Basic Books, Inc. v. Kinko's Graphics Corp.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Plaintiffs, all major publishing houses in New York City, brought this suit against Kinko’s alleging copyright infringement pursuant to the Copyright Act of 1976. 17 U.S.C. § 101, et seq. More specifically, plaintiffs allege that Kinko’s infringed their copyrights when Kinko’s copied excerpts from books, whose rights are held by the plaintiffs, without permission and without payment of required fees and sold the copies for a profit. Plaintiffs request relief in the form of statutory damages, injunction, declaratory judgment and attorney’s fees and costs.

Kinko’s admits that it copied the excerpts in suit without permission, compiled them into course “packets,” and sold them to college students. It defends on four grounds. First, Kinko’s claims their use of the excerpts was a “fair use,” specifically provided for in § 107 of the Copyright Act. Second, Kinko’s alleges that plaintiffs misused their copyrights by trying to create an industry standard beyond that established by congressional mandate and which imper-missibly precludes all use of plaintiffs’ works without permission and royalty. Third, Kinko’s claims that plaintiffs are estopped from complaining of the copying because they have known for a long time about Kinko’s 20-year practice of selling course packets and did nothing about it and Kinko’s detrimentally relied upon their silence. Fourth, Kinko’s argues that, with respect to two of the alleged infringements, plaintiffs failed to record their copyrights before filing this complaint and, therefore, this court lacks jurisdiction with respect to those two excerpts.

This court finds and concludes that defendant did violate the Copyright Act, that plaintiffs did not misuse their copyrights nor are they estopped from asserting their rights under the copyrights. With regard to the copyrights that were not recorded before filing the complaint, this court finds them to be validly asserted. Finally, Kin-ko’s has not convincingly shown that the excerpts it appropriated without seeking permission were a fair use of the works in question. This court hereby awards plaintiffs injunctive relief, as well as statutory damages in the amount of $510,000, attorneys fees and costs.

FINDINGS OF FACT

There are 12 instances of copyright infringement alleged in this case. The 12 excerpts, which vary in length from 14 to 110 pages, were copied from books previously published by the plaintiffs, compiled in five numbered packets (“anthologies”) with excerpts from other books and distributed by Kinko's. Kinko’s neither sought nor obtained permission to copy any of these works. There are two stores from which Kinko’s sold the excerpts included in this suit: one at 24 E. 12th Street (which services, among others, students at New York University and the New School for Social Research) and a second at 2872 Broadway (which services Columbia University students). Below is a list of the 5 packets, by number and title, and a list of the titles of the works copied. Next to the latter title is the total number of pages *1527 copied, the approximate percentage of the entire book that was copied and whether the work was in- or out-of print.

PACKET # 1: “WORK AND COMMUNITY”. (PX 16)

This packet included 388 pages of copied work 1 taken from 25 books. This course was taught at the New School for Social Research by Professor Hoffman; 3 students were enrolled. This packet was sold for $24.00: $21.75 for copying and $2.25 for binding.

1. Understanding Capitalism (PX 5) 22 pp. [5%], in-print, by Samuel Bowles & Richard Edwards.

Pages 62-83 (all of chapter 4) of this 15-chapter book was copied. The book has 419 pages of text in addition to 11 pages of introductory material. It was published in 1985. The amount copied which encompasses an entire chapter of Bowles and Edwards’ relatively recent book weighs against defendant. 2

2. Community: A Critical Response (PX 4) 23pp. [18-21%], out-of-print, by Joseph Gusfield.

Pages 1-22 (all of chapter 1) of this 4-chapter book was copied. The book is 120 pages. The soft-cover version exhibited at trial has a price of $3.95. The book was published in 1975. This book was out-of-print and is relatively old, however, the amount copied weighs heavily against defendant.

3. Work and Community in the West (PX 2) 34pp. [22-24%], out-of-print. An anthology with contributions from six authors, edited by Edward Shorter.

Pages 1-33 (chapter 1) of this 6-chapter book was copied. The book totals 146 pages. The soft-cover version exhibited at trial has a price of $2.95. It was published in 1973. This book was out-of-print and is relatively old, however, the amount copied weighs heavily against defendant,

4. The Deindustrialization of America (PX 1) 53pp. [16-20%], in-print, by Bar rJ Bluestone & Bennett Harrison,

pages 3-21 (chapter 1) and pages 231-64 (chapter 8) were copied from this 8-chapter book. The book is 323 pages. The book was published in 1982. The amount copied weighs against defendant,

5. All Our Kin: Strategies for Survival in a Black Community (PX 3); 14pp. [8-11%], in-print, by Carol Stack.

This book has 175 pages in addition to 21 pages of introductory material. The pages copied were pages 32-45, one of the 8 chapters in the book. The exhibited copy of the hardcover book has a price of $7.95. It was published in 1974. The amount copied weighs against defendant.

