Cambridge University Press, et al v. J.L. Albert, et al
Filing
64
Amicus Brief as of right or by consent of the parties filed by Linda Steinman for The Association of American University Presses, Inc.. Service date: 02/07/2013 US mail - District Judge Evans; Attorney for Amicus Curiae: Aistars; Attorney for Appellant: Larson; Attorney for Appellees: Lynn, Warenzak; email - Originating Clerk/Ag Hatten; Attorney for Amicus Curium: Dove, Rasenberger, Steinman, Tonsager, Wasoff; Attorney for Appellants: Bloom, Krugman, Rains, Rich, Singer; Attorney for Appellees: Ashby, Askew, Bates, Eskow, Gentry, Harbin, Levie, Miller, Moffitt, Quicker, Schaetzel, Volkert, Whiting-Pack.--[Edited 02/12/2013 by JSC] (ECF: Linda Steinman)
12-14676-FF
IN THE
United States Court of Appeals
FOR THE ELEVENTH CIRCUIT
d
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 AMICUS CURIAE
THE ASSOCIATION OF AMERICAN UNIVERSITY PRESSES
LINDA J. STEINMAN
DAVIS WRIGHT TREMAINE LLP
1633 Broadway
New York, New York 10019
Telephone: (212) 489-8230
Facsimile: (212) 489-8340
Attorneys for Amicus Curiae
CERTIFICATE OF INTERESTED PERSONS AND
CORPORATE DISCLOSURE STATEMENT
Pursuant to Eleventh Circuit Rule 26.1-1, amicus curiae The Association of
American University Presses, Inc. (“AAUP”) makes the following disclosures.
AAUP is a non-profit incorporated trade association that does not have any
parent, subsidiary, or affiliated companies.
In addition to those identified in
Appellants’ brief, the following trial judges, attorneys, persons, associations of
persons, firms, partnerships, and corporations are known to have an interest in the
outcome of this appeal:
x The Association of American University Presses (“AAUP”), Amicus Curiae
x Steinman, Linda, Davis Wright Tremaine LLP, Counsel for Amicus Curiae
AAUP.
Pursuant to Federal Rule of Appellate Procedure 29(c)(5), amicus curiae
state that no counsel for a party authored this brief in whole or in part, and no
person or entity other than amicus and its counsel made a monetary contribution to
the preparation or submission of this brief.
Dated: February 4, 2013
DWT 20645800v8 0066753-000005
/s/ Linda Steinman
Counsel for Amici Curiae The
Association of American University
Presses
TABLE OF CONTENTS
Page
CERTIFICATE OF INTERESTED PERSONS AND CORPORATE
DISCLOSURE STATEMENT ........................................................................ i
TABLE OF AUTHORITIES ................................................................................... iv
STATEMENT OF ISSUES .......................................................................................1
INTEREST OF AMICUS ..........................................................................................1
SUMMARY OF ARGUMENT .................................................................................2
ARGUMENT .............................................................................................................8
I.
THE DISTRICT COURT ERRED IN ITS APPLICATION OF
THE FAIR USE DOCTRINE ...............................................................8
A.
The Court Below Erred In Finding That The First Factor
“Strongly” Favored The Defendant Under the Preamble To
Section 107 ..................................................................................8
1.
The District Court’s Reliance on the Preamble is
Misplaced ..........................................................................8
2.
The Copies are a Non-Transformative, Market
Substitute for Books and Licensed Excerpts of Books ..13
B.
The District Court’s Analysis of the Second Factor Placed
Undue Emphasis on the Factual Nature of the Works ..............15
C.
The District Court’s Analysis of the Third Factor was
Fundamentally Flawed ..............................................................18
1.
The Court Below Erroneously Analyzed the
Qualitative Significance of the Portion Used In
Relation To The Copyrighted Work as a Whole ............19
2.
The Court Below Also Erred in its Approach
Regarding the Quantitative Significance of the
Copied Portions ..............................................................20
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3.
D.
The Court Below Failed to Account for the
Likelihood of Market Substitution In Its Assessment
of the Third Factor ..........................................................22
The District Court Erred in Finding that the Fourth Factor,
Market Harm, Favors Defendant ..............................................23
1.
