Association of Research Libraries (ARL®)

The Facts and Issues in the Michigan Document Services Case

Susan Kornfield, J.D.
Bodman, Longley, and Dahling

ADDENDUM C

Update on the Status of the MDS Case

On April 9, 1996, the judges of the Sixth Circuit Court of Appeals voted to rehear this case en banc. The effect of that vote was to vacate the previous decision from the Sixth Circuit, leaving in force the injunction issued by the District Court.

In May 1996, an amicus brief was filed in the case on behalf of the educational community by the Attorney General of the State of Georgia, the National School Board Association, the Georgia and California School Boards Associations, and the American Association of School Administrators. ARL filed a letter with the U.S. Court of Appeals for the Sixth Circuit to express its strong support for the important basic principles expressed in the brief of these amici. The American Library Association joined ARL in filing this letter. The ARL/ALA letter calls on the court to take note of the broader issues raised in the case and the significant public interests affected. "If the public did not have the ability to exercise... fair use rights," the letter states, "education, scholarly research and the progress of science and the arts would be severely inhibited, and the usefulness–and inevitably the value–of the copyrighted works concerned would be substantially diminished."

The case was reheard June 12, 1996.

On November 8, 1996, the Sixth Circuit Court of Appeals handed down its decision, holding that the making of photocopied coursepacks for sale by a for-profit copyshop is not fair use and is an infringement of copyright. This ruling came from the court "en banc," meaning that all 13 judges held and ruled on the case. Eight judges held that it was infringement; five concluded that he copying was fair use. In response to this development, MDS filed a petition with the U.S. Supreme Court to review the case. However, on March 31, 1997, Susan Kornfield, attorney representing MDS, posted an e-mail message to colleagues in the library and educational community who followed the case, reporting, "As you probably know, the Supreme Court today denied our petition for cert, leaving standing the 8-5 en banc decision in Princeton University Press et al v. MDS and James M. Smith. Someday, when educational institutions reconsider their wholesale giveaway of their constituents’ right of fair use, the battles may resurface."

Many of the decisions and briefs filed on both sides of the MDS coursepack and fair use case are on the Stanford University Libraries Copyright and Fair Use website http://fairuse.stanford.edu/mds/.