Hi, Becky,
Regina is right. You actually have two problems with that
interpretation, trying to shoehorn section 108 and section 107 together.
First of all, as the Texico, Kinko's, and Michigan Document Service
cases showed, commercial for-profit entities are not entitled to the
exceptions in section 108. In fact, there is some question as to whether
for-profit educational institutions, such as the University of Phoenix
and some of the new proprietary law schools, are eligible also. This
interpretation has not yet been settled, but is based on section
108(a)(1), specifying that "the reproduction or distribution is made
without any purpose of direct or indirect commercial advantage." Since
you are a for-profit law firm, you would not qualify under section 108
for the library exception because you gain commercial advantage, i.e.,
your attorneys will be able to do their jobs and will be paid.
Your law firm library also fails the test under 108(a)(2), which states
that: "the collections of the library or archives are (i) open to the
public, or (ii) available not only to researchers affiliated with the
library or archives or with the institution of which it is a part, but
also to other persons doing research in a specialized field."
Since your law firm library is most likely not open to the public or to
attorneys from rival law firms, you would also fail this test.
You could also try pointing out to the attorney that the conjunction
between 108(a)(2) and 108(a)(3) is an "and" rather than an "or," meaning
that all three of the factors in 108(a) must be in place in order to
qualify.
I hope that this helped you. It is amazing to me that there are still
some lawyers who don't know how to perform statutory construction :).
Good luck.
--Bryan M. Carson
-- Bryan M. Carson, J.D., M.I.L.S. Associate Professor Coordinator of Reference and Instructional Services Associated Faculty--Library Media Education Program Western Kentucky University Libraries 1906 College Heights Blvd. #11067, Bowling Green, Kentucky 42101-11067 Phone: 270-745-5007; Fax: 270-745-2275 bryan.carson@wku.eduAll original content copyright 2006 Bryan M. Carson
Regina A. Watson wrote: > Becky, you might want to take a look at the following: > > Lowry's Reports, Inc. v. Legg Mason, 271 F. Supp.2d 737 (N.D. Md. 2003). > > American Geophysical Union v. Texaco, 60 F.3d 913 (2d Cir. 1994). > > There is a general discussion here: > > http://www.wisbar.org/AM/Template.cfm?ection=Wisconsin_Lawyer&TEMPLATE=/CM/ContentDisplay.cfm&CONTENTID=41003 > <http://www.wisbar.org/AM/Template.cfm?ection=Wisconsin_Lawyer&TEMPLATE=/CM/ContentDisplay.cfm&CONTENTID=41003> > > Good luck. > > Regina Watson > > > > The foregoing or attached information does not constitute legal advice > or necessarily reflect the views of my employer. > > > > Regina A. Watson > Reference and Electronic Technology Librarian > Law School 240J > Hamline University, MS D2010 > 1536 Hewitt Avenue > Saint Paul, MN 55104-1284 > Phone: 651-523-2308 > E-Mail: rwatson01@hamline.edu <mailto:rwatson01@hamline.edu> > Website: > http://www.hamline.edu/law/library/About_Library_and_Staff/staffinformation.html > > >>> "Becky Wentz" <rwentz@lukins.com> 8/15/2006 10:37 AM >>> > it's that time again - every few years an attorney wants to know why we > can't just copy journals wholesale under 17 usca 107. I point them to > the test for fair use but they want to use the "replacement" theory". > > any help will be greatly appreciated. > > Thanks. > > > Becky Wentz > Librarian > Lukins & Annis p.s. > 717 W. Sprague Ave, Suite 1600 > Spokane, WA 99201 > 509-242-2215 Fax 509-747-7362 > > > -- > This message has been scanned for viruses > and dangerous content by Lukins & Annis, P.S. > > NOTICE: This email may contain confidential or > privileged material, and is intended solely > for use by the above referenced recipient. Any > review, copying, printing, disclosure, distri- > bution, or any other use, is strictly prohibited. > > If you are not the recipient, and believe that > you have received this in error, please notify > the sender and delete the copy you rec! eived. > > Thank You! >
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