Excel Test Prep loses lawsuit over copyright infringement

Blackwell Publishing, Elsevier, Oxford University Press, SAGE Publications and John Wiley & Sons accused Excel of copyright infringement on 33 of their publications.

Excel, located on South University Avenue, is one of the many stores in Ann Arbor that produces coursepacks for University students and faculty.

Many other local copy shops like Dollar Bill Printing on Church Street, copy and bind the material for coursepacks provided to them by University faculty members. At Excel, though, customers individually copy and bind the master copy of the material that was provided to the shop by the professor.

The publishing companies alleged, however, that Excel’s cheap, do-it-yourself policy regarding coursepacks is against the law.

In June 2007, the publishers filed a complaint in federal court claiming that Excel had breached federal copyright law by not paying the publishers for the rights to copy the material for profit.

Boston Attorney William Strong represents the publishers in the lawsuit and said in an interview this week that there are many similar intellectual property cases around the country, but the Excel case especially caught the publishers’ attentions.

“We learned about Excel’s business practice, which was not to pay any copyright fees,” Strong said. “And we felt that we could not let that go unchallenged.”

According to court documents, Norman Miller, the owner of Excel, claims that the store’s copying policies are completely legal. He contends that Excel’s actions are protected under the fair use stipulation of U.S. copyright law.

“Since each student is making just one copy for his or her own individual use, no copyright permissions or royalty fees are involved,” Miller said in the court documents.

Federal District Judge Avern Cohn issued a summary judgment on Monday agreeing with the publishers’ claim that Excel broke the law.

“The fact that the students push a button on a copier in the manner described is of no significance,” Cohn wrote in the judgment. “Excel’s assertion that it has no inventory and simply offers copying services is not correct — it has an inventory of copyrighted materials given to it by professors, some of whom even state in their course syllabi that the material is available for ‘purchase’ at Excel.”

Miller wrote in an e-mail that he would not comment on the court’s decision without speaking to his attorney for fear of damaging his legal case. But he was willing to share his thoughts on the fair use clause of the law.

“As I read it, the fair use exemption to copyright law was originally written to promote the general welfare through the advancement of science and learning,” Miller wrote in the e-mail. “These lofty and beneficial goals cannot be achieved if students, professors, and researchers are denied convenient mechanisms for obtaining their copies.”

Miller told The Michigan Daily in 2007 that the most expensive coursepacks at Excel cost between $70 and $80, while other stores offer similar coursepacks for more than double that price.

Associate History Prof. Matthew Countryman is one of many faculty members who sends his coursepacks to Excel.

“I use Excel because I believe it provides excellent service to students and I like supporting locally owned businesses,” Countryman said.

Countryman added that he had no knowledge of the lawsuit and that he would continue to send his coursepacks to Excel, regardless.

The parties are currently involved in settlement talks. Strong said the publishers are seeking monetary compensation from Excel. He would not discuss specific amounts that the publishers are asking for, as the discussions are ongoing.

“We will seek some damages as the law entitles us to because the publishers have lost quite a bit of money over the years from (Miller’s) failure to pay copyright,” he said.