The Court Below Improperly Focused on the
Substantiality of Plaintiffs’ Permissions Income,
Rather than the Substantiality of the Impact on that
Income ............................................................................25
CONCLUSION ........................................................................................................28
CERTIFICATE OF COMPLIANCE WITH RULE 28.1(e) or 32(a) .....................29
CERTIFICATE OF SERVICE ................................................................................30
iii
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TABLE OF AUTHORITIES
Page(s)
CASES
American Geophysical Union v. Texaco,
60 F.3d 913 (2d Cir. 1994) .................................................. 11, 13, 21, 22, 23, 24
Basic Books, Inc. v. Kinko’s Graphics Corp.,
758 F. Supp. 1522 (S.D.N.Y. 1991) ..................................... 11, 16,19, 20, 21, 24
Campbell v. Acuff-Rose Music, Inc.,
510 U.S. 569 (1994) ............................................................. 11, 13, 14, 23, 24, 25
Harper & Row Publ’rs v. Nation Enter.,
471 U.S. 539 (1985) ................................................... 4, 11 ,15, 16, 17, 18, 20, 23
Infinity Broadcast Corp. v. Kirkwood,
150 F. 3d 104 (2d Cir. 1998) ..........................................................................4, 26
Letterese & Assoc. v. World Inst. of Scient.,
533 F. 3d 1287 (11th Cir. 2008) .......................................... 14, 18, 23, 24, 25, 27
Los Angeles News Service v. Reuters Television Int’l Ltd.,
149 F.3d 987 (9th Cir. 1998) .............................................................................. 26
Pacific & Southern Co., Inc. v. Duncan,
744 F.2d 1490 (11th Cir. 1984) ..............................................................17, 20, 25
Princeton Univ. Press v. Mich. Doc. Servs., Inc.,
99 F.3d 1381 (6th Cir. 1996) ......................................................11, 16, 17, 24, 29
Video Pipeline v. Buena Vista Home Entertainment,
342 F.3d 191 (3d Cir. 2003) ............................................................................... 24
Weissman v. Freeman,
868 F.2d 1313 (2d Cir. 1989) ..................................................... 14, 17weismman
STATUTES AND LEGISLATIVE HISTORY
17 U.S.C. § 107 .................................................................................................passim
H.R. Conf. Rep. No. 1733, 94th Cong. 2d Sess. (1976). ......................................... 10
iv
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H.R. Rep. No. 83, 94th Cong. 2d Sess. (1976) .......................................................... 9
H.R. Rep. No. 94-1476, 94th Cong. 2d Sess. (1976).....................................9, 10, 11
S. Rep. No. 473, 94th Cong. 1st Sess. (1976).......................................................... 10
OTHER AUTHORITIES
4 Melville B. Nimmer & David Nimmer,
Nimmer on Copyright §13.05[E][1] (2012) .......................................................... 7
4 Melville B. Nimmer & David Nimmer,
Nimmer on Copyright § 13.05[B][5] ................................................................. 15
Facing Cutbacks, UC Press Will Suspend Poetry Series,
L.A. Times (July 19, 2011) ................................................................................. 27
Jennifer Howard, Louisiana State U. Press Fights to Preserve its Essential
Value, The Chronicle of Higher Education, vol. 55 (June 5, 2009) ................... 27
University of Missouri Press to Close, after 54 Years,
L.A. Times (May 24, 2012) ................................................................................ 27
v
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BRIEF OF AMICUS CURIAE
THE ASSOCIATION OF AMERICAN UNIVERSITY PRESSES
IN SUPPORT OF PLAINTIFF-APPELLANT
This brief is respectfully submitted by the Association of American
University Presses (“AAUP” or “amicus”),1 urging reversal of the order below.
STATEMENT OF ISSUES
Did the district court err in its application of the fair use doctrine to the
copying and distribution of substantial excerpts of academic works in electronic
course readings without permission from the copyright holder?
INTEREST OF AMICUS
AAUP is a trade association comprising 130 nonprofit academic presses,
both large and small. The vast majority are university presses affiliated with their
parent universities in the United States and Canada.
AAUP’s members also
include museums, societies and other nonprofit publishers of scholarly works.
AAUP’s member presses currently have more than 220,000 titles in print across
virtually all scholarly disciplines in the humanities, social sciences, arts, and
sciences, with 10,000 new titles added each year. Since university professors
frequently assign readings from books published by academic presses, the
resolution of this test case has a direct impact on AAUP’s members.
1
This brief is submitted on behalf of the AAUP. It does not necessarily represent
the views of each and every member of the organization and should not be
construed as the individual views of any given member.
1
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The parties have consented to the filing of this amicus curiae brief. See Fed.
R. App. P. 29(a).
SUMMARY OF ARGUMENT
It is critical to understand the factual backdrop to the current dispute. For
many decades, university students purchased books assigned by their professors,
providing important remuneration to the books’ publishers. Starting in the 1980’s,
it became common practice for universities to assign course readings in the form of
customized paper “coursepacks,” which were anthologies comprising excerpts
from various copyrighted works.
To compensate publishers for these uses,
permissions fees were regularly paid to the publishers of the excerpts – in part, as a
result of lawsuits brought by the publishing community. Today, however, times
have radically changed. Advances in technology have made it easy to select and
distribute individual chapters from multiple books, rather than relying primarily on
a limited number of texts – and thus the practice of creating anthologies has
become even more widespread. Unfortunately, as course readings have migrated
to the electronic realm, some institutions have neglected to pay permissions fees.
The problem this poses for academic publishers has become progressively more
dire as universities post increasing amounts of students’ course reading
electronically.
2
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The district court below failed to understand these realities and the
importance of scholarly publishing. In filing this brief as amicus curiae, AAUP
does not intend to diminish the fair use doctrine, which is vital in fostering the
scholarship and research published by university presses. AAUP also embraces
the use of electronic texts in classrooms; indeed, many AAUP members are
experimenting with innovative means of digital delivery and dissemination for
their works. Rather, AAUP only objects to the taking of significant portions of its
members’ works without compensation beyond the bounds of “fair use.” AAUP
believes that the district court fundamentally misapplied the four fair use factors in
assessing fair use and thus improperly immunized GSU’s practices.
To start, the district court concluded that the first factor heavily favored
Georgia State University (“GSU”) because the preamble to Section 107 of the
Copyright Act lists “teaching (including multiple copies for classroom use)” as an
illustrative example of potential fair use. But when Section 107 was enacted in
1976, the paradigmatic image of “classroom copying” was a teacher handing out a
few sheets for discussion within the four walls of the classroom. Even in the
1970’s, Congress was concerned about the potential adverse impact of new
photocopying technology on publishers. Since that time, the threat to academic
publishers has grown exponentially, as electronic course materials have become a
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primary means of assigning out-of-the classroom reading on the college and
graduate school level.
