Cambridge University Press, et al v. J.L. Albert, et al

Filing 59

Amicus Brief filed by Lois F. Wasoff Representing Marybeth Peters, Ralph Oman and Jon Baumgarten. Service date: 02/04/2013 US mail - District Judge Evans; Attorney for Appellants: Bloom, Larson, Rich, Singer; Attorney for Appellees: Lynn, Miller, Moffitt, Volkert, Warenzak; Attorney for Not Parties: Aistars, Dove, Tonsager; email - Originating Clerk/Ag Hatten; Attorney for Amicus Curiae: Wasoff; Attorney for Appellants: Krugman, Rains; Attorney for Appellees: Ashby, Askew, Bates, Eskow, Gentry, Harbin, Levie, Quicker, Schaetzel, Whiting-Pack; Attorney for Not Party: Steinman. (ECF: Lois Wasoff)

Nos. 12-14676-FF & 12-15147-FF
(Consolidated Appeals)
____________________
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
____________________
CAMBRIDGE UNIVERSITY PRESS, OXFORD UNIVERSITY PRESS, INC.,
AND SAGE PUBLICATIONS, INC.,
Plaintiffs-Appellants,
v.
MARK P. BECKER, IN HIS OFFICIAL CAPACITY
AS GEORGIA STATE UNIVERSITY PRESIDENT, ET AL.,
Defendants-Appellees.
____________________
On Appeal From the United States District Court
for the Northern District of Georgia
D.C. No. 1:08-cv-1425 (Evans, J.)
____________________
BRIEF OF MARYBETH PETERS, RALPH OMAN
AND JON BAUMGARTEN AS AMICI CURIAE
IN SUPPORT OF PLAINTIFFS-APPELLANTS
RECOMMENDING REVERSAL

Lois F. Wasoff (pro hac vice)
258 Sudbury Road
Concord, Massachusetts 01742
Telephone: [phone]
Facsimile: [phone]
Attorney for Marybeth Peters, Ralph
Oman and Jon Baumgarten

CERTIFICATE OF INTERESTED PARTIES
Amici curiae Marybeth Peters, Ralph Oman, Jon Baumgarten and their
counsel hereby state that the following is to the best of their knowledge a complete
list of the interested persons or entities required to be disclosed pursuant to Rule
26.1 of the Federal Rules of Appellate Procedure and Rule 26.1-1 of the Eleventh
Circuit Rules as having an interest in the outcome of this case in addition to the
persons and entities identified in the Certificate of Interested Parties and Corporate
Disclosure Statement provided by Appellants in their initial brief:
Baumgarten, Jon
Cengage Learning, Inc.
John Wiley & Sons, Inc.
Pearson Education, Inc.
Peters, Marybeth
Oman, Ralph
Reed Elsevier, Inc.
The McGraw-Hill Companies, Inc.
Wasoff, Lois F. attorney for amici curiae

C-1

CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 29(c)(5), amici curiae state
that no party’s counsel authored the brief in whole or in part, and no party’s
counsel contributed money that was intended to fund preparing or submitting the
brief. Amici and their counsel disclose that the following entities have contributed
money that was intended to fund preparing or submitting this brief: Reed Elsevier,
Inc., Cengage Learning, Inc., The McGraw-Hill Companies, Inc., Pearson
Education, Inc. and John Wiley & Sons, Inc.
Dated:

Concord, Massachusetts
February 4, 2013

/s/ Lois F. Wasoff
Lois F. Wasoff (pro hac vice)
258 Sudbury Road
Concord, Massachusetts 01742
Telephone: [phone]
Facsimile: [phone]
Attorney for Marybeth Peters, Ralph
Oman and Jon Baumgarten

i

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ....................................................................................iv
STATEMENT OF INTEREST .................................................................................. 1
SUMMARY OF ARGUMENT ................................................................................ 3
ARGUMENT .............................................................................................................5
I.

THE DISTRICT COURT’S DECISION IS INCONSISTENT WITH
THE LANGUAGE OF SECTION 107 AND OF OTHER STATUTORY
EXCEPTIONS DEALING WITH EDUCATION AND SCHOLARSHIP
BECAUSE IT INAPPROPRIATELY FAVORS USES FOR
EDUCATION OVER THE OTHER PURPOSES OF COPYRIGHT ............ 5
A.
B.

The District Court Inappropriately Failed to Consider Relevant
Cases Involving Similar Uses ............................................................... 9

C.

The District Court Erred in Refusing to Consider the NonTransformative Nature of the Challenged Uses ..................................11

D.
II.

Congress Never Intended to Create a Broad Copyright Exception
for Nonprofit Uses in Education ........................................................... 6

The District Court’s Holding is Inconsistent with the Treatment
of Copyright Exceptions in U.S. Law and International Treaties ....... 16

THE DISTRICT COURT’S OVERWEIGHTING OF THE
EDUCATIONAL NATURE OF THE CHALLENGED USES IN
ITS FIRST FACTOR DISCUSSION DISTORTED ITS ANALYSIS
OF THE THIRD FAIR USE FACTOR.........................................................20
A.

The District Court’s Determination of What Constitutes a “Small”
Portion Was Designed to Improperly Favor Uses for Educational
Purposes...............................................................................................21

B.

The Classroom Guidelines are Relevant to the Consideration of
the Third Fair Use Factor and Should Have Been Given More
Weight by the District Court ...............................................................23

C.

