Cambridge University Press et al v. Patton et al

Filing 300

RESPONSE re 279 Order, Proposed Injunctive Relief filed by Cambridge University Press, Oxford University Press, Inc., Sage Publications, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Rains, John)

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Not Reported in F.Supp.
Not Reported in F.Supp., 1983 WL 1134 (S.D.N.Y.), 1983 Copr.L.Dec. P 25,544
(Cite as: 1983 WL 1134 (S.D.N.Y.))

United States District Court; S.D. New York.
Addison-Wesley Publishing Co., Inc.; Alfred A.
Knopf, Inc.; Basic Books, Inc.; Houghton Mifflin Co.;
Little, Brown and Company, Inc.; MacMillan Publishing Co., Inc.; National Association of Social
Workers, Inc.; Random House, Inc.; and Simon and
Schuster, a division of Gulf & Western Corp.
v.
New York University; Unique Copy Center, Inc.;
Martin Hamburger; Phyllis Mervis; Thelma B. Chesney; Terri Schultz; Robert Sklar; Stuart Johnson;
Robert Sharp; Sherman Barr; and William G. Simon.
82 CIV 8333 (ADS)
82 CIV 8333 (ADS)
Dated May 31, 1983

Page 1

bers named as defendants in this action and has sold
and offered for sale such copies both alone and in
conjunction with copies of other works; and it being
further
STIPULATED AND AGREED that Unique has engaged in the foregoing activities without the consent
of plaintiffs or other legal authorization.
NOW THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED, on consent of the parties, that:
1. As used in this Order and Final Judgment:
a. The term “work” includes any work presently existing and any work created after the date of this
judgment; and

SOFAER, District Judge.
Order and Final Judgment
*1 The remaining parties in this action having agreed
and consented to the entry of an Order and Final
Judgment terminating this action and all claims and
counterclaims asserted herein with prejudice; and it
being:
STIPULATED AND AGREED by and between the
parties that defendant, Unique Copy Center, Inc.,
252A Greene Street, New York, New York 10003,
(hereinafter “Unique”) is engaged in the business of
photocopying; and it being further
STIPULATED AND AGREED that the works published by plaintiffs as set forth in claims 1 through 13
of the Complaint in this action are copyrightable and
that plaintiffs have in each case complied with the
copyright laws of the United States and are the owners of subsisting exclusive rights of copyright therein,
including the right to reproduce such works and to
distribute such reproductions to the public; and it
being further
STIPULATED AND AGREED that Unique has
made multiple copies of portions of the aforesaid
works at the request of the individual faculty mem-

b. “Multiple copies” shall mean more than one copy
of the same material: (i) made at the same time or in
the same or immediately related transaction for or on
behalf of the same person; (ii) made for or on behalf
of the same person at different times under any circumstances which should reasonably give Unique
grounds for belief that it is engaging in the making of
more than one copy of the same material for the same
person; (iii) made at the same or different time or
times for or on behalf of different persons under any
circumstances which should reasonably give Unique
grounds for belief that such persons are members of a
single group or are otherwise engaging in a related or
concerted reproduction of the same material; or (iv)
made at any time or times under any circumstances
from a copy retained by or in the custody of Unique.
The term “person” as used in this definition shall
include Unique.
2. Except as provided in Paragraph 4 hereof, Unique
shall be and is permanently enjoined and restrained
from making multiple copies of any copyrighted
work of any plaintiff or any part or portion of any
such work, whether alone or in combination or conjunction with other works or materials.
3. Except as provided in Paragraph 4 hereof, Unique
shall be and is permanently enjoined and restrained

© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

EXHIBIT 4 - 1

Not Reported in F.Supp.
Not Reported in F.Supp., 1983 WL 1134 (S.D.N.Y.), 1983 Copr.L.Dec. P 25,544
(Cite as: 1983 WL 1134 (S.D.N.Y.))

