dissenting.
The copying done in this case is permissible under the plain language of the copyright statute that allows “multiple copies for classroom use:” “[T]he fair use of a copyrighted work ... for purposes such as ... teaching (■including multiple copies for classroom use), ... is not an infringement of copyright.” 17 U.S.C. § 107 (emphasis added). Also, the injunction the Court has upheld exceeds the protections provided by the Copyright Act of 1976 regardless of whether the use was a fair use and is so grossly overbroad that it violates the First Amendment.
I.
This is a case of first impression with broad consequences. Neither the Supreme Court nor any other court of appeals has interpreted the exception allowing “multiple copies for classroom use” found in § 107 of the copyright statute. There is no legal precedent and no legal history that supports our Court’s reading of this phrase in a way that outlaws the widespread practice of copying for classroom use by teachers and students.
For academic institutions, the practical consequences of the Court’s decision in this case are highly unsatisfactory, to say the least. Anyone who makes multiple copies for classroom use for a fee is guilty of copyright infringement unless the portion copied is just a few paragraphs long. Chapters from a book or articles from a journal are verboten. No longer may Kinko’s and other corner copyshops, or school bookstores, libraries and student-run booths and kiosks copy anything for a fee except a small passage. I do not see why we should so construe plain statutory language that on its face permits “multiple copies for classroom use.” The custom of making copies for classroom use for a fee began during my college and law school days forty years ago and is now well-established. I see no justification for overturning this long-established practice.
I disagree with the Court's method of analyzing and explaining the statutory language of § 107 providing a fair use exception.1 Except for “teaching,” the statute is cast in *1395general, abstract language that allows fair use for “criticism,” “comment,” “news reporting” and “research.” The scope or extent of copying allowed for these uses is left undefined. Not so for “teaching.” This purpose, and this purpose alone, is immediately followed by a definition. The definition allows “multiple copies for classroom use” of copyrighted material. The four factors to be considered, e.g., market effect and the portion of the work used, are of limited assistance when the teaching use at issue fits squarely within the specific language of the statute, i.e., “multiple copies for classroom use.” In the present ease that is all we have — “multiple copies for classroom use.”
There is nothing in the statute that distinguishes between copies made for students by a third person who charges a fee for their labor and copies made by students themselves who pay a fee only for use of the copy machine. Our political economy generally encourages the division and specialization of labor. There is no reason why in this instance the law should discourage high schools, colleges, students and professors from hiring the labor of others to make their copies any more than there is a reason to discourage lawyers from hiring paralegals to make copies for clients and courts. The Court’s distinction in this ease based on the division of labor — -who does the copying — is short sighted and unsound economically.
Our Court cites no authority for the proposition that the intervention of the copyshop changes the outcome of the case. The Court errs by focusing on the “use” of the materials made by the copyshop in making the copies rather than upon the real user of the materials — the students. Neither the District Court nor our Court provides a rationale as to why the eopyshops cannot “stand in the shoes” of their customers in making copies for noncommercial, educational purposes where the copying would be fair use if undertaken by the professor or the student personally.
Rights of copyright owners are tempered by the rights of the public. The copyright owner has never been accorded complete control over all possible uses of a work. Generally, “[t]he monopoly privileges [of copyright] that Congress may authorize are neither unlimited nor' primarily designed to provide a special private benefit,” Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 429, 104 S.Ct. 774, 782, 78 L.Ed.2d 574 (1984), a statement the Court more fully explained as follows:
The limited scope of the copyright holder’s statutory monopoly, like the limited copyright duration required by the Constitution, reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts.... When technological change has rendered its literal terms ambiguous, the Copyright Act must be construed in light of its basic purpose.
Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156, 95 S.Ct. 2040, 2043-44, 45 L.Ed.2d 84 (1975) (footnotes omitted). The public has the right to make fair use of a copyrighted work and to exercise that right without requesting permission from, or paying any fee to, the copyright holder. The essence of copyright is the promotion of learning — not the enrichment of publishers.
