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

Filing 66

Amicus Brief as of right or by consent of the parties filed by Mary E. Rasenberger for Amici Curiae Text and Academic Authors Association and the Authors Guild. Service date: 02/04/2013 US mail - District Judge Evans; Attorney for Appellants: Bloom, Krugman, Larson, Rains, Rich, Singer; Attorney for Appellees: Askew, Eskow, Harbin, Lynn, Miller, Moffitt, Quicker, Schaetzel, Volkert, Warenzak; Attorney for Not Parties: Aistars, Tonsager; email - Originating Clerk/Ag Hatten; Attorney for Amicus Curium: Rasenberger, Wasoff; Attorney for Appellants: Krugman, Rains; Attorney for Appellees: Ashby, Askew, Bates, Eskow, Gentry, Harbin, Levie, Quicker, Schaetzel, Whiting-Pack; Attorney for Not Parties: Dove, Steinman.--[Edited 02/12/2013 by JSC] (ECF: Mary Rasenberger)

Case Nos. 12-14676 and 12-15147 (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 AMICI CURIAE TEXT AND ACADEMIC
AUTHORS ASSOCIATION AND THE AUTHORS GUILD
IN SUPPORT OF APPELLANTS

STEPHEN E. GILLEN
WOOD HERRON & EVANS, LLP
2700 Carew Tower
441 Vine Street
Cincinnati, Ohio 45202
[phone]

MARY E. RASENBERGER
Counsel of Record
NANCY E. WOLFF
ELEANOR M. LACKMAN
NICHOLAS J. TARDIF
COWAN, DEBAETS, ABRAHAMS
& SHEPPARD LLP
41 Madison Avenue, 34th Floor
New York, New York 10010
[phone]

Attorneys for Amici Curiae Text and Academic Authors Association
and The Authors Guild

CERTIFICATE OF INTERESTED PARTIES
AND CORPORATE DISCLOSURE STATEMENT
Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, amici
curiae Text and Academic Authors Association and the Authors Guild hereby state
that each does not have a parent corporation, and that no publically held
corporation owns 10% or more of their stock. Further, pursuant to Rule 26.1-1 of
the Eleventh Circuit Rules, counsel for amici curiae certifies that 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, the following
persons and entities have an interest in the outcome of this case:
Text and Academic Authors Association
The Authors Guild

C-1

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .............................................................................. iii
IDENTITY AND INTEREST OF THE AMICI CURIAE ....................................1
STATEMENT OF THE ISSUES..........................................................................3
SUMMARY OF THE ARGUMENT ...................................................................4
ARGUMENT ........................................................................................................6
I.

THE DISTRICT COURT MISAPPREHENDED THE
“MARKET” AFFECTED BY GSU’S UNFAIR USE .............................. 6
A.

The Primary Market for the Works at Issue is Educational,
and Excerpt Use is an Important Component of the Market............8

B.

The District Court’s Decision Harms the Incentive to
Publish by Endangering the Academic Publishing
Ecosystem ...................................................................................... 14

II.

BY FOCUSING ON ACCESSIBILITY, PRICE, AND FORMATS
FOR LICENSED EXCERPTS, THE COURT MISCONSTRUED
THE LEGAL MEANING OF “POTENTIAL MARKET” ..................... 16

III.

THE DISTRICT COURT IMPROPERLY ASSESSED
FINANCIAL BENEFIT TO THE USERS AS PART OF THE
FOURTH FACTOR................................................................................. 21

IV.

THE DISTRICT COURT ERRED IN CLASSIFYING THE
WORKS AT ISSUE AS INFORMATIONAL, RATHER THAN
EXPRESSIVE AND LESS LIKELY TO BE PROTECTED BY
FAIR USE ................................................................................................ 25

CONCLUSION .................................................................................................. 30
CERTIFICATE OF COMPLIANCE ................................................................. 31
i

CERTIFICATE OF SERVICE .......................................................................... 32

ii

TABLE OF AUTHORITIES
Page(s)
CASES

A&M Records, Inc. v. Napster, Inc.,
239 F.3d 1004 (9th Cir. 2001) ............................................................................18
Am. Broad. Cos., v. Aereo, Inc.,
874 F. Supp. 2d 373 (S.D.N.Y. 2012) ................................................................19
American Geophysical Union v. Texaco Inc.,
60 F.3d 913 (2d Cir. 1995) ...........................................................................16, 17
Authors Guild v. Google, Inc.,
770 F. Supp. 2d 666 (S.D.N.Y. 2011) ..........................................................20, 21
Basic Books, Inc. v. Kinko’s Graphics Corp.,
758 F. Supp. 1522 (S.D.N.Y. 1991) ...................................................................11
Bill Graham Archives v. Dorling Kindersley Ltd.,
448 F.3d 605 (2d Cir. 2006) ................................................................................. 7
Campbell v. Acuff-Rose Music, Inc.,
510 U.S. 569 (1994) .....................................................................................passim
Castle Rock Entm’t, Inc. v. Carol Publ’g Group, Inc.,
150 F.3d 132 (2d Cir. 1998) .........................................................................19, 20
Clean Flicks of Colorado, LLC v. Soderbergh,
433 F. Supp. 2d 1236 (D. Colo. 2006)................................................................21
Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,
499 U.S. 340 (1991) ............................................................................................29
Folsom v. Marsh,
9 F. Cas. 342 (C.C.D. Mass. 1841) .....................................................................12
Fox Film Corp v. Doyal,
286 U.S. 123 (1932) ............................................................................................20