Likewise, the district court fundamentally misapplied the second factor by
concluding that, because academic works are “informational” rather than
“fictional,” this factor should automatically favor those who want to make
verbatim reproductions of scholarly works without paying permissions fees. This
analysis cannot stand under the U.S. Supreme Court’s decision in Harper & Row
Publ’rs v. Nation Enter., 471 U.S. 539 (1985). As the Court eloquently expressed
in that case, which involved a biography, “It is fundamentally at odds with the
scheme of copyright to accord lesser rights in those works that are of the greatest
importance to the public,” such as books intended to educate and inform. Id. at
559.
The district court’s analysis of the third factor, namely the amount and
substantiality of use, was equally tone deaf to the realities of scholarly publishing
and the nature of electronic course materials. The verbatim reproduction of a full
chapter of a book, without paying the publisher and author for their scholarship
and all the attendant costs of editing and publication, is both qualitatively and
quantitatively significant. A chapter can often contain a scholar’s complete – and
complex – intellectual analysis of a given topic. Moreover, the district court erred
by examining the amount and substantiality of the use from the narrow prism of an
4
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excerpt-by-excerpt basis, rather than looking at “the collective action of a plurality
of [users.]” Infinity Broadcast Corp. v. Kirkwood, 150 F. 3d 104, 110 (2d Cir.
1998). From a systematic standpoint, it is clear that universities like GSU are
routinely providing a substantial portion of course reading assignments through the
posting of electronic course anthologies comprised from an array of individual
sources, leading to a large cumulative taking of copyrighted material across the
university system year after year.
Lastly, as detailed herein, the district court fundamentally erred in applying
the fourth factor related to market harm – both by imposing an erroneous,
manufactured legal standard and more broadly in its failure to recognize the very
real harm to scholarly publishing that arises when universities and students do not
pay permissions fees. In contrast to most fair use cases, the posting of electronic
course readings consisting of book excerpts is a wholly untransformative use. In
other words, this case involves unaltered, verbatim reproductions of multiple pages
of text. These postings obviously constitute a market substitute for the original
work or excerpts thereof, since they are identical copies.
Further, the district court misunderstood the importance of permissions
income – both to the plaintiff publishers and to smaller academic publishers.
Permissions income is absolutely critical to AAUP’s members, many of whom
operate on extremely tight margins.
The loss of even a small amount of
5
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permissions income therefore has a disproportionately negative effect on
publishers. For smaller academic presses, permissions income from electronic
course materials may make the necessary difference in keeping a part-time
employee on staff or funding a scholarly series. Further, one of the key reasons
that permissions income is low is that some universities have failed to pay required
permissions fees for their electronic coursepacks. Publishers should certainly not
be penalized because of the universities’ failure to pay them the permissions to
which they are entitled by law.
Finally, it is transparent that the district court’s overall approach to the fair
use determination was driven by a solicitude for cash-strapped public universities
and their students, and a failure to sufficiently recognize the critical role that
university presses and other scholarly publishers play in the larger university
ecosystem. Scholarly publishing is integral to the modern university, both because
it provides scholars with a means to publish their works and broadly disseminate
their ideas, and because students and faculty derive an immense benefit from welledited, peer-reviewed, highly sophisticated publications by true scholars in the
field. Without the critical income from book sales to students and permissions fees
for course materials, university presses will be unable to recoup their investment in
publishing a diverse range of scholarly works, many of which are highly
specialized, and hence less likely to publish such works – which in turn will
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decrease the published scholarship available to students and faculty. In other
words, the short-term benefit to a given university or its student population from
decreased fees is outweighed by the injury to the broader university community
and to the public’s interest in high-quality education and the advancement of
knowledge.2
2
As Professor Nimmer explained some years ago in words that carry additional
force today: “The unauthorized reproduction for scholarly or educational purposes
of limited numbers of copies of copyrighted works has come to present one of the
major problems of fair use. With ever greater technological advances in methods
for the making of inexpensive photocopies, the problem each year becomes more
acute . . . . The photocopying revolution has begun, but has yet to run its full
course. Photocopying in general, and more particularly classroom and library
reproduction of copyrighted materials, command a certain sympathy . . . in view of
their socially useful objectives. What this overlooks is the tremendous reduction in
the value of copyrighted works that must result from a consistent and pervasive
application of this practice. One who creates a work for educational purposes may
not suffer greatly by an occasional unauthorized reproduction. But, 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
educational materials would be almost completely obliterated. This could well
discourage authors from creating works of a scientific or educational nature. If the
‘progress of science and useful arts’ is promoted by granting copyright protection
to authors, such progress may well be impeded if copyright protection is virtually
obliterated in the name of fair use.” 4 Melville B. Nimmer & David Nimmer,
Nimmer on Copyright §13.05[E][1] (2012).
7
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ARGUMENT
I.
THE DISTRICT COURT ERRED
IN ITS APPLICATION OF THE FAIR USE DOCTRINE
A.
The Court Below Erred In Finding That The First Factor “Strongly”
Favored The Defendant Under the Preamble To Section 107
1.
The District Court’s Reliance on the Preamble is Misplaced
The district court concluded that the first fair use factor – namely the
“purpose and character” of the use – weighed strongly in the defendant’s favor on
the ground that Georgia State University is a nonprofit educational institution
engaged in a noncommercial use of the excerpts in connection with classroom use.
(Op. at 50.)3 It relied heavily on the fact that the preamble to Section 107 of the
Copyright Act identifies “teaching (including multiple copies for classroom use),”
as a possible fair use. (Op. at 49-50.) While it is true that classroom “teaching”
appears in the preamble, the use that many university professors and students
currently make of copyrighted materials in electronic course materials– as
exemplified by GSU in this case – is far from what was contemplated by Congress.