The District Court’s Discussion of “Substantiality” Demonstrates
its Determination to Establish a Blanket Exception for Nonprofit
Use in Education .................................................................................25

ii

CONCLUSION ........................................................................................................26
CERTIFICATE OF COMPLIANCE .......................................................................28

iii

TABLE OF AUTHORITIES
Page(s)
Cases
Basic Books, Inc. v. Kinko’s Graphics Corp.,
758 F. Supp. 1522 (S.D.N.Y. 1991) ............................................................passim
Campbell v. Acuff-Rose Music, Inc.,
510 U.S. 569 (1994) .....................................................................................passim
Golan v. Holder,
132 S. Ct. 873 (2012) ............................................................................................5
Harper & Row Publishers, Inc. v. Nation Enters.,
471 U.S. 539 (1985) ....................................................................................5, 6, 24
Mazer v. Stein,
347 U.S. 201 (1954) ..............................................................................................5
Peter Letterese & Assocs., Inc. v. World Inst. of Scientology Enters., Int’l,
533 F.3d 1287 (11th Cir. 2008) ..............................................................11, 12, 15
Princeton Univ. Press v. Mich. Document Servs., Inc.,
99 F.3d 1381 (6th Cir. 1996) .......................................................................passim
Sony Corp. of Am. v. Universal City Studios, Inc.,
464 U.S. 417 (1984) ............................................................................................24
SunTrust Bank v. Houghton Mifflin Co.,
268 F.3d 1257 (11th Cir. 2001) ....................................................................16, 23
STATUTES
17 U.S.C. § 107 .................................................................................................passim
17 U.S.C. § 108 ............................................................................................14, 17, 18
17 U.S.C. § 110 ..................................................................................................17, 18
17 U.S.C. § 121 ..................................................................................................17, 18

iv

Other Authorities
U.S. CONST. art. 1, § 8, cl. 8 .......................................................................................5
H.R. REP. NO. 94-1476 (1976) .......................................................................7, 13, 23
S. REP. NO. 94-473 (1976) .........................................................................................9
S. REP. NO. 105-190 (1998) .....................................................................................14
World Intellectual Property Organization, Copyright Treaty, art. 10, Apr. 12,
1997, S. Treaty Doc. No. 105-12, 36 I.L.M. 65. ................................................19
World Intellectual Property Organization, Performances and Phonograms
Treaty, art. 16, Dec. 20, 1996, S. Treaty Doc. No. 105-17, 36 I.L.M. 76 .......... 19
4 Melville B. Nimmer & David Nimmer, NIMMER ON COPYRIGHT § 8.03............. 18
William F. Patry, PATRY ON FAIR USE § 3:6 (2012) ................................................. 7

v

STATEMENT OF INTEREST1
Amici are the two former United States Registers of Copyright and a former
General Counsel of the United States Copyright Office.
Marybeth Peters’ tenure as Register, from 1994 through 2010, was the
culmination of almost 45 years of distinguished service in the Copyright Office.
During 1976 and 1977, Ms. Peters had the responsibility of training the Copyright
Office staff and others about the terms of the then-new Copyright Act of 1976. As
Register, Ms. Peters played a central role in crafting and implementing many of the
changes made by Congress to the Copyright Act. She was directly responsible for
the conduct of studies and the preparation of legislative recommendations on
critical issues such as database protection, orphan works, library exceptions and
digital distance education.
Ralph Oman was Register from 1985 through 1993, after having served for
many years as counsel to members of the United States Senate who were directly
responsible for the drafting, enactment and implementation of the Copyright Act of
1976. In 1982, Mr. Oman became Chief Counsel to the Senate Subcommittee on
Patents, Copyrights, and Trademarks and it was from that position that he was
appointed Register. During Mr. Oman’s tenure as Register the United States
1

This brief is being filed with the consent of Appellants and Appellees. Amici
hereby disclose that Ms. Peters has, since February of 2011, been a member of the
Board of Directors of Copyright Clearance Center, Inc., but the views expressed
here are solely those of the Amici.
1

became a member, in 1989, of the Berne Convention. After Mr. Oman’s
retirement from federal service in 1993, he entered private practice and became an
adjunct professor of law at the George Washington University Law School, where
he teaches copyright.
Following a decade of private practice in copyright law and legislation, Jon
Baumgarten served as General Counsel of the U.S. Copyright Office from 1976
through 1979, playing a pivotal role in the creation and administrative
implementation of the Copyright Act of 1976. After leaving the Copyright Office,
Mr. Baumgarten reentered private practice and, in the course of a distinguished
career lasting for more than four decades until his retirement from the firm of
Proskauer Rose in 2011, participated as counsel in many of the most important
copyright cases decided during that period.
Ms. Peters, Mr. Oman and Mr. Baumgarten have devoted their entire
professional lives to copyright and to the landmark law passed in 1976 that
dramatically overhauled the system of copyright protection in the United States.
From their unique and close vantage points, they guided and participated in the
great effort made to achieve an appropriate balance of the interests of the disparate
groups affected by the new law. They were deeply immersed in the painstaking
effort, documented in the legislative history, to be certain that the language of
Section 107 – the first statutory implementation of the judicial doctrine of “fair

2

use” – achieved that balance. In their governmental roles, each of them had
fundamental responsibility for explaining to a worldwide audience the muchwatched fair use doctrine of U.S. law. They have closely monitored the ways in
which the courts have applied that doctrine and its application to changing
technology. As former government officials who had critical responsibility for
both the development and the implementation of congressional copyright policies,
they have an interest in helping to insure that those policies are not superseded or
undermined.
SUMMARY OF ARGUMENT
This case arose from a dispute between Georgia State University (“GSU”)
and several scholarly publishers over the inclusion, without permission or
payment, of excerpts from copyrighted scholarly works in “electronic reserve”
systems maintained by GSU. These “e-reserve” systems deliver assigned class
readings to students in digital form, replacing the photocopied paper “coursepacks”
that had been in widespread use for many years. Courts have previously
considered the use of excerpts from copyrighted materials in paper coursepacks,
and it is well-established that many such uses can be made only with prior
permission and (if so determined by the copyright owner) payment. This case is
the first to consider how those principles should be applied to similar uses in a
digital context. Amici are concerned that the flawed reasoning and incorrect