II.
Even if the plain language of the statute allowing “multiple copies for classroom use” were less clear, the Court’s analysis of the fair use factors is off base. There is nothing in the fair use analysis that casts doubt on the plain meaning of “multiple copies for classroom use.”
Money changes hands and makes the transaction “commercial” because the co-pyshop has freed the student from undertaking the physical task of copying. The copyshop makes its money based on the number of pages copied, not the content of those pages. The students paid the copy-shop solely for the time, effort and materials that each student would otherwise have expended in copying the material himself or herself. The money paid is not money that would otherwise go to the publishers.
*1396In finding the use to be “commercial,” our Court cites as authority the use by the magazine The Nation of excerpts from President Ford’s book, a use found to be infringement. Maj. Op. at 1385 (citing Harper & Row, Pubs., Inc. v. Nation Enterprises, 471 U.S. 539, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985)). But the Ford excerpts were not copied from the original work on a photocopier and distributed to a political science class for study. They were not multiple copies for classroom use, copied “for the purposes ... of teaching.” They were “scooped” from the Ford memoirs and published in The Nation, a commercial publication, before Harper and Row, the copyright owner, could publish them. The case does not interpret the classroom use exception of § 107 and has no application to the case before us.
The statute also assesses the “amount and substantiality of the portion used in relation to the copyrighted work as a whole.” The excerpts here were a small percentage of the total work. The District Court recognized that the excerpts were “truly ‘excerpts’ and do not purport to be replacements for the original works.” Princeton Univ. Press v. Michigan Doc. Servs., Inc., 855 F.Supp. 905, 910 (E.D.Mich.1994). This factor does not weigh against a finding of fair use, and our Court errs in reaching a contrary conclusion.
The Court also errs in analyzing the market effect of the classroom copying. The Court erroneously shifts the burden of proof as to market effect to the defendant by labeling the use “commercial” in nature. Maj. op. at 1385. Generally the burden is on the plaintiff to demonstrate the alleged harm to the potential market value for the copyrighted work. If the challenge is to a noncommercial use of a copyrighted work, the plaintiff must prove by a preponderance, of the evidence 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. The Court shifts the burden because it fails to acknowledge that the use in question — making “multiple copies for classroom use” for “teaching” purposes — precisely fits the plain language of the § 107 éxception. The Court strains to relieve the plaintiffs of their normal burden of proof. Plaintiffs have met their burden only because the Court has lifted the burden and put it onto the shoulders of the defendant.
Turning to the effect of the use upon the potential market for or value of the copyrighted work, plaintiffs here have failed to demonstrate that the photocopying done by defendant has caused even marginal economic harm to their publishing business. As the Court concedes, the publishers would prefer that students purchase the publications containing the excerpts instead of receiving photocopies of excerpts from the publications. See Maj. op. at 1387 (“the publisher would have preferred that students buy the book itself _”) (emphasis added). What the publishers would “prefer” is not part of the analysis to determine the effect on the potential market. We are to examine what the facts tell us about the market effect. The facts demonstrate that it is only wishful thinking on the part of the publishers that the professors who assigned the works in question would have directed their students to purchase the entire work if the excerpted portions were unavailable for copying. The excerpts copied were a small percentage of the total work, and, as the professors testified, it seems more likely that they would have omitted the work altogether instead of requiring the students to purchase the entire work.
The use complained of by plaintiffs here has been widespread for many years and the publishers have not been able to demonstrate any significant harm to the market for the original works during that time. The publishing industry tried to persuade Congress in 1976 to ban the type of copying done by defendant here. Congress declined to do so and the publishing industry has been trying ever since to work around the language of the statute to expand its rights.