As the legislative history makes plain, Congress was focused on “classroom
3
As used herein, “Op.” refers to the May 11, 2012 decision of the United States
District Court for the Northern District of Georgia, which is the subject of this
appeal.
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reproduction, particularly photocopying.”4 When Section 107 was drafted, the
paradigmatic image of “classroom copying” was a teacher occasionally handing
out copies of a short portion of a work for classroom discussion within the
classroom.
Advocates for the provision, who represented educational and
scholarly organizations before Congress,
emphasized that teachers are not interested in mass copying that
actually damages authors and publishers, but that they need to
be free to make creative use of all of the resources available to
them in the classroom, and that this necessarily involves some
reproduction and distribution of copyrighted works such as
contemporaneous material in the press, isolated poems and
stories for illustrative purposes, and the like.
H.R. Rep. No. 83 at 30, 90th Cong. 1st Sess. (1967). While recognizing the need
to protect teachers, Congress was equally cognizant of the potential harm to
publishers, concluding that “a specific exemption freeing certain reproductions of
copyright works for educational and scholarly purposes from copyright control is
not justified.” H.R. Rep. No. 1476 at 66-67. The Report of the Senate Judiciary
Committee likewise recognized the difference between the limited classroom
4
See H.R. Rep. No. 1476 at 66, 94th Cong. 2d Sess. (1976) (hereinafter “H.R. Rep.
No. 1476”) (“Most of the discussion of section 107 has centered around questions
of classroom reproduction, particularly photocopying”); id. at 67 (referring to
“typical classroom situations arising [in the late 1960s and 1970s]”); id. at 66
(explaining that “the newly added reference to “multiple copies for classroom use”
is a recognition that, under the proper circumstances of fairness, the doctrine can
be applied to reproductions of multiple copies for the members of a class,” but is
not an attempt to broaden the fair use doctrine, or create an exemption for such
uses).
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copying it contemplated and the use of copying technology to supplant the need for
course materials, as exemplified by GSU:
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. 473 at 63, 94th Cong. 1st Sess. (1976).
Both the House and Senate also accepted the “Agreement on Guidelines for
Classroom Copying in Not-for-Profit Educational Institutions With Respect to
Books and Periodicals” (the “Classroom Guidelines”) “as part of their
understanding of fair use.” H.R. Conf. Rep. No. 1733 at 70, 94th Cong. 2d Sess.
(1976).5
The Classroom Guidelines represented a compromise between the
interests of teachers in the classroom and the need to protect publishers from the
5
The Classroom Guidelines were collaboratively developed by representatives of
the Ad Hoc Committee of Educational Institutions and Organizations on Copyright
Law Revision, the Authors League of America, Inc. and the Association of
American Publishers, Inc. See H.R. Rep. No. 94-1476, at 67-71.
10
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market harm posed by advances in photocopying, and contemplated a type of
“teaching use” that is far removed from electronic course materials such as those
used at GSU. See H.R. Rep. No. 1476 at 68-71; Op. at 55-59.6 Critically, the
Classroom Guidelines restrict classroom copying to those instances where “the
copying does not substitute for the purchase of “books, publishers’ reprints or
periodicals,” id. § III(C)(b), and expressly forbid the creation of anthologies, or
customized compilations of copyrighted material from various sources, such as
those at issue here. Id. § III(A). Further, as the Classroom Guidelines make clear,
the paradigm for permissible classroom copying is “spontaneous” copying of a
brief excerpt of a work for “classroom use or discussion.” Id § II(A). In the
Classroom Guidelines, “brevity” is defined as “an excerpt . . . of not more than
1,000 words or 10% of the work, whichever is less” and “spontaneity” means that
“[t]he inspiration and decision to use the work and the moment of its use for
maximum teaching effectiveness [must be] so close in time that it would be
unreasonable to expect a timely reply to a request for permission.” See, e.g.,
Michigan Document Servs., 99 F.3d at 1390-91 (finding that, by its “systematic
6
Courts have frequently referenced the legislative history, and the Guidelines in
particular, in deciding fair use issues. See, e.g., Harper & Row, 471 U.S. at 54953; Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 574-78 (1994); American
Geophysical Union v. Texaco, 60 F.3d 913, 919 n. 5 (2d Cir. 1994) (hereinafter
Texaco); Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F. Supp. 1522, 1535-36
(S.D.N.Y. 1991); Princeton University Press v. Michigan Doc. Servs., 99 F.3d
1381, 1390-91 (6th Cir. 1996) (hereinafter “Michigan Doc. Servs.”).
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and premeditated character, its magnitude, [and] its anthological content . . .” the
copying engaged in by defendant “goes well beyond anything envisioned by the
Congress that chose to incorporate the guidelines in the legislative history”).7
Thus, a proper reading of the preamble, in light of the legislative history,
strongly rebuts the district court’s conclusion that Congress intended a strong
blanket presumption in favor of nonprofit, educational uses. Instead, it is clear that
Congress was deeply concerned about the adverse impact on academic publishers
if educators began to use copying technologies to supplant the market for course
materials and textbooks. In the years since 1976, this threat has grown
exponentially, as advances in technology make it easier, faster and cheaper to
electronically disseminate copies of copyrighted works as the core curricular
materials for college and graduate school courses. Thus, the “fair use” of works by
teachers in the classroom contemplated by the 1976 Congress are a far cry from
today’s digital reality, when electronic course materials have become a
predominant means of assigning out-of-classroom reading on the college and
graduate school level. As such, they often replace or substitute for the purchase of
7
While the Opinion below acknowledged the Classroom Guidelines in its
discussion of the third factor, it discounted them as a compromise that “was
satisfactory only to some of the negotiators” (Op. at 58) and declined to accord
them any weight. (Op. at 55-59.) Amicus respectfully submits that whether every
stakeholder was in 100% agreement with the overall consensus position is beside
the point, and does not change the fact that the Guidelines inform the meaning of
“fair use” and “classroom copying” as used in the Copyright Act.