3

holding of the district court will have implications far beyond the specific uses at
issue here, and ask this Court to reverse the decision below.
The district court’s decision is contrary to decades of copyright legislation
and jurisprudence because it inappropriately favors uses for educational purposes
over the other purposes of copyright. This recurring theme, which pervades the
district court’s May 11, 2012 opinion (“Opinion”), distorts the fair use analysis and
leads to incorrect holdings, including on the first (nature of the use) and third
(amount taken) fair use factors set out in Section 107 of the Copyright Act (17
U.S.C. § 107).
Section 107 sets out four factors to be considered, the first of which is “the
purpose and character of the use, including whether such use is of a commercial
nature or is for non-profit educational purposes.” (emphasis added). The district
court stated that because the challenged uses were for nonprofit educational
purposes no further discussion of this factor was necessary. By overweighting the
significance of defendant’s nonprofit status and educational purpose, the district
court has created the kind of blanket exception for uses for nonprofit educational
purposes that Congress was explicitly asked, and refused, to enact. In so doing, the
district court converted the equitable doctrine of fair use into a broad copyright
exception that fails to reflect the balance in the language of Section 107 and other
copyright exceptions.

4

ARGUMENT
I.

THE DISTRICT COURT’S DECISION IS INCONSISTENT WITH
THE LANGUAGE OF SECTION 107 AND OF OTHER STATUTORY
EXCEPTIONS DEALING WITH EDUCATION AND SCHOLARSHIP
BECAUSE IT INAPPROPRIATELY FAVORS USES FOR
EDUCATION OVER THE OTHER PURPOSES OF COPYRIGHT
The goal of copyright is to promote the progress of knowledge, and the

mechanism chosen to accomplish that goal was to “secur[e] for limited Times to
Authors and Inventors the exclusive Right to their respective Writings and
Discoveries.” U.S. CONST. art. 1, § 8, cl. 8. “The economic philosophy behind the
clause empowering Congress to grant patents and copyrights is the conviction that
encouragement of individual effort by personal gain is the best way to advance
public welfare through the talents of authors and inventors in ‘Science and useful
Arts.’” Mazer v. Stein, 347 U.S. 201, 219 (1954). The object is not just to increase
knowledge, but to do so through the particular mechanism of encouraging the
creation and dissemination of new works. See Harper & Row Publishers, Inc. v.
Nation Enters., 471 U.S. 539, 546 (1985); Golan v. Holder, 132 S. Ct. 873, 888-89
(2012). The district court showed a lack of understanding of this key point, stating
that because the challenged uses were connected with education, they increased
knowledge generally. 2 But by that reasoning, any distribution of copyrighted

2

“Allowing the use of unpaid small excerpts of copyrighted works by students
does help spread knowledge, because it reduces the cost of education, thereby
5

materials done with the general intention of “spreading knowledge” could be
considered worthy of an exception to copyright. As the Supreme Court said in
Harper & Row in rejecting that theory, any infringer “may claim to benefit the
public by increasing public access.” 471 U.S. at 569.
A.

Congress Never Intended to Create a Broad Copyright Exception
for Nonprofit Uses in Education

Section 107 was carefully crafted by Congress to reflect the judicial origins
of the concept of fair use. It is designed to provide a framework for determining
when a particular use of a copyrighted work is “fair” and therefore not an
infringement. The preamble of Section 107 sets out certain purposes to which fair
use may apply, including “criticism, comments, news reporting, teaching
(including multiple copies for classroom use), scholarship or research.”
The 1976 Copyright Act was the product of many years of study, discussion
and negotiation. During that lengthy process, Congress on many occasions
considered, and rejected, the argument that uses made for educational purposes
should be the subject of a broadly worded exception. As stated in the Report of the
House Judiciary Committee:
Although the works and uses to which the doctrine of fair use is
applicable are as broad as the copyright law itself, most of the
discussion of section 107 has centered around questions of classroom
reproduction, particularly photocopying. . . .
broadening the availability of education.” Dkt#423 at 83. “Making small free
excerpts available to students would further the spread of knowledge.” Id. at 86.
6

The Committee also adheres to its earlier conclusion, that “a specific
exemption freeing certain reproductions of copyright works for
educational and scholarly purposes from copyright control is not
justified.” At the same time the Committee recognizes, as it did in
1967, that there is a “need for greater certainty and protection for
teachers.” In an effort to meet this need the Committee has not only
adopted further amendments to section 107 3 but has also amended
section 504(c) to provide innocent teachers with broad insulation
against unwarranted liability for infringement.
H.R. REP. NO. 94-1476 at 66 - 67, 94th Cong., 2d Sess. 66-67 (1976) (emphasis
added).
The final language of Section 107, along with the inclusion of the
Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational
Institutions (the “Classroom Guidelines”) in the legislative history, 4 was part of a
compromise.
During the revision process leading up to passage of the 1976 Act,
educational groups repeatedly pressed for a broad not-for-profit
exemption from copyright liability, a request that was repeatedly
rejected by Congress . . . Congress also rejected requests that
nonprofit uses be presumptively fair use or otherwise more favorably
treated . . . In place of a more expansive fair use privilege for
nonprofit educators, the House Judiciary Committee amended Section
107(1) to add the reference to nonprofit educational uses in the first
factor.
William F. Patry, PATRY ON FAIR USE § 3:6 (2012).

