Williams & Wilkins Company v. United States, No. 73-68.

CourtCourt of Federal Claims
Writing for the CourtCOWEN, , and DAVIS, SKELTON, NICHOLS, KASHIWA, KUNZIG and BENNETT
Citation487 F.2d 1345
PartiesThe WILLIAMS & WILKINS COMPANY v. The UNITED STATES.
Docket NumberNo. 73-68.
Decision Date27 November 1973

487 F.2d 1345 (1973)

The WILLIAMS & WILKINS COMPANY
v.
The UNITED STATES.

No. 73-68.

United States Court of Claims.

November 27, 1973.


487 F.2d 1346

Alan Latman, New York City, attorney of record, for plaintiff. Arthur J. Greenbaum and Cowan, Liebowitz & Latman, New York City, of counsel.

Thomas J. Byrnes, Washington, D. C., with whom was Asst. Atty. Gen. Harlington Wood, Jr., for defendant.

Irwin Karp, New York City, for The Authors League of America, Inc., amicus curiae.

Philip B. Brown, Washington, D. C., for the Assn. of Research Libraries, Medical Library Assn., American Assn. of Law Libraries, American Medical Assn., American Dental Assn., Mayo Foundation, Robert H. Ebert, M.D. (in his capacity as Dean of the Faculty of Medicine, Harvard University), The University of Michigan Medical School, The University of Rochester, School of Medicine and Dentistry, American Sociological Assn., Modern Language Assn. of America, and History of Science Society, amici curiae. Cox, Langford & Brown and John P. Furman, Washington, D. C., of counsel.

Harry N. Rosenfield, Washington, D. C., for The National Education Assn. of the United States, amicus curiae.

William D. North, Chicago, Ill., for the American Library Assn., amicus curiae. Perry S. Patterson, Washington, D. C., Ronald L. Engel, James M. Amend, John A. Waters, Chicago, Ill., Thomas B. Carr, Washington, D. C., and Kirkland & Ellis, Chicago, Ill., of counsel.

Charles H. Lieb, New York City, for the Assn. of American Publishers, Inc. and The Assn. of American University Presses, Incorporated, amici curiae. Paskus, Gordon & Hyman, New York City, and Elizabeth Barad, New York City, of counsel.

Arthur B. Hanson, Washington, D. C., for The American Chemical Society, amicus curiae. Hanson, O'Brien, Birney, Stickle & Butler, Washington, D. C., of counsel.

Davies, Hardy, Ives & Lawther, New York City, for The American Institute of Physics Incorporated, amicus curiae. Robert E. Lawther, New York City, of counsel.

Robert B. Washburn, Virgil E. Woodcock, and Woodcock, Washburn, Kurtz & Mackiewicz, Philadelphia, Pa., for American Society for Testing and Materials and National Council of Teachers of Mathematics, amici curiae.

Before COWEN, Chief Judge, and DAVIS, SKELTON, NICHOLS, KASHIWA, KUNZIG and BENNETT, Judges.

OPINION

DAVIS, Judge:

We confront a ground-breaking copyright infringement action under 28 U.S.C. § 1498(b), the statute consenting to infringement suits against the United States.1 Plaintiff Williams & Wilkins Company, a medical publisher, charges that the Department of Health, Education,

487 F.2d 1347
and Welfare, through the National Institutes of Health (NIH) and the National Library of Medicine (NLM), has infringed plaintiff's copyrights in certain of its medical journals by making unauthorized photocopies of articles from those periodicals. Modern photocopying in its relation to copyright spins off troublesome problems, which have been much discussed.2 Those issues have never before been mooted or determined by a court. In this case, an extensive trial was held before former Trial Judge James F. Davis who decided that the Government was liable for infringement. On review, helped by the briefs and agreements of the parties and the amici curiae, we take the other position and hold the United States free of liability in the particular situation presented by this record

I3

Plaintiff, though a relatively small company, is a major publisher of medical journals and books. It publishes 37 journals, dealing with various medical specialties. The four journals in suit are Medicine, Journal of Immunology, Gastroenterology, and Pharmacological Reviews. Medicine is published by plaintiff for profit and for its own benefit. The other three journals are published in conjunction with specialty medical societies which, by contract, share the journals' profits with plaintiff. The articles published in the journals stem from manuscripts submitted to plaintiff (or one of the medical societies) by physicians or other scientists engaged in medical research. The journals are widely disseminated throughout the United States (and the world) in libraries, schools, physicians' offices, and the like. Annual subscription prices range from about $12 to $44; and, due to the esoteric nature of the journals' subject matter, the number of annual subscriptions is relatively small, ranging from about 3,100 (Pharmacological Reviews) to about 7,000 (Gastroenterology). Most of the revenue derived from the journals comes from subscription sales, though a small part comes from advertising.4 The journals are published with notice of copyright in plaintiff's name. The notice appears at the front of the journal and sometimes at the beginning of each article. After publication of each journal issue (usually monthly or bimonthly) and after compliance with the requisite statutory requirements, the Register of Copyrights issues to plaintiff certificates of copyright registration.

