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* CHICAGO BOARD OF EDUCATION v. SUBSTANCE INC

CHICAGO BOARD OF EDUCATION V. SUBSTANCE INC

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UNITED STATES COURT OF APPEALS,SEVENTH CIRCUIT.

CHICAGO BOARD OF EDUCATION, PLAINTIFF–APPELLEE, V. SUBSTANCE, INC. AND GEORGE N.
SCHMIDT, DEFENDANTS–APPELLANTS.

NO. 03–1479.

DECIDED: DECEMBER 31, 2003

Before POSNER, EASTERBROOK, and ROVNER, Circuit Judges. Nancy K. Laureto
(argued), Chicago, IL, for Plaintiff–Appellee. Mark H. Barinholtz (argued),
Elaine K.B. Siegel (argued), Hager & Siegel, Chicago, IL, for
Defendant–Appellant. Patricia J. Whitten, Kristi L. Bowman (argued), Franczek
Sullivan, Chicago, IL, for Illinois Ass'n of School Boards.

In 1999 the Chicago Board of Education brought this suit for copyright
infringement against a Chicago public school teacher named Schmidt and a
corporation that owns a local newspaper called Substance, aimed at such
teachers, which Schmidt edits. (To simplify the opinion, we'll ignore the
corporation.) In August 2002 the magistrate judge issued an injunction
mysteriously captioned “Permanent Restraining Order,” from which no appeal was
taken. He issued a “Final Judgment Order” in January of the following year,
awarding the school board $500 in damages but not referring to the injunction.
Schmidt filed a timely notice of appeal from that order. But was that too late
to challenge the “Permanent Restraining Order”? One possibility is that the
order was a temporary injunction that became permanent when the “Final Judgment
Order” was issued. If so, then since an appeal from a final judgment brings up
for review any interlocutory order that has not become moot, Schmidt could defer
his appellate challenge until the final judgment was entered. And if, as other
orders in the case suggest, including the clerk's minute order recording the
issuance of the “Permanent Restraining Order,” the magistrate judge meant by
that term “Permanent Injunction,” the failure to appeal from it when it was
entered was still not fatal. “[I]nterlocutory appeal of a permanent injunction
is not mandatory, as the order remains part of the case and merges with the
final judgment, from which an appeal can then be taken.” Prudential Securities,
Inc. v. Yingling, 226 F.3d 668, 671 (6th Cir.2000); see also Victor Talking
Machine Co. v. George, 105 F.2d 697 (3d Cir.1939). To speak of “merger” in
this context is to state a conclusion rather than give a reason. But it is the
right conclusion because judicial economy is served by the consolidation of as
many issues in a litigation as possible in a single appeal. That is why it is
almost never mandatory to file an interlocutory appeal in order to preserve an
issue for appellate review. 16 Charles Alan Wright et al., Federal Practice
and Procedure § 3921, pp. 19–20 (2d ed.1996); see, e.g., Clark v. Merrill
Lynch, Pierce, Fenner & Smith, Inc., 924 F.2d 550, 553 (4th Cir.1991).

The following facts are either undisputed or indisputable. At some
considerable expense (more than $1 million, according to Schmidt, though the
actual figure is not in the record), the school board created and copyrighted a
series of standardized tests that it called the “Chicago Academic Standards
Exams” (CASE). These were, in copyright lingo, “secure tests.” “A secure test
is a nonmarketed test administered under supervision at specified centers on
specific dates, all copies of which are accounted for and either destroyed or
returned to restricted locked storage following each administration. For these
purposes a test is not marketed if copies are not sold but it is distributed and
used in such a manner that ownership and control of copies remain with the test
sponsor or publisher.” 37 C.F.R. § 202.20(b)(4). To maintain secrecy, the
Library of Congress does not retain a copy of such a test. § 202.20(c)(2)(vi).

