Out of Print Works

Uses of works that are out of print generally weigh in favor of fair use: “if the work is 'out of print' and unavailable for purchase through normal channels, the user may have more justification for reproducing it” (S. Rep. No. 94-473, at 64). However, the same is not true of works where “it was the copyright owner’s decision to withhold the book, and not the dearth of sales, that led to its withdrawal from the market” (Peter Letterese & Assocs. v. World Inst. of Scientology Enter., 533 F.3d 1287).

The following are two case examples; in the first, some works were determined to be truly out of print, while in the second, a work was determined to be withheld intentionally by the copyright holder.

Out of Print
Basic Books, Inc. v. Kinko's Graphics Corp., 758 F. Supp. 1522 (S.D.N.Y. 1991)
Kinko's was copying books to sell to students. Some of the books were out of print, and the court reasoned that "longer portions copied from an out of print book may be fair use because the book is no longer available." However, in one instance, Kinko's copied over 100 pages of a book and sold it to 132 students. The court relayed that "even for an out of print book, this amount is grossly out of line with accepted fair use principles." Ultimately, even though some of the books were truly out-of-print, overall, the court held that Kinko's copying was not fair use.

Not Out of Print
Peter Letterese & Assocs. v. World Inst. of Scientology Enter., 533 F.3d 1287 (11th Cir. 2008)
WISE was using a sales book that was exclusively licensed to PLA, and argued for fair use in characterizing the book as "out of print." However, the court determined that the book wasn't "out of print" in the typical sense (e.g. lack of demand from consumers), but rather from the copyright holder deciding to withhold it from the public. As such, the court ruled that the publication status of the book did not favor fair use.