The Fair Use Index and the Case of Diversey v. Schmidly, et al., No. 13-2058 (10th Cir. 2013)

Monday, June 29, 2015


Michael Leriche

The Fair Use Index

The U.S. Copyright Office recently created a Fair Use Index which catalogs various fair use cases and their outcomes. Fair use is defined as “any copying of copyrighted material done for a limited and ‘transformative’ purpose, such as to comment on, criticize, or parody a copyrighted work” (Stanford University Libraries). The goal of the index is to better inform the public of fair use cases by making them more accessible and understandable. The index can be found here - As a graduate intern, I have been examining fair use cases that impact higher education.

Diversey v. Schmidly

One case I found using the index is Diversey v. Schmidly, et al., No. 13-2058 (10th Cir. 2013). In this case, Ph.D. student Diversey wrote a dissertation for the University of New Mexico (UNM) for review by his committee. Due to complications with the committee, he was not provided with feedback or mentorship. While Diversey attempted to convince UNM officials to correct the deficiencies in the dissertation process, he provided a copy of the draft dissertation to UNM Dissertation Coordinator Weintraub who volunteered to proofread it. Before Weintraub could do so, the draft was allegedly confiscated. Diversey was notified that his dissertation had been sent to the UNM’s Zimmerman library. Diversey requested his dissertation back, but in 2009 he found out that his dissertation was being displayed to the public in both the UNM library and in the collection of Zimmerman library for Southwest Research. On June 15th 2012, Diversey filed for copyright infringement.

The issue at hand: does a university have the ability to catalogue unpublished dissertations in their libraries under the basis of fair use and distribute them to the public? The Court of Appeals ruled that they could not. The Fair Use doctrine was applied to arrive at this decision.  The Fair Use test has four factors: purpose of use, nature of work, extent of use, and market effect. The first factor weighed in the university’s favor because it was for non-commercial educational purposes. The second factor weighed heavily in Diversey’s favor, because his work was unpublished. The third factor favored Diversey as well, because the library was distributing his entire work. Lastly, the fourth factor favored Diversey, because by publishing his dissertation he could no longer use it at another University while it was in UNM’s library.

Based on these factors, the Court ruled that the use was not a fair use. Even though the University was using the dissertation in a non-commercial educational way, the whole dissertation was being used, and it had significant impact on Diversey’s ability to market his work. This was a wise decision for the Court and established a good precedent. In most cases, an unpublished work cannot be distributed without the consent of its creator, and this ruling reaffirms this. This ruling may also mean that university libraries should be cautious before publishing dissertations to make sure they are finished works. Normally, published dissertations are available to the public through the university library. But in this case the dissertation was unpublished, and by making it available to the public, it hindered Diversey’s ability to finish his Ph.D. program both at UNM and at other potential universities.

Intrinsic Value of Copyrighted Works

While I agree with this decision, it was interesting because the market effect factor of fair use was applied not to actual sales that Diversey had from the work, but on the intrinsic value of the work that was lost by its distribution. This is a fitting way to interpret the effect on the market caused by distribution of the dissertation by the UNM library.

This case is not only interesting, but is also important for what it means for university libraries and graduate students. It establishes a precedent for libraries and offers more protection to unpublished dissertations. However, it is only one of many fair use cases that effect universities. For those who are interested, more cases can be found using the Fair Use Index provided in the link above. It is worth taking a look to find rulings that may impact the future of higher education.

Michael Leriche, Graduate Intern