iii

Harper & Row, Publishers, Inc. v. Nation Enters.,
471 U.S. 539 (1985) ......................................................................................12, 23
Marcus v. Rowley,
695 F.2d 1171 (9th Cir. 1983) .............................................................................. 7
Nihon Keizai Shimbun, Inc. v. Comline Business Data, Inc.,
166 F.3d 65 (2d Cir. 1999) .................................................................................25
Perfect 10, Inc. v. Amazon.com, Inc.,
508 F.3d 1146 (9th Cir. 2007) ............................................................................18
Peter Letterese & Assocs., Inc. v. World Inst. of Scientology Enters., Int’l,
533 F.3d 1287 (11th Cir. 2008) ............................................................................ 6
Princeton Univ. Press v. Michigan Doc. Servs., Inc.,
99 F.3d 1381 (6th Cir. 1996) ........................................................................13, 25
Ringgold v. Black Entm’t Television, Inc.,
126 F.3d 70 (2d Cir. 1997) ...........................................................................19, 22
Sony Corp. of Am. v. Universal City Studios, Inc.,
464 U.S. 417 (1984) ........................................................................................6, 17
Suntrust Bank v. Houghton Mifflin Co.,
268 F.3d 1257 (11th Cir. 2001) ............................................................................ 6
Weissmann v. Freeman,
868 F.2d 1313 (2d Cir. 1989) .......................................................................16, 25
STATUTES
17 U.S.C. § 107 .................................................................................................passim
17 U.S.C. § 110 ..........................................................................................................9
OTHER AUTHORITIES
FED. R. APP. P. 32 .....................................................................................................31
U.S. CONST. art. 1, § 8, cl. 8 .....................................................................................29
4 Melville B. Nimmer & David Nimmer, NIMMER ON COPYRIGHT §
13.05(E)(1) ....................................................................................................11, 16
iv

Carlson School of Management, Promotion and Tenure Code, 7.12
Statement, ............................................................................................................28
Colorado Denver, Communication Department, Department By-Law,
October 2011 .......................................................................................................28
Marlie Wasserman, The Specialized Scholarly Monograph in Crisis: Or
How Can I Get Tenure If You Won’t Publish My Book?, Association of
Research Libraries, available at
http://www.arl.org/resources/pubs/specscholmono/wasserman~print.shtm
l......................................................................................................................13, 15
Stephen Greenblatt, Will in the World: How Shakespeare Became
Shakespeare (W. W. Norton 2005) .....................................................................27
Stephen Greenblatt, The Traces of Shakespeare’s Life, in The New
Cambridge Companion to Shakespeare 1-13 (Margreta de Grazia &
Stanley Wells eds., Cambridge University Press, 2nd ed. 2010) .......................27
University of California, Academic Personnel Policy, available at
http://www.ucop.edu/academic-personnel/academic-personnel-policy/............ 15

v

Pursuant to Federal Rule of Appellate Procedure 29(b), Amici Curiae Text
and Academic Authors Association and the Authors Guild respectfully submit this
brief in support of the appeal of Plaintiffs/Appellants Cambridge University Press,
Oxford University Press, Inc., and Sage Publications, Inc. (collectively,
“Appellants” or “the Publishers”). This brief is filed with the consent of the
parties. This brief was authored entirely by counsel for Amici Curiae, not in any
part by counsel for the parties. Amici Curiae and their counsel alone contributed
money to fund preparing and submitting this brief. See Fed. R. App. P. 29(c)(5).
IDENTITY AND INTEREST OF THE AMICI CURIAE
The Text and Academic Authors Association (“TAA”) is the only nonprofit
membership association dedicated solely to assisting authors of scholarly books,
textbooks, and journal articles. Formed in 1987, the TAA has over 1,400
members, primarily consisting of authors or aspiring authors of scholarly books,
textbooks, and academic articles. Many of the TAA’s members serve on college or
university faculties. The TAA’s mission is to enhance the quality of educational
materials and to assist text and academic authors by, for example, providing
information on tax, copyright, and royalty matters; and fostering a better
appreciation of their work within the academic community.
The Authors Guild, Inc. (the “Guild”) founded in 1912, is a national nonprofit association of more than 8,200 professional, published writers of all genres.
1

The Guild counts historians, biographers, academicians, journalists and other
writers of nonfiction and fiction as members. The Guild works to promote the
rights and professional interest of authors in various areas, including copyright,
freedom of expression, and taxation. Many Guild members earn their livelihoods
through their writing. Their work covers important issues in history, biography,
science, politics, medicine, business and other areas; they are frequent contributors
to the most influential and well-respected publications in every field. In the
copyright area, the Guild has fought to procure satisfactory domestic and
international copyright protection and to secure fair payment of royalties, license
fees, and non-monetary compensation for authors’ work. Guild attorneys annually
help hundreds of authors negotiate and enforce their publishing contracts.
Amici are concerned that the district court’s decision will cause significant
harm to individual authors of scholarly books and other academic materials that
serve a critical role in education. Royalties and permissions income are important
contributors to authors’ and publishers’ ability to produce and disseminate
scholarly works.1 The erosion of permissions income inevitably will force
academic presses to reduce the number of scholarly works they publish, which
poses a significant threat to amici’s members’ opportunities to produce and

1

“Scholarly works” generally include, among others, anthologies, annual review or
conference proceedings books, literature reviews, reference works, handbooks, and
monographs (published dissertations and theses).
2

disseminate scholarly works. The reduction in the publication of scholarly works
will deprive academic authors of publication credit, which has a direct effect on
promotion and tenure decisions, resulting in a substantial financial impact on a
faculty member’s salary over an entire career. Moreover, the district court’s
presumption that scholarly writing is solely informational and not highly
expressive grossly underestimates the creative value and originality inherent in
most scholarly writing. Academic works that are used in the classroom are chosen
precisely because of their original, expressive content. Amici therefore file this
brief to address the practical impact of this case on their members.
STATEMENT OF THE ISSUES
1.

Did the district court err in holding that the fair-use doctrine allows

Georgia State University (“GSU”) instructors to copy and distribute to students via
online course reading systems substantial, nontransformative excerpts from
Appellants’ books without a license, thereby supplanting Appellants’ core market.
2.

Did the district court err in failing to enjoin the unauthorized

“anthological” copying, i.e., the combination of excerpts from multiple works of
Appellants and other publishers into digital coursepacks, that has been occurring at
GSU?