6. A Lesser Life (PX 12) 37pp. [8-9%], in-print, by Sylvia Ann Hewlett.

Pages 11-47 of this book were copied; they include the Introduction and one additional chapter. The book has 461 pages. The exhibited hardcopy has a price of $17.95. It was published in 1986. The amount copied weighs against defendant.

PACKET # 7: “ART THERAPY WITH GROUPS”. (PX 15)

This packet included 383 pages taken from 43 sources. The course was taught at New York University by Professor Hae-seler; 10 students were enrolled. This packet sold for $20.07.

7. Group Dynamics: The Psychology of Small Group Behavior (PX 8) 40pp. [7 — 8%], in-print, by Marvin Shaw.

Kinko’s copied the following pages from this book: pages 1-17 (chapter 1), 342-45, *1528 224, 225, 238-39, 256-61, and pages 306-13 of this 531-page book. The book has 12 chapters. It was published in 1971. The amount copied weighs against defendant.

8. Art Psychotherapy (PX 7) 20pp. [6%], in-print, by Harriet Wadeson.

Pages 236-55 were copied (less than half of chapter 19 of this book). The book is 352 pages in addition to 23 pages of introductory material. The soft-cover version exhibited at trial has a price of $17.95. This book was published in 1980. The amount copied weighs against defendant.

PACKET # 34: untitled. (PX 18)

This packet includes 324 pages taken from 23 sources. This course was taught at Columbia University by Professor Ich-niowski. Thirty-three students were enrolled. This packet was sold for $21.50: $16.98 for copying, $1.50 for binding, and $1.50 for royalty payment.

9. Business Ethics (PX 10) 22pp. [14%], in-print, by Norman Bowie.

Pages 17-38 (all of chapter 2) of this book were copied. The book has 7 chapters, 159 pages of text and index, and 13 pages of introductory material. This book was published in 1982. The amount copied weighs against defendant.

PACKET # 36: “INTERNATIONAL AFFAIRS”. (PX 19)

This packet included 292 pages taken from 22 sources. This course was taught at Columbia University by Professor Lis-sakers; 48 students were enrolled. The packet sold for $17.75: $14.90 for copying, and $1.50 for binding.

10. The Money Market (PX 11) 100pp. [13-14%], in-print, by Marcia Stigum.

This book contains 728 pages of text (20 chapters) and 23 pages of introductory material. Pages 7-43 and 129-191 of the book were copied. This represented chapters 2, 3 and 6. This book was published in 1978 and reprinted in 1983. The amount copied weighs against defendant.

11.- The Money Bazaars (PX 9) 65pp. [17— 18%], out-of-print, by Marvin Mayer.

Pages 177-241 were copied. The pages covered Chapters 7 and 8, and part of 9. The 12 chapters and index in the book total 376 pages. The paperback book sells for $4.95. It was published in 1984. The amount copied, despite the fact that this book was out-of-print, weighs heavily against defendant.

PACKET # 70: “U.S. SINCE 1945”. (PX 17)

This packet included copies of 212 pages of materials taken from 7 sources. This course was taught by Professor Freeman at Columbia University. It enrolled 132 students. This packet was sold for $11.00: $8.66 for copying, and $1.50 for binding. 3

12. Lyndon Johnson and the American Dream (PX 6), 110pp. [25-28%], in-print, out-of-stock, by Doris Kearns.

Chapters 7, 8 and 10 of this 12-chapter book were copied. The pages copied were 177-219, 220-62, and 300-23. The book has over 400 pages, including preface, prologue, epilogue, author’s postscript, end-notes, and index. It was published in 1976. The amount copied weighs heavily against defendant, despite the fact that the book was out-of-stock.

