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(this is coming out of a comment thread regarding this question.)

The USA has a Fair Use legal provision restricting its copyright law:

17 U.S.C. § 107

Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, 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;
  4. and the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Obviously there might be other relevant statutes and legal precedents, but still,

  1. Is it legal, considering the above, for a university/college student to download a copy of a textbook (say, in a course s/he is taking), for studying the course material?
  2. Same question, for a student not enrolled in a class for which the downloaded book is a textbook?
  3. Same question, for self-study outside of Academia?

Notes:

  • "Legal" in two senses: First, the sense of very small chance of being convicted of a criminal act or obligated to pay money; second, the sense of there being a solid argument for the legality of this act which is likely to hold up if you appeal and appeal and maybe get to the supreme court.
  • Assume it's been established that the downloader did not publish the copy elsewhere, did not cite from it extensively, etc. etc.
  • I'm not asking whether it's moral or ethical to download textbooks, only about the legality. I believe it is moral and ethical, but that discussion is not what this question is about; please don't start it.
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    This link has several examples of common copyright-related scenarios in universities and explains how to evaluate whether they are fair use or not. – ff524 Sep 8 '15 at 16:49
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    I think it's wrong to ignore ethics. Back in my undergrad days, I led a committee within my large state university's student government to reform the way our campus bookstore approached their purchases. We explored ideas like increasing the effort our bookstore made in negotiating prices and the idea of acquiring books from alternate sources (among other ideas, re-importing international editions). The brick wall we hit when dealing with what I consider the too-friendly relationship between publishers and the monopolistic campus bookstore has convinced me this is an issue of ethics. – user16092 Sep 8 '15 at 19:48
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    @user6726: Also note that "fair use" is a defense, meaning you have to prove it if you are brought up on charges. In the US, this type of copying is not even potentially a criminal offense. It's a civil matter. You risk getting sued, not criminally charged. – Ben Crowell Sep 8 '15 at 20:28
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    @cfr If acquisition of the content involves reproducing it (as downloading material to your computer necessarily does) then it may be governed by fair use. It's actually explicit in copyright law: "...the fair use of a copyrighted work, including such use by reproduction..." The closest analogy is making photocopies of a library book for yourself, also a means of "acquiring" content involving reproduction; that, too, may be defensible under fair use in some circumstances. – ff524 Sep 9 '15 at 7:03
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    Perhaps this would be a suitable question for the Law Stack Exchange? As far as I know, not many of us here study law, and this certainly seems like a legal question more than an academic one. – chipbuster Sep 9 '15 at 7:18
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Short answer: Nope.

Long answer: It's complicated.

The proportion of the work copied can actually be the whole of the work (i.e. 100%), if the other parts of the fair use test provide a strong enough justification:

The extent of permissible copying varies with the purpose and character of the use. Taking more of the copyrighted work than is necessary to accomplish the fair user’s salutary purpose will weigh against fair use. In some cases, the fact that the entire work — for example, an image — was needed to accomplish the fair use purpose has led the court to hold that the third factor was neutral, favoring neither the copyright holder nor the putative fair user.

Copyright and Fair Use: A Guide for the Harvard Community, Harvard University Office of the General Counsel, Last Updated November 23, 2009

Unfortunately, the courts haven't consistently viewed educational use as 'fair use' per se:

On its face, the text of the statute seems to favor educational uses of works as fair uses. It first lists a variety of educational purposes such as criticism, comment, teaching, scholarship, and research as prototypical fair uses. It then identifies the use of content for “nonprofit educational purposes” as an explicit consideration in the first of the four enumerated factors for consideration in a fair use analysis.

In practice, however, courts have not consistently found that educational uses qualify as fair uses. Because the doctrine is applied on a case-by-case basis and resists reduction to a per-se rule, it provides limited assurance to scholars and teachers seeking bright-line guidance. ... even scholars well-read in precedent may be hard-pressed to find consistent analyses, across different federal courts, of educational copying and other scholarly uses.

Digital Learning Legal Background Paper: Fair Use and Educational Uses of Content, Ashley Aull for the Berkman Center for Internet and Society at Harvard Law School

So you need to look at how the other three parts of the test pertain in the particular case at issue.