3

SUMMARY OF THE ARGUMENT
The district court committed several key errors in analyzing the fourth
“market harm” factor. First, the court made the erroneous assumption that its
finding under the first factor – namely, that the uses were educational – should
inform its analysis of the fourth factor, and in doing so overlooked the fact that the
primary market affected in this case is the educational market. Such oversight
severely damages both the Publishers’ bottom line and the ecosystem that exists in
academic publishing, and on which academic authors rely for their livelihoods.
Second, the court failed to sufficiently consider both the existing and potential
markets for excerpts of scholarly works, where there was an existing, mature
licensing market for hard copy excerpts of these works and a smaller, but growing
market for digital excerpts already in existence. Finally, rather than consider the
potential adverse market impact of unrestricted, widespread conduct similar to
GSU, as instructed by Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 590-91
(1994), the district court narrowly focused on the potential losses of each
individual use during three academic terms in 2009 and acted as a rate-maker –
deciding that students should be a class protected from paying more than zero
dollars for excerpts even though they had already been paying fees for hard copy
excerpts for years.

4

The district court also committed error in analyzing the second fair use
factor – the nature of the works at issue. The court assumed that because the works
at issue were non-fiction and educational in nature, they were on the low end of the
spectrum of creativity, and thus weighed the “nature of the work” factor against the
Publishers. In doing so, the court overlooked the extensive creative expressiveness
of scholarly works used in classrooms. Rather than merely reporting facts,
professors assign these works precisely because of the interpretive insights and
richness they bring to the students’ educational experience.
Particularly concerning to amici is the manner in which the court’s analysis
pitted students’ interests in not paying for excerpts of scholarly works against
authors’ rights to control the use of and receive compensation from the use of their
writings – a right recognized in the U.S. Constitution and designed to benefit
creators and consumers alike. The perverse consequence of the decision is that
ultimately fewer works will be created for educational instruction.

5

ARGUMENT
I.

THE DISTRICT COURT MISAPPREHENDED THE “MARKET”
AFFECTED BY GSU’S UNFAIR USE
The fourth fair use factor directs a court to look at “the effect of the use upon

the potential market for or value of the copyrighted work.” 17 U.S.C. § 107(4).
As the Supreme Court explained in Campbell, under the fourth factor, a court
should consider “whether unrestricted widespread conduct of the sort engaged in
by the defendant . . . would result in a substantially adverse impact on the potential
market.” 510 U.S. at 590. Campbell further explained that where the copies at
issue are merely non-transformative duplicates, it is likely they will serve as a
market replacement and “that cognizable market harm to the original will occur.”
Campbell, 510 U.S. at 591; see also Sony Corp. of Am. v. Universal City Studios,
Inc., 464 U.S. 417, 451 (1984); Peter Letterese & Assocs., Inc. v. World Inst. of
Scientology Enters., Int’l, 533 F.3d 1287, 1316 n.31 (11th Cir. 2008); Suntrust
Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1279 (11th Cir. 2001).
Instead of conducting a straightforward analysis under this framework –
whether unrestricted widespread conduct of the sort engaged in by the defendant
would result in a substantially adverse impact on the potential market – the district
court improperly framed its analysis of the fourth factor in light of its findings
under the first factor – namely, that the uses at issue were educational. Dkt#423 at
20 (“The Court believes that the best way to proceed is first to decide how the four
6

fair use factors should be applied in a case such as this one…” – e.g., “where
excerpts of copyrighted works are copied by a nonprofit college or university for a
nonprofit educational purpose.”). In so doing, the court disregarded the statutory
requirement to analyze the “market for” the copyrighted work, preferring instead to
allow the first factor to swallow the fourth. This, by itself, was error. See, e.g.,
Campbell, 510 U.S. at 590 (“the mere fact that a use is educational and not for
profit does not insulate it from a finding of infringement.”); Marcus v. Rowley, 695
F.2d 1171, 1175 (9th Cir. 1983) (stating that a “nonprofit educational purpose does
not automatically compel a finding of fair use,” and that infringer’s copying of
educational material for the same educational “intrinsic purpose” was a “strong
indicia of no fair use”); Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d
605, 609 (2d Cir. 2006) (stating there are “no categories of presumptively fair
use.”).
By focusing on the use, rather than the market for the works being used, the
district court disregarded both the market’s consumer base and the nature of an
important type of product within that market. Specifically, the district court
ignored the key fact that the market for the works at issue in this case – scholarly
works – is principally the higher education market, and that excerpt use is a
significant part of that market. Because excerpt use of scholarly works is a
common practice in educational settings, the rules the district court fashioned for
7

determining when an excerpt use is fair (using works in an educational setting, and
copying essentially 10% or less of a work) places amici in a dire situation. If this
Court finds that an educational market for excerpts is to be devalued merely
because the works are, by their very nature, educational and likely to be used in
excerpted form, then this significant market for the works, and eventually for the
works as a whole, could be destroyed.
A.

The Primary Market for the Works at Issue is Educational, and
Excerpt Use is an Important Component of the Market

The primary market for scholarly works is academia – institutions such as
GSU, as the Publishers testified, see Dkt#276, 5/17 Tr. 54:17-22 (Smith); 5/18 Tr.
91:8-10 (Richman); 5/19 Tr. 33:2-3 (Pfund). Amici concur. 2 The nature of this
marketplace compels particular care because, by its nature, it rests on razor-thin
margins that owe their existence almost exclusively to academic, classroom use –
the type of use that GSU exemplifies. The low profitability of these works is
directly tied to their purpose – to further research and learning for the public good,
not to make a profit by entertaining and appealing to the mass-market consumer.
Due to economic pressures, commercial publishers and not-for-profit
academic presses alike are increasingly forced to publish only those scholarly
books that have a reasonable chance of recouping their costs. TAA and Guild
2

