dissenting.
It is clear from the application of the four fair use factors of 17 U.S.C. § 107 that MDS’s copying of the publishers’ copyrighted works in this case is fair use and, thus, no infringement of the publishers’ rights. Indeed, it is a use which is merely an aspect of the professors’ and students’ classroom use, and, ónly in the narrowest and most technical *1398sense, a use of a separate genre under section .107. And, so, I must dissent from the majority’s contrary view and, in expressing my understanding of the matter, I shall identify three important subissues on which I think my colleagues’ analysis has led them to mistakenly conclude that MDS’s activity is not a fair use of the publishers’ materials.
In my judgment, my colleagues have erred in
1. focusing on the loss of permission fees in evaluating “market effect” under section 107(4);
2. finding that the evidence supports the conclusion that permission fees provide an important incentive to authors to create new works or to publishers to publish new works; and
3. using legislative history, specifically the “Classroom Guidelines,” to decide the issue of classroom use.
I.
Professors may make the judgment that only fractional portions of much larger copyrighted works need to be examined by their students to explain the theories, facts, and historical developments in which the professors are interested, or that the selected excerpted materials are not central to the professors’ classroom purpose. In such an instance, the professors may conclude that the educational benefit to the students does not justify requiring the students to purchase the entire original work. Rather than omit the materials entirely, the professors could, of course, make a reference copy of the excerpted portions and produce multiple copies of the relevant sections for their students. Alternatively, they might require their students to spend their own time going to the library, waiting their turn to gain access to sometimes scarce library' reserve materials, going to the coin operated photocopying machines, and making their own copies, a practice that the publishers have not challenged. However, in the circumstances of this case, the professors, presumably as a service to the students, requested MDS to copy and assemble from a number of works excerpts identified by the professors as beneficial for their students to read. MDS apparently produces better copies and at less cost than individual professors or students could.
The professors select the materials to be copied and deliver them to MDS with an estimate of the number of students expected in the course. The professors then assign the material to students enrolled in a particular class and inform them that they may purchase the required materials in course-pack form at MDS if they wish to do so. In the alternative, students are free to make copies of the excerpted material at the library themselves, to copy the material from other students, or to purchase the whole of the original work in which the assigned text appears.
MDS prepares a master copy of all the materials selected by the professor, creates a table of contents, identifies excerpts by author and name of the underlying work, numbers the pages, and then binds the copied excerpts together. These coursepacks are sold only to students for use in a particular course; they are not sold to the general public. Any copies that are not purchased are simply discarded. The coursepacks are priced on a per-page basis, regardless of the contents of the page. The fee for a page reproducing copyrighted materials is the same as the fee for a blank page. The professors receive no commissions or other economic benefit from delivering coursepaek materials to MDS.
We are specifically concerned in this case with six excerpts extracted from works to which plaintiffs hold the copyrights. Following the direction of several professors who brought the excerpts to the defendants for copying, MDS assembled the excerpts, along with other materials not at issue in this suit, into three coursepacks. The excerpts copied ranged from 17 to 95 pages, or 5% to 30%, of the original works. Each of the requesting professors signed a declaration stating that he does not request copies of excerpts where he would otherwise have assigned the entire work to his students.
Each of the plaintiff publishers operates a department that receives and processes requests for permission to use any of that *1399publisher’s copyrighted works. The plaintiff publishers usually charge a fee for allowing others to copy portions of their works and generally share these fees with the authors. Sometimes the publishers grant permission to copy without charge, and other times they deny permission entirely.
II.
The Copyright Act both establishes a general grant of monopoly powers to holders of copyrights and codifies the “fair use” doctrine as an exception to that broad grant. Section 106 of the Copyright Act confers exclusive rights upon individual creators to distribute and produce their original copyrighted work and “derivative works based upon the copyrighted work.” 17 U.S.C. § 106. However, section 107 carves out an exception to the exclusive rights conferred in section 106, permitting members of the public to use copyrighted works for “fair” purposes. 17 U.S.C. § 107. Whether a challenged use qualifies as a “fair use” is to be determined by considering section 107’s four fair use factors, which are set forth in the majority opinion, as well as any other relevant considerations. The four fair use factors, and any other relevant factors, must be applied and weighed together “in light of the purposes of copyright” protection. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578, 114 S.Ct. 1164, 1171, 127 L.Ed.2d 500 (1994) (citing Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1104, 1110-11 (1990)).
“The primary objective of copyright is not to reward the labor of authors, but ‘[t]o promote the Progress of Science and useful Arts.’ ” Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349, 111 S.Ct. 1282, 1290, 113 L.Ed.2d 358 (1991) (quoting U.S. Const. art. I, § 8, cl. 8). This court has explained:
Copyrights provide an incentive for the creation of works by protecting the owner’s use of his or her intellectual creation, allowing creators to reap the material rewards of their efforts. However, because not every use of a work undermines this underlying rationale of copyright law, and because some uses of copyrighted works are desirable for policy reasons, the courts have long held that many uses of a copyrighted work do not infringe upon the copyright.
National Rifle Ass’n of Am. v. Handgun Control Fed’n of Ohio, 15 F.3d 559, 561 (6th Cir.), cert. denied, — U.S. -, 115 S.Ct. 71, 130 L.Ed.2d 26 (1994). Although monopoly protection of the financial interests of inventors and authors is sometimes necessary “to stimulate creativity and authorship, excessively broad protection would stifle, rather than advance,” intellectual progress. Leval, supra, at 1109. For progress in “Science and useful Arts” to occur, others must be permitted to build upon and refer to the creations of prior thinkers.
, Thus, the “fair use” concept embodied in section 107 may be understood generally to permit a secondary use that “serves the copyright objective of stimulating productive thought and public instruction without excessively diminishing the incentives for creativity.” Leval, supra, at 1110. An evaluation of fair use therefore “involves a difficult balance between the interests of authors and inventors in the control and exploitation of their writings and discoveries on the one hand, and society’s competing interest in the free flow of ideas, information, and commerce on the other hand.” Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 429, 104 S.Ct. 774, 782, 78 L.Ed.2d 574 (1984). Although section 107 mentions “teaching” and “multiple copies for classroom use” as possible fair uses, “the mere fact that a use is educational and not for profit does not insulate it from a finding of infringement.” Campbell, 510 U.S. at 584, 114 S.Ct. at 1174. Thus, I agree with the majority that the production and use of the coursepacks must be examined under all four factors enumerated in section 107.
