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Worried lately about illegal office copying? Maybe you should. For the first time, big law firms in Hartford, Conn., are being asked — or forced — to cough up license fees of tens of thousands of dollars per year, says John L. Bonee III. “They hate it, and they’ve never had to do this before,” says the former Hartford County Bar president. Things changed with a May 1999 settlement extracted from 740-lawyer LeBoeuf, Lamb, Green & MacRae, which included an annual license of $115,000 per year from the Copyright Clearance Center, of Danvers, Mass. The licenses cost $156 per lawyer per year, and allow copying of works of some 9,600 publishers, including The Wall Street Journal, The New York Timesand American Lawyer Mediapublications, says Frederic Haber, general counsel for the 22-year old company. “We represent the lion’s share of what’s copied,” he says. Bonee would like the cost of copy compliance to drop. On June 5, Bonee won unanimous approval of the House of Delegates of the Connecticut Bar Association for two measures. “Connecticut lawyers have the highest practice fees in the country, and hardly need another $150 added to the cost of practicing law,” says Bonee. One resolution asks the American Bar Association to negotiate a discounted rate for lawyers’ licenses from the Copyright Clearance Center. The other is a resolution to ask the ABA to support federal legislation to expand the “fair use” doctrine to expressly include information submitted in court briefs or memos. Bonee notes that local rules of practice require lawyers to include copies of referenced materials not widely available to opposing counsel or the court. He’s managed to get his issues on the agenda for the national ABA meeting in New York on July 10. LIBRARIANS COMPLAINING TOO Many of the nation’s law librarians feel that CCC is using strong-arm marketing tactics. In an April 4 letter to CCC’s CEO, Joseph S. Alen, Robert L. Oakley wrote on behalf of the 4,700 member American Association of Law Libraries that CCC marketing goes too far. “Indeed, our members find the letters not only misleading, but even threatening,” Oakley wrote. Law firm librarians complained that “they are being unduly pressured” to subscribe to the CCC’s annual authorization service as part of a “comprehensive and systematic effort to target law firms.” Oakley is the Washington affairs representative for the AALL. In his letter to Alen, he says the CCC Web site fails to mention the fair use and library exemptions. It misleadingly suggests there is little or no right to reproduce copyrighted works in the for-profit sector, Oakley writes. He cites Alen to the AALL Guidelines on the Fair Use of Copyrighted Works by Law Librarians. That guide is available at http://www.aallnet.org/-about/policy fair.asp. OTHER SOURCES Haber forthrightly acknowledges that buying a license from CCC is not the only way to comply with copyright law. His CCC Web site is at copyright.com, and sets forth the terms of the license, which covers more than “fair use,” but does not permit “bulk or systematic” reproduction of materials. Licenses to republish copyrighted materials can be negotiated on an article-by-article basis. One Internet source is icopyright.com, based in Seattle, which facilitates republication transactions for a 30 percent discount of the transaction. Historically, the most intensive copyright clearance activity is centered around the production of movies, Haber says. Individuals familiar with the labor-intensive work of obtaining copyright clearance for the film industry have frequently set up independent clearance businesses. The CCC model is different, he explains. The $156-per-user license fees are used to cover CCC’s business costs and are subsequently divided among the member publishers, based on a formula of which works are copied most. Licensees are asked to report their copying activities to CCC, for apportionment purposes. Before the LeBoeuf settlement, the leading case detailing infringement of reference works was American Geophysical Union v. Texaco, Inc.a 1994 case handed down by the 2nd Circuit U.S. Court of Appeals. To simplify the trial on fair use, Texaco agreed to examine the copying practices of one researcher, selected at random. Dr. Donald Chickering, in its Beacon, N.Y. research center, made a practice of photocopying articles from reference journals he felt would be of further use. Specifically, he copied eight articles from the Journal of Catalysisfor his files. A divided appellate panel upheld the trial court finding that this was not fair use. Jon O. Newman and Ralph K. Winter were in the majority, with Dennis G. Jacobs dissenting. While awaiting U.S. Supreme Court review, Texaco settled with CCC for over $1 million for past transgressions, and agreed to buy licenses in the future. Bonee says there are apparently no definitive cases about whether lawyers copying materials for court use are inside — or outside — the bounds of fair use. A much different result arose in the Sixth Circuit, in the 1996 case of Princeton University Press v. Michigan Document Services, Inc.To the surprise of copyright commentators, the world of academe got a break. An unauthorized anthology prepared by a for-profit copy shop was deemed fair use when destined for classroom use. Bonee says that the process of presenting arguments and information in court is in part educational. “I want lawyers doing their jobs to have the same level of comfort that professors have doing theirs.”

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