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books and textbooks – the very harm that Congress sought to avoid. Far from
spontaneous, electronic course readings are typically chosen and assigned at the
beginning of the semester as part of an electronic course “anthology” (and often
the same readings are assigned semester after semester) – precisely the type of use
for which universities have typically paid permissions for “hard copy”
coursepacks. On the facts of this case, the district court’s heavy reliance on the
preamble to Section 107 was, quite simply, misplaced.
In sum, Georgia State University’s systematic uses of electronic course
materials across its curriculum are extremely different from the paradigm
envisioned by Congress in the preamble to Section 107. The radical changes of the
digital revolution require a far more nuanced approach than the district court
employed in construing the preamble and the first factor.
2.
The Copies are a Non-Transformative, Market Substitute for
Books and Licensed Excerpts of Books
The district court compounded its error on the first factor by failing to place
significant weight on the fact that GSU’s use of the excerpts is wholly
nontransformative. “[T]he Supreme Court has explicitly ruled that the concept of a
‘transformative use’ is central to a proper analysis under the first factor.” Texaco,
60 F.3d at 923 (quoting Campbell, 510 U.S. at 579). The Supreme Court has
instructed that:
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[t]he central purpose of this investigation is to see, in Justice
Story’s words, whether the new work merely ‘supercede[s] the
objects’ of the original creation [citations omitted], 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.
Campbell, 510 U.S. at 579 (emphasis added).8 It is these types of new, creative
works – not verbatim copying – that the fair use doctrine is principally designed to
foster. As this Court has stated, “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. . . .” Letterese & Assoc. v. World
Inst. of Scient., 533 F. 3d 1287,
1310 (11th Cir. 2008) (citation omitted).
Accordingly, it is well-established that where the infringing work serves the same
function or purpose as the original use, a finding of fair use is far less likely. See,
e.g., Weissman v. Freeman, 868 F.2d 1313, 1324 (2d Cir. 1989) (“where, as here,
appellee’s use [of professor’s journal article] is for the same intrinsic purpose as
8
While acknowledging that the University of Georgia’s use was
“nontransformative” (Op. at 65), the district court failed to properly consider this
issue based on a footnote in Campbell v. Acuff-Rose which reads: “‘The obvious
statutory exception to this focus on transformative uses is the straight reproduction
of multiple copies for classroom distribution.’” (Op. at 50 (quoting Campbell, 510
U.S. at 579 n. 11)). However, for all the reasons set forth in Section I(A)(1) of this
brief, this case does not concern the sort of unsystematic in-classroom use
contemplated by the preamble to Section 107 to which the Supreme Court alludes
in this footnote, and thus the Supreme Court’s footnote cannot properly be read to
mean that broadscale, substantial, market-substituting mirror image copying in
electronic course material of the sort reflected in record here is fair use.
14
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[the appellant’s original use] . . . , such use seriously weakens a claimed fair use”);
Nimmer on Copyright § 13.05[B][5] (“If . . . plaintiff’s and defendant’s works
satisfy the same purpose, then . . . the defense of fair use should not be available.”).
There can be no doubt that electronic course materials serve the same
function as, and compete with, the sale of books published by university presses,
because they allow professors to duplicate chapters from many different academic
works rather than assigning any given book.
Similarly, electronic course
anthologies obviously compete with licensed excerpts of books. Therefore, as a
matter of common sense, the nontransformative excerpts created by the University
are exceedingly likely to serve as a market substitute for the offerings of university
presses. In sum, the district court erred by failing to properly consider the lack of a
transformative use.
B.
The District Court’s Analysis of the Second Factor Placed Undue
Emphasis on the Factual Nature of the Works
In its assessment of the second factor of the fair use analysis, see 17 U.S.C.
§ 107(2), the district court placed undue weight on the fact that the works at issue
were factual works, applying an all-or-nothing approach in which factor two
automatically weighs in favor of the infringer whenever the works at issue are not
fictional. (See Op. at 52.) Especially where, as here, the works being duplicated
are scholarly books, the district court’s holding cannot stand under the U.S.
Supreme Court’s decision in Harper & Row.
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As the Supreme Court explained in Harper & Row, the second factor does
not turn on a simplistic check list of whether the work is fact or fiction, but on the
nature of the work:
[E]ven within the field of fact works, there are gradations as to
the relative proportion of fact and fancy. One may move from
sparsely embellished maps and directories to elegantly written
biography. The extent to which one must permit expressive
language to be copied, in order to assure dissemination of the
underlying facts, will thus vary from case to case.
471 U.S. at 563.
Thus, the second factor calls for a court to analyze the
copyrighted works along a continuum. Moreover, even though “the scope of fair
use is greater with respect to factual than non-factual works” (see Basic Books, 758
F. Supp. at 1532), scholarly works – which involve highly sophisticated learning
and analysis – are entitled to robust copyright protection. As the Supreme Court
eloquently expressed in Harper & Row, the aim of copyright is “to stimulate the
creation of useful works for the general public good” – a “principle [which] applies
equally to works of fiction and nonfiction.”
471 U.S. at 546, 558.
“It is
fundamentally at odds with the scheme of copyright to accord lesser rights in those
works that are of the greatest importance to the public,” id. at 559, such as books
“intended to inform and educate” (Op. at 52).