III.
A.
At the very outset, it is critical to understand, as I have earlier stated, that MDS’s “use” of this copyrighted material is of the same essential character as “use” by a student who chooses to personally make a pho*1400tocopy of the designated excerpts. There are two differences: 1) the student will further “use” the material in the classroom; and 2) MDS does the copying for the student for a profit.
The question that must ultimately be answered is whether that which is a fair use for a student — copying—is not a fair use if done for the student by another, and for a profit.
Plainly, the Copyright Act explicitly anticipates that use of a work by “reproduction in copies ... for purposes such as ... teaching (including multiple copies for classroom use),” will sometimes be a fair use even though teaching is commonly conducted for profit. 17 U.S.C. § 107.
Thus, MDS’s copying of materials, which indisputably are for “teaching (including multiple copies for classroom use),” must be tested for fair use under the four “factors to be considered” in section 107. Id.
The first factor that courts must evaluate in a fair use determination is “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” 17 U.S.C. § 107(1).
There are two parts to section 107’s. first factor: (1) the degree to which the challenged use has transformed the original, and (2) the profit or nonprofit character of the use. Both a non-transformative use determination and a “commercial” use determination weigh against a finding of fair use, though by no means conclusively.
The “purpose and character of the use” is examined to determine whether the questioned use would tend to advance or to thwart the goals of copyright law. The inquiry into the transformative aspect of the use assesses the likely benefit to society from the use — the more the original work has been transformed, the more likely it is that a distinct and valuable new product has been created. The inquiry into the profit or nonprofit aspect of the use assesses both the likely benefit to society and the likelihood that the use will threaten the creators’ incentives: Users with purely financial purposes are more likely to use the work for personal gain rather than other, socially laudable goals, and are more likely to be capturing the same economic rewards.that motivated the creators of the original work. Thus, the ultimate inquiry under the first fair use factor is whether the type of use being challenged is, by its nature, likely to benefit society without excessively diminishing the incentives to create new works.
i.
Ordinarily, analysis of transformative character under the first prong of the first factor centers on “whether the new work merely ‘supersede^] the objects’ of the original creation ... or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is ‘transformative.’ ” Campbell, 510 U.S. at 579, 114 S.Ct. at 1171 (citations omitted). But in this case there is no occasion to address the transformative aspect because that inquiry is not conducted at all in the case of multiple copies for classroom use. The Supreme Court has noted in dicta that “[t]he obvious statutory exception to this focus on transformative uses is the straight reproduction of multiple copies for classroom distribution.” Campbell, 510 U.S. at 579 n. 11, 114 S.Ct. at 1171 n. 11. Thus, although the transformative value of the coursepacks is slight, it does not in any respect weigh against MDS’s reproduction of excerpts for classroom use.
ii.
The second prong of the first fair use factor asks whether the purpose of the use is commercial or nonprofit and educational. Id. at 583, 114 S.Ct. at 1174. The “fact that a publication [is] commercial as opposed to nonprofit is a separate factor that tends to weigh against a finding of fair use.” Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 562, 105 S.Ct. 2218, 2231, 85 L.Ed.2d 588 (1985). The point here “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.” Id. In my judgment, a party profits *1401from “exploiting copyrighted material when it assesses the marketable potential of copyrighted material, selects material based on its content in order to reproduce those portions that will attract customers, and therefore profits from the substance of the copyrighted work.
As a preliminary matter, we must first deeide whose use of the coursepaeks must be evaluated. The majority accepts the publishers’ position that the only relevant “use” under the first factor is MDS’s sale of the coursepaeks to students, not the use of the purchased coursepaeks by the professors and students. Having limited its inquiry to MDS’s mechanical reproduction of the excerpts and for-profit charge for the technology and labor required to reproduce the relevant pages, the majority easily finds that the copyshop’s “use” of the copyrighted works is “commercial.” I do not find support for this abbreviated analysis in either the statutory text or the case law.
Certainly nothing in the language of the statute supports the majority’s decision to analyze the copyshop’s production of multiple copies of the excerpts as a “use” completely independent from the classroom use of those copies. MDS, considered apart from the professors and students, does not “use” the “copyrighted work” in the sense primarily addressed in section 107; it uses a “master copy” of the excerpted material delivered to it by the professor, copy paper, ink, photocopying machines, mechanical binders, and related production materials to make the number of copies the professor has ordered. MDS could not care less whether Professor X asks it to copy selections from Walter Lippmann’s Public Opinion or the 1996 University of Michigan Varsity Football roster. Either material is copied at a few cents a page, and MDS does not .“use” the information from either — at least, not in the sense plainly contemplated by Congress in any of the language of section 107.
If the words used in section 107 are to be given their primary and generally accepted meaning, particularly in the context of the balance of the Copyright Act, it is obvious that the use that is to be evaluated for fairness in this case is the use to which the protected substantive text is put, not the mechanical process of copying it. Congress specifically identified “teaching (including multiple copies for classroom use),” § 107 (emphasis added), as an illustration of a possible fair use. Consequently, the act of copying (implicit in “multiple copies”) is within the illustrative use of “teaching.” MDS is not in the business of making copies of protected work in order to fill up warehouses or please the logging industry; it makes the copies only for classroom use. Neither the language of section 107 nor simple common sense warrant examining the production of multiple copies in a vacuum and ignoring their educational use on the facts of this case.
