American Geophysical Union v. Texaco, Inc.
60 F.3d 913 (2d Cir. 1995)

  • Texaco had hundreds of scientists on staff. These scientists were copying and circulating articles from various scientific journals.
    • Texaco had bought subscriptions to the journals, but only a few subscriptions for hundreds of scientists.
  • 83 publishers, including AGU sued for copyright infringement.
    • Texaco argued that the copying of scientific journal articles for scientific purposes was protected by the fair use provision (17 U.S.C. 107).
  • The Trial Court found for the publishers. Texaco appealed.
  • The Appellate Court affirmed.
    • The Appellate Court found that based on 107 there is a four-factor test for determining if something counts as fair use:
      • Is the purpose and character of the use commercial or non-commercial?
        • Texaco argued that while they are a for-profit company, the scientists were copying the articles for science, and the profit motive was indirect. However, the Court found that was still a commercial use.
      • The nature of the copyrighted work.
        • The Court found that the scientific articles were non-fiction, which gives them less protection than creative works.
      • The amount of the original work used.
        • Texaco argued that while it was true they were copying an entire article, if you look at the complete body of all the articles in all of the journals, they were weren't copying a large percentage. However, the Court found that each article has an independent copyright, so copying 100% of an article count's as using 100% of a copyrighted work.
      • The effect on the potential market.
        • Texaco argued that the publishers didn't sell back issues of the journals, so making copies didn't hurt the publishers sales. However, the Court found that publishers could negotiate licensing rights (under the Copyright Clearance Center (CCC)) to get royalties for reprints. Therefore Texaco's unauthorized copying hurt the publishers potential for making money.
    • Based on their balancing of the four factors, the Court found that Texaco's copying was not protected by fair use.
  • In a dissent it was argued that it would be impossible for someone like Texaco to keep track of which articles were public domain, which were available for license via CCC and which couldn't be copied at all. So there was a market failure and the only efficient thing to do was to allow fair use copying.