This is true whether such works are written by academic authors or non-fiction
trade authors outside of academia, and for both the not-for-profit academic presses
and the commercial publishing houses that publish scholarly works.
8

members find that they must convince publishers that a proposed work will pay for
itself. Even small income reductions affect whether an academic publisher can
recoup its publishing costs, and thereby will determine whether the publisher can
afford to publish a particular book and offer it to the academic community. 3 A loss
in excerpt permissions fees is precisely the kind of change that could take a book
from breaking even or being profitable to becoming unpublishable.
The district court, in analyzing the market effect on entire books rather than
excerpts, also failed to consider the existence of a robust excerpt market. (See
Appellants’ Br. at 24). Excerpt use is particularly common in academia, and has
been since photocopying initially enabled the provision of excerpted chapters to
students. The Copyright Act acknowledges the licensed market for excerpt use by
explicitly removing from a live teaching exemption “activities that use” works
such as “course packs . . . copies . . . of which are typically purchased or acquired
by the students in higher education for their independent use and retention . . . .”
17 U.S.C. § 110(2).
The nature of scholarly works (which the district court also did not consider)
lends itself to the practice of excerpt use in particular. Unlike novels, for example,
3

Books concerning highly specialized fields tend to be particularly at risk here.
Even when a book is likely to contribute enormously to scholarship in the field,
publishers are unable to justify its publication if the book cannot pay for itself. See
Dkt#399, Tr. 1/55-56 (“we cannot publish books just to make money, and we quite
regularly decline to publish books that we know would make money but which we
judge are not necessarily valuable works in scholarship and learning…”).
9

these types of works are well-suited to higher education classroom use on a chapter
by chapter basis. Many of the books at issue are collections of stand-alone articles,
often authored by different individuals, which naturally lend themselves to chapter
by chapter use. Dkt#423, Attachment pg. 1. Others are scholarly works by one or
two authors for which there is frequently just one key chapter that represents the
heart of the work, is most frequently cited and quite often represents most of the
book’s value. It is very common for professors to assign only the key chapter in
such works and, accordingly, professors often distribute or provide access to the
assigned, stand-alone excerpts, rather than have the students purchase the whole
book.
The introduction of digital technologies has obviated the old practice of
providing these excerpts in the form of hard copy course packs or by placing
copies of the book or photocopies on reserve. Now, professors at most higher
education institutions provide electronic copies through university electronic
systems, such as GSU’s ERes and uLearn systems. As a result, a robust market
has developed to license and readily deliver scholarly work excerpts in many
formats and combinations at reasonable costs. And many publishers and
organizations, as well as some authors and their agents, offer licenses in both hard

10

copy and digital formats, in many cases catered specifically to users’ requests,
including the very type of use at issue here. 4
GSU’s directly substitutive use demonstrates that the district court’s
decision, if affirmed, will have a severe negative impact on the market. A decision
making it acceptable to post online unlimited excerpts for a course under the rubric
of fair use (so long as they do not exceed the district court’s generous bright line
rule for the permissible amount from one work) will encourage professors to assign
more digital excerpts because they will be free, rather than require students to
purchase books, physical reprints, or hard copy (or digital) course packets. The
effect will be fewer purchases of books for classroom use. See Basic Books, Inc. v.
Kinko’s Graphics Corp., 758 F. Supp. 1522, 1534 (S.D.N.Y. 1991) (“[w]hile it is
possible that reading the [course] packets whets the appetite of students for more
information from the authors, it is more likely that purchase of the packets obviates
purchase of the full texts.”). In this manner, the “fair” uses will completely usurp
the market for paid excerpt use, and the excerpt market will inevitably become
extinct for all but particularly long excerpts. See 4 Melville B. Nimmer & David
Nimmer, NIMMER ON COPYRIGHT § 13.05(E)(1) (explaining that “if every school
room or library may, by purchasing a single copy, supply a demand for numerous
copies through photocopying, or similar devices, the market for copyrighted

4

See Appellants’ Br. at 29-32.
11

educational materials would be almost completely obliterated.”). This is precisely
what consideration of the fourth factor is intended to prevent. See, e.g., Harper &
Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 562 (1985); Folsom v.
Marsh, 9 F. Cas. 342, 348 (C.C.D. Mass. 1841).
Through its misunderstanding of the academic and excerpt markets, the
district court effectively created a broad categorical educational or non-profit fair
use exemption from copyright infringement. When the use becomes “widespread,”
anyone in GSU’s position will no longer need to license excerpts (so long as the
excerpt is only one chapter or appears in a book ten times the excerpt’s length).
The broader academic market will consequently suffer enormous losses. This case
illustrates the evident reason courts have declined to create such categorical
exemptions in the nonprofit or educational context: to prevent the fair use
exception from swallowing the rule of copyright protection.
The practical impact of exempting the excerpt market from copyright is a
loss of an important revenue source, one that may well make important works
unpublishable. Publishers, even scholarly publishers, cannot afford to publish
works that have no hope of recouping their publication costs, even if such works

12

are important to the scholarly community. 5 Publishers will have no incentive to
prepare and distribute the works on which academia extensively relies. By
cannibalizing the existing course pack (excerpt) market, the district court’s ruling
squelches the incentives the Founders put in place to encourage the creation of
valuable works in the first place. See Princeton Univ. Press v. Michigan Doc.
Servs., Inc., 99 F.3d 1381, 1391 (6th Cir. 1996) (finding loss of licensing revenue
could have a “deleterious effect upon the incentive to publish academic writings”).
As the Sixth Circuit asked in Princeton Univ. Press, “if publishers cannot look
forward to receiving permission fees, why should they continue publishing
marginally profitable books at all?” Id.
It is therefore remarkable that rather than considering the marketplace
realities, the district court accused publishers of seeking “to choke out nonprofit
educational use” of chapters as fair use. Dkt# 423 at 69. In reality, the district
court’s disregard of the existing market for licensed excerpts of scholarly works
instead has the potential to “choke” the entire academic publishing ecosystem: it
deprives publishers, and by extension scholarly authors, of an important source of
revenue – revenue which publishers could otherwise use to fund the publication of
new works.
5

See Marlie Wasserman, The Specialized Scholarly Monograph in Crisis: Or How
Can I Get Tenure If You Won’t Publish My Book?, Association of Research
Libraries, available at
http://www.arl.org/resources/pubs/specscholmono/wasserman~print.shtml.
13

B.