3

The “further amendments” referred to here include the parenthetical reference to
“multiple copies for classroom use” in the Section 107 preamble.
4
H.R. Rep. No. 94-1476 at 68, et seq.
7

In considering the application of the first fair use factor, and indeed
throughout the Opinion, the district court gave disproportionate weight to the fact
that the challenged uses were being made by a nonprofit educational institution.
To say that the court’s “analysis” of the first fair use factor was cursory is an
understatement. The court looked no further than the nonprofit status of GSU and
the fact that teaching was involved to find that “the first fair use factor favors
Defendants.” Dkt#423 at 49. But the language of Section 107 makes it clear that
the inquiry into the “nature of the use” should include whether the use was for
“nonprofit educational purposes.” 17 U.S.C. §107(1). A determination that copies
of protected works are being made by a nonprofit entity for use in education should
be the beginning, not the end, of the discussion. Section 107 deals with “fair” use
(not “good” use or use for “good purposes”). Even with respect to the first factor,
Section 107 is structured as a framework, designed to guide an inquiry that will
lead to a balanced result. The court erred when it refused to even consider the
possibility that the first factor might favor the copyright owner. That error
distorted its entire fair use analysis.
The Report of the Senate Judiciary Committee on Copyright Law Revision
discusses the reasoning behind the language of the first factor, and makes it clear
that there was never an expectation that the first factor would favor all uses in
nonprofit education, or that all nonprofit educational uses were to be deemed

8

“fair.” The Report recognizes the difference between the type of systematic
copying shown by the record in this case and far more limited, spontaneous acts of
copying:
The fair use doctrine in the case of classroom copying would apply
primarily to the situation of a teacher who, acting individually and at
his own volition, makes one or more copies for temporary use by
himself or his pupils in the classroom. A different result is indicated
where the copying was done by the educational institution, school
system, or larger unit, or where the copying was required or suggested
by the school administration, either in special instances or as part of a
general plan . . .
*

*

*

Spontaneous copying of an isolated extract by a teacher, which may
be a fair use under appropriate circumstances, could turn into an
infringement if the copies were accumulated over a period of time
with other parts of the same work, or were collected with other
materials from various works so as to constitute an anthology.
S. REP. NO. 94-473, 94th Cong., 1st Sess. 63 (1976)
B.

The District Court Inappropriately Failed to Consider Relevant
Cases Involving Similar Uses

Because the district court refused to look beyond the nonprofit status of
GSU, it also refused to give due consideration to two directly relevant cases. The
district court gave little deference to the so-called “copyshop cases,” Basic Books,
Inc. v. Kinko’s Graphics Corp., 758 F. Supp. 1522 (S.D.N.Y. 1991) and Princeton
Univ. Press v. Mich. Document Servs., Inc., 99 F.3d 1381 (6th Cir. 1996), in its
consideration of the first factor, off-handedly dismissing them because the

9

defendants were commercial rather than nonprofit entities. Both of those decisions
involved the verbatim reproduction of portions of copyrighted works for inclusion
in coursepacks of assigned readings for university courses. The court in Princeton
did find that the copying was commercial, but that was not the only reason it
concluded that the first factor weighed against the defendant. The court discussed
the argument “that the copying at issue would be [deemed] to be ‘nonprofit
educational’ if done by the students or professors themselves,” saying “as to the
proposition that it would be fair use for the students or professors to make their
own copies, the issue is by no means free from doubt.” Princeton, 99 F.3d at 1389.
What the Princeton court found persuasive in connection with the first factor
analysis was the non-transformative nature of the use:
It should be noted, finally, that the degree to which the challenged use
has transformed the original copyrighted works -- another element in
the first statutory factor -- is virtually indiscernible. If you make
verbatim copies of 95 pages of a 316-page book, you have not
transformed the 95 pages very much -- even if you juxtapose them to
excerpts from other works and package everything conveniently. This
kind of mechanical "transformation" bears little resemblance to the
creative metamorphosis accomplished by the parodists in the
Campbell case.
99 F.3d at 1389.
In both Princeton and Basic Books, the first factor was found to weigh
against fair use not only because the defendants were commercial entities, but
because defendants’ verbatim reproduction of excerpts of protected works for use

10

by students was clearly not the type of transformative use that contributes to the
creation and dissemination of works of authorship and therefore is consistent with
copyright’s underlying purpose of encouraging creativity. Princeton, 99 F.3d at
1389; Basic Books, 758 F. Supp at 1530.
C.

The District Court Erred in Refusing to Consider the NonTransformative Nature of the Challenged Uses

It is well established that the first factor is more likely to favor the defendant
when the “nature of the use” is transformative. See Campbell v. Acuff-Rose Music,
Inc., 510 U.S. 569, 579 (1994) (“The central purpose of [the first factor enquiry] is
to see . . . whether the new work merely ‘supersede[s] 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.’ . . .
[T]he more transformative the new work, the less will be the significance of other
factors, like commercialism, that may weigh against a finding of fair use.”)
(citations omitted); see also Peter Letterese & Assocs., Inc. v. World Inst. of
Scientology Enters., Int’l, 533 F.3d 1287, 1310 (11th Cir. 2008) (“[A] work that is
not transformative . . . is less likely to be entitled to the defense of fair use because
of the greater likelihood that it will ‘supplant’ the market for the copyrighted work.
. . .”) (citation omitted).
The uses at issue here were not transformative. They were verbatim copies
11

of portions of works created for use by scholars and students, which copies were
made for the purpose of distributing them to the same users for which those works
were created. These uses “supersede [] the objects” of the originals, Campbell,
510 U.S. at 579, and therefore supplant “the market for the copyrighted work.”
Letterese, 533 F.3d at 1310. Yet the district court sidestepped the clearly nontransformative (and therefore disfavored) nature of the uses made by defendants,
by placing undue emphasis on a single footnote in the Supreme Court’s decision in
Campbell and ignoring well-established judicial precedent.
In Campbell, the Supreme Court described the nature of the inquiry to be
conducted under Section 107. Fair use determinations are intended to achieve a
balanced result because the court is expected to review and appropriately weigh all
of the relevant factors:
The 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
text employs the terms ‘including’ and ‘such as’ in the preamble
paragraph to indicate the ‘illustrative and not limitative’ function of
the examples given . . . which thus provide only general guidance
about the sorts of copying that courts and Congress most commonly
had found to be fair uses. Nor may the four statutory factors be
treated in isolation, one from another. All are to be explored, and the
results weighed together, in light of the purposes of copyright.
Campbell, 510 U.S. at 577 (citations omitted).
Notwithstanding this clear statement, the district court quotes footnote 11 in
the Campbell opinion (which says that “straight reproduction of multiple copies for

