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

Filing 87

Amicus Brief as of right or by consent of the parties filed by JACK I. LERNER for AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS ET AL.. Service date: 04/25/2013 email - Originating Clerk/Ag Hatten; Attorney for Amicus Curium: Dove, Lerner, Rasenberger, Steinman, Tonsager, Wasoff; Attorney for Appellants: Krugman, Rains, Rich, Singer; Attorney for Appellees: Ashby, Askew, Bates, Eskow, Gentry, Harbin, Levie, Miller, Quicker, Schaetzel, Whiting-Pack; Attorney for Not Party: Tenny. (ECF: Jack Lerner)

Case Nos. 12-14676 & 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
AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS,
INTERNATIONAL COMMUNICATION ASSOCIATION,
MODERNIST STUDIES ASSOCIATION,
SOCIETY FOR CINEMA AND MEDIA STUDIES,
PETER DECHERNEY, AND TSITSI JAJI
IN SUPPORT OF APPELLEES

Jack I. Lerner
USC Intellectual Property and
Technology Law Clinic
699 Exposition Blvd.
Los Angeles, CA 90089
Telephone: [phone]
Counsel for Amici Curiae

CERTIFICATE OF INTERESTED PERSONS AND
CORPORATE DISCLOSURE STATEMENT
In addition to those identified in Appellee’s brief pursuant to Rule 26.1-1 of
the Eleventh Circuit Rules, amici curiae disclose the following trial judges,
attorneys, persons, associations of persons, firms, partnerships, and corporations as
having an interest in the outcome of this case:
American Association of University Professors
Aufderheide, Patricia
Decherney, Peter
Franz, Kathleen
Hazlett, Richard
International Communication Association
Jaji, Tsitsi
Lerner, Jack I., counsel for amici curiae
Modernist Studies Association
Muller, Carol
Society for Cinema and Media Studies

C-1

Pursuant to Fed. R. App. P. 26.1, amici curiae make the following
disclosures:
The American Association of University Professors, International
Communication Association, Modernist Studies Association, and Society for
Cinema and Media Studies are nonprofit associations or organizations that have no
parent corporation, and no publicly held corporation owns 10 percent or more of
their respective stock.
Pursuant to Fed. R. App. P. 29(c)(5), amici curiae state that no party’s
counsel authored the brief in whole or in part, no party’s counsel contributed
money that was intended to fund preparing or submitting the brief, and no person
other than amici curiae, their members, or their counsel contributed money to fund
the preparation or submission of this brief.

Date: April 25, 2013

/s/ Jack I. Lerner
Jack I. Lerner
USC Intellectual Property and
Technology Law Clinic
699 Exposition Blvd.
Los Angeles, CA 90089
Telephone: [phone]
Counsel for Amici Curiae

C-2

TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS AND CORPORATE
DISCLOSURE STATEMENT ............................................................................C - 1
TABLE OF CONTENTS ........................................................................................... i
TABLE OF AUTHORITIES ................................................................................... iii
STATEMENT OF THE ISSUES...............................................................................1
INTEREST OF AMICI ..............................................................................................2
SUMMARY OF ARGUMENT .................................................................................6
ARGUMENT .............................................................................................................9
I.

THIS COURT SHOULD AFFIRM THE DISTRICT COURT’S
CONCLUSION THAT THE OVERWHELMING MAJORITY
OF THE USES AT ISSUE WERE NON-INFRINGING ...............................9

II.

THIS COURT SHOULD CLARIFY THAT PROFESSORS
ROUTINELY USE ASSIGNED MATERIALS IN WAYS THAT
QUALIFY AS TRANSFORMATIVE USE .................................................10
A.

B.

III.

A Transformative Use Inquiry Examines Each Professor’s
Purpose for Using the Assigned Material, Not Whether the
Work’s Form Was Changed ................................................................12
Professors Regularly Use Copyrighted Works in Ways That
Are Both Transformative and Integral to the Educational
Process .................................................................................................15

TRANSFORMATIVE USES ARE SUBJECT TO A MODIFIED
FAIR USE ANALYSIS, WHICH OFTEN RESULTS IN GREATER
FAIR USE PROTECTION ............................................................................24

i

A.

There is No Need to Remand with Respect to the Uses That
the District Court Determined to be Fair, Because a
Transformative Use Analysis Would Only Have Strengthened
a Finding of Fair Use ...........................................................................25

B.