The District Court’s Decision Harms the Incentive to Publish by
Endangering the Academic Publishing Ecosystem

The district court presumed that because academic authors “value
education,” they are disinterested in financial compensation, and instead their main
reward is the satisfaction of having their work distributed and seeing it contribute
to the dissemination of knowledge. Dkt#423 at 82. Certain GSU professors
testified that “royalties are not an important incentive for academic writers.”
Dkt#423 at 81. Those observations tell only part of the story. The ability to
efficiently disseminate scholarly works for educational use relies on a healthy
scholarly publishing ecosystem. Damage to this ecosystem directly harms the
financial and other interests of academic authors, as well as publishers.
The district court’s assumption that academics do not care about payment for
use of their works reveals an overly narrow view of publishing’s role in academia
and how directly it is tied to professors’ overall financial compensation.6
Publishing with a scholarly press is the principal means by which academics in
almost all fields secure tenure and promotion. Salary increases and merit pay in

Another problem with this assumption is that it ignores the fact that not all books
excerpted for classroom use are authored by academics who earn a university
salary. Scholarly works by trade non-fiction (i.e., not academic) authors are also
used in the classroom; and these authors do rely on advances and royalties to earn a
living.

6

14

most research institutions are tied directly to the professors’ publishing record. 7 In
some cases, there are very direct economic benefits to academics from publishing
scholarly works.8 The ability to “sell” one’s work, for example, to an established
academic publisher thus has very direct and immediate financial consequences for
most academic authors. Indeed, amici’s academic members report that publishing
in scholarly presses is the single most important factor to career advancement in
academia and obtaining the financial rewards that follow. These benefits provide
the incentives for our members to write.
The erosion of permissions income inevitably will force university and other
scholarly publishers to cut back on the number of scholarly works they publish, or
for some scholarly publishers, could sufficiently tip the profitability scales to put
them out of business.9 Our members report seeing some academic publishers
starting to publish fewer academic books, focusing on those with broader
audiences to make ends meet. 10 The reduction in the publication of scholarly
works will deprive academic authors of scholarly publication credit required to
advance their careers. This will have the greatest impact on young professors who
7

See University of California, Academic Personnel Policy, available at
http://www.ucop.edu/academic-personnel/academic-personnel-policy/.
8
For instance, the University of California provides a promotion that comes with
an approximately $5,000 salary increase for each book published. That adds up to
substantial compensation over a professor’s career. See University of California,
Academic Personnel Policy, supra n. 7.
9
See Appellants’ Br. at 34, 37.
10
See Wasserman, supra n. 5.
15

are still seeking promotion and tenure. See American Geophysical Union v.
Texaco Inc., 60 F.3d 913, 927 (2d Cir. 1995) (citing Weissmann v. Freeman, 868
F.2d 1313, 1324 (2d Cir. 1989) (noting that in academia, recognition “so often
influences professional advancement and academic tenure.”)).
Ultimately, this inability to publish and obtain publishing rewards will
heavily dilute the incentives to write low- or no-profit works that further human
learning. Allowing excerpt use as fair use “could well discourage authors from
creating works of a scientific or educational nature.” See Nimmer, supra §
13.05(E)(1). Eventually, it will impoverish the literature of scholarship at its most
sophisticated, and revenue sensitive, margins. In short, the district court’s
decision, if upheld, is likely to have a direct impact on the copyright incentives to
disseminate works that are specifically intended to further human knowledge –
exactly the type of works the founders had in mind in securing copyright protection
for authors in the Constitution.
II.

BY FOCUSING ON ACCESSIBILITY, PRICE, AND FORMATS FOR
LICENSED EXCERPTS, THE COURT MISCONSTRUED THE
LEGAL MEANING OF “POTENTIAL MARKET”
The district court created an unprecedented, overly narrow interpretation of

the fourth factor’s inquiry as to the “potential market for . . . the copyrighted
work.” Citing Texaco, 60 F.3d at 930-31, the district court stated that “a particular
unauthorized use should be considered ‘more fair’ when there is no ready market,”
16

but, without explanation or authority, added the requirement that the Appellants
show that “licenses for excerpts of the works at issue are easily accessible,
reasonably priced, and that they offer excerpts in a format which is reasonably
convenient for users.” Dkt#423 at 75 (emphasis added). This conclusion
disregards the established, forward-looking meaning of “potential market.”
Likewise, the district court’s conclusion ignores the fact that the market already
exists – even if certain publishers in that market have chosen not to make their
works available.
The court’s adoption of this entirely new, unprecedented standard is
troubling for multiple reasons. First, the district court, by looking at a moment in
time, failed to consider the likely future market – including useful technologies that
may develop to support new methods of distribution. Yet the statute plainly states
that a court must look at “the effect of the use [on] the potential market…” 17
U.S.C. § 107(4) (emphasis added); Sony, 464 U.S. at 451 (stating that for a
copyright holder to prevail on the fourth fair use factor, “[a]ctual present harm
need not be shown; such a requirement would leave the copyright holder with no
defense against predictable damage.”); see also Texaco, 60 F.3d at 930 (fourth
factor calls for evaluating “potential licensing revenues for [a] traditional,
reasonable, or likely to be developed market[].”). The exception is where the
potential market is purely speculative, which was not the situation here. Cf.
17

Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1168 (9th Cir. 2007)
(hypothetical market for cell phone downloads of thumbnail images was not
considered in the fair use analysis because too speculative).
The district court’s decision to focus on the digital excerpt marketplace in
2009, Dkt#423 at 27-28, 75-80, particularly where the market not only existed but
has since expanded, effectively read the word “potential” right out of the statute.
The district court’s insistence on looking solely at a moment in time is thus not
only legally erroneous, it has the effect of stunting the robust growth of the digital
market. Compare A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1017 (9th
Cir. 2001) (“lack of harm to an established market cannot deprive the copyright
holder of the right to develop alternative markets for the work.”). Moreover, even
then, it was clear that the digital licensing market for excerpts of scholarly works
not only existed, but was strong and quickly growing.
The district court’s heavy emphasis on accessibility and convenient formats
led it to disregard the availability of hard copy course packs; in doing so, it created
a new set of fair use rules that is more expansive for digital excerpts, and is
inconsistent with those for hard copy excerpts of scholarly works. Dkt#423 at

18

30.11 While it may be true that “[e]ducational users today want digital materials,”
Dkt#423 at 78, the medium and formats of the available license are irrelevant to
whether there is a market under the fourth factor. There is simply no basis in law
or equity for requiring a licensing market to provide works in the format and
manner and at the price points a user might desire, even when the copyright owner
has not chosen to do so. See Ringgold v. Black Entm’t Television, Inc., 126 F.3d
70, 81 (2d Cir. 1997) (stating that plaintiff need not show effect on an actual
market for use at issue in the case; that the fourth factor favors plaintiff where it
can show a “traditional, reasonable or likely to be developed” market); see also
Am. Broad. Cos., v. Aereo, Inc., 874 F. Supp. 2d 373, 404 (S.D.N.Y. 2012)
(rejecting argument that public has any interest in accessing content via a specific
method as “unpersuasive” and containing a “logical gap,” where “there are
numerous other methods through which the public can lawfully access Plaintiffs’
content”).
Second, the district court’s focus on specific formats ignores the wellestablished requirement that it look at the market “in general.” See, e.g., Castle
Rock Entm’t, Inc. v. Carol Publ’g Group, Inc., 150 F.3d 132, 145 (2d Cir. 1998)
11

The district court’s decision improperly focuses on whether digital licenses were
available via the Copyright Clearance Center’s (“CCC’s”) ECCS service in 2009,
and ignores that hard copy licenses for many of the works were available through
CCC’s APS service. Dkt#423, Attachment pgs. 1-3. The district court also failed
to consider the availability of licenses (in 2009 and potential) from other sources,
such as the publishers and authors themselves.
19

(“[t]he fourth factor must also ‘take account . . . of harm to the market for
derivative works,’ defined as those markets ‘that creators of original works would
in general develop or license others to develop.’”) (quoting Campbell, 510 U.S. at
592) (emphasis added). All of the works at issue in the case were in fact available
in digital format in 2009. See Appellants’ Br. at 2. But the fact that a particular
publisher may have not yet chosen to place a particular work in the digital
marketplace, see Dkt#423 at 36, 38, cannot be used to punish that publisher or
others similarly situated to it. The requirement that the district court unilaterally
added to the fourth factor – that the specific works involved be easily accessible,
reasonably priced, and in a format which is reasonably convenient for users –
disregards the inherent meaning of an exclusive right – the fundamental right to
decline to license. See Authors Guild v. Google, Inc., 770 F. Supp. 2d 666, 681
(S.D.N.Y. 2011) (“[a] copyright owner’s right to exclude others from using his
property is fundamental and beyond dispute.”) (citing Fox Film Corp v. Doyal, 286
U.S. 123, 127 (1932) (stating a copyright owner “may refrain from vending or
licensing and content himself with simply exercising the right to exclude others
from using his property.”)). An analysis of the fourth factor should not be dictated
by a right holder’s decision not to license; otherwise fair use would become a
vehicle for denying copyright owners this fundamental right under copyright law.
See, e.g., Castle Rock, 150 F.3d at 146 (the need to assess the effect on the market
20

is not lessened by fact that copyright owner has not entered a specific market
because “copyright law must respect that creative and economic choice.”); Clean
Flicks of Colorado, LLC v. Soderbergh, 433 F. Supp. 2d 1236, 1242 (D. Colo.
2006) (similar).
There are many reasons that a right holder may decide not to distribute a
work in digital form: digital formats create greater infringement risks for certain
works, and owners may incur additional costs to make works digitally available.
Moreover, the business models for allocating digital revenues between publisher
and author are unsettled. For these reasons, some authors have sought to hold back
digital rights from the rights they grant to their publisher; and a publisher cannot
grant rights it does not have. To require an owner to offer a specific format to
users is akin to a compulsory license, which is Congress’ role, not the courts’. See
Authors Guild, 770 F. Supp. 2d at 686.
III.

THE DISTRICT COURT IMPROPERLY ASSESSED FINANCIAL
BENEFIT TO USERS AS PART OF THE FOURTH FACTOR

The district court found that unlicensed uses of a “decidedly small excerpt”
of the scholarly works caused “extremely small, though actual damage to the value
of the books’ copyrights.” Dkt#423 at 79. On this basis, the district court
concluded (without citing any authority) that such a “small” unlicensed use “will
not discourage academic authors from creating new works” and will not harm the
potential market for the scholarly works. Id. at 79, 81-84, 89. This conclusion is
21

based on legal error, just as the court’s weighing of relative cost – and effectively
redistributing money from publishers to students as a result – is unprecedented.
The law is settled that a plaintiff need not show great harm, or even any
pecuniary harm, in the fair use context. Indeed, courts have rejected attempts to
minimize the effect on the market where copyrighted works generate only a
“small” amount of income, or no income at all: such an argument improperly
“confuses lack of one item of specific damages with lack of adverse impact on a
potential market.” Ringgold, 126 F.3d at 81. 12
In stark contrast to its dismissive view of harm to authors and publishers as a
result of the loss of royalties, the district court concluded that the cost of licensing
the scholarly works is prohibitively expensive for universities and students, such
that students could not afford to pay permissions if the costs were passed on to
them. See Dkt#423 at 33. Even under the district court’s novel “reasonable price”
Nonetheless, the district court was incorrect in disregarding permissions income
in 2009 as a significant portion of the Publishers’ overall income. Dkt#423 at 8184. In our members’ experience, permissions fees are important contributors to
authors’ and publishers’ incomes and bottom lines. Moreover, the district court
ignored the pass through of permissions revenue to authors, a revenue stream that
is typically shared 50/50 with the author. Permissions revenue for some authors
represents “a healthy portion of their income.” See Authors Guild v. Google, 05Civ-8136, Dkt#488, August 31, 2009 Letter from Stuart Bernstein, at 2 (S.D.N.Y.)
(“Before copying or publishing copyrighted materials, a legitimate author,
institution or publisher is required to make a formal request to a rights holder
seeking permission to use a work protected by copyright, with the rights holder
dictating the terms and, in many cases, the fee for such use. Many authors rely on
these uses of copyrighted works for a healthy portion of their income.”) (emphasis
in original).
12