12

classroom use” is an “exception” to the “focus on transformative uses” Campbell,
510 U.S. at 579) and then leaps to the conclusion that it need not even consider
whether the challenged uses in this case are transformative. The uses at issue here
are not directly equivalent to “straight reproduction” for “classroom use.” The
copyrighted materials are being made available to students in digital form to
download at the student’s convenience as a substitute for textbooks and paper
coursepacks, not for student use in the course of a classroom session. But, in any
event, footnote 11 in Campbell does not have the meaning imputed to it by the
district court.
In 1976, Congress was very concerned about the threat posed to authors and
publishers by photocopiers; in fact, “most of the discussion of section 107 . . .
centered around questions of classroom reproduction, particularly photocopying.”
H.R. REP. NO. 94-1476 at 66. The copying Congress was then concerned with was
time-consuming, expensive and produced copies with the limitations inherent in
paper copies, but its implications for copyright were acknowledged in the language
of Section 107 and the Classroom Guidelines. Current technology has
dramatically streamlined the mechanics of copying, making the creation of perfect
copies (which can themselves be perfectly replicated and further distributed)
instantaneous and essentially effortless. The creation and dissemination of digital
copies of excerpts of much greater length than could be used in a classroom

13

session, as part of assigned readings in college courses, differs significantly from
“straight reproduction” for “classroom use.” The impact on the copyright holder of
such widespread and systematic copying is potentially far greater than that of
handing paper copies to students during a classroom session.5
Moreover, the court apparently failed to look at Campbell’s footnote 11 in
the context of the sentence with which it is associated. Footnote 11 is attached to
the first clause of this sentence: “Although such transformative use is not
absolutely necessary for a finding of fair use, . . . the goal of copyright, to promote
science and the arts, is generally furthered by the creation of transformative
works.” Campbell, 510 U.S. at 579. The Classroom Guidelines, which are
specifically described in the House Report in which they appear as an example of
fair use, do involve verbatim (i.e. non-transformative) copying of limited amounts
of materials for classroom use. If the copying at issue in this case had followed the
principles of the Classroom Guidelines (with respect to spontaneity, brevity and

5

Congress has acknowledged the potentially significant impact of digital
distribution on copyright owners. Consider, for example, the statement in the
Senate Judiciary Committee Report on the Digital Millennium Copyright Act (S.
REP. NO. 105-190, 105th Cong., 2nd Sess. 61 (1998)), pointing out the necessity of
imposing limitations on digital copies made under the library copyright exception
(17 U.S.C. §108) “[i]n recognition of the risk that uncontrolled public access to the
copies or phonorecords in digital formats could substantially harm the interests of
the copyright owner by facilitating immediate, flawless and widespread
reproduction and distribution . . ..”

14

cumulative effect), perhaps its non-transformative nature would have less
relevance. But, clearly, it did not.
In the district court’s strained interpretation, that single footnote converted
the language of the Section 107 preamble (which lists multiple copies for
classroom use as one of a number of uses that may potentially be determined to be
fair) into a “free pass,” eliminating the need to even consider the nontransformative nature of the challenged uses. This is inconsistent not merely with
the language and the legislative history of Section 107, but with the Supreme
Court’s reasoning in Campbell:
The language of the statute makes clear that the commercial or
nonprofit educational purpose of a work is only one element of the
first factor enquiry into its purpose and character. Section 107(1) uses
the term “including” to begin the dependent clause referring to
commercial use, and the main clause speaks of a broader investigation
into “purpose and character.” As we explained in Harper & Row,
Congress resisted attempts to narrow the ambit of this traditional
enquiry by adopting categories of presumptively fair use, and it urged
courts to preserve the breadth of their traditionally ample view of the
universe of relevant evidence. . . . Accordingly, the mere fact that a
use is educational and not for profit does not insulate it from a finding
of infringement, any more than the commercial character of a use bars
a finding of fairness.
510 U.S. at 584 (citations omitted; emphasis added); see also Letterese, 533 F.3d at
1309 (“The first factor in the fair-use analysis . . . has several facets . . .. Two such
facets are (1) whether the use serves a nonprofit educational purpose, as opposed to
a commercial purpose; and (2) the degree to which the work is a ‘transformative’

15

use as opposed to merely superseding use of the copyrighted work. [citing
SunTrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1269 (11th Cir. 2001)] . . .
[T]he commercial or non-transformative uses of a work are to be regarded as
separate factor[s] that tend to weigh against a finding of fair use,’ and ‘the force of
that tendency will vary with the context’” (citing Campbell, 510 U.S. at 585)).
The “insulation from a finding of infringement” warned of in Campbell is
exactly what the district court has accomplished by refusing to consider the
relevance of the verbatim digital copying done by GSU when analyzing the first
factor. The court’s interpretation has the effect of creating a virtual rule of per se
legality for educational takings so long as they do not exceed certain arbitrary
limits set by the court. That interpretation cannot be correct, and is inconsistent
with the history and purpose of Section 107.
D.

