By Eric Kelderman

The old saw goes that those who do not know history are doomed to repeat it. Norman Miller, who owns the company Excel Test Preparation, Coursepacks & Copies, in Ann Arbor, Mich., might have benefited from knowing more about James M. Smith and his company, Michigan Document Services, which also operated in Ann Arbor.

In 1996 the U.S. Court of Appeals for the Sixth Circuit ruled against Mr. Smith's company, saying it had infringed on publishers' copyrights by providing course packs and anthologies of excerpted materials to students at his copy shop.

The ruling affirmed a 1991 federal-court decision against Kinko's Copy Centers for similar infractions and seemed to settle the matter, legally, that a for-profit entity could not reproduce such material under the "fair use" provision of the law without getting permission or paying copyright fees to the publishers.

The U.S. District Court in Ann Arbor referred to that decision in its ruling Wednesday against Mr. Miller, who was being sued by a group of five publishing companies: Blackwell Publishing, Elsevier, Oxford University Press, Sage Publications, and John Wiley & Sons.

The publishers accused Excel of illegally providing copies of excerpts from 33 books to students who made copies of the course packs on the company's photocopiers, providing a profit to Excel, which acknowledged that it did not pay copyright fees to the publishers.

Mr. Miller argued that it was not actually his company that was infringing on copyrights because it provided only a "master" copy of course packs to students who reproduced the materials. "Excel says it merely sells a service—access to a copy machine—where students make their own copy of the works," wrote Judge Avern Cohn.

That characterization "ignores a key point," the judge added, "that Excel makes money from the copying, even if the students do the copying."

"First, although students press the start button and make a copy of the course pack, Excel is the source of the reproduction. Excel controls the entire copying process. It retains the 'master,' maintains its quality, gives it to a student to copy, and accepts payment," the judge concluded.