22

standard, see Dkt#423 at 75, it is unreasonable to suggest that zero is the only price
that could be “reasonable.” Indeed, there was ample evidence in the record that
users were paying permissions fees, and that the amount of fees per student –
$1.68, $3.12, etc. – was low, indeed miniscule as compared to the cost of a single
course credit from a university today. Compare Dkt#423 at 26-27, 29-30
(licensing fees), with Dkt#423 at 34-35 (university budgets for library service
alone). Students can pay, and always have paid, for course materials, including
books and course packets, including through financial aid assistance provided by
the school. See Dkt#423 at 30 (Cambridge charges $0.11 per page for hard copy
course packets and $0.15 per page for digital formats through CCC; Sage and
Oxford charge the same fee for hard copy and digital formats).
There is no precedent for considering a copyright user’s licensing costs in
the effect on the potential market analysis. Dkt#423 at 32-33. Rather, it is the
“effect of the [unlicensed] use [on] the potential market” that the court must assess.
17 U.S.C. § 107(4). The nature of the user is irrelevant to an analysis under the
fourth fair use factor; the district court’s creation of a new class of insulated users
is unexplained and unprecedented. Indeed, the only perceptible reason to consider
the cost to the user in conjunction with the fourth factor is where complete market
failure exists. See Harper & Row, 471 U.S. at 559 (“To propose that fair use be
imposed whenever the social value of dissemination . . . outweighs any detriment
23

to the artist, would be to propose depriving copyright owners of their right in the
property precisely when they encounter those users who could afford to pay for
it.”) (internal quotations and citations omitted). As explained above, there is no
such market failure.
The decision ignores the copyright holders’ right to set the price for use of
their works and to allow the market to work it out. It improperly places the district
court in the position of a rate court judge. Based on a single dispute between
certain parties, the district court has pitted saving students’ pennies against the
future of scholarly writing – by non-academic trade authors, as well as professors
at academic institutions. Instead of respecting the Publishers’ right to decide
whether to license certain works and at what prices, the district court took it into its
own hands to determine the fair price for the works and allow free use under the
guise of fair use where a work is not offered at the price the court deemed fair and
in the formats and manner the court deemed most easily accessible. In other
words, the court has created a compulsory licensing scheme, with a price fixed at
zero, for excerpt use of scholarly works. If there were market failure in this market
(and, as shown in the record, the broad availability of licenses shows there is not),
price-setting would be for Congress, not the courts, to decide.

24

IV.

THE DISTRICT COURT ERRED IN CLASSIFYING THE
WORKS AT ISSUE AS INFORMATIONAL, RATHER THAN
EXPRESSIVE AND LESS LIKELY TO BE PROTECTED BY
FAIR USE

The district court made a bright line distinction between fictional work,
deserving of greater copyright protection as expressive, and educational work,
deserving less copyright protection as informational and educational, ignoring the
expressive writing contained in the scholarly works at issue. As a result, the court
concluded that the second fair use factor, nature of the work used, weighed in favor
of the defendants in each instance. Dkt#423 at 54. This holding is contrary to the
case law finding similar works are sufficiently original or expressive such that the
second factor weighs in favor of the plaintiffs or, at worst, as neutral. See, e.g.,
Princeton Univ. Press, 99 F.3d at 1389 (scholarly works found to contain “creative
material, or ‘expression,’” which disfavored fair use); Rowley, 695 F.2d at 1176
(cake decorating booklet contained “both informational and creative aspects,” and
thus second fair use factor was neutral); Weissmann, 868 F.2d at 1325 (second fair
use factor favored neither party in case involving claim of infringement of
copyright in medical research article); Nihon Keizai Shimbun, Inc. v. Comline
Business Data, Inc., 166 F.3d 65, 72-73 (2d Cir. 1999) (stating that newspaper
articles are predominantly factual in nature and that expressive elements do not
dominate, but finding that the second fair use factor was at most neutral).

25

The district court’s presumption that scholarly writing is solely
informational and factual, and not highly creative, ignores the originality and
creative value of scholarly writing. While the court acknowledges that some works
contain “material of evaluative nature, giving the author’s perspectives and
opinions,” the court then dismisses the expressive nature of the works by pointing
to the language in the preamble of Section 107 referencing fair use of a
copyrighted work for “criticism and comment” as deserving less protection.
Dkt#423 at 52. Not only does the court misunderstand the preamble of Section
107 (which merely provides some examples and that it might be fair use to
comment on or critique a work protected by copyright), it mistakenly concludes
that expressive works that themselves comment on material and evaluate other
works deserve less protection. There is no support for this interpretation of Section
107.
Scholarly works that “inform and educate” are generally highly creative and
expressive. Scholarship does not report on facts like the news does; it analyzes
prior scholarship or facts and adds to prior learning through interpretation and
expression. Much scholarly writing attempts to resolve issues and convincingly