The majority claims that the Supreme Court’s reasoning in Harper & Bow Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 562, 105 S.Ct. 2218, 2231, 85 L.Ed.2d 588 (1985), supports its decision to ignore the professors’ and students’ use of the course-packs and focus exclusively on MDS’s use. The difficulty with this approach is that the two situations are not parallel. In Harper & Row, the copyright holder of .President Ford’s unpublished memoirs sold the right to publish the first excerpts of the unpublished work to Time Magazine. Before Time Magazine could publish the excerpts, a competitor, The Nation Magazine, obtained an illicit copy of the manuscript and published a short article directly quoting some of President Ford’s juiciest revelations. The Nation Magazine, in which the challenged article appeared, was, of course, sold to the general public. Time Magazine refused to fulfill its contract to pay the copyright holder for the right to use the memoirs since its “exclusive” right of “first publication” had already been “scooped.” The majority opinion declares: “Like the students who purchased unauthorized coursepaeks, the purchasers of The Nation did not put the contents of the magazine to commercial use — but that did not stop the Supreme Court from characterizing [The Nation magazine’s] use of excerpts as ‘a publication [that] was commercial as opposed to nonprofit_’” Maj. op. at 1386 (citation omitted). The majority’s intended parallel does not bear close scrutiny.
*1402There are two critical facts that distinguish Harper & Row from this case. First, in Harper & Row, the profit-seeking entity that sold excerpts to the nonprofit users — the members of the general public who purchased the magazine and “used” the copied material to educate themselves — was the same entity that obtained the original manuscript and selected portions for reproduction. Thus, Tfie Nation Magazine both directed the copying and profited from the copying. That is not this case. Here, a nonprofit entity (the professors) obtained the originals and selected portions for reproduction. The professors directed the copying but did not profit; MDS profited but did not direct what was to be copied. Second, in Harper & Row, the profit-seeking defendant, The Nation Magazine, carefully selected the material to be copied for its content!substance and sought to profit from the content!substance of the material that it reproduced, not from the mechanical service of reproduction itself. In this case, on the other hand, the profit-seeking defendant, MDS, neither selected the material to be copied for its content/substance nor sought to profit from the copyrighted material because of its substance; its purpose was to profit only from the mechanical services of photoreproduction and assembly.
With these distinctions in mind, I would approach the “commercial purpose” determination under section 107’s first factor in a different way than the majority does. A use is “commercial” within the meaning of section 107 if the user seeks to profit from “exploiting” the - copyrighted material. Harper & Row, 471 U.S. at 562, 105 S.Ct. at 2231. Profiting from exploiting copyrighted material requires more than profit obtained from a mechanical service. Profiting from exploiting copyrighted material involves an active role in assessing the value of, selecting, and marketing copied material based on its substance. In Harper & Row, the defendant magazine assessed the value of President Ford’s original work, selected the portions it believed to be the most “powerful,” advertised, sold, and profited from the sale of the unauthorized copies, based on their substance. Harper & Row would be of some relevance to the market value component of this case only if MDS were selecting excerpts by assessing their commercial value to the public, assembling coursepacks for its own purposes, and marketing the coursepacks to professors or to the public without paying for the copyrighted materials. But that is not what MDS does or did. MDS’s profit is attributable entirely to its provision of a mechanical service — running materials, of value to others and selected by others through its photocopying machines and binding them. Because MDS made no attempt to assess the value of what it copied and did not select the materials for its copying services, it did not “exploit the copyrighted material without paying the customary price,” as that was done in the Harper & Row case.
Certainly it is true that MDS “uses” the copyright work in the sense that it copies the copyrighted material that is handed to it by the professors. But it does not “use” the material independent of the university professors’ and students’ use; it is a participant in their use and its profits are derived only from photoreproduetion services the students pay it to perform.
The business of producing and selling coursepacks is more properly viewed as the commercial exploitation of professional copying technologies and of the inability of academic parties to reproduce printed materials efficiently, not the exploitation of copyrighted, creative materials. The copyshop is a printer, engaging solely in the business of reproducing images on paper at the direction of others. Because MDS does not control the length or substance of the excerpts that it copies, its profit motive does not provide information about the tendency of its activity to impinge upon the rightful territory of authors and does not interfere with the incentives orchestrated by the Copyright Act. The for-profit nature of MDS’s service does not weigh against a finding of fair use because MDS, the for-profit actor, does not represent an institutional threat to authors and publishers’ rightful profits.
The for-profit or nonprofit educational users whose purposes are linked to the authors’ and publishers’ incentives and therefore must be analyzed under this factor are *1403the professors and students. The professors and students clearly do use Lippmann’s work. The professors use Lippmann’s ideas in meeting their professional obligation to teach their students, and the students use Lippmann’s ideas in their effort to master the concepts of the course to which Lippmann’s ideas pertain. The professors and students’ classroom use of the excerpts of copyrighted material appears to be nonprofit. Although the professors and students are, in some sense, engaged in a for-profit endeavor — the professors teach for money and the students attend classes to obtain a commercially valuable degree — the purpose and character of the professors and students’ use is not, on the facts of record in this case, “of a commercial nature.” If “eommereiality” meant only that the user employed the material while engaged in activity for profit, this one characteristic “would swallow nearly all of the illustrative uses listed in the preamble paragraph of § 107, including news reporting, comment, criticism, teaching, scholarship, and research, since these activities ‘are generally conducted for profit in this country.’” Campbell, 510 U.S. at 584, 114 S.Ct. at 1173 (quoting Harper & Row, 471 U.S. at 592, 105 S.Ct. at 2247). As I have said, the significant question in the first factor’s inquiry into the purpose and character of the use is whether the copyrighted material is being exploited for profit without paying the customary price. The answer might well be affirmative if there were evidence that the professors were receiving commissions from the copyshop based on the number and length of coursepack orders that they placed; in such a ease, the professors would be profiting from their decision to assign excerpts and would represent a commercially-motivated systemic threat to the authors and publishers’ incentives to create new works.