In light of the above considerations, many courts analyzing fair use in the
context of more sophisticated factual works have found that the second factor
weighs in favor of the plaintiff or is at worst neutral. In Harper & Row, which
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involved President Ford’s autobiography, the Supreme Court found that the second
factor weighed in favor of the publisher. 471 U.S. at 564 (finding that use of
autobiography is “difficult to characterize as fair” under second factor). The Sixth
Circuit reached the same conclusion in Michigan Doc. Servs., Inc., 99 F.3d at 1389
(analyzing copying of non-fiction scholarly works in paper coursepacks and
finding that the second factor “cuts against a finding of fair use”). In Pacific &
Southern Co., Inc. v. Duncan, 744 F.2d 1490 (11th Cir. 1984), the Eleventh Circuit
reviewed the infringement of individual news stories that had been broadcast on
the nightly news. This Court emphasized the need to “take care not to discourage
authors from addressing important topics for fear of losing their copyright
protections” and concluded that the second factor had a “limited impact.” Id. at
1497. Similarly, in Weissman v. Freeman, the Second Circuit considered the nonprofit, educational use of journal articles on nuclear medicine and radioactive
imaging. In view of the purpose of copyright – to “provide[s] the economic
incentive to research and disseminate ideas” “whether in the nature of fiction or
fact”– the court concluded that “the incentive interests, in our view, balance the
equitable scales so that the nature of the work factor does not tip decidedly in favor
of either party.” 868 F.2d at 1325.
Here, while the vast majority of the works published by the plaintiffs below,
and by AAUP, are admittedly factual, rather than fictional, they are far more akin
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to a biography than a “sparsely embellished maps.” Harper & Row, 471 U.S. at
563. These works are the result of extensive scholarship, analysis, creative input,
peer review and the exercise of editorial judgment, and it is this creative
scholarship that leads professors to choose one excerpt on a given non-fiction topic
over another. As the Supreme Court found in Harper & Row, these are the very
type of works that we as a society need to stimulate the publication of, to advance
the public good. Id. at 557-59. In sum, the second factor properly leans in the
publishers’ favor or, at the very worst, is neutral as to fair use.
C.
The District Court’s Analysis of the Third Factor was Fundamentally
Flawed
In its review of the third factor, the court below erred in its analysis of both
the qualitative and quantitative significance of the amount copied. The district
court properly acknowledged that, “Taking into account the fact that this case
involves only mirror-image, nontransformative uses, the amount used must be
decidedly small to qualify as fair use.” (Op. at 65; see also Letterese, 533 F.3d at
1314 n.30 (“The inquiry is whether the amount taken is reasonable in light of the
purpose of the use and the likelihood of market substitution.”).) Despite this, the
court below concluded with very few exceptions that the amounts taken –typically
a chapter or multiple chapters – were neither qualitatively nor quantitatively
significant.
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1.
The Court Below Erroneously Analyzed the Qualitative
Significance of the Portion Used In Relation To The Copyrighted
Work as a Whole
As an initial matter, the court below erred by holding in almost all instances
that the publishers had failed to show that the infringing excerpts were “critical
parts” or the “heart” of the entire book. (See Op. at 68-69; see also Op. at 67.)
However, as the court itself acknowledged, the chapters were critical to the
treatment of a given topic, and thus should have been viewed as qualitatively
significant. (See Op. at 68-69 (“[a] chapter of an academic book is a unit which, in
all likelihood, covers a particular theory or topic.”).) In Basic Books, Inc. v.
Kinko’s Graphics Corp., as here, excerpts of one to three chapters in length were
copied from scholarly works and compiled into course packets or anthologies. The
court properly concluded that:
[T]he portions copied were critical parts of the books copied,
since that is the likely reason the college professors used them
in their classes. While it may be impossible to determine, as the
Court did in Harper & Row, that the quoted material was
“essentially the heart of” the copyrighted material, it may be
inferred that they were important parts. . . . In almost every
case, defendant copied at least an entire chapter of a plaintiff’s
book. This is substantial because they are obviously meant to
stand alone, that is, as a complete representation of the concept
explored in the chapter. This indicates that these excerpts are
not material supplemental to the assigned course material
but the assignment. Therefore, the excerpts, in addition to
being quantitatively substantial, are qualitatively significant.
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758 F. Supp. at 1533-34 (emphasis in original) (citing Harper & Row, 471 U.S. at
565); see also Pacific & Southern Co., Inc., 744 F.2d at 1497 (finding a single
news story is a “coherent narrative” and the relevant “work” for purposes of a fair
use analysis, as opposed to the entire broadcast). Further, as the Supreme Court
has held, “the fact that a substantial portion of the infringing work was copied
verbatim is evidence of the qualitative value of the copied material.” Harper &
Row, 471 U.S. at 565. For all these reasons, this Court should find that the
electronic course offerings at issue are qualitatively significant.
2.
The Court Below Also Erred in its Approach Regarding the
Quantitative Significance of the Copied Portions
The district court also concluded in a wooden across-the-board analysis that
electronic course readings containing excerpts of up to 10% of the work for a work
of less than 10 chapters, and a full chapter for works of 10 or more chapters, were
“decidedly small” and hence fair use. On several occasions, it also found that
longer excerpts constituted fair use.
The uncompensated-for use of an entire verbatim chapter of a book,
semester after semester, without remuneration to the author and publisher fails to
recognize their contribution to scholarship and all the attendant costs of editing and
publication.
A chapter often contains a scholar’s complete – and complex –
intellectual analysis of a given topic based on years of study and accumulated
expertise. Courts routinely find that excerpts of the same length as those at issue
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here weigh strongly in favor of the copyright holder. See, e.g., Basic Books, 758
F. Supp. at 1527 (where copied excerpts ranged from less-than-half to three
chapters, comprising 5% to 20% or more of the book, “the amount copied
weigh[ed] against the defendant”).