26

persuade readers of a point of view. 13 This requires a high degree of originality
and expressive writing. Non-expressive writing, such as a mere report of facts or
data, by contrast, does not persuade and it does not teach.
Expressive writing is not limited to fiction and includes the types of works at
issue, which do not merely report on acknowledged discoveries and concepts but
rather provide clear and original expression, interpretation and often advocacy.
For example, one could list the known facts of Shakespeare’s life practically on the
back of an envelope, yet there are thousands of scholarly works on Shakespeare
and his life. None of these numerous, and in some cases voluminous, scholarly
works contain the same expressive elements. 14
Indeed, scholarly writings are assessed based on their originality as well as
quality. Our members attest that originality is the most important factor that peer
reviewers assess when reviewing scholarly articles and books for publication. A
work will not get published (and indeed is not usually deemed scholarly) if it is not
13

That a work is educational does not make it any more “functional” than
something that is fictional. While educational works may contain real information
as opposed to fictional information, their functionality arises from the goal of
educating, just like a fictional work’s function may be to entertain. Cf. Dkt#423 at
51-52 (distinguishing educational works from fictional works).
14
Professor Stephen Greenblatt, for example, wrote a 448 page biography of
Shakespeare and yet, when asked to write down all the facts known about
Shakespeare, produced a 13 page paper. See, e.g., Stephen Greenblatt, Will in the
World: How Shakespeare Became Shakespeare (W. W. Norton 2005); Stephen
Greenblatt, The Traces of Shakespeare’s Life, in The New Cambridge Companion
to Shakespeare 1-13 (Margreta de Grazia & Stanley Wells eds., Cambridge
University Press, 2nd ed. 2010).
27

original. Even the research requirement guidelines at many if not most research
institutions specifically refer to the need to author “original” and “creative”
publications. 15
If the scholarly works at issue here were not expressive, then the professors
would just teach the facts and ideas from the works rather than assign the works to
the students to read via ERes or uLearn. Yet they do not. TAA and certain Guild
members, who are teachers as well as academic authors, report that they assign
readings for their classes based on the expressive content of the works.
Consequently, these works are no less deserving of copyright protection than a
work of fiction and should not be automatically categorized as less deserving
because they serve an educational function.
Moreover, in creating a dichotomy between works that convey educational
information and those that are fictional, the district court fundamentally

15

See e.g., Carlson School of Management, Promotion and Tenure Code, 7.12
Statement, at 4 (“Research achievements will be judged primarily on the basis of
the creativity of the work, quality of implementation, validity of results, importance
of the findings, and influence on the candidate’s field…The written work is
examined for evidence of originality and importance …”) (emphasis added);
University of Colorado Denver, Communication Department, Department ByLaws, October 2011, at 43-44, 48 (“For promotion … candidates must demonstrate
a sustained record of high-quality research. …the following six criteria will be
used by the Department to assess research: … 4. The degree of creativity and
originality of the research”; “All scholarly work will be evaluated based upon its
quality (prestige, significance, programmatic nature, creativity, growth, etc.) as
well quantity.”) (emphases added).
28

misunderstands the purpose of the second fair use factor and the meaning of
authorship and expression under the copyright law. Indeed, scholarly works are
the very types of works that the founders and first Congresses had in mind in
creating copyright laws. The Constitution’s Copyright Clause uses the term
“Progress of Science” to refer to copyright because the Founders were concerned
with encouraging the production of works of authorship from which people could
learn and spread knowledge.16
Particularly with the foregoing considerations in mind, this court should
consider the far-reaching impact that affirmance would have on scholarly authors if
other institutions follow the district court’s lead and use the decision below to
claim broad fair use over informational and educational scholarly works.

U.S. CONST. art. 1, § 8, cl. 8.; see also Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,
499 U.S. 340, 349-50 (1991).

16

29

CONCLUSION
For the reasons set forth above, and for those set forth in Appellants’ brief,
amici curiae respectfully request that the decision below be reversed.
Dated:

New York, New York
February 4, 2013
s/ Mary E. Rasenberger
Mary E. Rasenberger
Nancy E. Wolff
Eleanor M. Lackman
Nicholas J. Tardif
COWAN DeBAETS ABRAHAMS &
SHEPPARD LLP
41 Madison Avenue, 34th Floor
New York, New York 10010
Tel: [phone]
Stephen E. Gillen
WOOD HERRON & EVANS LLP
2700 Carew Tower
441 Vine Street
Cincinnati, OH 45202
Tel: [phone]
Attorneys for Amici Curiae

30

CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with the type-volume limitations of
Fed. R. App. P. 32(a)(7)(B) because this brief contains 6,966 words, excluding the
parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), as counted by
Microsoft® Word 2007, 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 2007, Times New Roman, 14 point.
s/ Mary E. Rasenberger
Mary E. Rasenberger
Attorneys for Amici Curiae
Dated:
February 4, 2013

31

STATE OF NEW YORK
COUNTY OF NEW YORK

)
)
)

ss.:

AFFIDAVIT OF SERVICE
BY OVERNIGHT EXPRESS
MAIL

I, Dharmendra Kapadia, being duly sworn, depose and say that deponent is not a
party to the action, is over 18 years of age and resides at the address shown above or at
On February 4, 2013
deponent served the within: Brief for Amici Curiae Text and Academic Authors
Association and The Authors Guild
upon: See attached Service List

the address(es) designated by said attorney(s) for that purpose by depositing 1 true
copy(ies) of same, enclosed in a postpaid properly addressed wrapper in a Post Office
Official Overnight Express Mail Depository, under the exclusive custody and care of the
United States Postal Service, within the State of New York.
Unless otherwise noted the brief has been filed and 7 copies have been delivered to the
Court in the same manner as above on the same date as above.
Sworn to before me on February 4, 2013

s/Maryna Sapyelkina

s/ Dharmendra Kapadia

Maryna Sapyelkina
Notary Public State of New York
No. 01SA6177490
Qualified in Kings County
Commission Expires Nov. 13, 2015

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Service List:
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
1201 West Peachtree St. NW, Suite 3900
Atlanta, Georgia 30309
Mary Jo Volkert, Esq.
Assistant State Attorney General
40 Capitol Square
Atlanta, Georgia 30334

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