American Geophysical Union v. Texaco Inc.

60 F.3d 913 (2nd Cir. 1994)

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Nature of the Case

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Facts

P and 82 other publishers of scientific and technical journals brought a class action claiming that D's unauthorized photocopying of articles from their journals constituted copyright infringement. D claimed that its copying was fair use under section 107. An initial trial was limited to whether D's copying was fair use. D employs 400 to 500 research scientists, of whom all or most presumably photocopy scientific journal articles to support their research. One scientist was chosen at random as the representative of the entire group. The scientist chosen was Dr. Donald H. Chickering, II. Ps selected from Chickering's files photocopies of eight particular articles from the Journal of Catalysis. Catalysis is a monthly publication produced by Academic Press, Inc., a major publisher of scholarly journals and one of the plaintiffs in this litigation. D had initially purchased one subscription to Catalysis for its Beacon facility and increased its total subscriptions to two in 1983. Since 1988, D has maintained three subscriptions to Catalysis. Articles in the publication are received by the journal's editors through unsolicited submission. Authors are informed that they must transfer the copyright in their writings to Academic Press if one of their articles is accepted for publication, and no form of money payment is ever provided. The average monthly issue of Catalysis runs approximately 200 pages and comprises 20 to 25 articles. Chickering, a chemical engineer, has worked for D since 1981 conducting research in the field of catalysis. Chickering must review works published in various scientific and technical journals related to his area of research. D's library circulates current issues of relevant journals to Chickering when he places his name on the appropriate routing list. The eight articles from Catalysis were photocopied in their entirety by Chickering or by other Texaco employees at Chickering's request. Chickering did not generally use the Catalysis articles in his research immediately upon copying but placed the photocopied articles in his files to have them available for later reference as needed. Chickering did not have occasion to make use of five of the articles that were copied. The trial court considered the 4 factors of fair use and found against D. The District Court concluded that three of the four statutory factors favor the publishers. D appealed.