NIH, the Government's principal medical research organization, is a conglomerate of institutes located on a multi-acre campus at Bethesda, Maryland. Each institute is concerned with a particular medical specialty, and the institutes conduct their activities by way of both intramural research and grants-in-aid to private individuals and organizations. NIH employs over 12,000 persons —4,000 are science professionals and 2,000 have doctoral degrees. To assist its intramural programs, NIH maintains a technical library. The library houses about 150,000 volumes, of which about 30,000 are books and the balance scientific (principally medical) journals. The library is open to the public, but is used mostly by NIH in-house research personnel. The library's budget for 1970 was $1.1 million; of this about $85,000 was for the purchase of journal materials.

The NIH library subscribes to about 3,000 different journal titles, four of which are the journals in suit. The library subscribes to two copies of each of the journals involved. As a general rule, one copy stays in the library reading

487 F.2d 1348
room and the other copy circulates among interested NIH personnel. Demand by NIH research workers for access to plaintiff's journals (as well as other journals to which the library subscribes) is usually not met by in-house subscription copies. Consequently, as an integral part of its operation, the library runs a photocopy service for the benefit of its research staff. On request, a researcher can obtain a photocopy of an article from any of the journals in the library's collection. Usually, researchers request photocopies of articles to assist them in their on-going projects; sometimes photocopies are requested simply for background reading. The library does not monitor the reason for requests or the use to which the photocopies are put. The photocopies are not returned to the library; and the record shows that, in most instances, researchers keep them in their private files for future reference

The library's policy is that, as a rule, only a single copy of a journal article will be made per request and each request is limited to about 40 to 50 pages, though exceptions may be, and have been, made in the case of long articles, upon approval of the Assistant Chief of the library branch. Also, as a general rule, requests for photocopying are limited to only a single article from a journal issue. Exceptions to this rule are routinely made, so long as substantially less than an entire journal is photocopied, i. e., less than about half of the journal. Coworkers can, and frequently do, request single copies of the same article and such requests are honored.

Four regularly assigned employees operate the NIH photocopy equipment. The equipment consists of microfilm cameras and Xerox copying machines. In 1970, the library photocopy budget was $86,000 and the library filled 85,744 requests for photocopies of journal articles (including plaintiff's journals), constituting about 930,000 pages. On the average, a journal article is 10 pages long, so that, in 1970, the library made about 93,000 photocopies of articles.

NLM, located on the Bethesda campus of NIH, was formerly the Armed Forces Medical Library. In 1956, Congress transferred the library from the Department of Defense to the Public Health Service (renaming it the National Library of Medicine), and declared its purpose to be "* * * to aid the dissemination and exchange of scientific and other information important to the progress of medicine and to the public health * * *." 42 U.S.C. § 275 (1970). NLM is a repository of much of the world's medical literature, in essence a "librarians' library." As part of its operation, NLM cooperates with other libraries and like research-and-education-oriented institutions (both public and private) in a so-called "interlibrary loan" program. Upon request, NLM will loan to such institutions, for a limited time, books and other materials in its collection. In the case of journals, the "loans" usually take the form of photocopies of journal articles which are supplied by NLM free of charge and on a no-return basis. NLM's "loan" policies are fashioned after the General Interlibrary Loan Code, which is a statement of self-imposed regulations to be followed by all libraries which cooperate in interlibrary loaning. The Code provides that each library, upon request for a loan of materials, shall decide whether to loan the original or provide a photoduplicate. The Code notes that photoduplication of copyrighted materials may raise copyright infringement problems, particularly with regard to "photographing whole issues of periodicals or books with current copyrights, or in making multiple copies of a publication." Emphasis in original text. NLM, therefore, will provide only one photocopy of a particular article, per request, and will not photocopy on any given request an entire journal issue. Each photocopy reproduced by NLM contains...