An Approach That Does Not Recognize Professors’
Transformative Uses Would Subject Them to a Licensing
Regime That Would Harm Education and Chill Expression ..............29

CONCLUSION ........................................................................................................31
CERTIFICATE OF COMPLIANCE .......................................................................32
CERTIFICATE OF SERVICE ................................................................................33

ii

TABLE OF AUTHORITIES
Cases
A.V. ex rel. Vanderhye v. iParadigms, LLC,
562 F.3d 630 (4th Cir. 2009) ........................................................................ 14, 27
Authors Guild, Inc. v. Hathitrust,
No. 1:11-cv-06351-HB, 2012 WL 4808939 (S.D.N.Y. Oct. 10, 2012) ..............26
Bd. of Regents of State Colls. v. Roth,
408 U.S. 564, 92 S. Ct. 2701 (1972)......................................................................3
Bill Graham Archives v. Dorling Kindersley Ltd.,
448 F.3d 605 (2d Cir. 2006) ............................................................. 14, 23, 26, 28
Blanch v. Koons,
467 F.3d 244 (2d Cir. 2006) ......................................................................... 14, 16
Cambridge University Press v. Becker,
863 F. Supp. 2d 1190 (N.D. Ga. 2012) ............................................... 9, 11, 13, 29
Campbell v. Acuff-Rose Music, Inc.,
510 U.S. 569, 114 S. Ct. 1164 (1994).......................................................... passim
Golan v. Holder,
565 U.S. __, 132 S. Ct. 873 (2012)......................................................................24
Grutter v. Bollinger,
539 U.S. 306, 123 S. Ct. 2325 (2003)..................................................................12
Harper & Row, Publrs. v. Nation Enters.,
471 U.S. 539, 105 S. Ct. 2218 (1985)..................................................................10
Kelly v. Arriba Soft Corp.,
336 F.3d 811 (9th Cir. 2003) ........................................................................ 14, 26
Keyishian v. Bd. of Regents of Univ. of State of N.Y.,
385 U.S. 589, 87 S. Ct. 675 (1967)......................................................................12

iii

Lebron v. Nat'l R.R. Passenger Corp.,
513 U.S. 374, 115 S. Ct. 961 (1995)....................................................................10
Mattel, Inc. v. Walking Mountain Productions,
353 F.3d 792 (9th Cir. 2003) ...............................................................................26
Meyer v. Nebraska,
262 U.S. 390, 43 S. Ct. 625 (1923)........................................................................9
Nunez v. Caribbean Int’l News Corp.,
235 F.3d 18 (1st Cir. 2000) ............................................................................ 25, 27
NXIVM Corp. v. Ross Inst.,
364 F.3d 471 (2d Cir. 2004) ................................................................................16
Perfect 10 v. Amazon.com, Inc.,
508 F.3d 1146 (9th Cir. 2007) .............................................................................14
Plyler v. Doe,
457 U.S. 202, 102 S. Ct. 2382 (1982)....................................................................9
Pugliese v. Pukka Dev., Inc.,
550 F.3d 1299 (11th Cir. 2008) ...........................................................................10
Sony Computer Entm't Am., Inc. v. Bleem, LLC,
214 F.3d 1022 (9th Cir. 2000) .............................................................................18
Sony Corp. of Am. v. Universal City Studios, Inc.,
464 U.S. 417, 104 S. Ct. 774 (1984)....................................................................11
Sundeman v. Seajay Soc’y, Inc.,
142 F.3d 194 (4th Cir. 1998) ........................................................................ 15, 26
Suntrust Bank v. Houghton Mifflin Co.,
268 F.3d 1257 (11th Cir. 2001) ...........................................................................25
United States v. Associated Press,
52 F.Supp. 362 (S.D.N.Y. 1943) .........................................................................12
Statutes
17 U.S.C. § 107 ................................................................................................. 10, 26
iv

Other Authorities
H.R. REP. NO. 94-1476 (1976) .......................................................................... 10, 27
Maria Pallante, Section 1201 Rulemaking: Fifth Triennial Proceeding to
Determine Exemptions to the Prohibition on Circumvention,
Recommendation of the Register of Copyright, Oct. 12, 2012 ............................18
Pamela Samuelson, Unbundling Fair Uses,
77 FORDHAM L. REV. 2537 (2009) .......................................................................14
Pierre N. Leval, Toward a Fair Use Standard,
103 HARV. L. REV. 1105 (1990)...........................................................................13

v

STATEMENT OF THE ISSUES
1. Was the district court correct to conclude that the use of copyrighted works
can be fair when modest portions are used for a nonprofit educational
purpose?
2. Should this Court clarify that district courts assessing fair use claims may
alternatively conduct a transformative use analysis, which compares the
purpose for which professors use copyrighted material in their teaching with
the original purpose for which the work was intended?