The first step in making the CASE tests was to create a pool of questions—the
record does not indicate how many—that would be drawn on to create the
individual exams, each consisting of between three and 30 questions. The
teachers who administered the exams were instructed not to make copies of them
and to collect the test papers at the end of each exam so that the tests could
be reused. Reuse of questions in standardized testing is not a sign of
laziness but a way of validating a test, since if performance on the same
questions is inconsistent from year to year this may indicate that the questions
are not well designed and are therefore eliciting random answers. Educational
Testing Service v. Simon, 95 F.Supp.2d 1081, 1084 (C.D.Cal.1999); Association
of American Medical Colleges v. Mikaelian, 571 F.Supp. 144, 147 (E.D.Pa.1983),
aff'd by unpublished order, 734 F.2d 3 (3d Cir.1984); Association of American
Medical Colleges v. Carey, 482 F.Supp. 1358, 1367 (N.D.N.Y.1980); Robert A.
Kreiss, “Copyright Fair Use of Standardized Tests,” 48 Rutgers L.Rev. 1043, 1049
(1996). Such validation is of particular importance for a new battery of
standardized tests, such as CASE, the subject of a three-year pilot program.
And publication of standardized tests would not only prevent validation by
precluding reuse of any of the questions in them, but also require the school
board to create many new questions, at additional expense; and they might not
be as good as the original questions, in which event there would be diminished
quality as well as added cost. Hence the copyright category “secure tests.”

It may seem paradoxical to allow copyright to be obtained in secret documents,
but it is not. See National Conference of Bar Examiners v. Multistate Legal
Studies, Inc., 692 F.2d 478, 483–87 (7th Cir.1982). For one thing, the tests
are not secret from the students taking them. For another, federal copyright
is now available for unpublished works that the author intends never to see the
light of day. Salinger v. Random House, Inc., 811 F.2d 90, 94–97 (2d Cir.1987);
see 17 U.S.C. §§ 104(a), 301(a); Harper & Row, Publishers, Inc. v. Nation
Enterprises, 471 U.S. 539, 548, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985). Most
important, tests are expressive works that are not costlessly created, and the
costs are greater and so the incentive to create the tests diminished if the
tests cannot be reused. Educational Testing Services v. Katzman, 793 F.2d 533,
544 (3d Cir.1986); Emily Campbell, Comment, “ ‘Testing’ the Copyright Clause:
Copyright Protection for Educational and Psychological Tests,” 69 Neb. L.Rev.
791, 796–805 (1990). There is no analytical difference between destroying the
market for a copyrighted work by producing and selling cheap copies and
destroying the subsequent years' market for a standardized test by blowing its
cover.

In the newspaper that he edits, Schmidt published six of the tests given in
January 1999. He did this because he thought them bad tests and that he could
best demonstrate this by publishing them in full. His answer to the school
board's complaint asserted that the unauthorized copying and publication of the
tests were a fair use and therefore not a copyright infringement. The district
court dismissed the fair use defense on the pleadings. This was irregular,
since no evidence had yet been presented and the defense was not meritless on
its face. The judge said that Schmidt had offered “no indication that [the
defendants] plan to present facts, arguments, or analyses in support of a fair
use.” The judge was mistaken. He had overlooked a memorandum submitted by
Schmidt that attempted to do just that.