The District Court’s Holding is Inconsistent with the Treatment
of Copyright Exceptions in U.S. Law and International Treaties

In crafting copyright exceptions and incorporating them into U.S. copyright
law, Congress has repeatedly shown its awareness of the need to balance the
interests of creators and users. Courts considering the application of fair use have
typically displayed a similar awareness, by avoiding “bright-line rules” (Campbell,
510 U.S. at 577) and displaying an understanding that the examples in the
preamble to Section 107 serve an “illustrative and not limitative” function. Id.
Read together, Section 107, its legislative history and the cases that interpret it
16

demonstrate that copyright exceptions must be applied in a manner consistent with
copyright’s goal of advancing knowledge while considering the interests of all the
relevant parties. The district court’s decision in this case does not reflect that
balance.
The issue was stated clearly in testimony given before the House Judiciary
Committee at its 1965 hearing on copyright law revision:
[W]e do not expect the builder of a nonprofit school building to
construct it at no charge, nor the furniture merchant to donate school
furniture, nor the supplier of school supplies to give his products
gratis, nor the teacher to waive compensation. On what reasonable
theory, then, can the creative writer and his publisher be expected in
effect to donate books.
Copyright Law Revision, Hearing Before Subcommittee No. 3 of the Committee on
the Judiciary, 89th Cong., 131 (1965) (statement of Horace S. Manges, Counsel to
American Book Publishers Council, Inc.). Before creating an exception to
copyright and, in effect, requiring “the creative writer and his publisher” to “donate
books,” careful consideration must be given to all of the interests at stake.
Examples of that careful consideration can be found in statutory exceptions
that involve teaching (17 U.S.C. § 110(1) - (2)), use by libraries and archives (17
U.S.C. § 108), and making copies for the visually impaired (17 U.S.C. § 121).
Sections 110(1) and (2) are exceptions to the copyright owner’s performance
(rather than reproduction) rights and address the use of protected works in the
course of face-to-face teaching and in distance education, respectively. These
17

provisions are intended to benefit education, but they incorporate protections for
authors and publishers as well.6 Section 108 exempts certain reproductions by
nonprofit libraries and archives, and incorporates a number of limitations designed
to protect creators, 7 as does Section 121, which benefits the visually impaired.8
Congress’s decision to favor certain uses deemed to be beneficial to society
did not result in a statute that ignored the interests of those who had created the
materials being used. Under the district court’s view of fair use, the exceptions in
Sections 110, 108 and 121 would be superfluous because the activities sanctioned
by those sections would surely be covered by fair use. Congress’s adoption of
these specific exemptions clearly demonstrates that it did not intend to stretch the
bounds of fair use as far as the district court has in this case and further reinforces

6

For example, Section 110(2), which addresses classes conducted remotely (i.e.
over a campus network or the Internet), applies only to performances “made by, at
the direction of, or under the actual supervision of an instructor as an integral part
of a class session” as part of “mediated instructional activities” (17 U.S.C. §
110(2)(A)), and lets teachers use copyrighted materials in on-line teaching in ways
that are “analogous to the type of performance or display that would take place in a
live classroom setting.” (17 U.S.C. § 110)
7
Section 108 includes many provisions designed to balance the interests of
libraries and archives with those of authors and publishers. It “contains complex
and highly technical rules” (4 Melville B. Nimmer & David Nimmer, NIMMER ON
COPYRIGHT § 8.03) and is cited here as an example of the balancing process
inherent in the crafting of copyright exceptions, even for uses that clearly benefit
society as a whole.
8
For example, Section 121 requires that copies of works made under the exception
must be made “in specialized formats exclusively for use by blind or other persons
with disabilities” 17 U.S.C. §121(a).
18

the conclusion that Congress has never intended to create a “free pass” for uses in
education and scholarship.
Exceptions and limitations in U.S. copyright law, including Section 107,
must also be viewed in the context of the relevant U.S. treaty obligations. In 1989,
the United States became a member of the Berne Convention for the Protection of
Literary and Artistic Works (Sept. 9, 1886, 25 U.S.T. 1341, 828 U.N.T.S. 221,
Paris Act 1971) (“Berne Convention”), the principal international copyright treaty.
Article 9(2) of the Berne Convention addresses the nature and scope of copyright
exceptions that its member states may incorporate in their laws, establishing a
“three-step test” that such exceptions must satisfy: (1) they must relate to “certain
special cases,” (2) they may not conflict with a normal exploitation of the work,
and (3) they may not unreasonably prejudice the author’s legitimate interests. 9 The
three-step test provides a useful yardstick by which to measure the application of
copyright exceptions such as fair use. The district court’s refusal to see beyond the
nonprofit educational nature of the challenged uses influenced its refusal to
acknowledge the extent of the takings and the resulting interference with the
9

Although Berne article 9(2) refers only to reproduction rights, the World
Intellectual Property Organization (WIPO) Copyright Treaty and the WIPO
Performances and Phonograms Treaty, to which the United States has also
adhered, provide that all rights granted under those treaties are to be governed by
the Berne article 9(2) standard. 34 WIPO, Copyright Treaty, art. 10, Apr 12, 1997,
S. Treaty Doc. No. 105-12, 36 I.L.M. 65, 83 (1997); WIPO, Performances and
Phonograms Treaty, art. 16, Dec. 20, 1996, S. Treaty Doc. No. 105-17, 36 I.L.M.
76, 85-86 (1997).
19

Appellants’ normal exploitation of their works and their legitimate interests.
II.

THE DISTRICT COURT’S OVEWEIGHTING OF THE
EDUCATIONAL NATURE OF THE CHALLENGED USES IN ITS
FIRST FACTOR DISCUSSION DISTORTED ITS ANALYSIS OF
THE THIRD FAIR USE FACTOR
After devoting only three paragraphs in a 350 page decision to the first

factor, the district court concluded: “Because the facts of this case so clearly meet
the criteria of (1) the preamble to fair use factor one, (2) factor one itself, and
because (3) Georgia State is a nonprofit educational institution, factor one strongly
favors Defendants.” Dkt#423 at 50 (emphasis in original). Although the court did
acknowledge that “a nonprofit educational purpose does not automatically ensure
fair use,” Id., its erroneous finding on factor one was critical to its consideration of
the other factors. As discussed below, the decision is replete with references to the
educational nature of the uses that are used to justify extensive, unprecedented
takings from protected works.
The clearest demonstration of this problem can be found in the court’s
discussion of the third factor, which looks to “the amount and substantiality of the
portion used in relation to the copyrighted work as a whole.” 17 U.S.C. § 107(3)
Although the court did not find that the third factor favored GSU in each instance
(as indeed it could not, since each of the challenged uses presented separate fact
patterns), the court established incorrect principles and applied them in analyzing

20

each use, which amplified and repeated those errors in each evaluation. 10 In its
third factor analysis, the court repeatedly looked at the impact of the uses on
GSU’s students and faculty and not, as is required by the statute, at the impact of
those uses on the copyrighted works and their owners. The court erroneously
favored GSU’s current practices over fair use precedent and legislative history.
A.