Each packet has a cover page, printed with the Kinko’s logo, “Kinko’s Copies: Professor Publishing,” the name of the course and professor, the designated packet number, and a price listing. There is a space on the price listing to designate the royalty charges included. Only one packet lists a charge for royalty fees. On the inside cover of three of the five packets is a sheet entitled “Education and Fair Use: The Federal Copyright Law.” It lists the § 107 fair use factors and displays the Professor Publishing logo and course information. None of the excerpts carries a copyright creditline as required by copyright law.

It is undisputed that Kinko’s markets and provides its copying services directly to university professors and students. At tri *1529 al, Kinko’s presented marketing brochures produced by the company which are distributed by their marketing representatives to university professors and used as the subject of follow-up visits. These brochures openly solicit from the professors lists of readings they plan to use in their courses. Kinko’s then copies excerpts, some quite large, and sells them in bound form with excerpts copied from other books as well. Unaudited financial statements of Kinko’s Graphics Corporation for the years 1988 and 1989 show revenue of $42 million and $54 million, respectively, and net profit of $200,000 and $3 million, respectively. Its assets totalled $12 million in 1988 and $15 million in 1989. (PX 25a). Appropriately, plaintiffs refer to this bound packet as an “anthology.” 4 Plaintiffs derive a significant part of their income from textbook sales and permissions fees. Kinko’s has conducted its Professor Publishing business at least since the mid-1980’s.

DISCUSSION

I. FAIR USE.

Coined as an “equitable rule of reason,” the fair use doctrine has existed for as long as the copyright law. It was codified in § 107 of the Copyright Act of 1976, Article 17 of the United States Code. The Section reads in its entirety:

Notwithstanding the provisions of section 106, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1)the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

17 U.S.C. § 107 (1976) (emphasis added).

The codification was intended to “restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way.” H.R.Rep. No. 94-1476, 94th Cong., 2d Sess. 66 (1976); S.Rep. No. 94-473, 94th Cong., 1st Sess. 62 (1975), U.S.Code Cong. & Admin.News 1976, pp. 5659, 5680. Therefore, thorough analysis of the case-law is necessary.

For almost 300 years, American law has protected intellectual property rights through the copyright law. The protection derives from the English Statute of Anne (8 Anne c. 19, 1710), the first statute to recognize the rights of authors. Section 106 of the 1976 Copyright Act provides that “[sjubject to Section[ ] 107 ... the owner of copyright under this title has the exclusive rights ... to reproduce the copyrighted work.” 17 U.S.C. § 106. In Folsum v. Marsh, 9 F.Cas. 342 (C.C.D.Mass.1841) (No. 4901), Justice Story set forth the meaning of fair use to which we adhere today. “In short, we must often ... look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.” Id. at 348.

Fair use more currently has been defined as the “privilege in others than the owner of a copyright to use the copyrighted material in a reasonable manner without his consent, notwithstanding the monopoly granted to the owner_” Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303, 306 (2d Cir.1966), cert. denied, 385 U.S. 1009, 87 S.Ct. 714, 17 L.Ed.2d 546 (1967). The copyright law, through the fair *1530 use doctrine, has promoted the goal of encouraging creative expression and integrity by ensuring that those who produce intellectual works may benefit from them. See Iowa State University Research Foundation, Inc. v. American Broadcasting Cos., Inc., 621 F.2d 57, 60 (2d Cir.1980).

Courts and commentators disagree on the interpretation and application of the four factors, topics of current debate. See, e.g., Leval, Toward A Fair Use Standard, 103 Harv.L.Rev. 1105 (1990); Weinreb, Fair’s Fair: A Comment on the Fair Use Doctrine, 103 Harv.L.Rev. 1137 (1990); Fisher, Reconstructing the Fair Use Doctrine, 101 Harv.L.Rev. 1661 (1988). The search for a coherent, predictable interpretation applicable to all cases remains elusive. This is so particularly because any common law interpretation proceeds on a case-by-case basis. The two Supreme Court precedents on the issue of fair use, Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984) and Harper & Row v. Nation Enterprises, 471 U.S. 539, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985), were both overturned at each level of review.

This case is distinctive in many respects from those which have come before it. It involves multiple copying. The copying was conducted by a commercial enterprise which claims an educational purpose for the materials. The copying was just that — copying—and did not “transform” the works in suit, that is, interpret them or add any value to the material copied, as would a biographer’s or critic’s use of a copyrighted quotation or excerpt. Because plaintiffs specifically allege violation of both, this court has the task of evaluating the copying under fair use doctrine and the “Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions” (“Classroom Guidelines”).

