"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., p. 64. However, the same is not true when the work “is not ‘out of print’ in the typical sense, [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.
Not ‘Out of Print’ – Example
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 wanted to characterize it as 'out of print' for a fair use determination. The court said that it 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 says the publication status of the sales book does not favor fair use.
‘Out of Print’ – Example
Basic Books, Inc. v. Kinko's Graphics Corp., 758 F. Supp. 1522 (S.D.N.Y. 1991) - Kinko's was copying books (some out of print), then selling them to students. 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 case, "Kinko's copied 110 pages of someone's work and sold it to 132 students. Even for an out of print book, this amount is grossly out of line with accepted fair use principles."