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42 practice notes
  • Stern v. Does, Case No. CV 09–01986 DMG (PLAx).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • February 10, 2011
    ...by the decisions and rejected by years of accepted practice.’ ” (quoting Williams & Wilkins Co. v. United States, 203 Ct.Cl. 74, 487 F.2d 1345, 1353 (1973))). The facts of this case reveal it to be one of the limited situations where verbatim copying of an entire work is fair. There are two......
  • Sony Corporation of America v. Universal City Studios, Inc, No. 81-1687
    • United States
    • United States Supreme Court
    • January 18, 1983
    ...White-Smith Music Publishing Co. v. Apollo Co., 209 U.S. 1, 28 S.Ct. 319, 52 L.Ed. 655 (1908); Williams and Wilkins v. United States, 487 F.2d 1345, 203 Ct.Cl. 74 (1973), affirmed by an equally divided court, 420 U.S. 376, 95 S.Ct. 1344, 43 L.Ed.2d 264 (1975). Sound policy, as well as histo......
  • Harper & Row Publishers, Inc. v. Nation Enterprises, Nos. 143
    • United States
    • U.S. Court of Appeals — Second Circuit
    • November 17, 1983
    ...if the use has social value or is valuable for the information it disseminates. See, e.g., Williams & Wilkins Co. v. United States, 487 F.2d 1345, 203 Ct.Cl. 74 (1973) (large-scale photocopying of medical articles by government research institute and its library), aff'd by an equally divide......
  • Walt Disney Productions v. Air Pirates, Nos. 75-3116
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 5, 1978
    ...385 U.S. 1009, 87 S.Ct. 714, 17 L.Ed.2d 546; 17 U.S.C. § 107(3) (codifying old law). But cf. Williams & Wilkins Co. v. United States, 487 F.2d 1345, 203 Ct.Cl. 74 (1973), affirmed by an equally divided Court, 420 U.S. 376, 95 S.Ct. 1344, 43 L.Ed.2d In inquiring into the substantiality of th......
  • Request a trial to view additional results
38 cases
  • Stern v. Does, Case No. CV 09–01986 DMG (PLAx).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • February 10, 2011
    ...by the decisions and rejected by years of accepted practice.’ ” (quoting Williams & Wilkins Co. v. United States, 203 Ct.Cl. 74, 487 F.2d 1345, 1353 (1973))). The facts of this case reveal it to be one of the limited situations where verbatim copying of an entire work is fair. There are two......
  • Sony Corporation of America v. Universal City Studios, Inc, No. 81-1687
    • United States
    • United States Supreme Court
    • January 18, 1983
    ...White-Smith Music Publishing Co. v. Apollo Co., 209 U.S. 1, 28 S.Ct. 319, 52 L.Ed. 655 (1908); Williams and Wilkins v. United States, 487 F.2d 1345, 203 Ct.Cl. 74 (1973), affirmed by an equally divided court, 420 U.S. 376, 95 S.Ct. 1344, 43 L.Ed.2d 264 (1975). Sound policy, as well as histo......
  • Harper & Row Publishers, Inc. v. Nation Enterprises, Nos. 143
    • United States
    • U.S. Court of Appeals — Second Circuit
    • November 17, 1983
    ...if the use has social value or is valuable for the information it disseminates. See, e.g., Williams & Wilkins Co. v. United States, 487 F.2d 1345, 203 Ct.Cl. 74 (1973) (large-scale photocopying of medical articles by government research institute and its library), aff'd by an equally divide......
  • Walt Disney Productions v. Air Pirates, Nos. 75-3116
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 5, 1978
    ...385 U.S. 1009, 87 S.Ct. 714, 17 L.Ed.2d 546; 17 U.S.C. § 107(3) (codifying old law). But cf. Williams & Wilkins Co. v. United States, 487 F.2d 1345, 203 Ct.Cl. 74 (1973), affirmed by an equally divided Court, 420 U.S. 376, 95 S.Ct. 1344, 43 L.Ed.2d In inquiring into the substantiality of th......
  • Request a trial to view additional results
4 books & journal articles
  • Synchronizing Copyright and Technology: A New Paradigm for Sync Rights.
    • United States
    • Missouri Law Review Vol. 87 Nbr. 1, January 2022
    • January 1, 2022
    ...was fair use, many individuals undertaking that act posed a different problem). (81) Williams & Wilkins Co. v. United States, 487 F.2d 1345, 1348 (Ct. Cl. 1973), aff'd 420 U.S. 376 (82) Id. at 1362-63 ("Hopefully, the result in the present case will be but a 'holding operation' in the i......
  • One Crack and an 'Evisceration': The Current State of the DMCA's Safe Harbor
    • United States
    • Landslide Nbr. 10-1, September 2017
    • September 1, 2017
    ...733, 752 (2012). 76. Steve Altman Photography v. United States, 18 Cl. Ct. 267 (1989) (citing Williams & Wilkins Co. v. United States, 487 F.2d 1345 (Ct. Cl. 1973), aff’d per curiam , 420 U.S. 376 (1975)); Cohen , 105 Fed. Cl. at 740–41 (“In general, to determine copyright infringement, the......
  • Evolutionary Tales: Times of the Best and Worst
    • United States
    • Landslide Nbr. 10-1, September 2017
    • September 1, 2017
    ...733, 752 (2012). 76. Steve Altman Photography v. United States, 18 Cl. Ct. 267 (1989) (citing Williams & Wilkins Co. v. United States, 487 F.2d 1345 (Ct. Cl. 1973), aff’d per curiam , 420 U.S. 376 (1975)); Cohen , 105 Fed. Cl. at 740–41 (“In general, to determine copyright infringement, the......
  • Intellectual Property Suits in the United States Court of Federal Claims
    • United States
    • Landslide Nbr. 10-1, September 2017
    • September 1, 2017
    ...733, 752 (2012). 76. Steve Altman Photography v. United States, 18 Cl. Ct. 267 (1989) (citing Williams & Wilkins Co. v. United States, 487 F.2d 1345 (Ct. Cl. 1973), aff’d per curiam , 420 U.S. 376 (1975)); Cohen , 105 Fed. Cl. at 740–41 (“In general, to determine copyright infringement, the......

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