Publication Date

May 1, 1997

Supreme Court Refuses to Hear "Course Pack" Copyright Case

On March 31, the U.S. Supreme Court declined to consider the case (no. 94-1778) of Princeton University Press, Macmillan, and St. Martin's Press v. Michigan Document Services, Inc.—frequently called the “course pack case.” The three presses had brought a copyright infringement case against Michigan Document Services, which has five small copy shops that serve the University of Michigan and other institutions in the Ann Arbor area and which reproduces course packs without securing copyright permissions from the authors or publishers. James Smith, the owner of Michigan Document Services, decided that the current process for obtaining permissions to reproduce copyrighted materials was prohibitively time-consuming and expensive. He thus prepared course packs for teachers and students without securing permissions, operating on the basis that he was engaged in copying for educational purposes, which comes under the fair-use provisions of the copyright law. However, Smith did secure from professors signed statements that they would not have assigned the books from which the excerpts were taken, even if copied portions of the work could not have been included in the course pack.

The first ruling in this case was in 1994 at the district court level and was in favor of the publishers. Then, a three-judge panel of the U.S. District Court of Appeals for the Sixth Circuit in a 2 to 1 decision ruled in favor of Michigan Document Services in February 1996. However, in April 1996, the appeals court effectively dissolved that decision and decided that the entire panel of judges would reconsider the case. Thirteen judges heard oral arguments in June and ruled in November 1996 with eight judges siding with the majority to conclude that photocopying of course packs without permission is an infringement of copyright. Five judges registered a minority opinion stating that the Michigan Document Services had not infringed on the "fair-use" provision. Because of the divided opinion, Smith had expected the case to be heard by the Supreme Court.

Susan M. Kornfield, who represented Michigan Document Services, said that Mr. Smith would be returning to the district court and the appeals court to seek to overturn the damages and lawyers' fees, which total $356,000. She also expressed disappointment that the Supreme Court had failed to address the copyright issues raised by this case because they have been the source of considerable confusion.

The publishers, who asserted throughout this case that a commercial business was making profit at the expense of owners of intellectual property, were delighted with the outcome, which underscores the need for users to obtain copyright permission to use copyrighted material.

Moynihan Commission Calls for Major Changes to the Government's Culture of Secrecy

On March 4, the bipartisan, congressionally mandated Commission on Protecting and Reducing Government Secrecy, chaired by Sen. Patrick Moynihan (DN. Y.), presented its report to the president and the Congress. This report, which was the result of two years of investigation and which was supported unanimously by all 12 commission members, sharply criticizes existing practices that involve excessive secrecy. The report states that current policy often protects officials from outside scrutiny and thus prevents accountability and that the costs of the current system are very high in that they restrain public debate and dialogue. In recommending a new way to think about secrecy and openness, the report states, "It is time for legislation." National security information policy is currently established by executive order. However, the report sets forth a framework for a law that would improve the functioning and implementation of the classification and declassification system. The report recommends that such a law build on Executive Order 12958 with added provisions to ensure agencies' compliance.

In the press conference announcing the release of the report, Senator Moynihan stressed that President Clinton expressed enthusiasm and support for the report. He noted that Clinton has identified John Potesta, a commission member who is also now White House deputy chief of staff, as the key person for the administration who would be working with Congress on new legislation. Rep. Lee Hamilton (D-Ind.), also a member of the commission, indicated that he would soon be introducing a bill. Hamilton noted that the incentives in the system that reward the perpetuation of classification need to be reversed and that there needs to be much greater oversight. Many commission members pledged to turn their attention now to the implementation of the report. This was indeed good news, because there has been strong resistance to change within many agencies.

Assassination Records Review Board Seeks One-Year Extension

The Assassination Review Board, an independent federal agency created by the JFK Act, to oversee the identification and release of records related to the assassination of President Kennedy, released its annual report for 1996 in February and included a request for a one-year extension. Although the board has accomplished much, there is some important work still unfinished. The board has reviewed and processed nearly all the assassination records that have been identified by federal agencies, with the important exceptions of the FBI and the CIA.