1

INTEREST OF AMICI
Amici comprise both university professors and national organizations
representing professors who use electronic course reserves to teach college and
university-level courses. Amici are concerned that the district court’s analysis,
although correct in holding that the overwhelming majority of GSU professors’
uses were non-infringing, did not fully account for many classroom uses that have
a long-standing tradition in higher education and are indispensable to teaching.
Professors routinely place copyrighted materials on reserve in order to criticize,
comment on, compare, and analyze them. These uses are quintessentially
transformative uses that carry strong claims to fair use. Therefore, this appeal will
significantly impact important teaching practices that are at the heart of the
educational mission of universities and the Copyright Act.
The American Association of University Professors (AAUP) is a nonprofit
organization consisting of approximately 40,000 college and university faculty,
librarians, graduate students, and academic professionals. AAUP’s purpose is to
advance academic freedom and shared governance, to define fundamental
professional values and standards for higher education, and to ensure higher
education’s contribution to the public good. AAUP frequently submits amicus
curiae briefs in cases implicating its policies and the interests of faculty members.
The Supreme Court has recognized that AAUP’s policies are widely respected and
2

followed as models in American colleges and universities. See, e.g., Bd. of
Regents of State Colls. v. Roth, 408 U.S. 564, 579, 92 S. Ct. 2701, 2710 n.17
(1972).
The International Communication Association (ICA) is an academic
association for scholars interested in the study, teaching, and application of all
aspects of human and mediated communication with more than 4,300 members in
over 80 countries. ICA aims to advance the scholarly study of human
communication by encouraging and facilitating excellence in academic research
worldwide. Its purpose includes providing an international forum to enable the
development, conduct, and critical evaluation of communication research and to
sustain a program of high quality scholarly publication and knowledge exchange.
The Society for Cinema and Media Studies (SCMS) is the leading scholarly
organization in the United States dedicated to promoting a broad understanding of
film, television, and related media through research and teaching grounded in the
contemporary humanities tradition. It consists of approximately 3,000 members,
including university faculty and graduate students, media producers and artists,
archivists and curators, and independent scholars. SCMS encourages excellence in
scholarship and pedagogy and fosters critical inquiry into the global, national, and
local circulation of cinema, television, and other related media. SCMS strongly
supports the attempt to define the fair use of visual and aural materials by film and
3

video artists, educators, programmers and curators, and other film and media
practitioners. Over the past twenty years, SCMS has participated in a number of
Copyright Office rulemakings and hearings regarding copyright and fair use,
including exemptions to the Digital Millennium Copyright Act and a study of
moral rights.
The Modernist Studies Association (MSA) is a nonprofit organization with a
membership of approximately 1,200 college and university faculty, graduate
students, and independent scholars. Since its formation in 1998, MSA has served
as an international and interdisciplinary forum for exchange among scholars
working in the rapidly changing field of modernist studies, a field broadly
understood as addressing the arts in their social, political, cultural, and intellectual
contexts from the later nineteenth through the mid-twentieth century. Because its
members routinely teach, study, and publish on material protected by copyright,
MSA has been actively engaged with questions of scholarly and pedagogical fair
use and is undertaking to produce a Best Practices Statement on the subject.
Peter Decherney is Associate Professor of Cinema Studies and English and
the Director of the Cinema Studies Program at the University of Pennsylvania,
where he has a secondary appointment at the Annenberg School for
Communication. He is the author of Hollywood’s Copyright Wars: from Edison to
the Internet and Hollywood and the Culture Elite: How the Movies Became
4

American, as well as the co-editor of the journal Critical Studies of Media
Communication. Professor Decherney has been an Academy of Motion Picture
Arts and Sciences Scholar and a fellow of the American Council of Learned
Societies.
Tsitsi Jaji is Assistant Professor of English at the University of
Pennsylvania, where her research focuses on transnational exchanges in African,
African American and Caribbean literatures, and on relationships between music
and literature. In addition, Professor Jaji has authored numerous articles and will
soon be publishing the book Africa in Stereo: Music, Modernism and Pan-African
Solidarity (Oxford University Press, 2014).
All parties have consented to the filing of amicus briefs in this appeal.