Moreover, the use of any one excerpt in an electronic posting of course
readings cannot be viewed in isolation. As explained above, in today’s world,
professors routinely use multiple one-chapter excerpts in electronic coursepacks to
comprise the bulk of the course’s readings, and do so year after year. Viewed in
this light, their far greater quantitative significance becomes clear.
Further, the district court failed to recognize that in the case of edited books–
i.e., books where each chapter is authored independently by a different scholar– the
posting of a chapter constitutes a taking of that scholar’s entire “work.” In doing
so, the district court placed undue weight on the fact that such authors often assign
their copyrights in the individual chapters to the publisher, holding that “where the
publisher has the exclusive right to publish the entirety of a copyrighted book, it
may not defeat the user’s fair use defense by arguing that too much of a particular
chapter has been copied.” (Op. at 69-70.) This approach makes no sense, and is
directly contrary to that taken by courts in other circuits. In Texaco, for example,
the Second Circuit recognized that the individual articles within a journal
constitute “discrete ‘original works of authorship’” precisely because they had
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been independently authored, were independently copyrightable, and the authors
had to transfer the copyright in the individual articles to the publisher. 60 F.3d at
926. The Second Circuit thus concluded that, in copying individual articles from a
journal issue, “[defendant] has copied entire works.” Id. Indeed, the absurdity of
any contrary result is illustrated by the fact that it is often the case in academia that
an article that is originally published in a journal is later republished in, or becomes
the basis for, a chapter in a book.
It is wholly illogical to treat this as a
freestanding work of authorship when published in a journal, but deny it the same
protections when found in a book.9 Furthermore, in an online world in which the
primary unit of research is increasingly the journal article or book chapter, rather
than the full journal issue or complete book, the print context of a chapter in an
edited volume is rapidly diminishing in relevance.
3.
The Court Below Failed to Account for the Likelihood of Market
Substitution In Its Assessment of the Third Factor
Lastly, the district court’s analysis of the third factor failed to account for the
likelihood of market substitution. As this Court has noted, the third factor counsels
9
Additionally, the court below also bizarrely concluded that the “title page,
dedications, the copyright information page, the table of contents, [and]
acknowledgements” as well as material “appearing before and after the chapter text
of the book,” for example, the index or glossary, should be included when
determining “the percent amount of the book that was copied by defendants.” (Op.
at 60-61.) Amicus is aware of no other case to reach this absurd result. If this were
the standard, it would only create an incentive for publishers to include indices and
tables of contents that are as brief (and unhelpful!) as possible.
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against a finding of fair use where the copying “could have a substitution effect on
the market for [the copyrighted work].” Letterese, 533 F.3d at 1315. Because the
use at issue is wholly nontransformative, and because the use of a chapter often
suffices to address a given topic, the likelihood that the excerpts will serve as a
market substitute for books and excerpts is very high.
D.
The District Court Erred in Finding that the Fourth Factor, Market
Harm, Favors Defendant
The fourth fair use factor is “the effect of the use upon the potential market
for or value of the copyrighted work.” § 107(4)(emphasis added). This factor
“requires courts to consider not only the extent of market harm caused by the
particular actions of the alleged infringer, but also whether unrestricted and
widespread conduct of the sort engaged in by the defendant . . . would result in a
substantially adverse impact on the potential market’ for the original.” Campbell,
510 U.S. at 590; see also Texaco, 60 F.3d at 927 n.12 (“[T]he fourth factor is
concerned with the category of a defendant’s conduct, not merely the specific
instances of copying.”). Further, the Supreme Court has held that “[t]he [market
impact] enquiry ‘must take account not only of harm to the original but also of
harm to the market for derivative works,’” Campbell, 510 U.S. at 590 (quoting
Harper & Row, 471 U.S. at 569), “because the licensing of derivatives is an
important economic incentive to the creation of originals.” Id. at 593.
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The district court should have easily concluded that the fourth factor
“weighs heavily against defendants.”
Basic Books, 758 F. Supp. 2d at 1534
(finding coursepacks impact book sales and permissions fees); Michigan Doc.
Servs., 99 F.3d at 1387 (finding coursepacks impact permissions fees).
It is
transparently obvious that a university’s free posting of verbatim excerpts from
books will inflict market harm on the publisher seeking to license those very
excerpts.10
The fact that there exists a convenient and viable market for
permissions through the Copyright Clearance Center as well as through the
publishers themselves further supports a finding of market harm. See Texaco, 60
F.3d at 930-31; Michigan Doc. Servs., 99 F.3d at 1388. Further, widespread
conduct of the sort practiced by GSU will also cause market harm to publishers by
decreasing their ability to sell books. While the district court concluded that the
University’s practices could not impact book sales because “a 10% excerpt would
not substitute for the original, no matter how many copies were made” (Op. at 74),
this overlooks the fact that professors often have no need to assign full length
10
Both the U.S. Supreme Court and several circuit courts have recognized the
common sense reality that where, as here, a secondary use is not transformative but
rather a verbatim copy, it is far more likely to serve as a market replacement for the
original. Campbell, 510 U.S. at 591 (noting that an exact duplicate of an original
that serves as a market replacement for it makes it “likely that cognizable market
harm to the original will occur”); Video Pipeline v. Buena Vista Home
Entertainment, 342 F.3d 191, 202-03 (3d Cir. 2003) (nontransformative use
“serve[s] as a market replacement,” “making it likely that cognizable market harm
to the [original] will occur”); Letterese, 533 F.3d at 1315.