Unfortunately, in regard to the first factor:

In determining whether a use is “commercial,” courts generally find that the “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.” Thus, despite the fact the statutory text contrasts commercial with nonprofit educational purposes, courts may exclude schools and universities from the protection of the fair use doctrine if they “benefit” from such uses.

Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1984) as cited in Aull

And in regard to the fourth factor:

the Court has held that “a challenge [of a use]…requires proof either that the particular use is harmful, or that if it should become widespread, it would adversely affect the potential market for the copyrighted work.”

Sony Corp. of America v. Universal City Studios Inc., 464 U.S. 417 (1984) as cited in Aull.

We should therefore take account of a couple of facts that pertain in our hypothetical situation:

  • the student benefits from their use of the material,

  • if all students were to copy the material without paying for it then the market for the material would be destroyed, which would hurt the incentive system for the production of new works,

and those facts seem to me to imply that copying (or downloading a copy of) an entire textbook, where the alternative is paying to purchase the textbook, would usually not be 'fair use' under US law.

But exceptions to this are possible. If the whole work was vital for scholarship but not commercially available then a pretty strong argument for 100% copying as fair use could be made. For the full picture read Aull.


Update in response to comments:

@einpoklum, thanks for your insightful comments. I thought they deserved proper discussion, so I'm answering them here, where I've got more space to address them.

It seems that the complicated situation is more in the case of educational institutions using full cpies.

You're correct that the case law (at least as far as I'm aware) that's specifically about textbooks concerns organisations (such as businesses and educational institutions) rather than individuals.

That's likely to be because it's not worth suing an individual for a very small loss. If the textbook only costs $20 - or even if it costs $100 - the publisher would lose money by suing the student, because the non-recoverable costs of the case (such as the time of the publisher's staff) would cost more than that. This is the reason why lawsuits in P2P filesharing cases tend to be filed against the uploader rather than the downloader.

But has there ever been a conviction, or a ruling in a civil suit, against a student who downloaded a copy of a textbook?

Not that I'm aware of. The very small amount of damages that could be recovered would mean that this would be a loss-making lawsuit even if it were won, although it might have a certain deterrent effect.

"Can I get away with doing this without being sued?" (to which the answer is almost certainly 'Yup') is of course a different question from "Is it legal?".

Also, any copier of any work stands to benefit from it somehow, otherwise they wouldn't make the copy; it seems you're interpreting that sentence too widely.

It certainly is a very wide interpretation! Unfortunately this is the interpretation which the US courts seem to give it.

Aull makes this point as well:

of course, one might strain to find a situation in which educators would use content without benefiting from it somehow.

Aull, footnote 10, page 5.

The Guidelines for Classroom Copying have received the most scholarly and judicial attention. While recognizing that some photocopying of copyrighted material for classroom distribution is fair use, the Guidelines require that such copying, in addition to having clear copyright notice on each copy, fall within three specifically described limits: “brevity,” “spontaneity,” and “cumulative effect.” The American Association of University Professors and Association of American Law Schools vigorously opposed these Guidelines, stressing that they “restrict the doctrine of fair use so substantially as to make it almost useless for classroom teaching purposes.” Meanwhile, in a series of strategic lawsuits filed soon after the passage of the 1976 Act, publishing interests succeeded in persuading some courts to view those Guidelines as an authoritative gauge of fair use.

Aull, p.7

Also, your claim about market destruction is simply invalid - just like with the music industry, people continue to buy music, concert tickets etc. despite having downloaded copies off of the Internet.

This is a view with which I have much sympathy. Unfortunately the same cannot be said for the US courts.

An example from the Napster case:

  1. Effect of Use on Market ...

[31] Addressing this factor, the district court concluded that Napster harms the market in “at least” two ways: it reduces audio CD sales among college students and it “raises barriers to plaintiffs’ entry into the market for the digital downloading of music.” Napster, 114 F. Supp. 2d at 913. The district court relied on evidence plaintiffs submitted to show that Napster use harms the market for their copyrighted musical compositions and sound recordings. In a separate memorandum and order regarding the parties’ objections to the expert reports, the district court examined each report, finding some more appropriate and probative than others. A&M Records, Inc. v. Napster, Inc., Nos. 99-5183 & 00-0074, 2000 WL 1170106 (N.D. Cal. August 10, 2000). Notably, plaintiffs’ expert, Dr. E. Deborah Jay, conducted a survey (the “Jay Report”) using a random sample of college and university students to track their reasons for using Napster and the impact Napster had on their music purchases. Id. at *2. The court recognized that the Jay Report focused on just one segment of the Napster user population and found “evidence of lost sales attributable to college use to be probative of irreparable harm for purposes of the preliminary injunction motion.” Id. at *3.