from selling or in any manner distributing, or offering
for sale or distribution, any multiple copies or any
one copy from among multiple copies, of any copyrighted work of any plaintiff or any part or portion of
any such work, whether alone or in combination or
conjunction with other works or materials.
*2 4. Nothing in this judgment shall be deemed to
enjoin or restrain Unique from making or distributing
copies of any copyrighted work of any plaintiff or
portions thereof where:
a. When accepting such work or portion for production of multiple copies, Unique shall require all customers to submit a certification in the form annexed
hereto as Exhibit A which certifies that:
i. written permission or authorization to make and
distribute such copies has been obtained from the
owner of the appropriate copyright, provided Unique
has no reasonble grounds for doubting the authenticity of the permission or its applicability to the work
or portion; or
ii. the copies are made at the request of a faculty
member of a non-profit institution and are in full
compliance with the conditions of Paragraph II and
III of the March 19, 1976 “Agreement on Guidelines
for Classroom Copying in Not-For-Profit Educational
Institutions with Respect to Books and Periodicals,”H.R. Rep. No. 94-1476, 94th Cong., 2nd Sess.
68-70, reprinted in (1976) U.S. Code Cong. & Ad.
News 5659, 5682-83, annexed hereto as Exhibit B,
with which the faculty member is familiar, provided
Unique has no reasonable grounds for doubting the
position of the requestor or such compliance; or
iii. the copies are made at the request of a New York
University faculty member and copying has been
approved by the General Counsel of the University in
compliance with the University's “Policy Statement
on Photocopying of Copyrighted Materials for Classroom and Research Use,” annexed hereto as Exhibit
C, with which the faculty member is familiar, provided Unique has no reasonable grounds for doubting
the position of the requestor, or that such approval
has been given.
b. Unique shall require the customer to supply the
original of the written permission described in Paragraph 4(a)(i), and such permission shall be attached

Page 2

to the Exhibit “A” certification.
c. If the written permission described in Paragraph
4(a)(i) requires the use of a copyright notice on such
copies, Unique shall take reasonable steps to ensure
that such notice is provided by the customer and appears on all copies which are made by Unique.
d. Unique shall keep all certifications and attachments as described in Paragraph 4(a) for a period of
one year.
5. Unique shall pay to the plaintiffs an amount equal
to its profits from the distribution of the works identified in claims 1-13 of the complaint and materials
distributed together therewith, such amount to be
determined by agreement of the parties or by inquest.
6. Upon request, Unique shall provide access to its
business premises once during every three (3) month
period to an authorized representative of the plaintiffs
for the purpose of ascertaining compliance with the
terms of this judgment. Access shall be afforded at
reasonable times during Unique's business hours. The
representative shall, upon reasonable advance notice,
be given the right to inspect and make copies, at the
plaintiffs' expense, of the certifications and attachments referred to above.
*3 7. Unique shall prominently post on its business
premises a notice substantially as set forth in Exhibit
D, and a copy of Exhibit B.
8. Unless otherwise agreed to by the parties or ordered by the court, any copying done on Unique's
business premises, whether by Unique or by any
other person, shall be attributable to and be considered done by Unique and shall be subject to the proscriptions herein and to the provisions of the copyright laws.
9. If any violations or possible violations of the terms
of this Order and Final Judgment are brought to
Unique's attention by or on behalf of any of the plaintiffs, or by or on behalf of the Association of American Publishers, Inc., Unique will promptly inquire
into any violations and advise such plaintiffs or Association in writing of the results of its inquiry and of
any action which has been or will be taken with respect thereto. This paragraph does not impose any

© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

EXHIBIT 4 - 2

Not Reported in F.Supp.
Not Reported in F.Supp., 1983 WL 1134 (S.D.N.Y.), 1983 Copr.L.Dec. P 25,544
(Cite as: 1983 WL 1134 (S.D.N.Y.))

obligation upon the plaintiffs or said Association, and
does not in any way restrain or otherwise affect the
right of any plaintiff to proceed against any violation
of the terms of this Order and Final Judgment in such
manner as it may deem fit.
10. Each plaintiff agrees that prior to instituting any
future action for copyright infringement against
Unique that is based upon claims of photocopying
other than those claims specifically identified in
claims 1-13 of the Complaint, it will notify Unique in
writing and accord reasonable opportunity for amicable discussion; but nothing in this paragraph shall
preclude any plaintiff from then proceeding with such
claims in such manner as it may in its sole discretion
determine.