To convert the school board's motion to dismiss into a motion for summary
judgment, the judge would have had to notify Schmidt of his intention and give
him an opportunity to present evidence that would create a triable issue.
Fed.R.Civ.P. 12(b); R.J. Corman Derailment Services, LLC v. International
Union of Operating Engineers, Local Union 150, 335 F.3d 643, 649 (7th Cir.2003);
Edward Gray Corp. v. National Union Fire Ins. Co., 94 F.3d 363, 366–67 (7th
Cir.1996); 5A Wright et al., supra, § 1366, pp. 501–06 (1990). The judge
didn't do that. But the requirement of notice has a purpose, which is to give
the opponent a chance to show that he can present evidence that will defeat
summary judgment. If Schmidt cannot point to any pertinent evidence that he
might be able to obtain and present in opposition to summary judgment, the
judge's pratfall was harmless and a remand to enable the formal conversion of
the school board's motion to dismiss to a motion for summary judgment would be
pointless. Loeb Industries, Inc. v. Sumitomo Corp., 306 F.3d 469, 479–80 (7th
Cir.2002); see also Ribando v. United Airlines, Inc., 200 F.3d 507, 509–10 (7th
Cir.1999); cf. Walker v. National Recovery, Inc., 200 F.3d 500, 504 (7th
Cir.1999); Kingman Park Civic Ass'n v. Williams, 348 F.3d 1033, 1036, 1041–43
(D.C.Cir.2003); Taylor v. FDIC, 132 F.3d 753, 762–63, 765–66 (D.C.Cir.1997).
What is pertinent evidence depends on the applicable substantive law, here the
scope of the privilege of fair use in relation to secure tests.

Each side of this case has a one-sided view of the law. The school board
contends that the case is governed by Harper & Row Publishers, Inc. v. Nation
Enterprises, supra, a case in which a magazine published unauthorized excerpts
from Gerald Ford's copyrighted memoirs before the memoirs were published, thus
jumping the gun and by doing so reducing the value of the copyright. The
school board points out that Schmidt impaired the value of the exams by
publishing them prematurely. (Presumably the school board will not complain if
they are published in Substance a century from now.) But the board overlooks
the fact that the Nation was not publishing the excerpts from Ford's memoirs in
order to be able to criticize Ford, or anyone or anything else, and the further
fact that Schmidt was not trying to steal the school board's market, because
unlike Harper & Row the school board did not intend ever to publish the
copyrighted work that the alleged infringer published first. The second point
has little force, as we'll see; but the first is important. As Schmidt points
out, one office of the fair use defense is to facilitate criticism of
copyrighted works by enabling the critic to quote enough of the criticized work
to make his criticisms intelligible. Copyright should not be a means by which
criticism is stifled with the backing of the courts. And since doubts that
fair use could ever be a defense to infringement of a copyright on an
unpublished work (see, e.g., Salinger v. Random House, Inc., supra, 811 F.2d at
97) have now been stilled (see 17 U.S.C. § 107; Sundeman v. Seajay Society,
Inc., 142 F.3d 194, 204–05 (4th Cir.1998); Wright v. Warner Books, Inc., 953
F.2d 731, 740 (2d Cir.1991)), the fact that the CASE tests were quasi-secret
does not exclude the possibility of a fair use defense.

But Schmidt overreads our decision in Ty, Inc. v. Publications Int'l Ltd., 292
F.3d 512 (7th Cir.2002), to hold that a purpose of criticizing creates a
privilege of unlimited copying regardless of the harm to the copyright owner's
legitimate interests. Ty was trying to enjoin the publication of Beanie Babies
collectors' guides that contained criticisms of some of the Beanie Babies, with
accompanying photographs that constituted derivative works of the soft-sculpture
Beanie Babies and hence prima facie infringements of Ty's copyrights. There
was no danger that if Ty failed to enjoin the publication of the collectors'
guides the value of its copyrights would be impaired, because collectors' guides
are not substitutes for the Beanie Babies themselves. More precisely, the only
harm that could come to Ty from the unauthorized publication of the guides would
be caused by the criticisms of particular Beanie Babies, whereas a harm to the
school board from Schmidt's copying and publication that is independent of any
criticisms is the cost of creating substitutes for the questions that Schmidt
published and of extending the period of the pilot program because his
publishing the six tests prevented the board from asking any of the questions in
those tests in subsequent years.