A. The 4 Factors of Fair Use.

1. Purpose and Character of the Use.

Section 107 specifically provides that under this factor we consider “whether [the] use is of a commercial nature or is for nonprofit educational purposes.” 17 U.S.C. § 107; see also Marcus v. Rowley, 695 F.2d 1171, 1175 (9th Cir.1983). The Supreme Court has held that “commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright.” Sony Corp., 464 U.S. at 451, 104 S.Ct. at 793. Additionally, the Supreme Court has found that “the distinction between ‘productive’ and ‘unproductive’ uses may be helpful in calibrating the balance [of interests].” Id. at 455 n. 40, 104 S.Ct. at 795 n. 40. While both are significant considerations, neither of these is determinative.

Transformative use.

It has been argued that the essence of “character and purpose” is the transforma-tive value, that is, productive use, of the secondary work compared to the original. District Court Judge Leval has noted that, “[t]he use ... must employ the quoted matter in a different manner or for a different purpose from the original. A quotation of copyrighted material that merely repackages or republishes the original is unlikely to pass the test.” Leval, Toward a Fair Use Standard, 103 Harv.L.Rev. 1105, 1111 (1990) (suggesting a balancing between the justification for and the extent of the taking). Kinko’s work cannot be categorized as anything other than a mere repackaging.

Most contested instances of copyright infringement are those in which the infringer has copied small portions, quotations or excerpts of works and represents them in another form, for example, a biography, criticism, news article or other commentary. See, e.g., Harper & Row v. Nation Enterprises, 471 U.S. 539, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985); New Era Publications v. Carol Publishing, 904 F.2d 152 (2d Cir.), cert. denied, — U.S. —, 111 S.Ct. 297, 112 L.Ed.2d 251 (1990); Salinger v. Random House, Inc., 811 F.2d 90 (2d Cir.), cert. denied, 484 U.S. 890, 108 S.Ct. 213, 98 L.Ed.2d 177 (1987); Wright v. Warner Books, Inc., 748 F.Supp. 105 (S.D.N.Y.1990). In this case, there was absolutely no literary effort made by Kinko’s to ex *1531 pand upon or contextualize the materials copied. See Pacific & Southern Co. v. Duncan, 744 F.2d 1490, 1496 (11th Cir.), cert. denied, 471 U.S. 1004, 105 S.Ct. 1867, 85 L.Ed.2d 161 (1985) (finding infringement by a defendant who neither “analyze[d] ... [nor] improve[d]” the work, noting that “the preamble to Section 107 indieate[s] [that] fair uses are those that contribute in some way to the public welfare.”). 5 The excerpts in suit were merely copied, bound into a new form, and sold. The plaintiffs refer to this process as “anthologizing.” The copying in suit had productive value only to the extent that it put an entire semester’s resources in one bound volume for students. It required the judgment of the professors to compile it, though none of Kinko’s.

Commercial use.

The use of the Kinko’s packets, in the hands of the students, was no doubt educational. However, the use in the hands of Kinko’s employees is commercial. Kinko’s claims that its copying was educational and, therefore, qualifies as a fair use. Kin-ko’s fails to persuade us of this distinction.

Kinko’s has not disputed that it receives a profit component from the revenue it collects for its anthologies. The amount of that profit is unclear 6 ; however, we need only find that Kinko’s had the intention of making profits. Its Professor Publishing promotional materials clearly indicate that Kinko’s recognized and sought a segment of a profitable market, admitting that “[t]remendous sales and profit potential arise from this program.” Kinko’s Policies and Procedures Manual, chapter 9, at 1 (PX 11) (further noting that “[t]hese orders can be the easiest to run, and the most profitable.” Id.).

Although Kinko’s tries to impress this court with its purportedly altruistic motives, the facts show that Kinko’s copying had “the intended purpose of supplanting the copyright holder’s commercially valuable right.” See Harper & Row, 471 U.S. at 562, 105 S.Ct. at 2231 (original emphasis). Kinko’s promotional literature compares its “prompt” service to the “ineffectiveness of traditional publishing to meet the changing needs of faculty and students.” “The Professor Publishing Newsletter, Fall 1984” (DTX C-D).

