publishers did not establish a market for the individual copyrighted articles at issue, the CCC was found to be a surrogate "workable market" and it was this loss of revenues rather than the loss of revenues from the subscriptions to _Catalysis_ that satisfied the fourth factor. In sum, majority opinion ruled that Texaco's use was not fair, but "is confined to the archival photocopying revealed by the record." The "archival" characterization, however, may prove to be the most troubling aspect of this decision for libraries down the road. Texaco has decided to ask the entire Second Circuit to consider this decision _en banc_. Such consideration generally is granted in only one case each year; Texaco's strategy may be to provoke further dissent to strengthen its chances of getting the Supreme Court to consider this case. In light of Judge Newman's dissatisfaction with the _Sony_ test, and Judge Jacob's sound dissent, this case may become attractive for review by the high court. *************************************************************************** *************************************************************************** ALAWON (ISSN 1069-7799) is an irregular publication of the American Library Association Washington Office, 110 Maryland Avenue, N.E., Washington, DC 20002-5675. Internet: alawash@alawash.org; Phone: 202-547-4440; Fax: 202-547-7363. Contributing to this issue: Carol C. Henderson (cch@alawash.org); Editor: Lynne E. Bradley (leb@alawash.org). ALAWON is available free of charge and is available only in electronic form. To subscribe, send the message "subscribe ala-wo [your name]" to listserv@uicvm (Bitnet) or listserv@uicvm.uic.edu (Internet). Back issues and other documents are available from the list server. To find out what's available, send the message "send ala-wo filelist" to the listserv. The ALA- WO filelist contains the list of files with the exact filename and filetype. To get a particular file, issue the command "send filename filetype" to the listserv. Do not include the quotes in your commands. All materials in the newsletter subject to copyright by the American Library Association may be reprinted or redistributed for noncommercial purposes with appropriate credits. For other reprinting or redistribution, address requests to the ALA Washington Office (alawash@alawash.org). *************************************************************************** ***End of file******************End of file******************End of file***