It is also wrong to measure the amount of economic harm to the publishers by loss of a presumed license fee — a criterion that assumes that the publishers have the right to collect such fees in all cases where the user copies any portion of published works. The majority opinion approves of this approach by affirming the issuance of an injunction prohibiting defendant from copying any por*1397tion of plaintiffs’ works. It does so without requiring a ease-by-case determination of infringement as mandated by the Supreme Court. See discussion infra at 1385-86.
The publishers have no right to such a license fee. Simply because the publishers have managed to make licensing fees a significant source of income from copyshops and other users of their works does not make the income from the licensing a factor on which we must rely in our analysis. If the publishers have no right to the fee in many of the instances in which they are collecting it, we should not validate that practice by now using the income derived from it to justify further imposition of fees. Our job is simply to determine whether the use here falls within the § 107 exception for “multiple copies for classroom use.” If it does, the publisher cannot look to us to force the copyshop to pay a fee for the copying.
The Court states that defendant has declined to pay “agreed royalties” to the holders of the copyrights. Maj. op. at 1385. Agreed to by whom? Defendant has not “agreed” to pay the publishers anything. It is fair to label a royalty as “agreed to” only when the publisher has appropriately negotiated a fee with the copyshop for use of the copy in question.
III.
The injunction upheld by the Court, as it stands now, extends the rights of the copyright owners far beyond the limits prescribed by Congress.2 It prohibits defendant from copying any excerpts from plaintiffs’ materials, both those now in existence and any that may be published by plaintiffs in the future, regardless of whether the entire work is appropriately protected by copyright or whether the copying is for classroom use or is otherwise a fair use. The injunction prohibits defendant from copying from copyrighted works of the plaintiffs, without regard to length, content or purpose of the copying and without any recognition that the doctrine of fair use exists. The injunction avoids the necessity of determining whether the copying is an infringement or a fair use— any copying and dissemination is forbidden. The injunction also protects future publications of plaintiffs — works that have not yet even been created — without any knowledge as to the level of copyright protection the works would normally be afforded.
The gross overbreadth of the injunction appears to violate the First Amendment. The purpose of the First Amendment is to facilitate the widest possible dissemination of information. “From a first amendment viewpoint, the effect of an injunction is to restrain the infringing expression altogether — an effect which goes beyond what is necessary to secure the copyright property.” Goldstein, Copyright and the First Amendment, 70 Colum. L.Rev. 983, 1030 (1970); see also New Era Pubs. Int’l, ApS v. Henry Holt and Co., 873 F.2d 576, 595-97 (2d Cir.1989) (Oakes, J., concurring), cert. denied, 493 U.S. 1094, 110 S.Ct. 1168, 107 L.Ed.2d 1071 (1990) (discussing tension between First Amendment and injunctions in copyright cases); 3 Nimmer § 14.06[B] at 14-56.2 (where public harm would result from the injunction, courts should award damages in lieu of injunction).
In sum, the injunction imposed here — an injunction that provides blanket copyright protection for all the works of a given publisher without regard to the limitations on copyright protection — is overbroad. The injunction is inappropriate because it prohibits the public from using defendant’s copyshop for noninfringing copying of plaintiffs’ works.
. Both the majority opinion and Judge Ryan’s dissent approach the determination of whether the use at issue here is infringing solely by use of the four statutory factors set out in § ,107. Neither the plain language of the statute nor the case law requires that determination to be made solely on the narrow grounds of those four factors. Because the plain language of the statute is clear concerning “multiple copies for classroom use” and because determinations of infringement are to be made on a case-by-case basis taking into consideration the reasonableness of the copying from an equitable perspective, I do not believe that the four factors are controlling. The specific plain language should be given much more weight in this case than the four abstract considerations of little relevance to copying for classroom use.
. Although the majority has modified its original draft of the opinion to order a remand directing the district court (1) to set out the injunction in a separate order as required by Federal Rule of Civil Procedure 65 and (2) to set forth "more precisely” the scope of the injunction, the remand instruction gives virtually no guidance to the district court about curing the overbreadth of the injunction.