5

SUMMARY OF ARGUMENT
Amici urge this Court to affirm the district court’s judgment, but also to
clarify that district courts assessing fair use claims may alternatively conduct a
transformative use analysis to determine whether the use was fair. A
transformative use analysis compares the purpose for which the professors use
copyrighted material in their teaching with the original purpose for which the work
was intended. In cases where the materials encompass more than a modest
excerpt, the use may nonetheless be transformative. In such cases, the failure to
consider whether the use was transformative would burden or restrict countless
highly expressive uses that have long been an essential teaching tool.
The district court correctly concluded that non-transformative uses can be
fair uses when only modest portions are used for a nonprofit educational purpose.
However, the inquiry should not end there. Although educational use weighs in
favor of fair use, transformative uses such as criticism and commentary
fundamentally alter the fair use calculus, frequently broadening the amount of
works that can be used and largely obviating the need to inquire into market harm.
By making a transformative use, a professor employs the original work in a new
way in order to express new ideas, add meaning, and convey new messages. These
new uses do not supplant the original work, but instead add to our collective
knowledge and understanding. By protecting transformative uses as non6

infringing, the fair use doctrine ensures that copyright can coexist with the First
Amendment’s protection of free expression.
The fact is that university professors make thousands of transformative uses
every day, often through the use of electronic course reserves (e-reserves) like
those at issue in this appeal. They use e-reserves to illustrate their own arguments
or prompt a critical discussion by students; they analyze and dissect copyrighted
works; they comment on the works by discussing the works’ impact on society,
patterns of thought, or democratic institutions; and they compare works against one
another in order to reveal the techniques of their creators, analyze controversies
between scholars, and show how a trend or genre develops over time, among many
other purposes.
These are quintessentially transformative uses, and the overwhelming weight
of case law holds that these types of uses are likely to be fair because they further
the free expression values at the heart of the fair use doctrine. Although the district
court was correct to conclude that many non-transformative uses can be fair, in
cases where more than a modest amount of material is being copied, an alternative
transformative use analysis would not primarily focus on the act of posting
copyrighted works, the format in which the works were posted, or how much was
used; but, rather, on how the works were used in teaching. In those cases, looking
at the intended purpose of the use would allow a court to answer the important
7

question of whether the use supplants the original work or whether, in the case of
transformative use, it creates new meanings and expresses new messages that
copyright owners have no right to monetize or prevent.
In addition, a transformative use inquiry changes the consideration of the
statutory fair use factors. A finding of transformative use significantly shifts the
weight of the other factors toward fair use in order to protect the valuable
expression embodied in such uses. In cases where a non-transformative use would
not fit within the parameters of fair use and the court fails to conduct a
transformative use inquiry, copyright owners would be permitted to extract
licensing fees for criticism, commentary, and other important forms of expression.
Such a result would be contrary to law and severely detrimental to higher
education.
Amici respectfully urge this Court to affirm the district court’s judgment
while clarifying that when a professor’s use is determined not to be a fair use under
a non-transformative educational analysis, district courts must also evaluate
whether the use was transformative by comparing the original purpose of the
assigned material with the professor’s intended use. If the court determines the use
to be transformative, then it must evaluate the statutory factors in light of the
transformative purpose.

8

ARGUMENT
I.

THIS COURT SHOULD AFFIRM THE DISTRICT COURT’S
CONCLUSION THAT THE OVERWHELMING MAJORITY OF
THE USES AT ISSUE WERE NON-INFRINGING
Although amici urge this Court to clarify that the district courts may rely on

a transformative use inquiry when conducting a fair use analysis, the lower court’s
conclusion should be affirmed. The district court was correct to hold that nearly all
of the uses in question were non-infringing, even if they were non-transformative,
because the Georgia State University (GSU) professors used modest amounts of
the texts in question for nonprofit educational purposes.1 Cambridge University
Press v. Becker, 863 F. Supp. 2d 1190, 1242-43, 1363 (N.D. Ga. 2012). As the
Supreme Court has acknowledged on many occasions, education plays a “pivotal
role . . . in sustaining our political and cultural heritage.” Plyler v. Doe, 457 U.S.
202, 221, 102 S. Ct. 2382, 2397 (1982) (holding that State violated right to equal
protection by denying access to public education on basis of immigration status).
Furthermore, the “American people have always regarded education and the
acquisition of knowledge as matters of supreme importance.” Id. (quoting Meyer
v. Nebraska, 262 U.S. 390, 400, 43 S. Ct. 625, 627 (1923)). Congress recognized