[32] Plaintiffs also offered a study conducted by Michael Fine, Chief Executive Officer of Soundscan, (the “Fine Report”) to determine the effect of online sharing of MP3 files in order to show irreparable harm. Fine found that online file sharing had resulted in a loss of “album” sales within college markets. After reviewing defendant’s objections to the Fine Report and expressing some concerns regarding the methodology and findings, the district court refused to exclude the Fine Report insofar as plaintiffs offered it to show irreparable harm. Id. at *6.

[33] Plaintiffs’ expert Dr. David J. Teece studied several issues (“Teece Report”), including whether plaintiffs had suffered or were likely to suffer harm in their existing and planned businesses due to Napster use. Id. Napster objected that the report had not undergone peer review. The district court noted that such reports generally are not subject to such scrutiny and overruled defendant’s objections. Id.

...

[36] We, therefore, conclude that the district court made sound findings related to Napster’s deleterious effect on the present and future digital download market. Moreover, lack of harm to an established market cannot deprive the copyright holder of the right to develop alternative markets for the works. See L.A. Times v. Free Republic, 54 U.S.P.Q.2d 1453, 1469-71 (C.D. Cal. 2000) (stating that online market for plaintiff newspapers’ articles was harmed because plaintiffs demonstrated that “[defendants] are attempting to exploit the market for viewing their articles online”); see also UMG Recordings, 92 F. Supp. 2d at 352 (“Any allegedly positive impact of defendant’s activities on plaintiffs’ prior market in no way frees defendant to usurp a further market that directly derives from reproduction of the plaintiffs’ copyrighted works.”). Here, similar to L.A. Times and UMG Recordings, the record supports the district court’s finding that the “record company plaintiffs have already expended considerable funds and effort to commence Internet sales and licensing for digital downloads.” 114 F. Supp. 2d at 915. Having digital downloads available for free on the Napster system necessarily harms the copyright holders’ attempts to charge for the same downloads.

[37] Judge Patel did not abuse her discretion in reaching the above fair use conclusions, nor were the findings of fact with respect to fair use considerations clearly erroneous.

A&M RECORDS, Inc. v. NAPSTER, INC., 239 F.3d 1004 (9th Cir. 2001)

I'm hearing speculative opinions on the prospective interpretation of the law.

Yes, that's entirely correct. In the absence of an existing case which exactly replicates the hypothetical situation you're proposing, that's all that anyone can give you. If you want a probably-more-accurate speculative opinion then consult a lawyer, but it'll still just be their opinion.

That doesn't mean, though, that the law doesn't apply until there's been a case which covers exactly these circumstances.

In the mean time, it seems perhaps nobody has even been sued or tried criminally for doing this, and it is a widespread practice. So...

So you'd probably not be sued. That's correct, but doesn't mean that the practise is necessarily legal.

A few notes:

  • You should also be aware that many US universities have their own rules which are more restrictive than copyright law:

more than 80 percent of American universities now adhere to internal policies derived from the Classroom Guidelines that university lobbying groups has rejected. Some enforce even stricter guidelines, all but prohibiting reliance upon fair use. At least one commentator has predicted that, in this environment, “current trends…will eventually eliminate fair use for schools, colleges and universities.”