An assessment of the distinction between for-profit activity and exploitation is critical because the Supreme Court has commanded that we examine “ ‘the nature and objects of the selections made’ ” in view of “the examples given in the preamble to § 107” and the purposes of copyright protection — that is, to promote science and the arts. Campbell, 510 U.S. at 578, 114 S.Ct. at 1171 (emphasis added) (quoting Folsom v. Marsh, 9 F. Cas. 342, 348 (No. 4,901) (CCD Mass. 1841)). Additionally, in determining whether MDS’s use is commercial, it is important to bear in mind the practical effect of such a finding, not just in the analysis conducted under the first factor but in the impact that a finding of “commercial” or “educational” has in the analysis conducted under the fourth factor, which considers “the effect of the use upon the potential market for or value of the copyrighted work....” 17 U.S.C. § 107(4). A conclusion that a use is “commercial” weighs against a finding of fair use and, in fact, creates a “presumption” of market harm in the fourth fair use factor. Sony, 464 U.S. at 451, 104 S.Ct. at 793. I conclude that the use of eoursepacks in this case is not “commercial” within the meaning of section 107(l)’s “purpose and character of the use” language alone, but I am even more convinced that it is not “commercial” in view of section 107(4)’s “market harm” language: “the effect of the use upon the potential market for or value of the copyrighted work....” § 107(4).
The Supreme Court has explained the presumption of market harm as follows:
The purpose of copyright is to create incentives for creative effort. Even copying for noncommercial purposes may impair the copyright holder’s ability to obtain the rewards that Congress intended him to have. But a use that has no demonstrable effect upon the potential market for, or the value of, the copyrighted work need not be prohibited in order to protect the author’s incentive to create. The prohibition of such noncommercial uses would merely inhibit access to ideas without any countervailing benefit! ] Thus, although every commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright, noncommercial uses are a different matter. A challenge to a noncommercial use of a copyrighted work 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, 464 U.S. at 450-51, 104 S.Ct. at 792-93 (footnote omitted).
*1404To repeat, the content of the coursepaeks was not controlled by MDS but by the professors; and “the nature and objects of the selections made” by the professors were plainly nonprofit and educational. Campbell, 510 U.S. at 578, 114 S.Ct. at 1171 (internal quotation marks and citation omitted). The professors selected excerpts, not out of any motive for financial gain, but solely in order to enrich the educational experiences of their students. MDS made no selections; its motives for the activity that is challenged by the plaintiffs are not relevant.
It is consistent with the copyright scheme to find the use of these coursepaeks to be noncommercial, to presume that they do not inflict market harm, and to require the publishers to prove that MDS’s use is harmful to the value of the copyrighted works. Presuming that MDS’s copying is not harmful to the value of the copyrighted works is appropriate because the identity and content of the excerpts is controlled entirely by persons whose motives are purely educational. Only where the use of copyrighted materials is directed by those seeking financial gain from the substance-based selection is it appropriate to presume that the secondary user is capturing profits that the creators of the works expected to capture and that may be important to maintaining incentives to create new original works. Similarly, the secondary product is appropriately viewed with suspicion — and presumed to upset the creator’s incentives — when the party driving the use is primarily seeking to profit from its selections; where the selector acts in order to enrich his own coffers, it is less likely that society will benefit from his actions more than it will suffer from the resulting disincentives to create new works.
With regard to the professor-directed creation of coursepaeks, it is not appropriate to presume that the practice of excerpting some materials harms the authors’ rightful market and secures a benefit only to the excerpters. The more reasonable presumption is that society benefits from the additional circulation of ideas in the educational setting when those who direct the practice have no personal financial interests that would drive them to copy beyond the parameters of purely educational, and fair, use. The professors have no financial reason to copy mere excerpts when the entire works should be assigned, and their selections should not be presumed to harm the market for the original works and lessen the incentives for authors to write or publishers to publish new works. Rather, such harm must be demonstrated. Society benefits when professors provide diverse materials that are not central to the course but that may enrich or broaden the base of knowledge of the students. Society is not benefited by establishing a presumption that discourages professors from exposing their students to anything but complete original works even when most of the work is irrelevant to the pedagogical purposes, and students are not benefitted or authors/ publishers justly compensated if students are required to purchase entire works in order to read the 5% or 30% of the work that is relevant to the course.
And so, in my view, the majority’s market harm analysis is fatally flawed: If market harm is presumed when excerpts are selected by professors and market harm is proven when fees are not paid, we have ceded benefits entirely to copyright holders when we are actually required to engage in “a sensitive balancing of interests,” Sony, 464 U.S. at 455 n. 40, 104 S.Ct. at 795 n. 40, between “the interests of authors ... in the control and exploitation of their writings ... on the one hand, and society’s competing interest in the free flow of ideas, information, and commerce on the other hand.” Id. at 429, 104 S.Ct. at 782. The majority apparently does not really accept the firmly established principle that copyright monopoly privileges “are neither unlimited nor primarily designed to provide a special private benefit[; rather, the privileges exist to achieve] an important public purpose ... to motivate the creative activity of authors [and ] to give the public appropriate access to their work product.” Id.
The coursepaeks fit within the exception to the “transformative” quality requirement, and the predominant character of the use of excerpts in coursepaeks is not commercial but “nonprofit educational.” The first factor therefore favors a finding of fair use.
*1405B.
The second fair use factor, “the nature of the copyrighted work,” 17 U.S.C. § 107(2), recognizes that fair use is more difficult to establish when the work being used is at “the core of intended copyright protection.” Campbell, 510 U.S. at 586, 114 S.Ct. at 1175. Factual compilations, such as telephone book listings and football rosters, with only a small element of creativity and originality may be used more freely than creative works. Feist, 499 U.S. at 348-51, 111 S.Ct. at 1289-91. I agree with the majority that the materials copied in this case are much closer to the core of work protected by copyright than to the mere compilations of raw data in the phone books in Feist.
The second factor, on these facts, does little more than confirm that the works at issue are protected by copyright and may only be used “fairly.” Thus, the fair use examination properly proceeds to factors three and four to determine whether this use of the excerpts is fair.
C.