The District Court’s Determination of What Constitutes a
“Small” Portion Was Designed to Improperly Favor Uses for
Educational Purposes.

In contrast to its first factor discussion, the court at least acknowledged the
relevance of Basic Books (referred to in the Opinion as “Kinko’s”) and Princeton
(referred to in the Opinion as “Michigan Document Services”) in its third factor
analysis. The court noted that in both cases takings of as little as 5% of the works
at issue were deemed large enough to support a finding that the third factor
weighed against the defendants.11 The uses in those cases varied from as little as
5% of the underlying work to as much as 18% in Princeton, 99 F.3d at 1384-85,
10

Of 74 challenged uses, the court found only five to be infringing. Some uses
found to be “fair” involved takings of 10% or more; some purportedly “fair” use
was of entire separately authored contributions to anthologies, a 100% taking of
the underlying work.
11
Among the many problems presented by the third factor discussion, one of the
most troubling relates to the court’s definition of the “whole” work against which
the amount of the taking is to be measured. The court includes non-expressive
materials (such as tables of contents, copyright pages and indices) in calculating
the length of each work, Dkt#423 at 60 – 61, then measures the size of the taking
as a percentage of that “whole” work, thereby as a practical matter increasing that
size of the takings that it deems to be “fair.”

21

and from 5% to 28% in Basic Books, 758 F. Supp at 1527-28. But the district
court went on to say:
Kinko’s and Michigan Document Services are helpful as a beginning
point in the factor three analysis in the instant case. However, unlike
the instant case, they did not involve nonprofit educational uses by a
nonprofit educational institution. Here, fair use factor one strongly
favors Defendants and tends to push the amount of permissible
copying toward a greater amount than the under 5% amount which
Kinko’s and Michigan Document Services did not specifically reject,
and into the 5%-14% range which Kinko’s found weighed against, but
did not "weigh heavily against" fair use. Kinko's, 758 F. Supp. at
1527.
Dkt#423 at 66 (emphasis added).
Notwithstanding the examples of the Princeton and Basic Books decisions,
which never sanctioned takings even close to those at issue here, the court went on
to define excerpts of not more than 10% of a work containing less than 10 chapters
or up to one chapter of a longer work as “decidedly small, and allowable as such
under factor three.” Dkt#423 at 88.
It is particularly notable that the district court’s definition of “small” was
predicated on the status of the defendants and their uses (“nonprofit educational
uses by a nonprofit educational institution,” Id.) and not on the impact of the uses
on the plaintiffs and their copyrighted works (which, under language of the statute,
is the whole point of the factor three analysis). When the first factor is found to
favor the user because the use is transformative, there is a clear relationship
between the first and third factors. A highly transformative use, such as the
22

parodies that were at issue in the Campbell and SunTrust Bank cases, may justify a
larger taking. See Campbell, 510 U.S. at 587-88, and SunTrust Bank, 268 F.3d at
1273-74. Had the district court considered the issue of transformative use in its
evaluation of the first factor, it likely would have been unable to find that factor
“strongly favored” defendants, or indeed favored them at all.
B.

The Classroom Guidelines are Relevant to the Consideration of
the Third Fair Use Factor and Should Have Been Given More
Weight by the District Court.

Notwithstanding the district court’s refusal to acknowledge the applicability
of the Classroom Guidelines to its inquiry on the third factor, those Guidelines are
relevant as an example of a balanced approach that permits, under fair use, certain
uses of copyrighted content in connection with education, while not unreasonably
interfering with the interests of those whose creativity and investment are the
reasons that content exists. They document Congress’s intention to set certain
limitations on such activities.
The Classroom Guidelines set forth several criteria for permissible
unauthorized copying for classroom use, including: (i) brevity; (ii) spontaneity;
(iii) limited copying; and (iv) non-substitution. They do not allow the
unauthorized creation of “anthologies, compilations or collective works” or
copying of “the same item by the same teacher from term to term.” H.R. REP. NO.
94-1476 at 69. The Guidelines have for decades been regarded as a valuable tool

23

and have been cited with approval by courts considering the application of fair use
in education. 12
In Princeton, the Sixth Circuit stated that the Classroom Guidelines provide
“general guidance” as to the “type of educational copying Congress had in mind.”
99 F.3d at 1390. The court in Basic Books stated that the Classroom Guidelines
were an attempt by Congress to clarify its intentions with respect to photocopying
for classroom use. 758 F. Supp. at 1535. In holding that the third factor weighed
against fair use, the courts in both Princeton and Basic Books made specific
reference to the Classroom Guidelines, and noted that the copying at issue in both
cases (involving systematic copying to create coursepacks) deviated materially
from the copying sanctioned by the Classroom Guidelines. See Basic Books, 758
F. Supp. at 1536; Princeton Univ. Press, 99 F.3d at 1390.13

