Cases interpreting § 108

There are only two cases interpreting section 108, so this section will mainly serve to help locate future cases. Because of the indexing on Westlaw and Lexis, those two cases will always be good “hooks” for finding other cases. Where the attorneys involved in the case still practice copyright law, they are listed below the case.

One important thing to keep in mind while searching for library-related copyright cases is that a search for copyright materials that includes the term library will return many cases (or statutes, or regulations, or journal articles) that mention the Library of Congress, where the Copyright Office is housed, instead of copyright as it applies to libraries. Searching for libraries instead of library will help, but of course that search will omit all materials referring to library in the singular (on most search engines, including Lexis and Westlaw). If you can use a case-sensitive search, that may also be helpful.  You can search for 108 to mitigate this problem, but that search term will rule out more recent materials that are factually analogous to (but do not fall under) Section 108.

Important § 108 cases

Association of American Medical Colleges v. Carey, 728 F. Supp. 873 (N.D.N.Y. 1990) (available here).

The state of New York passed a law to force the administrators of the MCAT to disclose copyrighted MCAT questions and other data. The court held that federal copyright law preempted this and that Section 108 did not intervene, stating that:

The archive clause operates as an exception to the exclusivity of ownership rights bestowed upon a copyright owner by permitting, under limited circumstances, the reproduction and distribution of copyrighted works by “archives” without threat of civil suit. Though there is no case law remotely on point, it is clear that this exception would only apply to unpublished works which are properly in the possession of an archive in the first place.

This discussion takes place under the heading “The Archive Exception,” 728 F. Supp. at 889. On Westlaw, this is headnote 8, and on Lexis, it is headnote 40. On appeal, the Second Circuit overruled the District Court on the preemption issue and remanded, thus not reaching Section 108. (Association of American Medical Colleges v. Cuomo, 928 F.2d 519 (2d Cir. 1991)).

American Geophysical Union v. Texaco, Inc., 60 F.3d 913 (2d Cir. 1994) (available here).

Texaco copied copyrighted academic journals, and the rightsholder sued for infringement. Most of the opinion concerns fair use, but the Second Circuit cites Section 108 as evidence that “Congress has impliedly suggested that the law should recognize licensing fees for photocopying as part of the ‘potential market for or value of’ journal articles,” stating that:

Though this section [108] states that it does not in any way affect the right of fair use, see id. § 108(f)(4), the very fact that Congress restricted the rights of libraries to make copies implicitly suggests that Congress views journal publishers as possessing the right to restrict photocopying, or at least the right to demand a licensing royalty from nonpublic institutions that engage in photocopying.

This discussion takes place at 60 F.3d at 931. Westlaw does not have a headnote, but in Lexis this is headnote 37.

  • Attorneys:
  • Thomas A. Smart, a partner at Kaye Scholer, represented the defendant (Texaco).
  • Richard A. De Sevo, of counsel at Kaye Scholer, was with him on the brief.
  • Jon A. Baumgarten, formerly General Counsel for the Copyright Office, was on the brief for the plaintiffs (AGU).
  • Susan Neuberger Weller, a member of Mintz Levin, coauthored the brief for for amici curiae the Ass’n of Research Libraries, Amer. Ass’n of Law Libraries, Special Libraries Ass’n, Medical Library Ass’n, Amer. Council of Learned Societies, Nat. Humanities Alliance, and Ass’n of Academic Health Sciences Library Directors.
  • Lawrence E. Abelman, a founding member of Abelman, Frayne, & Schwab, coauthored the brief for amici curiae Amer. Auto. Mfrs. Ass’n and Chemical Mfrs. Ass’n.
  • Jeffrey A. Schwab, a founding member of Abelman, Frayne, & Schwab, coauthored the brief for amici curiae Amer. Auto. Mfrs. Ass’n and Chemical Mfrs. Ass’n.
  • Nancy J. Mertzel, a partner at Donovan & Yee, coauthored the brief for amici curiae Amer. Auto. Mfrs. Ass’n and Chemical Mfrs. Ass’n.

Searching for § 108 cases in West’s Key Number System

The section of the Key Number system dealing with copyright infringement has an entry for “Fair use and other permitted uses in general” (Key Number 99k53.2) and is then organized by format of work (books, musical works, etc.). It seems that section 108 cases should fall under “other permitted uses,” but neither AAMC’s nor Texaco’s discussions of section 108 is cataloged that way. Instead, they are listed under type of work, and those Key Numbers are far too broad to be helpful.

Searching for § 108 cases on Lexis

Lexis puts the headnotes for these cases in its topic system under Copyright Law > Owner Rights > Reproduction > General Overview. This is not a narrow enough topic to be useful (it returns over 1000 cases), but it is useful with “section 108” as a search term in the Terms and Connectors box.

Reliable free sites

Court websites

  • Each of the federal courts has its own website where users can access recent slip opinions. These opinions are typically not hosted indefinitely, and they can contain typos or otherwise not match the printed versions.

Legal Information Institute at Cornell

  • The LII provides access to Supreme Court decisions from 1990 to the present and directs users to other resources for earlier Supreme Court cases. It does not host a database for lower court opinions, but it does host some (indexed by Google).

Google Scholar

  • Google Scholar allows the user to search just legal opinions and journals by selecting the relevant radio button below the search bar. It offers the strength of Google’s plain-language searching (as well as some advanced searching), but the case database is not exhaustive. It does not list its contents or what it leaves out. Google Scholar is good for retrieving a case you already know about but is less helpful for discovering new cases.

Accessing dockets for ongoing litigation

PACER, Public Access to Court Electronic Records, is a website maintain by the Administrative Office of the U.S. Courts. It is the official access point for information regarding federal court dockets. Although anyone can create an account to use PACER, it charges fees for use.

Justia is a for-profit company that provides limited access to federal dockets for free. On, click on “Legal Research & Law Practice” and then “US Federal Court Dockets & Case Filings.” You can search by party, judge, court, date, or “lawsuit type” (area of law). They do not provide copies of all the filings in a case, but they provide many of the important ones. They also link to PACER.

Bloomberg Law is a subscription database for legal research, launched in 2009.  Bloomberg has searchable dockets for U.S. state and federal courts, as well as some foreign courts.  Access the search feature by clicking Dockets in the center of the horizontal orange menu.  You can search by keyword, party, judge, attorney, date, and court.  In federal cases, you can also search by “nature of suit,” a set of broad subject areas. Some filings are available at the subscription levels, and the rest are available for an additional fee.

Ongoing litigation

Cambridge University Press et al. v. Patton et al.

Authors Guild, Inc. et al. v. HathiTrust et al.

Next: Regulations

Previous: Legislative history of § 108 (organized by amendment)

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