1

The court below determined forty-three of the uses to be fair. Of the remaining
uses, all but five were found to be non-infringing due to de minimis use or the
appellants’ failure to make the prima facie case for copyright infringement. See
Becker, 863 F. Supp. 2d at 1243-1363.
9

these principles when it identified teaching as an illustrative example of fair use,
17 U.S.C. § 107, and instructed that a “nonprofit educational purpose” favors fair
use for the first statutory factor, id. at § 107(1). See H.R. REP. NO. 94-1476, at 66,
reprinted in 1976 U.S.C.C.A.N. 5659, 5679 (the first factor was amended “to state
explicitly that this factor includes a consideration of ‘whether such use is . . . for
non-profit educational purposes’”).
II.

THIS COURT SHOULD CLARIFY THAT PROFESSORS
ROUTINELY USE ASSIGNED MATERIALS IN WAYS THAT
QUALIFY AS TRANSFORMATIVE USE
This appeal presents an excellent opportunity for this Court to clarify the law

by articulating the proper transformative use test,2 which compares the purpose for
which a professor uses copyrighted material for teaching with the original purpose
for which the work was intended. The district court reached its holding without
considering whether the uses at issue were for a different purpose than the original
author intended, and without reference to the fact that professors routinely make

2

The question of whether a transformative use analysis can serve as an alternative
basis for finding fair use is a material issue of law that this Court may consider on
appeal. See Harper & Row, Publrs. v. Nation Enters., 471 U.S. 539, 560, 105 S.
Ct. 2218, 2230 (1985). This Court may consider this issue regardless of whether
the parties press it. See Pugliese v. Pukka Dev., Inc., 550 F.3d 1299, 1304 n.3
(11th Cir. 2008) (“new arguments relating to preserved claims may be reviewed on
appeal.”); accord Lebron v. Nat'l R.R. Passenger Corp., 513 U.S. 374, 379, 115 S.
Ct. 961, 965 (1995). In any event, the appellants have raised the question of
transformative use. Appellants’ Br. at 31.
10

transformative uses of materials posted on e-reserves. Becker, 863 F. Supp. 2d at
1224.
There is no need to overturn the court’s decision as to the uses it determined
were fair, because a finding of transformative use would only have strengthened
the case for fair use, and, therefore, led to the same outcome.3 However, if this
Court does not clarify the proper transformative use inquiry—and acknowledge
that in many cases professors’ use of assigned materials is likely to qualify as
transformative—then courts in future cases may incorrectly hold transformative
uses to constitute copyright infringement. Such an outcome would be contrary to
the great weight of case law and would burden or restrict countless illuminating,
productive, and highly expressive uses that are essential to the educational mission.
Every semester, thousands of professors at American universities assign
copyrighted materials to their students for new, transformative purposes that serve
important, socially valuable modes of expression. These readings support critical
arguments, stimulate analytical discussion, and serve teaching in many other ways
that are at the very heart of the American tradition of vigorous debate, open
3

While transformative use is often sufficient for a finding of fair use, here it is not
necessary in light of the nonprofit educational context of the use and the modest
amounts used. See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579, 114 S.
Ct. 1164, 1171 (1994) (citing Sony Corp. of Am. v. Universal City Studios, Inc.,
464 U.S. 417, 455, 104 S. Ct. 774, 795 (1984)); id. at n.11 (indicating that “straight
reproduction of multiple copies for classroom distribution” can be fair use, even if
it is not used for a transformative purpose).
11