The third factor considers “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” 17 U.S.C. § 107(3). I will not- comment at length on this issue but will only note that I believe the majority has misunderstood this factor. The majority reasons that “to the extent that the third factor requires some type of assessment of the “value’ of the excerpted material in relation to the entire work, the fact that the professors thought the excerpts sufficiently important to make them required reading strikes us as fairly convincing ‘evidence of the qualitative value of the copied material.’” Maj. op. at 1389 (citation omitted). However, the fact that the professors required students to read the excerpts says nothing whatsoever about the “substantiality” of the excerpted material in relation to the entire work. -To the extent that the professors’ decision to excerpt the material has any meaning, it suggests that the excerpts stand separate from the entire work, not that they are central and substantial to the entire work. The strongest inference is that the unassigned balance of the work bears minimal relevance to the assigned excerpt; if it were otherwise, the whole would likely have been assigned.
Additionally, I am puzzled by the majority’s statement that the third factor may have more significance for the 95-page excerpt that is 30 percent of the entire work than for the 17-page excerpt that is 5 percent of the entire work, but that in each instance, the third factor weighs against a finding of fair use. The majority apparently sees no important analytical difference between a 30% excerpt and a 5% excerpt. There is no bright-line rule to tell us how large of an excerpt renders it unfair as a matter of law, nor how small an excerpt is so small as to be conclusively fair. In Sony, the Court found the use to be fair even though the entire work was reproduced, whereas in Harper & Row the use was found to be unfair even though only 300 words of copyrighted material — an insubstantial portion of President Ford’s memoirs — were reproduced without permission.
The third factor turns not only on the quantity of the materials used, but also on their quality and importance. Campbell, 510 U.S. at 586-87, 114 S.Ct. at 1175.
In the context of a musical parody’s use of a copyrighted song, the Supreme Court interpreted this factor to assess whether the quantity and value of the materials used were reasonable in relation to the purpose of the copying, noting that “the extent of permissible copying varies with the purpose and character of the use.” Id. As the Supreme Court acknowledged, “[t]he facts bearing on this factor will also tend to address the fourth [factor, which evaluates market effect], by revealing the degree to which the parody may serve as a market substitute for the original or potentially licensed derivatives.” Id. Thus, we should ask whether such substantial portions of a copyrighted work were used that a coursepack supersedes the copyrighted work, “fulfilling demand for the original.” Id. at 588, 114 S.Ct. at 1176.
There is no evidence whatsoever that any of the six excerpts in the coursepacks are so substantial as to supersede the original works. The only evidence of record is the *1406professors’ declarations that they do not excerpt material when they would otherwise assign the entire work and the expressed preference of one publisher to have the entire work assigned rather than excerpted. The publishers have submitted a declaration stating that, in accordance with established practices, permission would have been denied, even if sought, with regard to the excerpt from Public Opinion, by Walter Lippmann. The publisher considers the excerpt so lengthy and the published edition sufficiently inexpensive that the book should have been purchased rather than copied with permission, for a fee. The declarant opined that copying 46 pages would adversely affect book sales, but offered no factual support for this statement. The fact that the publisher would prefer the book to be purchased is not relevant to the third-factor analysis. Each of the professors who delivered the materials to MDS signed a statement that he would not otherwise have assigned the copyrighted work to the class. Nothing in the record contradicts these declarations.
The majority appears to dismiss these declarations only because the professors did not further declare that they would not have assigned eoursepacks that included the cost of a minimal permission fee; “what seems significant to us is that none of these affidavits shows that the professor executing the affidavit would have refrained from assigning the copyrighted work if the position taken by the copyright holder had been sustained beforehand.... [The professors do] not say that [they] would have refrained from assigning” the contested works if they had known that the copyshop had been required to pay a permission fee. Maj. op. at 1388. Indeed, they did not say that; and there are a good many other things about the assigned excerpts that they did not say. But those unstated matters do not diminish in any way the truth or the force of what was said. This court should not expect the professors to assert that had the publishers done what they have no right to do, the professors would not have assigned the materials. If the publishers have the right to charge one penny per page copied, they also have the right to charge $50 per page copied. It is irrelevant and unknowable to ask how high the fees charged for permission would have to be before the professors would not assign the excerpts if the copyshop paid permission fees.
The lengthiest excerpt used in one of the eoursepacks comprised 30% of Farewell to the Party of Lincoln: Black Politics in the Age of FDR, by Nancy J. Weiss, the original copyrighted work. Other excerpts ranged from 5% to 18% of the original works. There is no evidence to suggest that even the 30% selected from Weiss’s book extracted the heart of the work rather than just those portions that the professor deemed instructive for his limited classroom purposes. The record is simply silent on the point. Cf. Harper & Row, 471 U.S. at 565-66, 105 S.Ct. at 2233-34. Given the uncontroverted declarations of the professors that they would not have assigned the original works even if copied excerpts were not available, there is no basis to conclude that the portions extracted from the copyrighted works were so substantial that the resulting eoursepacks superseded the originals. As the district court noted, the six excerpts at issue in this case “are truly ‘excerpts,’ and do not purport to be replacements for the original works.” Princeton, 855 F.Supp. at 910.
There is absolutely no evidence in the record to support a finding that the copyrighted works at issue were excerpted so substantially that the eoursepacks superseded the original works or otherwise exceeded the proper educational purposes that could justify the reproduction. Thus, the third factor favors a finding of fair use.
D.
The fourth fair use factor is “the effect of the use upon the potential market for or value of the copyrighted work.” 17 U.S.C. § 107(4). Under this factor, courts must consider the extent of market harm caused by the particular actions of the alleged in-fringer and “whether unrestricted and widespread conduct of the sort engaged in by the defendant ... would result in a substantially adverse impact on the potential market for the original.” Campbell, 510 U.S. at 590, 114 S.Ct. at 1177 (internal quotation marks omit*1407ted). The fourth factor is the single most important element of fair use, Harper & Row, 471 U.S. at 566, 105 S.Ct. at 2233-34, and “must take account not only of harm to the original but also of harm to the market for derivative works.” Id. at 568, 105 S.Ct. at 2234.