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books if they are able to assemble and disseminate their own compendium of
excerpts for free – thus leading to a contraction in book sales.
1.
The Court Below Improperly Focused on the Substantiality of
Plaintiffs’ Permissions Income, Rather than the Substantiality of
the Impact on that Income
In the face of these common sense conclusions, the district court invented
significant new hurdles to a showing of market harm that cannot stand as a matter
of law. First, while other courts have simply required that a plaintiff show that the
licensing revenues at issue are in “those [markets] that creators of original works
would in general develop or license others to develop” (Letterese, 533 F.3d at
1317), the district court below concocted a requirement that the licensing income
constitute a material percentage of the plaintiff publishers’ income. This is not the
law. Indeed, the district court’s formulation turns the analysis on its head. The
issue is not whether the permissions income constitutes a substantial portion of the
publishers’ income, but “whether unrestricted and widespread conduct of the sort
engaged in by the defendant . . . would result in a substantially adverse impact on
the [relevant] market.’” Campbell, 510 U.S. at 590. Thus, in Pacific & Southern
Co., this Court found that the fourth factor favored the plaintiff even though sales
of taped new stories from its nightly news broadcasts were a “small portion of
[plaintiff’s] total profits” and the plaintiff was not actively exploiting the market
for sale of copies of individual stories, because any exploitation of that market by
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defendant would necessarily have a substantial adverse effect on plaintiff’s ability
to market those excerpts.
744 F.2d at 1493-94, 1496-97; see also Infinity
Broadcasting, 150 F.3d at 110-11 (finding market harm although plaintiff Infinity
had only offered listening lines to its customers at no additional cost and had not
attempted to license the retransmission of its programs for the use made by
defendant); Los Angeles News Service v. Reuters Television Int’l Ltd., 149 F.3d
987, 994-95 (9th Cir. 1998) (fourth factor favored plaintiff despite no proof of loss
of actual sales because both parties were in the business of providing audiovisual
news material to the media).
Further, the court’s requirement of a material loss in income turns logic on
its head. Permissions income is often low because universities have failed to pay
required permissions fees with the advent of electronic course materials. Their
evasion of the law cannot be a basis to deny recovery to the rightful copyright
owners, who have the exclusive right to exploit the rights in their works.
Finally, the district court’s analysis disregards the fact that permissions
income is critical income for many academic publishers, especially smaller
university presses. The vast majority of AAUP’s member presses operate on very
thin budgets, where every dollar of income counts.
Permissions income is
particularly helpful because it carries with it none of the direct costs associated
with income from book sales (such as manufacturing costs, warehousing costs,
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etc.). While many academic presses rely in part on subsidies from their parent
universities in order to publish, they are increasingly operating on reduced budgets
and facing further cutbacks. In recent years, a number of university presses have
faced closure or been forced to cut their offerings. See, e.g., University of Missouri
Press to Close, after 54 Years, L.A. Times (May 24, 2012); Facing Cutbacks, UC
Press Will Suspend Poetry Series, L.A. Times (July 19, 2011); Jennifer Howard,
Louisiana State U. Press Fights to Preserve its Essential Value, The Chronicle of
Higher Education, vol. 55 (June 5, 2009). The district court’s opinion threatens to
increase the burden on cash-strapped presses, leading to a potential reduction in
their lists and an impoverished scholarly communications landscape.
Finally, the district court erred as a matter of law by concocting the
requirement that a publisher demonstrate that a “reasonably-priced license” is
available for each of the works at issue. Again, this is not the law, as illustrated by
the fact that the fourth factor explicitly takes account of potential markets –
markets for which no means of licensing yet exists. Letterese, 533 F.3d at 317
(considering potential market for licensing of derivative works even though
plaintiff had not, and stated it would not in future, exploit such a market). The
notion of what constitutes a “reasonable price” is entirely subjective and hence
unworkable.
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CONCLUSION
The district court’s decision, if left in place, would cause significant harm to
AAUP’s member presses and therefore to the larger purpose of scholarly
communication and education. We respectfully urge this Court to reverse the
decision below.
Dated: February 4, 2013
Respectfully submitted,
DAVIS WRIGHT TREMAINE LLP
By: /s/__Linda Steinman________
Linda Steinman
Attorneys for Amicus Curiae
The Association of American University
Presses
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UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 12-14676-FF Caption: Cambridge University Press et al. v. Becker et al.
CERTIFICATE OF COMPLIANCE WITH RULE 28.1(E) OR 32(A)
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Dated: February 4, 2013
/s/ Linda Steinman
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CERTIFICATE OF SERVICE
I certify that on February 4, 2013, a copy of the above and foregoing
Appellants’ Brief was filed by CM/ECF with the Clerk of the Court for the U.S.
Court of Appeals, Eleventh Circuit, and that a copy was also served by CM/ECF
on counsel listed below.
Edward B. Krugman
John H. Rains IV
BONDURANT, MIXSON & ELMORE, LLP
1201 West Peachtree St. NW, Suite 3900
Atlanta, Georgia 30309
R. Bruce Rich
Randi W. Singer
Jonathan Bloom
Lisa R. Eskow
Todd Larson
WEIL, GOTSHAL & MANGES LLP
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KING & SPALDING LLP
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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.
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MCKEON, MEUNIER, CARLIN & CURFMAN, LLC
817 W. Peachtree Street, Suite 900
Atlanta, Georgia 30308
Mary Jo Volkert, Esq.
Assistant State Attorney General
40 Capitol Square
Atlanta, Georgia 30334
Dated: February 4, 2013
/s/ Linda Steinman
Counsel for Amici Curiae The
Association of American University
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