In Pacific & Southern Co. v. Duncan, supra, the Eleventh Circuit denied the fair use defense to a company which videotaped and sold copyrighted portions of a television news show to the featured subject. Noting that “every commercial exchange of goods and services involves both the giving of the good or service and the taking of the purchase price,” the court found character and use against the defendant since “[t]he fact that TV News Clips focuses on the giving rather than the taking cannot hide the fact that profit is its primary motive for making the exchange.” Id. at 1496. The same holds true for Kin-ko’s.

Kinko’s offers a 10% discount if professors get in their orders early, emphasizes *1532 student savings, convenience, and service— all “at no cost to your department.” Kin-ko’s shows that it is keenly aware of students’ and professors’ preoccupation with educational costs and provides additional services to get their business: offering campus pick-up and delivery and free copyright permission assistance. See “Campus Rep Marketing Materials 1988” (PX 17). The extent of its insistence that theirs are educational concerns and not profitmaking ones boggles the mind.

Kinko’s has periodically asserted that it acted at the instruction of the educational institution, that is, as the agent of the colleges and is without responsibility. Yet, Kinko’s promotional materials belie this contention particularly because Kinko’s takes responsibility for obtaining copyright permission while touting the expertise of its copyright permissions staff (a “service [which] is provided at no charge to all Kinko’s customers.”). “Copyright Information Letter to Faculty Members,” in Kin-ko’s Copyright and Professor Publishing Handbook, at 40.

Kinko’s is paid directly by students who come into its stores to purchase the packets. Professors do not pay a fee; in fact, Kinko's provides incentives to professors for choosing their copy center over others. See “Kinko’s Copyright and Professor Publishing Handbook” (1988) (as advice on how to avoid delays, the manual suggests that employees “[o]ffer an incentive or discount to professors who submit their materials to Kinko’s several weeks before classes start.” Id. at 8.); id. at 42 (Kinko’s Sales Call Follow Up letter which is sent by campus representatives reads, “I have enclosed your Kinko's Faculty Club card, which entitles you to a 10% discount on all goods and services at any Kinko’s nationwide.”).

While financial gain “will not preclude [the] use from being a fair use,” New York Times Co. v. Roxbury Data Interface, Inc., 434 F.Supp. 217, 221 (D.N.J.1977), consideration of the commercial use is an important one.

“The crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.” Harper & Row, 471 U.S. at 562, 105 S.Ct. at 2231. This is precisely the concern here and why this factor weighs so strongly in favor of plaintiffs.

Courts’ consideration of the profit factor usually arises because the alleged infringing work competes in the same market as the copyrighted work, thus making the “commerciality” more harmful to the copyright holder. See Marcus v. Rowley, 695 F.2d at 1175; Haberman v. Hustler Magazine, Inc., 626 F.Supp. 201, 211 (D.Mass.1986). In cases in which a defendant is claiming fair use for a criticism, commentary or other scholarly research, the courts are more likely to find fair use under this factor. In New Era Publications v. Carol Publishing, 904 F.2d at 156, the Second Circuit found fair use under the character and use factor since the publication in suit was not an economic exploitation of the original work but a legitimate critical biography. In that case, a critic and biographer of L. Ron Hubbard and the Church of Scientology defended his use of quotes from 48 of Hubbard’s works.

A potentially widespread use which was notably non-commercial has been held to be a fair use. In Sony Corp. v. Universal City Studios, 464 U.S. 417, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984), television viewers taped plaintiffs’ television programs on home video recorders, doing nothing to enhance the program — simply copying them in order to view them later. The Court decided this “time-shifting” was fair use and placed emphasis on the fact that the viewers were not selling their copies of these programs for profit. Id. at 454-55, 104 S.Ct. at 795.

2. The Nature of the Copyrighted Work.

The second factor concerns the nature of the copyrighted work. Courts generally hold that “the scope of fair use is greater with respect to factual than non-factual works.” New Era Publications v. Carol Publishing Group, 904 F.2d at 157. Fac *1533 tual works, such as biographies, reviews, criticism and commentary, are believed to have a greater public value and, therefore, uses of them may be better tolerated by the copyright law. See Salinger v. Random House, Inc., 811 F.2d at 96. Works containing information in the public interest may require less protection. See Consumers Union v. General Signal Corp., 724 F.2d 1044, 1049 (2d Cir.1983), cert. denied, 469 U.S. 823, 105 S.Ct. 100, 83 L.Ed.2d 45 (1984). Fictional works, on the other hand, are often based closely on the author’s subjective impressions and, therefore, require more protection. These are general rules of thumb. The books infringed in suit were factual in nature. This factor weighs in favor of defendant.

