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I am looking for cases where a educational non-profit organization was successfully sued for violation of copyright/Fair Use (US).

I am particularly interested in borderline cases (i.e. cases where many observers would consider the non-profit's use "fair", but the non-profit still lost anyway).

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I do not entirely understand the motivation for the question because the availability of the fair use defense should in principle not depend on whether you are, say, an educational, a religious, or a political organisation; educational non-profits do not play in a "league of their own" when it comes to a fair use analysis, even though they may fare better under the first fair-use factor (17 U.S.C. § 107(1)) -- but that does not turn so much on the type of organisation they are but on the specific use in question. Also, as you most likely are aware, the fact that no commercial purpose is pursued does not magically render a particular use "fair". See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 584 (1994) (holding that "[t]he language of the statute makes clear that the commercial or nonprofit educational purpose of a work is only one element of the first factor enquiry into its purpose and character [...] [T]he mere fact that a use is educational and not for profit does not insulate it from a finding of infringement, any more than the commercial character of a use bars a finding of fairness.")

With that in mind, here are three examples:

  • Encyclopaedia Britannica Educ. Corp. v. Crooks, 447 F. Supp. 243 (W.D.N.Y. 1978) and 542 F. Supp. 1156 (W.D.N.Y. 1982): Defendant, a nonprofit corporation organised to provide educational services to public schools, videotaped television programs of educational value and openly distributed catalogs to the teachers within the twenty-one school districts which describe the available programs and provide ordering instructions. Justifying its permanent injunction, the Court held that "Defendants' highly organized and systematic practice of making off-the-air videotapes of plaintiffs' copyrighted works for use in later years and the making of numerous derivative copies of plaintiffs' copyrighted works does not constitute fair use under the copyright laws, is not protected under the First Amendment, nor is it insulated by the doctrine of estoppel." Supra, at 1185.
  • Greaver v. Nat'l Ass'n of Corp. Directors, No. C.A. 94-2127 (WBB), 1997 WL 34605245 (D.D.C. Nov. 19, 1997): Plaintiff created an outline and put together course materials for a seminar conducted by the Defendant, a national not-for-profit organization whose stated mission is to educate corporate directors and to provide advice and training on corporate governance. Defendant later created a new version of the manual. Twenty-three of the pages in Defendant's manual contained material that duplicates material in nineteen pages in the Plaintiff's manual. The Court determined that all four fair-use factors weigh against the application of the doctrine of fair use to the case.
  • Video-Cinema Films, Inc. v. Lloyd E. Rigler-Lawrence E. Deutsch Found., No. 04 CIV. 5332 (NRB), 2005 WL 2875327 (S.D.N.Y. Nov. 2, 2005): Defendant, a nonprofit private foundation that prepared and distributed via satellite a program called Classic Arts Showcase, used an approximately five-minute long clip of the performance of an opera singer copied from a much longer movie. The Court found "that despite the fact that the Foundation's use was limited and had an educational and non-commercial purpose, the use of the performance footage from Carnegie Hall in CAS programming is likely to adversely impact the value and market for the licensing of these performance clips. On balance, and in the absence of disputed issues of material fact, we conclude that the copying of the Pons clip is not protected by the doctrine of fair use." Supra, at *8.
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