discussion, and critical thinking. See Keyishian v. Bd. of Regents of Univ. of State
of N.Y., 385 U.S. 589, 603, 87 S. Ct. 675, 683 (1967) (“The classroom is peculiarly
the ‘marketplace of ideas.’ The Nation's future depends upon leaders trained
through wide exposure to that robust exchange of ideas which discovers truth ‘out
of a multitude of tongues . . . .’”) (quoting United States v. Associated Press, 52
F.Supp. 362, 372 (S.D.N.Y. 1943). This tradition has long been a unique and
indispensable part of American education, and it is precisely the type of expression
that the First Amendment and the fair use doctrine are intended to protect. See id.;
accord Grutter v. Bollinger, 539 U.S. 306, 329, 123 S. Ct. 2325, 2339 (2003)
(given the “expansive freedoms of speech and thought associated with the
university environment, universities occupy a special niche in our constitutional
tradition”).
A. A Transformative Use Inquiry Examines Each Professor’s Purpose for
Using the Assigned Material, Not Whether the Work’s Form Was
Changed
A transformative use analysis should compare the original purpose for which
the work was intended with the secondary purpose for which the work is used. In
its landmark opinion setting forth the transformative use analysis, the Supreme
Court clarified that transformative use occurs when the use adds “something new,
with a further purpose or different character” or “new expression, meaning, or
message” and does not “merely supersede” the intended purpose of the original
12

work. Campbell, 510 U.S. at 579, 114 S. Ct. at 1171. These new uses are
permitted because they are productive; rather than supplanting the work, they add
to our collective knowledge and understanding, and thereby “fulfill the objective of
copyright law to stimulate creativity for public illumination.” Pierre N. Leval,
Toward a Fair Use Standard, 103 HARV. L. REV. 1105, 1111 (1990). In this way,
the fair use doctrine ensures that copyright can coexist with the First Amendment’s
guarantee of free expression.
Here, the district court declined to examine how the professors intended to
use the assigned materials and whether those uses were transformative. Instead, it
only considered the act of scanning the materials and posting them on e-reserves,
apparently accepting the Appellant-publishers’ argument that reproducing “mirror
images of parts of the books” must be non-transformative. Becker, 863 F. Supp.
2d at 1224. However, although the district court found fair use on other grounds,
transformative use will be a key inquiry in cases with different facts. For example,
when a professor uses more than a modest amount of a copyrighted work, the use
may still be fair if that amount is appropriate for a transformative purpose.
The proper inquiry must consider not merely whether “mirror-image”
excerpts were posted on e-reserves, but whether the purpose of the professor’s use
can reasonably be viewed as distinct from the original purpose of the work. No
court has interpreted transformative use to require changing the format or
13

substance of a copyrighted work. Pamela Samuelson, Unbundling Fair Uses, 77
FORDHAM L. REV. 2537, 2619 (2009) (“[Exact] copying has, in fact, been found to
be fair use in virtually all [areas] of the fair use case law.”). Numerous courts have
held that the proper transformative use analysis investigates whether the work was
used for a new purpose, not whether the form or format of the work was modified.
See A.V. ex rel. Vanderhye v. iParadigms, LLC, 562 F.3d 630, 639 (4th Cir. 2009)
(a use “can be transformative in function or purpose without altering or actually
adding to the original work”); Perfect 10 v. Amazon.com, Inc., 508 F.3d 1146,
1165 (9th Cir. 2007) (citing Kelly v. Arriba Soft Corp., 336 F.3d 811, 818–19 (9th
Cir. 2003)) (“making an exact copy of a work may be transformative so long as the
copy serves a different function than the original work”).
It will often be apparent that a work is being used for a different purpose
than originally intended simply by looking at the context in which a work is used.
Campbell, 510 U.S. at 582, 114 S. Ct. at 1173 (one question in a fair use defense is
whether a transformative purpose “may reasonably be perceived”); Bill Graham
Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 609 (2d Cir. 2006) (purpose of
images of concert posters in a book was “plainly different” from the original
purpose of expression and concert promotion). Courts may also defer to users’
reasonable explanations regarding how a defendant used the work for a different
purpose. Blanch v. Koons, 467 F.3d 244, 252 (2d Cir. 2006) (relying on the
14

