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Hartford County, Conn.’s delegate to the American Bar Association national convention proposed saving law firms a little money — and may wind up saving them a lot. John L. Bonee III introduced a resolution requesting the ABA to negotiate a favorable license fee from the Copyright Clearance Center of Danvers, Mass. The CCC has recently targeted large firms for sales of blanket licenses to cover law firm copying activity that exceeds the traditional “fair use” boundaries. At $156 per lawyer, the 740-lawyer national firm of LeBoeuf, Lamb, Green & MacRae became the CCC poster child last year when it settled claims of infringement by agreeing to purchase a blanket license for $115,000 per year. Large Connecticut firms, facing tens of thousands in license fees, asked Bonee to see what could be done to cut this new cost. In an interview, Bonee said he was concerned that the ongoing costs of practicing law, already high with Connecticut’s $450-per-year professional license tax, would begin to creep higher as CCC pressured ever-smaller firms to buy licenses. “The concern is growing among practitioners that they will have to sustain one more fee on an annual basis in order to continue to practice law,” Bonee notes. The clearinghouse has agreements with more than 9,000 publishers to cover incidental copying that may exceed the bounds of fair use. Based on a complex formula, fees are divided among the member publishers, explained CCC general counsel Frederic Haber. While the licenses do not authorize wholesale copying — becoming a competing publisher — they are regarded as evidence of a good-faith effort to observe the boundaries of copyright protection. Bob Weiner, CCC’s vice president of licensing, said CCC welcomed the ABA effort to address licensing issues. “We are very pleased that the American Bar Association would consider making a statement to its membership recommending that their organizations work with CCC to become licensed. We have worked out satisfactory arrangements in the past with the American Corporate Counsel Association and with other associations of users of copyrighted works and we would be pleased to do so with the ABA as well.” The landmark case supporting CCC’s view that licenses are necessary is the 1995 Second Circuit Court of Appeals case of American Geophysical Union v. Texaco. In a split decision, authored by then-Chief Judge Jon O. Newman, he and Ralph Winter held that a scientist’s photocopying of eight articles from the scientific journal “Catalysis” for future reference was an infringing use, when viewed as a representative practice of a 500-scientist company. Newman specifically noted that the case does not deal with the use of materials in the course of research. He applied the four-part analysis of “fair use” in the Copyright Act, 17 U.S.C. Section 107, which assesses whether the purpose of the use is more commercial or educational; whether the articles were created with the intention of benefiting from copyright; the proportion copied; and the effect on the publisher’s market. Newman cited the CCC license system with approval and agreed with the lower court that the publishers had demonstrated a substantial harm to the value of their copyrights through Texaco’s copying. Dennis Jacobs dissented, saying the majority’s opinion “has ended fair-use.” He wrote that the actual negative market impact on the publisher was “illusory.”

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