Page 3

member of a nonprofit institution and are in full
compliance with the conditions of Paragraphs II and
III of the March 19, 1976 “Agreement on Guidelines
for Classroom Copying in Not-For-Profit Educational
Institutions with Respect to Books and Periodicals,” a
copy of which is posted on the premises, with which I
am familiar.
*4 [] The copies are made at the request of a New
York University faculty member and the copying has
been approved by the General Counsel of the University in compliance with the University's “Policy
Statement on Photocopying of Copyrighted Materials
for Classroom and Research Use,” with which I am
familiar.

11. Unique agrees that this judgment shall be binding
on its agents, servants, employees and all other persons acting under its direction, control or supervision.

Title and Author of Work (if a contribution to a periodical, anthology or other collective work, set forth
both the title, volume and number, and author or editor of the collective work and the title and author of
the contribution):

12. There shall be no relief granted on any of the
claims and counterclaims in this action other than
that specified herein, all such claims and counterclaims being merged herein.

TABULAR OR GRAPHIC MATERIAL SET AT
THIS POINT IS NOT DISPLAYABLE
TABLE

13. Each of the parties to this decree shall bear its
own costs incurred in this action, subject to Paragraph 5.

II. Multiple Copies for Classroom Use

14. Forthwith upon the entry of this judgment or prior
thereto, Unique shall destroy all materials within its
possession or control distribution of which would
infringe the terms of this judgment.

Multiple copies (not to exceed in any event more than
one copy per pupil in a course) may be made by or
for the teacher giving the course for classroom use or
discussion; provided that:

15. The parties hereto shall have the right to apply to
this Court for such further relief as may be necessary
to effectuate this Order and Final Judgment.

A. The copying meets the tests of brevity and spontaneity as definded below; and,

Exhibit A

B. Meets the cumulative effect test as defined below;
and,

I hereby certify that, with respect to the work or portion(s) thereof described below:

Exhibit B

C. Each copy includes a notice of copyright
Definitions

[] Written permission or authorization to make and
distribute such copies has been obtained from the
owner of the appropriate copyright, the original of
which is attached.
[] The copies are made at the request of a faculty

Brevity
(i) Poetry: (a) A complete poem if less than 250
words and if printed on not more than two pages or,

© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

EXHIBIT 4 - 3

Not Reported in F.Supp.
Not Reported in F.Supp., 1983 WL 1134 (S.D.N.Y.), 1983 Copr.L.Dec. P 25,544
(Cite as: 1983 WL 1134 (S.D.N.Y.))

Page 4

(b) from a longer poem, an except of not more than
250 words.

(iii) There shall not be more than nine instances of
such multiple copying for one course during one
class term.

(ii) Prose: (a) Either a complete article, story or essay
of less than 2,500 words, or (b) an excerpt from any
prose work of not more than 1,000 words or 10% of
the work, whichever is less, but in any event a minimum of 500 words.

*5 [The limitations stated in “ii” and “iii” above shall
not apply to current news periodicals and newspapers
and current news sections of other periodicals.]
III. Prohibitions as to I and II Above

[Each of the numerical limits stated in “i” and “ii”
above may be expanded to permit the completion of
an unfinished line of a poem or of an unfinished
prose paragraph.]
(iii) Illustration: One chart, graph, diagram, drawing,
cartoon or picture per book or per periodical issue.

Notwithstanding any of the above, the following shall
be prohibited:
(A) Copying shall not be used to create or to replace
or substitute for anthologies, compilations or collective works. Such replacement or substitution may
occur whether copies of various works or excerpts
therefrom are accumulated or reproduced and used
separately.