I have concluded that analysis under the first factor establishes the character of the use of eoursepacks as noncommercial, and that, therefore, a proper analysis under the fourth factor begins with a rebuttable resumption that the plaintiffs have suffered no market harm and thus have the burden of proof on market effect. See part III.A.Ü, supra. But, even in the absence of a presumption against market effect, the fourth factor, correctly construed, weighs in favor of a finding of fair use on the record before us.
For plaintiffs to prevail, there must be at least a meaningful likelihood that future harm to a potential market for the copyrighted works will occur. In Sony, the Court held:
A challenge to a noncommercial use of a copyrighted work 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.... What is necessary is a showing by a preponderance of the evidence that some meaningful likelihood of future harm exists.
Sony, 464 U.S. at 450-51, 104 S.Ct. at 792-93. Works or uses that creators of original works would “in general develop or license others to develop” make up the market for potential derivative uses. Campbell, 510 U.S. at 592, 114 S.Ct. at 1178. The plaintiffs certainly have not demonstrated that the eoursepacks affected the market for the original copyrighted works. Neither have they presented any evidence of likely harm to their potential market for derivative works, such as published anthologies. Remarkably, they have limited their showing of “market effect” to the loss of permission fees that they would like to receive from copyshops like MDS. But that is not a “market harm” within the meaning of section 107(4). To prove entitlement to permission fees, the publishers must show market harm and the market harm they claim is the loss of permission fees. MDS’s eoursepacks would inflict “market harm” if they damaged the value of the original work or the value of derivative products such as eoursepacks the publishers might wish to market.
The original panel opinion, now vacated, stated:
[Ejvidence of lost permission fees does not bear on market effect. The right to permission fees is precisely what is at issue here. It is circular to argue that a use is unfair, and a fee therefore required, on the basis that the publisher is otherwise deprived of a fee.
Princeton Univ. Press v. Michigan Document Services, No. 94-1778, 1996 WL 54741, at *11 (6th Cir. Feb.12, 1996), reh’g granted, 74 F.3d 1528 (6th Cir.1996). The majority now claims that this charge of circular reasoning “proves too much.” The majority asks the reader to
[ijmagine that the defendants set up a printing press and made exact reproductions — asserting that such reproductions constituted “fair use” — of a book to which they did not hold the copyright. Under the defendants’ logic it would be circular for the copyright holder to argue market harm because of lost copyright revenues, since this would assume that the copyright holder had a right to such revenues.
Maj. op. at 1386.
The majority’s logic would always yield a conclusion that the market had been harmed because any fees that a copyright holder could extract from a user if the use were found to be unfair would be “lost” if the use were instead found to be “fair use.” The majority acknowledges that “a copyright owner will normally be able to complain that an asserted fair use may cause some loss of revenues in potential licensing fees” but resolves this problem by restricting its consideration of the loss of permission fees to the case of derivative markets that are ‘“traditional, reasonable, or likely to be developed markets.’ ” Maj. op. at 1387 (quoting American Geophysical Union v. Texaco, 60 F.3d 913, 930-31 (2d Cir.), cert. dismissed, — U.S. -, 116 S.Ct. 594, 133 L.Ed.2d 514 *1408(1995)). Under this approach, the majority would find that the copyright holders’ monopoly over potential uses of the copyrighted works at issue in Princeton includes “the selling of permission to reproduce portions of the works for inclusion in eoursepacks — and the likelihood that publishers actually will license such reproduction is a demonstrated fact.” Maj. op. at 1387.
The majority cites Harper & Row and Campbell as support for its reasoning that the mere loss of licensing fees — to which the copyright holder may or may not be entitled — is proof of market harm. The majority notes that in Harper & Row, the plaintiff did not challenge a use (the unauthorized article’s direct quotes) based on its impact on sales of the entire work (the not-yet-published memoirs) but based on its harm to the market for the licensing of excerpts. There is a subtle but important distinction to be made between the facts in Harper & Row and the facts in this case. In Harper & Row there was proof that the copyright holder conceived of a potential derivative work (the planned Time Magazine articles) and took meaningful steps to aid in the creation of that derivative work and to capture profits from that creation. The value of the planned derivative work was harmed by the defendants’ unauthorized use of the original work; the copyright holder lost its contract with Time Magazine — and concomitant fees — for the exclusive right to print prepublication excerpts of President Ford’s memoirs when The Nation Magazine illicitly obtained a copy of the unpublished manuscript and produced a short article quoting from the heart of the manuscript. Thus, in Harper & Row, the value of the original work in a derivative market that was targeted by the copyright holder was harmed by the unauthorized use of the work. There is no similar evidence of injury to the value of a work in this case.
First, there is no evidence that the publishers, here, planned to create any products for a derivative market; no evidence, for instance, that the copyright holders sought to publish or license a competing compilation of excerpts to attract the interest, for instance, of the students in Professor Dawson’s interdisciplinary course “Black Americans and the Political System.” Second, even if there was evidence that the publishers had contemplated such a product, there is no evidence that the publishers’ derivative compilation would be devalued by defendant’s production of eoursepacks; that is, there is no evidence that such a compilation would earn less because of the existence of eoursepacks. In Campbell, 510 U.S. at 591-96, 114 S.Ct. at 1178-79, for instance, the Court declined to find market harm based solely on undisputed evidence that the unauthorized user created a profitable product — rap-parody—from the original; the Court noted that the rap-parody version was not shown to affect the market for an authorized, non-parodic rap version of the original. It might at first appear that the publishers are, by definition, able to design and market a collection of excerpts and that the existence of other, unauthorized, collections will necessarily replace some of the authorized copies and thereby leach profits that the publishers could otherwise capture. However, neither the facts on this record nor any case law support such a leap in logic.
The fact is that the plaintiffs are not able to create a market for the product that MDS produces. To the extent that MDS serves a market at all, it is one created by the individual professors who have determined which excerpts from which writers they wish to comprise the required reading for a particular course. If the publishers decided to create an anthology of excerpts from its copyrighted works on, for example, “The Black Experience,” it would not fill the market niche created by Professor X who is interested in very different materials. Indeed, the publishers do not claim to have lost an account for customized materials with a specific professor because of a copyshop coursepack; nor do they claim to be prepared to enter this highly-customized market. The argument that the publishers seek to enter the derivative market of customized materials by licensing MDS and other copyshops, who create such compilations, and that MDS’s publication of unauthorized compilations interferes with their ability to obtain licensing fees from other copyshops simply returns the publishers to their original circular argument *1409that they are entitled to permission fees, in part, because they are losing permission fees.