defendant’s statements about the intent of a painting in determining that the use
was transformative). In the educational context, courts will often be able to
identify transformative uses by looking to course descriptions, syllabi, and
assignment instructions, as well as statements made by the professor during the
course of litigation.
There is no legal basis for presuming that a professor’s use of assigned
materials on e-reserves is non-transformative. Courts have made it clear that a
determination of transformative use compares the original purpose for which the
work was intended with the purpose for which the work was used, not whether the
form of the work had changed.
B. Professors Regularly Use Copyrighted Works in Ways That Are Both
Transformative and Integral to the Educational Process
Professors frequently teach using copyrighted materials for criticism and
commentary—core First Amendment expression that fair use is designed to
protect. See Campbell, 510 U.S. at 583, 114 S. Ct. at 1173 (“comment and
criticism . . . traditionally have had a claim to fair use protection as transformative
[uses]”). Since the Supreme Court’s decision in Campbell, many forms of socially
valuable expression rooted in commentary and criticism have been held to
constitute transformative uses, such as presenting portions of a copyrighted text at
a symposium, Sundeman v. Seajay Soc’y, Inc., 142 F.3d 194, 202 (4th Cir. 1998),
15

analyzing quoted sections of a manual, NXIVM Corp. v. Ross Inst., 364 F.3d 471,
479 (2d Cir. 2004), and re-contextualizing a photograph in a collage painting,
Blanch, 467 F.3d at 253 (2d Cir. 2006). Furthermore, the Supreme Court has
recognized that fair use provides “considerable latitude for scholarship and
comment.” Eldred v. Ashcroft, 537 U.S. 186, 220, 123 S. Ct. 769, 789 (2003).
Given that commentary and criticism is inherent to well-established pedagogical
and scholarly methods in higher education, there can be no question that professors
regularly make transformative uses when they use copyrighted works in teaching
students.
For example, Richard Hazlett, Professor of Geology and Environmental
Analysis at Pomona College, asks students in his Introduction to Environmental
Analysis course to read a series of short articles, each originally intended to
support a particular conclusion about societal attitudes towards the environment.
Professor Hazlett deliberately repurposes the articles, using them as a prompt for
classroom discussion of why the scholars’ attitudes differ. After class, he requires
students to continue the analysis of the articles through a written assignment, in
which students must both critique the strengths and weaknesses of the authors’
positions and analyze the common ground between the articles. The purpose of
these uses is distinct from the articles’ original intent. Rather than using the
articles to teach students what certain societal attitudes were, Professor Hazlett
16

uses the articles to teach students how to critically examine the relationship
between empirical evidence and its societal implications.
Media professors routinely assign copyrighted materials to comment on the
institutional, cultural, and political influences on the production of the works.
Amicus curiae Peter Decherney, Professor of English and Cinema Studies at the
University of Pennsylvania, teaches a course called The Hollywood Film Industry.
In the course, he uses e-reserves to post slides containing hundreds of photographs,
film and television stills, and film clips in order to comment on the historical
development of media art and technology from the 1960s to present day, and to
critique the methods used by the creators. For example, he uses film clips to teach
about Hollywood’s self-regulation of content through the Production Code (19301968) and later the Rating System (1968-present). Students examine films such as
Blonde Venus, Scarface, Pickup on South Street, A King in New York, and
Midnight Cowboy alongside the relevant policy documents to analyze the
representation of prostitution, gun violence, and anti-communism during
Hollywood’s different regulatory periods. Rather than showing the clips for their
original entertainment purpose, Professor Decherney critically analyzes elements
of the film in light of industry policies of that time to illuminate the relationship
between Hollywood and the depiction of society in media.