(iv) “Special” works: Certain works in poetry, prose
or in “poetic prose” which often combine language
with illustrations and which are intended sometimes
for children and at other times for a more general
audience fall short of 2,500 words in their entirety.
Paragraph “ii” above notwithstanding such “special
works” may not be reproduced in their entirety; however, an excerpt comprising not more than two of the
published pages of such special work and containing
not more than 10% of the words found in the text
thereof, may be reproduced.

(b) There shall be no copying of or from works intended to be “consumable” in the course of study or
of teaching. These include workbooks, exercises,
standardized tests and test booklets and answer sheets
and like consumable material.

Spontaneity

(a) substitute for the purchase of books, publishers'
reprints or periodicals;

(i) The copying is at the instance and inspiration of
the individual teacher, and

(b) be directed by higher authority;

(ii) The inspiration and decision to use the work and
the moment of its use of maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission.

(C) Copying shall not:

(c) be repeated with respect to the same item by the
same teacher from term to term.
(D) No charge shall be made to the student beyond
the actual cost of the photocopying.
Exhibit C

Cumulative Effect
(i) The copying of the material is for only one course
in the school in which the copies are made.

Policy Statement on Photocopying of Copyrighted
Materials for Classroom and Research Use

(ii) Not more than one short poem, article, story, essay or two excerpts may be copied from the same
author, nor more than three from the same collective
work or periodical volume during one class term.

In December, 1982, nine publishers commenced a
lawsuit against the University and nine members of
the faculty (as well as an off-campus copy shop) alleging that the photocopying and distribution of cer-

© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

EXHIBIT 4 - 4

Not Reported in F.Supp.
Not Reported in F.Supp., 1983 WL 1134 (S.D.N.Y.), 1983 Copr.L.Dec. P 25,544
(Cite as: 1983 WL 1134 (S.D.N.Y.))

tain course materials, without the permission of the
copyright owners of the materials, violated the Copyright Act (17 U.S.C. §§ 101 et seq., 90 Stat. 2541,
Pub. L. 94-553). It has become increasingly clear that
the subject of photocopying for classroom and research purposes is of significant concern to the faculty, who have inquired about issues such as when
photocopying may be done without the consent of the
copyright owner; when and how permission to photocopy should be obtained; how exposure to liability
may be reduced; and under what circumstances the
University will defend them against claims of copyright infringement arising out of photocopying for
classroom and research use. To assist the faculty in
resolving these issues, to facilitate compliance with
the copyright laws, and as part of the settlement of
the publishers' lawsuit, the University is issuing this
Policy Statement.FN1
FN1 This Policy Statement supersedes the
document entitled “Interim Guidelines Concerning Photocopying for Classroom Research and Library Use” which was distributed on January 18, 1983.
1. The principles of the copyright law are designed to
promote the creation, publication, and use of works
of the intellect. These principles include both the exclusive rights of copyright owners to determine certain uses of their works (in not-for-profit as well as
commercial contexts), and certain exceptions including the doctrine of “fair use”. These precepts are in
the mutual interest of the university, author, and publisher communities and of the public.
2. Under the copyright laws, certain photocopying of
copyrighted works for educational purposes may take
place without the permission of the copyright owner
under the doctrine of “fair use” (presently set forth in
Section 107 of the Copyright Act). This principle is
subject to limitations, but neither the statute nor judicial decisions give specific practical guidance on
what photocopying falls within fair use. To achieve
for faculty greater certainty of procedure, to reduce
risks of infringement or allegations thereof, and to
maintain a desirable flexibility to accommodate specific needs, the following policies have been adopted
by the University for use through December 31, 1985
(and thereafter, unless modified). On or before December 31, 1985 the University will review these
policies to determine their effect and whether modifi-