Aull, p.8

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    @einpoklum It seems to me you had an answer in mind when you asked the question. – Matt Samuel Sep 9 '15 at 3:03
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    @einpoklum AE's point on market destruction is perfectly valid. If everyone would illegaly download music the market would be destroyed. Copying of text books on a wide-spread scale would obviously mean a loss in profits for the publishers as those people would no longer (be forced to) buy the text. I'm not sure why you're still refusing to accept that the answer, in general, is a flat no. Dura lex sed lex. – Lilienthal Sep 9 '15 at 9:39
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    @einpoklum Given that the music industry generated a global revenue of 15 billion USD in 2013, I guess not everyone is downloading music. And if you had bother to read AE's answer you would see that your second point is equally invalid: "if it should become widespread, it would adversely affect the potential market ". In other words, the court ruled that even if one individual's behaviour would not be hugely problematic, the change that his behaviour would spread is. – Lilienthal Sep 9 '15 at 9:51
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    @einpoklum Instead of perverting the arguments made here, consider reading them. At this point I'm going to recommend that you put a lawyer on retainer or hire a yes man because I doubt you're going to get what you want on this site. – Lilienthal Sep 9 '15 at 10:21
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    Since you cite so much case law: the ongoing case involving Georgia State is highly relevant here. Specifically with respect to (4), the decision there was that the excerpts shared by instructors were considered to be fair use partly because they "do not substitute for the full books". Also with respect to (3) the lower court suggested very specific quantitative guidelines; although the use of specific quantitative rules was overturned on appeal. – ff524 Sep 9 '15 at 10:30
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In general, it is not considered fair use to download the entirety of a textbook, regardless of whether or not you're a student or enrolled in a class using the textbook. Fair use normally is considered to extend to making copies of small excerpts of larger works. For instance, you could copy a particularly relevant figure from a book, or a quote from a textbook or reader for use in a class discussion.

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    My point is that fair use never extends to downloading an entire textbook when you do not formally have the rights to do so. There is no exception for scholarship purposes. – aeismail Sep 8 '15 at 14:19
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    @einpoklum see point #3: "the amount and substantiality of the portion used in relation to the copyrighted work as a whole" – blmoore Sep 8 '15 at 14:20
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    @einpoklum The third factor "the amount and substantiality of the portion used in relation to the copyrighted work as a whole" is the major factor here. Regardless of the other 3 points, it is pretty obvious that downloading an entire textbook is not fair use. And the fourth factor "the effect of the use upon the potential market for or value of the copyrighted work" is also clearly a problem in this usage. If every student could download the book without paying for it, it would seriously affect the value of the work. – MJeffryes Sep 8 '15 at 14:20
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    @user2813274 Even if it would be fair use to obtain a single book chapter, its unavailability online doesn't make downloading the whole thing fair use. It's possible that if you were sued for infringing and you argued that you only used a single chapter, the judgement would be in your favour. There's no way of knowing. – MJeffryes Sep 8 '15 at 15:23
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    @einpoklum I don't think the answerer has misunderstood or generalised. Its a bit of wishful thinking on your part. The scholor clause is obviously so that you can take excerpts from a full text you have legitimately and not for procuring the full text in the first place. – JamesRyan Sep 8 '15 at 16:30
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It's my understanding is that "fair use" is about the reproduction of copyrighted materials.

I don't believe it has anything to do with how you obtained those materials.

If you stole the same textbook from Barnes & Noble, would you claim fair use?

It is true that the RIAA and others are suing on copyright grounds & not for plain theft.

How that works exactly, I'm not sure. You can read more about it on Wikipedia.

This excerpt is relevant to your question:

Where a defendant has admitted downloading and copying song files from other users in the P2P network without permission of the copyright holders, she cannot claim that such copying is a "fair use".

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    The analogy to stealing from Barnes & Noble is a false analogy that is not related to the issue at hand. If you steal from a bookstore, you are stealing from the retailer (who is not the copyright holder), and you are not making a new copy of the book, nor violating any other of the copyright holder's exclusive rights. Downloading a book in PDF form, in contrast, does not involve stealing from a retailer and does involve making a (digital) copy of the book, which is an exclusive right granted to the copyright holder. (It's similar to making a photocopy of an entire book from the library.) – ff524 Sep 9 '15 at 0:46
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    The first two sentences would be worth upvoting. Unfortunately, the rest seems rather confused since the question is whether somebody could be sued for breach of copyright (legitimately) and not whether s/he could be prosecuted for theft. But, it is true that the idea of 'fair use' applies to use of copyrighted materials and not to their acquisition, as I understand it. (Or, at least, it should apply to use. But what it actually permits in practice is very little.) – cfr Sep 9 '15 at 0:58
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    I've read this "answer" five times now and I don't see an actual answer in it. – corsiKa Sep 9 '15 at 6:54

protected by StrongBad Sep 9 '15 at 17:39

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