The publishers do not identify potentially marketable specialty materials and license copyshops to produce the compilations as true derivative works; rather, the publishers reject any active role in identifying potential derivative markets or creating derivative works and seek to impose a tax/surcharge on the unique compilations that are designed by individual professors and assembled by MDS for use in a specific course. Thus, the facts do not suggest that the value of any conceived derivative work has been damaged by the defendant’s production of coursepacks. The key distinction is between simple economic detriment to the copyright holder when permission fees are not paid by the user — a “harm” that will always be present— and harm to the value of a product — either the original work or a derivative product— that the copyright holder seeks to market. Application of the value/detriment distinction serves the purposes of the Copyright Act as the established/reasonable definition advanced by the majority does not.
The guiding principle of the Copyright Act is that the financial earnings of original works be channeled exclusively to the creators of the works insofar — and only insofar — as they are necessary to motivate the creation of original works and do not excessively impede the advancement of science and the arts through the public dissemination of knowledge, research, scholarship, news-reporting, teaching, criticism, and the like. The copyright holder’s statutory monopoly does not encompass profits from derivative works that the copyright holders do not themselves seek to market or that do not harm the value of works that the copyright holders do seek to market; the monopoly privileges need not include these profits because these profits do not function as incentives to prospective creators.
Here, there is no indication of harm to the market of the original copyrighted works. There is no evidence that the coursepacks act as a substitute for purchase of the entire works. MDS has alleged that no sale of a copyrighted book has been lost to the publishers because of the coursepacks, and MDS has submitted declarations from professors stating that the professors do not request excerpts when they would otherwise assign the entire work. Because the professors would not have assigned the original works in any ease, the students who purchased coursepacks were not a demonstrable market diverted from purchasing the works. If it had any effect at all, use of the excerpted materials enhanced the prospect that the original works might later be of interest to the student. Students might purchase the copyrighted works when, for example, taking other courses in the same discipline, conducting more extensive research into a subject touched upon in an excerpt, or doing graduate work in a broader field to which the excerpted material later appeared relevant and was recalled. The publishers have produced no evidence that any sale of an original work has been lost.
Nor is there any indication of harm to a derivative market from which authors or their publishers expected to receive profits that were necessary to their respective decisions to write or publish the original works. As I have said, the publishers do not claim that they sought to publish compilations or anthologies but were thwarted by the existence of the coursepacks. There is no evidence that the publishers are interested in or capable of customizing their copyrighted works to accommodate the specific, limited, and frequently updated requests of individual professors. There is no evidence even that the publishers seek to license the compilation of excerpts by a third party who is equipped to assemble the compilations but refuses to do so without an agreement that the publishers grant it exclusive rights to publish the excerpts. Thus, there is no evidence that the value of the copyrighted works in a potential market was harmed in any way by the production of the coursepacks challenged in this case.
Therefore, I would conclude that there is no evidence of market effect and that the fourth, and most important factor, weighs decisively in favor of “fair use.”
E.
I disagree with the majority’s conclusion that copyshop permission fees provide an *1410important incentive to authors and publishers. The right — and its parameters — to monopolize profits from original works is created by statute and limited to those profits that provide necessary incentives to the creation of new works without unduly impeding the flow of information in the public, especially where the free flow of information serves socially significant functions, including teaching through multiple copies for classroom use.
More than one hundred authors declared on the record that they write for professional and personal reasons such as making a contribution to a particular discipline, providing an opportunity for colleagues to evaluate and critique the authors’ ideas and theories, enhancing the authors’ professional reputations, and improving career opportunities. These declarants stated that the receipt of immediate monetary compensation such as a share of licensing fees is not their primary incentive to write. The declarants advocate wide dissemination of excerpts from their works via coursepacks without imposition of permission fees where the works in then* entirety would not have been assigned in any case. The fact that incentives for producing higher education materials may not revolve around monetary compensation is highly relevant. The inclusion of excerpts in coursepacks without the payment of permission fees does not deprive authors of the rewards that the record indicates authors value, such as recognition.
The majority dismisses the motives of the authors — the actual creators — and concludes that what matters is the incentives to the publishers who hold the copyrights. The majority further concludes, without any evidence, that the licensing income from the permission-to-copy market is significant to publishers in individual cases, and that publishers need the economic incentive of licensing fees to publish academic works. The majority speculates: “If publishers cannot look forward to receiving permission fees, why should they continue publishing marginally profitable books at all? And how will artistic creativity be stimulated if the diminution of economic incentives for publishers to publish academic works means that fewer academic works will be published?” Maj. op. at 1391-92.
Despite the initial appeal of this reasoning, it is far from clear that the licensing income is significant to publishers in their decisions about whether to publish marginally profitable books. The fact that licensing income provides some welcome income in the aggregate does not mean that it provides an incentive to publishers to act in individual cases. There is, in fact, no indication that the paltry permission fees affect the publishers’ decisions about whether to publish in individual cases. Given that the per-page fee currently demanded by publishers — and, until now, successfully extracted from other copyshops perhaps too timid to “make a federal case” of the issue — is so small that it is almost inconceivable that this fee, or the anticipation of this fee, affects in any meaningful way the publishers’ decisions about whether to publish any given work. MDS’s use of the copyrighted works appears to have no impact on incentives to authors to create new works, and may even provide authors incentive to write, thereby advancing the progress of science and the arts. But, like the majority, I speculate on the matter; there is no evidence in the record, either way.
Finally, a word about the majority’s argument that the unenacted legislative history of the Copyright Act instructs us that the MDS’s copying function is not a fair use under the enacted provisions of sections 106 and 107.
F.