The purpose of the review board has been to eliminate uncertainty and speculation about the contents of government files relating to the assassination of President Kennedy. During the past year the board has facilitated the transfer of nearly 10,000 documents to the National Archives for inclusion in the JFK collection, which now numbers approximately 3.1 million pages and which is used extensively by researchers. The board has set the standard for the release of thousands of previously secret government documents and files. In seeking $1.6 million of additional funds to operate for one more year, the board has noted that a premature termination of the review board—particularly without the inclusion of pertinent records from the FBI and CIA—would surely intensify doubts within the general public about the commitment of Congress to release the full record on the assassination of President Kennedy.

State Department's Historical Advisory Committee Seeks Broader Access to Intelligence Records for the FRUS Series

At a meeting on March 18 the State Department's Advisory Committee on Historical Diplomatic Documentation unanimously voted to withhold processing of the Congo volume for 1964–68 until important intelligence records can be identified for inclusion. The most troubling, unresolved problems facing the publication of accurate and comprehensive accounts of U.S. foreign policy remain the access of State Department historians to CIA files and the declassification of CIA operational records. There was also discussion of how to provide additional intelligence material to supplement the inadequacies of the already published Congo volumes for 1958–63.

A recent review of the Foreign Relations volume, The Congo Crisis, 1961–63, by David N. Gibbs (“Misrepresenting the Congo Crisis,” African Affairs), focuses on the distortions due to the lack of intelligence material. The advisory committee is unable to review all volumes, and the preface to this volume stated that the advisory committee did not review it. However, after considering Gibbs’s review, the Advisory Committee agreed that this volume was flawed and needed to include a broader range of records, including intelligence records, to be accurate. Public Law 102-138, passed in 1991, requires that the advisory committee advise the State Department on the preparation of volumes “which shall be a thorough, accurate, and reliable documentary record.”

Carlin Testifies on FY 1998 Budget for the National Archives and NHPRC

On March 18, archivist John Carlin appeared before the House Appropriations Subcommittee on Treasury, Postal Service, and General Government, chaired by Jim Kolbe (R-Ariz.), to present the administration's budget request for FY 1998. Five members of the subcommittee were present. In opening remarks, Carlin stressed that the costs of rent and mortgages for buildings combined with personnel costs comprise 90 percent of operating expenses. "That leaves us just 10 percent," Carlin said, "for utility costs, printing, training, technology improvements, communications services, travel, and everything else. That is why the guarantee of our base is so important."

Subcommittee members expressed interest in the funding for the NHPRC and specifically about the future funding of the documentary history editions. According to a strategic plan—adopted last November and now being reviewed—documentary history editions would no longer be a top priority for funding. Kolbe noted that there was controversy about the possible decreased funding level for the founding fathers documentary history projects and asked if Carlin was reconsidering the plan and why the documentary editions were no longer important. Carlin responded that it is not intended to say that documentary editions are not important and that the plan is still being reviewed. But, Carlin stressed, the highest priority is to save history that could be lost and to address the challenge of electronic records.

President's Committee Calls Increased Funding for the Arts and Humanities

On February 21, the President's Committee on the Arts and Humanities issued a 35-page report titled "Creative America: A Report to the President." John Brademas, a former member of Congress as well as a former president of New York University, who heads the committee, presented a copy of the report to President Clinton and Hillary Rodham Clinton, the committee's honorary chair. In a carefully drawn analysis, the report identifies the strengths and failings in the complex system that supports the nation's museums, libraries, institutions of higher education, local preservation commissions, and public television and radio stations. Although federal funding of the arts and humanities provides but a small percentage of overall support, the committee stated that reductions in federal support sent an unfortunate message of "a lack of value for the role of culture in society."

The report recommends increasing the funding level for the NEH, the NEA and the Institute of Museum and Library Services to $2 per capita by the year 2000. These agencies are currently funded at approximately 88¢ per capita. Copies of the report may be obtained by calling the President's Committee on the Arts and Humanities at (202) 682-5409.

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