3. The Amount and Substantiality of the Portion Used.

“There are no absolute rules as to how much of a copyrighted work may be copied and still be considered a fair use.” Maxtone-Graham v. Burtchaell, 803 F.2d 1253 (2d Cir.), cert. denied, 481 U.S. 1059, 107 S.Ct. 2201, 95 L.Ed.2d 856 (1987). This third factor considers not only the percentage of the original used but also the “sub-stantiality” of that portion to the whole of the work; that is, courts must evaluate the qualitative aspects as well as the quantity of material copied. See New Era Publications Int’l v. Carol Publishing Group, 904 F.2d at 158. A short piece which is “the heart of” a work may not be fair use and a longer piece which is pedestrian in nature may be fair use. The balancing of the four factors must be complete, relying solely upon no one factor. The purpose of the use may be balanced against the amount and substantiality of the use. For example, “[ejven substantial quotations might qualify as fair use in a review of a published work.” See Harper & Row, 471 U.S. at 564-65, 105 S.Ct. at 2232-33.

Courts have found relatively small quantitative uses to be fair use. See, e.g., New Era Publications, 904 F.2d at 158 (court found as fair that defendant used a “minuscule” amount of 25 works: 5-6% of 12 works, 8% or more of 11 works “each of the 11 being only a few pages in length.”); Iowa State University Research Found., Inc. v. Am. Broadcasting Cos., Inc., 621 F.2d at 61-62 (court found unfair copying of 8% of videotape never before broadcast); Maxtone-Graham, 803 F.2d at 1263 (inclusion of 4.3% of work was fair); Salinger, 811 F.2d at 98-99 (finding this factor weighed “heavily” in favor of Salinger, the court found no fair use of quotation and paraphrasing totalling one-third of 17 letters, and 10% of 42 letters); Harper & Row, 471 U.S. at 564-65, 105 S.Ct. at 2232-33 (the 300 copyrighted words appropriated to the Times article were an insubstantial portion of the work but “ ‘essentially the heart of the book.’ ”).

Additionally, “reference to a work’s availability is appropriate.” Wright v. Warner Books, Inc., 748 F.Supp. at 112. Therefore, longer portions copied from an out-of-print book may be fair use because the book is no longer available. (This has been thought to be true because, presumably, there is little market effect produced by the copying. However, plaintiffs in this case convincingly argue that damage to out-of-print works may in fact be greater since permissions fees may be the only income for authors and copyright owners.)

This court finds and concludes that the portions copied were critical parts of the books copied, since that is the likely reason the college professors used them in their classes, cf. Harper & Row, 471 U.S. at 565, 105 S.Ct. at 2233 (“the fact that a substantial portion of the infringing work was copied verbatim is evidence of the qualitative value of the copied material.”). While it may be impossible to determine, as the Court did in Harper & Row, that the quoted material was “essentially the heart of” the copyrighted material, Id. at 565, 105 S.Ct. at 2233, it may be inferred that they were important parts.

This factor, amount and substantiality of the portions appropriated, weighs against defendant. In this case, the passages copied ranged from 14 to 110 pages, representing 5.2% to 25.1% of the works. See Findings of Fact, supra, for discussion of amount copied. In one case Kinko’s copied 110 pages of someone’s work and sold it to *1534 132 students. Even for an out-of-print book, this amount is grossly out of line with accepted fair use principles.

In almost every ease, defendant copied at least an entire chapter of a plaintiffs book. This is substantial because they are obviously meant to stand alone, that is, as a complete representation of the concept explored in the chapter. This indicates that these excerpts are not material supplemental to the assigned course material but the assignment. Therefore, the excerpts, in addition to being quantitatively substantial, are qualitatively significant.

4. The Effect of the Use on Potential Markets for or Value of the Copyrighted Work.

The fourth factor, market effect, also fails the defendant. This factor has been held to be “undoubtedly the single most important element of fair use.” Harper & Row, 471 U.S. at 566, 105 S.Ct. at 2233. “To negate fair use one need only show that if the challenged use ‘should become widespread, it would adversely affect the potential market for the copyrighted work.’ ” Id. at 568, 105 S.Ct. at 2234 (quoting Sony Corp., 464 U.S. at 451, 104 S.Ct. at 793, emphasis added).

Kinko’s confirms that it has 200 stores nationwide, servicing hundreds of colleges and universities