The majority opinion stresses the fact that Congress “initiated and supervised negotiations among interested groups — groups that included authors, publishers, and educators— over specific legislative language [and that m]ost of the language that emerged was enacted into law or was made a part of the committee reports.” Maj. op. at 1390. However, what were not “enacted into law,” but only made a part of the conference committee reports, are the Classroom Guidelines upon which the majority so heavily relies to decide how the language enacted into law applies. Indisputably, the Classroom Guidelines assure educators that nonprofit copying *1411for educational purposes of “not more than 1,000 words” is fair use when “[t]he inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission.” H.R. Rep. No. 1476 at 68-71. The Classroom Guidelines “prohibitf ] ... [c]opying ... used to create ... anthologies, compilations or collective works.” H.R. Rep. No. 1476 at 69. But, as the majority opinion acknowledges, that language did not survive congressional debate and was not enacted into law.
Despite the well-settled rule that legislative history is irrelevant and inappropriate to consider except to clarify an ambiguity in the text of a statute, the majority relies upon the legislative history without identifying any ambiguity in the statute, but only because “[t]he statutory factors are not models of clarity, ... the fair use issue has long been a particularly troublesome one ..., [and other] courts have often turned to the legislative history when considering fair use questions.” Maj. op. at 1390. I wish to emphasize in the strongest terms that it" is entirely inappropriate to rely on the Copyright Act’s legislative history at all.
As Justice Scalia has observed, “The greatest defect of legislative history is its illegitimacy. We are governed by laws, not by the intentions of legislators.” Conroy v. Aniskoff, Jr., 507 U.S. 511, 519, 113 S.Ct. 1562, 1567, 123 L.Ed.2d 229 (1993) (Scalia, J., concurring). The Classroom Guidelines do not become more authoritative by their adoption into a Committee Report. “[I]t is the statute, and not the Committee Report, which is the authoritative expression of the law.” City of Chicago v. Environmental Defense Fund, 511 U.S. 328, -, 114 S.Ct. 1588, 1593, 128 L.Ed.2d 302 (1994). We may not permit the statutory text enacted by both Houses of Congress and signed by the President “to be expanded or contracted by the statements of individual legislators or committees during the course of the enactment process.” West Virginia Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 98-99, 111 S.Ct. 1138, 1147, 113 L.Ed.2d 68 (1991). That the Classroom Guidelines are not law should be reason enough for this court to refrain from using them to find infringement, but this is not the only reason to reject out of hand arguments based on legislative history. Committee Reports are unreliable “as a genuine indicator of congressional intent” and “as a safe predictor of judicial construction.” Wisconsin Pub. Intervenor v. Mortier, 501 U.S. 597, 617, 111 S.Ct. 2476, 2488, 115 L.Ed.2d 532 (1991) (Scalia, J., concurring). Committee Reports do not accurately indicate congressional intent because they do not “necessarily say anything about what Congress as a whole thought,” even if all the members of the Committee “actually adverted to the interpretive point at issue ... [and] were in unanimous agreement on the point.” Id. at 620, 111 S.Ct. at 2489. The members of Congress who voted for the statutory language of section 107 could have had any variety of understandings about the application of the fan-use factors; all we know for certain is that the full House, the full Senate, and the President, pursuant to the procedures prescribed by the Constitution, enacted into law the text of section 107, and did not enact the standards of the Classroom Guidelines. Id. at 621, 111 S.Ct. at 2490. Committee Reports do not reliably further consistent judicial construction. I subscribe wholeheartedly to Judge Harold Leventhal’s observation that “the use of legislative history [is] the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one’s friends.” Conroy, 507 U.S. at 519, 113 S.Ct. at 1567 (Scalia, J., concurring). ‘We use [Committee Reports] when it is convenient, and ignore them when it is not.” Mortier, 501 U.S. at 617, 111 S.Ct. at. 2488.
The statutory language of section 107, like most statutory language, may not be a “model of clarity,” and the fair use issue, like many issues of law we face, may be a difficult or “troublesome” one, but neither of these inconveniences is a substitute for the requisite ambiguity that, alone, justifies recourse to legislative history.
Our duty in this case, as in all cases that require application of a statute, is to apply the broad dictates of the statute to the unique factual situations presented by the evidence. The fact that the Supreme Court *1412has indulged in explanatory side-references to the Classroom Guidelines, see, e.g., Campbell, 510 U.S. at 574-78, 114 S.Ct. at 1170; Harper & Row, 471 U.S. at 549-53, 105 S.Ct. at 2224-27, does not diminish in any measure the rule that legislative history is not a proper source of authority for this court when the language of the statute is not analogous. It is particularly inappropriate to rely on the specific language of the Classroom Guidelines as an interpretive tool when we know that members of Congress actually considered the language and rejected it in favor of the very language now claimed to lack clarity. The majority substitutes language contained only in pre-enactment political maneuvering of Congress for our obligation to rely, as we are required to do, on the rich body of case law that properly guides our application of the statutory factors to the specific facts of a case. In Campbell, 510 U.S. at 574-78, 114 S.Ct. at 1170, the Court noted that “[t]he task is not to be simplified with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by-case analysis.”
The case for copyright infringement is very weak indeed if the court must rely on the unenacted theater of Committee Reports to find infringement. The fact that Congress saw fit, very likely in the interests of political expediency, to pay unusual deference to the “agreement” of interested parties about what they would like the law to be, even to the point of declaring (but not in the statute) that the parties’ agreement was part of the committee’s “understanding” of fair use, does not affect the rule of construction that binds this court.
In sum, even if the four statutory factors of section 107 are not “models of clarity” and their application to the facts of this case is “troublesome” — a challenge of the kind federal appellate judges are paid to face every day — the four factors are not ambiguous. Therefore, we may not properly resort to legislative history. I am satisfied to rely exclusively upon the evidence and lack of evidence on the record before us and the plain language of the Copyright Act and its construction in the case law; and they lead me to conclude that MDS’s compilation into coursepacks of exceipts selected by professors is a “fair use” of the copyrighted materials.
IV.
For all the foregoing reasons, I conclude that MDS did not infringe upon the copyrights of the publishers.