The board thus is correct that Schmidt did it harm going beyond the force of
his criticisms. Yet he was entitled to criticize the tests and to do that
effectively he had to be able to quote from them, just as a parodist has to be
able to quote, sometimes very extensively, from the parodied work in order to
make the criticism of it that is implicit in parodying it comprehensible.
Campbell v. Acuff–Rose Music, Inc., 510 U.S. 569, 588, 114 S.Ct. 1164, 127
L.Ed.2d 500 (1994); Ty, Inc. v. Publications Int'l Ltd., supra, 292 F.3d at
518; Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1271–74 (11th
Cir.2001). Indeed, there is no per se rule against copying in the name of fair
use an entire copyrighted work if necessary. Sony Corp. of America v. Universal
City Studios, Inc., 464 U.S. 417, 449–50, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984);
Ty, Inc. v. Publications Int'l Ltd., supra, 292 F.3d at 521; Sega Enterprises
Ltd. v. Accolade, Inc., 977 F.2d 1510, 1526 (9th Cir.1992). This would be
obvious if the school board had copyrighted each question separately, as it
might well have done, since it wants to reuse questions without necessarily
reusing an entire test.

So where to draw the line? The question cannot be answered precisely. The
fair use defense defies codification. As we said in Ty, the four factors that
Congress listed when it wrote a fair use defense (a judicial creation) into the
Copyright Act in 1976 are not exhaustive and do not constitute an algorithm that
enables decisions to be ground out mechanically. Ty, Inc. v. Publications Int'l
Ltd., supra, 292 F.3d at 522; see also Campbell v. Acuff–Rose Music, Inc.,
supra, 510 U.S. at 577–78, 114 S.Ct. 1164; Harper & Row, Publishers, Inc. v.
Nation Enterprises, supra, 471 U.S. at 560, 105 S.Ct. 2218. The general
standard, however, is clear enough: the fair use copier must copy no more than
is reasonably necessary (not strictly necessary—room must be allowed for
judgment, and judges must not police criticism with a heavy hand) to enable him
to pursue an aim that the law recognizes as proper, in this case the aim of
criticizing the copyrighted work effectively. Ty, Inc. v. Publications Int'l
Ltd., supra, 292 F.3d at 521; Kelly v. Arriba Soft Corp., 336 F.3d 811, 820–21
(9th Cir.2003); Sundeman v. Seajay Society, Inc., supra, 142 F.3d at 206.

The burden of proof is on the copier because fair use is an affirmative
defense, Campbell v. Acuff–Rose Music, Inc., supra, 510 U.S. at 590, 114 S.Ct.
1164; Harper & Row Publishers, Inc. v. Nation Enterprises, supra, 471 U.S. at
561, 105 S.Ct. 2218; Video Pipeline, Inc. v. Buena Vista Home Entertainment,
Inc., 342 F.3d 191, 197 (3d Cir.2003), and Schmidt has presented no evidence
sufficient to withstand summary judgment. But because of the bizarre
circumstance that the district court decided the issue of fair use and then
permitted discovery, we would be forgiving had Schmidt indicated in his appeal
briefs or at oral argument what evidence he would like to obtain or present,
though he didn't obtain any in the district court proceedings, to prove that he
copied no more of the tests than he had to do in order to make his criticisms of
them intelligible. He insists that he had to copy six tests out of the 22 to
44 tests given in January 1999 (it is unclear from the record which number is
correct, so we will give Schmidt the benefit of the doubt and assume that it is
the higher number) in order to drive his criticisms home. But he does not
explain why, or indicate witnesses or documents that might support such an
argument. Granted that he had to quote some of the test questions in order to
substantiate his criticisms, why entire tests? Does he think all the questions
in all six tests bad? He does not say. What purpose is served by quoting the
good questions? Again, no answer.

Schmidt's opening brief cites the memorandum that he had filed in the district
court—the memorandum the judge had overlooked in rejecting the fair use defense
on the pleadings. In the memorandum, Schmidt did offer answers to these
questions. Only the answers are no good, so that even if incorporation by
reference were a valid method of bringing facts and arguments to the attention
of an appellate court—which it is not, DeSilva v. DiLeonardi, 181 F.3d 865, 867
(7th Cir.1999) (“a brief must make all arguments accessible to the judges,
rather than ask them to play archaeologist with the record”); Hunter v.
Allis–Chalmers Corp., 797 F.2d 1417, 1430 (7th Cir.1986) (“our rules do not
permit issues to be preserved by references to documents filed in the district
court”); Northland Ins. Co. v. Stewart Title Guaranty Co., 327 F.3d 448, 452–53
(6th Cir.2003)—treating the memorandum as if it were a brief in this court would
merely confirm that Schmidt has no fair use defense.