12

One of the reasons given by the district court for its refusal to consider the
Classroom Guidelines as relevant is that they are included in legislative history
rather than in statutory language. Dkt#423 at 58-59. But given the structure of
Section 107 as a framework requiring the balancing of various factors, the utility of
examining legislative history in cases involving fair use is clear. The legislative
history of the 1976 Copyright Act has informed the Supreme Court’s analysis in
the three major cases in which it has considered the parameters of fair use under
that Act. See, e.g., Harper & Row, 471 U.S. at 549-54, 561; Campbell, 510 U.S. at
574-78; Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 448 n.31
(1984).
13
The Princeton court characterized the copying done in that case as being “light
years away” from that sanctioned by the Classroom Guidelines. 99 F.3d at 1391.
The same could be said of the copying done by GSU in this case.
24

The district court incorrectly states that the Appellants in this case were
asking it to enforce the Classroom Guidelines as “maximum permissible use.”
Dkt#423 at 57. But even if that had been the case, there is no inconsistency in
acknowledging that the Classroom Guidelines do not necessarily set a “maximum”
in the context of a fair use analysis while also using their provisions as a starting
point for a proposed court-ordered injunction. The key point, acknowledged in
both Princeton and Basic Books, is that the principles incorporated into the
Classroom Guidelines continue to be useful both as a basis for crafting injunctive
relief after a finding of infringement, and as a standard against which to measure
the amount of taking that is permissible.
C.

The District Court’s Discussion of “Substantiality” Demonstrates
its Determination to Establish a Blanket Exception for Nonprofit
Use in Education.

The district court’s determination to favor educational uses over the other
purposes of copyright is particularly evident from the portion of the opinion
discussing the “substantiality” of the taking (as distinguished from the amount
taken). Rather than focus on the issue before it, the court instead viewed the issue
entirely from the perspective of the user. “Because this case does involve strictly
educational, nonprofit uses, it is relevant that the selection of a whole chapter of a
book (either from a typical, single author chapter book or from an edited book)

25

likely will serve a more valuable educational purpose than an excerpt containing a
few isolated paragraphs.” Dkt#423 at 68.
The district court decided that professors at GSU needed to reproduce entire
chapters as part of e-reserves in order to fulfill “legitimate educational purposes of
the course curriculum.” Dkt#423 at 71. It then constructed a mechanism, in the
payment. That is not an application of the equitable doctrine of fair use – it is the
guise of the third factor analysis, to permit them to do that without permission or

creation of a broad copyright exception for educational use.
CONCLUSION

The district court decided to favor educational uses over the other purposes
of copyright and implemented its decision through a selective and incorrect reading
of the statute, the legislative history, and the prior case law. The inclusion in the
decision of arbitrary and specific rules creates, in view of the broader implications
of the decision, a risk that this decision will function as de facto legislation
to incorporate balance between the interests of all stakeholders – a balance that has
establishing new fair use standards for the type of uses at issue in this case that fail

always been at the heart of copyright. This decision represents an expansion of

certain narrow exceptions to copyright that is so dramatic that the underlying rights
themselves are threatened. This decision is inconsistent with congressional policy

26

as set forth in the Copyright Act. It is without prior precedent in fair use
jurisprudence, and it should be reversed.
Dated:

Concord, Massachusetts
February 4, 2013

/s/Lois F. Wasoff
Lois F. Wasoff (pro hac vice)
258 Sudbury Road
Concord, Massachusetts 01742
Telephone: [phone]
Facsimile: [phone]
Attorney for Amici Curiae Marybeth
Peters, Ralph Oman and Jon
Baumgarten

27

CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with the type-volume limitations of
Fed. R. App. P. 29(d) because this brief contains 6,859 words, excluding the parts
of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), as counted by
Microsoft® Word 2008 for Mac, the word processing software used to prepare this
brief.
This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this
brief has been prepared in a proportionally spaced typeface using Microsoft®
Word 2008 for Mac, Times New Roman, 14 point.
/s/ Lois F. Wasoff
Lois F. Wasoff
Attorney for Amici Curiae
Dated:
February 4, 2013

28

AFFIDAVIT OF SERVICE
DOCKET NO. 12-14676-FF & 12-15147-FF
-------------------------------------------------------------------------------X
Cambridge University Press
vs.
Mark P. Becker
-------------------------------------------------------------------------------X

I, Elissa Matias , swear under the pain and penalty of perjury, that according to law and being over
the age of 18, upon my oath depose and say that:
on February 4, 2013
I served the Brief of Marybeth Peters, Ralph Oman and John Baumgarten as Amici Curiae in
Support of Plaintiffs-Appellants Recommending Reversal within in the above captioned matter upon:
John W. Harbin, Esq.
Natasha H. Moffitt, Esq.
Mary Katherine Bates, Esq.
KING & SPALDING LLP
1180 Peachtree Street
Atlanta, Georgia 30309
Katrina M. Quicker, Esq.
Richard W. Miller, Esq.
BALLARD SPAHR, LLP
999 Peachtree Street, Suite 1000
Atlanta, Georgia 30309

Anthony B. Askew, Esq.
Stephen M. Schaetzel, Esq.
MCKEON, MEUNIER, CARLIN
& CURFMAN, LLC
817 W. Peachtree Street, Suite 900
Atlanta, Georgia 30308

R. Bruce Rich
Randi W. Singer
Jonathan Bloom
Lisa R. Eskow
Todd Larson
WEIL, GOTSHAL & MANGES LLP
767 Fifth Avenue
New York, New York 10153
Edward B. Krugman
John H. Rains IV
BONDURANT, MIXSON
& ELMORE, LLP
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Mary Jo Volkert, Esq.
Assistant State Attorney General
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via electronic filing and electronic service, as well as, Express Mail by depositing 1 copy of same,
enclosed in a post-paid, properly addressed wrapper, in an official depository maintained by United States
Postal Service.
Unless otherwise noted, copies have been sent to the court on the same date as above for filing via Express
Mail.

Sworn to before me on February 4, 2013

/s/ Robyn Cocho
_______________________________
Robyn Cocho
Notary Public State of New Jersey
No. 2193491
Commission Expires January 8, 2017

/s/ Elissa Matias
Elissa Matias

Job # 245878