Page 5

cations, based on our experience, might be needed. If
members of the faculty experience any problems or
have suggestions, they are asked to communicate
them to the Office of Legal Counsel.
*6 A. The Guidelines set forth in Appendix I are to
be used to determine whether or not the prior permission of the copyright owner is to be sought for photocopying for research and classroom use.FN2 If the
proposed photocopying is not permitted under the
Guidelines in Appendix I, permission to copy is to be
sought. An explanation of how permissions may be
sought and a procedure for furnishing to the administration information concerning the responses by
copyright owners to requests for permission is set
forth in Appendix II. After permission has been
sought, copying should be undertaken only if permission has been granted, and in accordance with the
terms of the permission, except as provided in the
next paragraph.
FN2 To minimize intrusiveness and overcentralization, the responsibility for making
this determination will continue to reside
with the individual faculty member. In making this determination, the faculty member
should carefully consider all sections of the
attached Guidelines.
B. The doctrine of fair use may now or hereafter
permit specific photocopying in certain situations,
within limitations, beyond those specified in the
GuidelinesFN3 or those that might be agreed to by the
copyright owner. In order to preserve the ability of
individual faculty members to utilize the doctrine of
fair use in appropriate circumstances without incurring the risk of having personally to defend an action
by a copyright owner who may disagree as to the
limits of fair use, a faculty member who has sought
permission to photocopy and has not received such
permission (or has received permission contingent
upon conditions that the faculty member considers
inappropriate) may request a review of the matter by
General Counsel of the University. If upon review the
General Counsel determines that some or all of the
proposed photocopying is permitted by the copyright
law, the General Counsel will so advise the faculty
member. In that event, should any such photocopying
by the faculty member thereafter give rise to a claim
of copyright infringement, the University will defend
and indemnify the faculty member against any such

© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

EXHIBIT 4 - 5

Not Reported in F.Supp.
Not Reported in F.Supp., 1983 WL 1134 (S.D.N.Y.), 1983 Copr.L.Dec. P 25,544
(Cite as: 1983 WL 1134 (S.D.N.Y.))

claim in accordance with the provisions of the Board
of Trustees policy on Legal Protection of Faculty
(Faculty Handbook [1982 ed.] pp. 109-112).

Page 6

photocopying gives rise to a claim of copyright infringement.
Exhibit D

FN3 The Guidelines contained in Appendix
I were negotiated by education, author, and
publishing representatives in 1976 and were
incorporated in the House of Representatives report accompanying the Copyright
Act of 1976. The introductory explanation
of the Guidelines in the House Report describes their relationship to the doctrine of
fair use as follows:
Agreement on Guidelines for Classroom
Copying in

Notice
Photocopying of copyrighted materials by or for New
York University faculty is subject to specific rules
and procedures set forth in the University's “Policy
Statement on Photocopying of Copyrighted Materials
for Classroom and Research Use.” Copies of this
statement are available in The Faculty Handbook
(supplement) and through the Deans' offices and the
office of the Secretary of New York University.
S.D.N.Y. 1983.
Addison-Wesley Pub. Co., Inc. v. New York University
Not Reported in F.Supp., 1983 WL 1134 (S.D.N.Y.),
1983 Copr.L.Dec. P 25,544

Not-For-Profit Educational Institutions
With Respect to Books and Periodicals
The purpose of the following guidelines is to
state the minimum standards of educational
fair use under Section 107 of H.R. 2223.
The parties agree that the conditions determining the extent of permissible copying for
educational purposes may change in the future; that certain types of copying permitted
under these guidelines may not be permissible in the future; and conversely that in the
future other types of copying not permitted
under these guidelines may be permissible
under revised guidelines.

END OF DOCUMENT

Moreover, the following statement of guidelines is not intended to limit the types of
copying permitted under the standards of
fair use under judicial decision and which
are stated in Section 107 of the Copyright
Revision Bill. There may be instances in
which copying which does not fall within
the guidelines stated below may nonetheless
be permitted under the criteria of fair use.
*7 C. In the absence of the determination and advice
by the General Counsel referred to in paragraph B, or
in the event that permission has not been first requested by the faculty member as provided in paragraph A, no defense or indemnification by the University shall be provided to a faculty member whose

© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

EXHIBIT 4 - 6