The memorandum argues that the school board does not intend to sell the tests,
and so Schmidt isn't eating into their market by publishing the tests. This is
true, but irrelevant, because he is destroying the value of the tests and the
fact that it's not a market value has no significance once the right to
copyright unpublished works is conceded, as it must be. The memorandum argues
that expert testimony would establish that there is no educational value in
publishing the exact same exam year after year. No one supposes there is; the
argument rather is that some questions must be carried over to future years in
order to validate the exam. The memorandum argues that if Schmidt quoted only
a few of the questions, the school board would respond that he was
cherry-picking the worst. But if the board did that without a solid grounding,
it would open the door for him to quote additional questions; it would be a pro
tanto waiver of confidentiality. The memorandum's remaining argument is that
expert witnesses can be found to testify that the CASE tests are “dramatically
inadequate.” No doubt. But in so arguing the memorandum misunderstands the
fair use privilege of criticism. It is not a privilege to criticize just bad
works, and there is no right to copy copyrighted works promiscuously merely upon
a showing that they are bad.

There is more than a suspicion that Schmidt simply does not like standardized
tests. That is his right. But he does not have the right, as he believes he
does (he claims a right to copy any test that an expert will testify is no
good), to destroy the tests by publishing them indiscriminately, any more than a
person who dislikes Michelangelo's statue of David has a right to take a
sledgehammer to it. From the amicus curiae briefs filed in this case,
moreover, it is apparent that many other teachers share Schmidt's unfavorable
opinion of standardized tests. (A cynic might say that this is because such
tests can make teachers look bad if their students don't do well on them.) So
if Schmidt can publish six tests, other dissenters can each publish six other
tests, and in no time all 44 will be published. The board will never be able
to use the same question twice, and after a few years of Schmidtian tactics
there will be such difficulty in inventing new questions without restructuring
the curriculum that the board will have to abandon standardized testing. Which
is Schmidt's goal.

If ever a “floodgates” argument had persuasive force, therefore, it is in this
case. And this suggests another fair use factor that supports the school
board: the aspect of academic freedom that consists of the autonomy of
educational institutions, see, e.g., Grutter v. Bollinger, 539 U.S. 306, ––––,
123 S.Ct. 2325, 2339, 156 L.Ed.2d 304 (2003); Piarowski v. Illinois Community
College Dist. 515, 759 F.2d 625, 629 (7th Cir.1985) (cases involving a
university and a college respectively, but the point is general), including
their authority here gravely threatened to employ standardized tests in support
of their conception of their educational mission. If Schmidt wins this case,
it is goodbye to standardized tests in the Chicago public school system;
Schmidt, his allies, and the federal courts will have wrested control of
educational policy from the Chicago public school authorities.

The appeal raises other issues, but they require little discussion. Despite
the Supreme Court's recent statement that “copyright law contains built-in First
Amendment accommodations” and that in any event the First Amendment “bears less
heavily when speakers assert the right to make other people's speeches,” Eldred
v. Ashcroft, 537 U.S. 186, 219, 221, 123 S.Ct. 769, 154 L.Ed.2d 683 (2003), and
our repetition of the point in In re Aimster Copyright Litigation, 334 F.3d 643,
656 (7th Cir.2003), Schmidt devotes most of the argument portion of his briefs
to attempting to persuade us that the First Amendment authorizes what he did.
(He fails to cite either case.) The First Amendment adds nothing to the fair
use defense. The defense, so far as relates to this case, is the point of
balance between the right to criticize, which is one aspect of freedom of
expression, and the incentive to create expressive works, which is another
aspect of the same freedom, the aspect that undergirds the Constitution's
copyright clause. Wasting time on the First Amendment, Schmidt failed to show
that he may have a viable fair use defense.

His further argument that the school board lacks a valid copyright registration
on which to found this suit is frivolous. Although a copyright no longer need
be registered with the Copyright Office to be valid, an application for
registration must be filed before the copyright can be sued upon. 17 U.S.C.
§ 411(a); 2 Melville B. Nimmer & David Nimmer, Nimmer on Copyright
§ 7.16[B][1][a] (2003). In its application for registration the school board
claimed to have a copyright in the entire contents of the tests. Had the claim
been false, the registration should not have issued and maybe therefore the
copyright could not have been sued upon. See Whimsicality, Inc. v. Rubie's
Costume Co., 891 F.2d 452, 453, 456 (2d Cir.1989). (Or maybe yes, because the
copyright would have been registered, and because the statute requires only a
refused registration, which might be the equivalent of an improper registration,
not an actual registration, as the premise for the suit. We need not decide.)
Schmidt argues that the school board did not have a copyright in the entire
contents of the tests. He bases this argument on a squabble that erupted
between the school board and a research center at UCLA called CRESST that had
been hired to review and evaluate the questions and help the board analyze the
results of the tests. CRESST may have devised a few of the questions, though
this is unclear and in any event they would probably have been work for hire, 17
U.S.C. § 101, so that the school board would have owned the copyright anyway.
§ 201(b). Unsurprisingly, CRESST did not claim copyright in any part of the
tests, and to resolve the squabble had assigned any copyright it might have in
its analyses to the board.

All that remains to consider is the injunction. Remarkably, Schmidt does not
question its scope or application. But because an injunction frequently
affects third parties and consumes judicial resources, a court has an
independent duty (Marseilles Hydro Power, LLC v. Marseilles Land & Water Co.,
299 F.3d 643, 647 (7th Cir.2002)) to assure that the injunctions it issues
comply with the directive of Fed.R.Civ.P. 65(d) that injunctions “shall be
specific in terms” and “shall describe in reasonable detail ․ the act or acts
sought to be restrained.” See, e.g., Schmidt v. Lessard, 414 U.S. 473, 476–77,
94 S.Ct. 713, 38 L.Ed.2d 661 (1974) (per curiam); International Longshoremen's
Ass'n, Local 1291 v. Philadelphia Marine Trade Ass'n, 389 U.S. 64, 73–76, 88
S.Ct. 201, 19 L.Ed.2d 236 (1967).

The injunction flunks this test resoundingly. Cf. Educational Testing
Services v. Katzman, supra, 793 F.2d at 544–45. The defendants are enjoined
from “copying distribution of copies, making derivative copies, displaying
copies an performing copies of the Board's examinations, including but not
limited to the CASE examinations, whenever created by the Board.” The first
phrase—“copying distribution of copies”—is gibberish; probably there was meant
to be an “or” between “copying” and “distribution.” The reference to
“displaying copies an[d] performing copies” is opaque since what is at issue is
the copying itself and the publication of the copies, not display or
performance. The inclusion in the injunction of all other examinations that the
school board may someday create (there is no sunset provision), an inclusion
brought about by the phrase “including but not limited to the CASE examinations,
whenever created by the Board,” is overbroad. The school board may not own the
copyrights in all its tests, even those it creates (work-for-hire copyright
rights can be waived); not all its test questions may be intended to be reused;
not all its tests may be secure tests.

This is an appallingly bad injunction. It must be modified to enjoin the
defendants, and those in privity with them or with notice of the injunction,
just from copying or publishing or otherwise distributing copies of secure
Chicago public school tests, in whole or substantial part, in which the school
board has valid and subsisting copyright, without the board's authorization.
No evidentiary basis has been laid for a broader injunction.

The judgment is affirmed in part, and vacated in part, and the case is remanded
for further proceedings consistent with this opinion, the parties to bear their
own costs in this court.

POSNER, Circuit Judge.

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