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In addition, Professor Decherney uses e-reserves to post numerous still
images in order for his students to study the evolution of computer-generated
images in filmmaking by evaluating the complex detail of individual frames that
normally cannot be studied by simply viewing a clip of the movie. In both cases,
Professor Decherney uses the images to discuss film production methods rather
than for the studio’s original intended purpose to entertain the viewer. Cf. Sony
Computer Entm't Am., Inc. v. Bleem, LLC, 214 F.3d 1022 (9th Cir. 2000)
(comparison of two video game screen shots was fair use). Indeed, Registers of
Copyrights have declared numerous times that such uses by professors are
quintessentially fair uses. See, e.g., Maria Pallante, Section 1201 Rulemaking:
Fifth Triennial Proceeding to Determine Exemptions to the Prohibition on
Circumvention, Recommendation of the Register of Copyrights 126-27, 129, Oct.
12, 2012, United States Copyright Office, http://www.copyright.gov/1201/2012/
Section_1201_Rulemaking%20_2012_Recommendation.pdf.
Along similar lines, Patricia Aufderheide, Professor of Communications at
American University, cannot teach her History of Documentary Films course
without assigning numerous copyrighted materials as the basis for criticism and
commentary. In order to discuss the shift in the entertainment industry from massmedia distribution to a user-centric media paradigm, Professor Aufderheide uses ereserves to post film clips as well as screen shots from numerous film and
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television program web pages. The lesson employs website images not for their
original intended purpose—to provide factual information about and enhance
brand recognition for the motion picture—but rather, to challenge students to
investigate the impact of rapid technological change on the film industry and
American consumers. For example, Professor Aufderheide teaches her students to
think critically about how digital technology impacts traditional methods of
storytelling and consumer expectations by comparing screen shots from the
television show Brick City (2009), a documentary series on cable television, and 18
Days in Egypt (ongoing), a crowd-sourced storytelling project about the Egyptian
revolution.
Professor Aufderheide also posts clips from Brick City, in conjunction with
clips from earlier cinema verité works such as Salesman and Hoop Dreams, to
demonstrate continuity with past documentary forms. She contrasts these more
traditional mass-media works with video elements from 18 Days in Egypt
generated by users of social media. Professor Aufderheide assigns and discusses
the film clips in order to illustrate and comment on the changing landscape of the
film industry, diverging markedly from the original purpose of the films, which
was to make substantive points about specific real world events. These
transformative uses are essential to Aufderheide’s goal of teaching her students to

19

think critically about the form and evolution of documentary film, and to develop
nuanced perspectives on the emerging and collapsing trends in this medium.
The study of musicology provides another example of professors’ need to
assign copyrighted works to illuminate commentary and critical arguments. Carol
Muller, Professor of Music at the University of Pennsylvania, teaches a variety of
courses pertaining to contemporary and world music. Having students listen to
musical works is the cornerstone of teaching in this field because it provides the
foundation upon which students hone their abilities to critically compare and
analyze various musical styles. If Professor Muller cannot assign musical works,
students cannot engage in critical classroom discussions about them.
In her course Thinking Globally About Music, Professor Muller frequently
uses music from numerous countries, including the United States, to demonstrate
the evolution of particular songs. As part of guided classroom discussions,
students discuss their perspectives on how a music genre evolved, the ethics of
borrowing and paying tribute to earlier songs, the use of music to create a sense of
national identity in post-colonial contexts, and the impact of musical works on
racial politics. Similarly, in her Contemporary Music of Africa course, Professor
Muller compares short portions of numerous performances of the song The Lion
Sleeps Tonight to trace its evolution from its South African Zulu origin all the way
to its inclusion in the hit American film The Lion King. The purpose of this
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comparison is to illustrate how contemporary music borrows from international
sources, which is manifestly different than the original purpose of entertaining the
listener.
Amicus curiae Tsitsi Jaji, Assistant Professor of English at the University of
Pennsylvania, also engages in transformative use by comparing copyrighted works
in her interdisciplinary course, Music and Literature: African American Soundings.
During the course, Professor Jaji assigns excerpts from novels, poetry collections,
and music from a range of genres in order to illustrate themes, structures, and
symbols reflecting the dynamics of African American culture, and their relation to
the wider American society. Professor Jaji uses these carefully selected works to
structure a classroom discussion regarding how writers have portrayed African
music as providing a durable link between the continent of Africa and the African
diaspora in the Americas.
Later in the semester, Professor Jaji requires students to read selected
chapters from W.E.B. Du Bois’s autobiography Dusk of Dawn: Autobiography of a
Race Concept and other works. She asks her students to examine how Du Bois
used extracts from musical scores to portray the development of African American
culture in the United States. Professor Jaji re-contextualizes Du Bois’s works—
which were originally intended to propound certain sociological and cultural
theories—by instructing her students to read them not for the author’s original
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arguments, but as a primary text to be analyzed in service of her own arguments
regarding how music connects people of African descent around the world and
thereby serves as a more durable link than language.
Turning to the field of history, Kathleen Franz, Associate Professor of
History at American University, utilizes a variety of interdisciplinary sources to
teach students how historians revise historical paradigms over time, and how they
bring historical scholarship to bear on particular social and cultural questions. In
her course Memory and History, students read and discuss excerpts from a
constellation of theoretical, sociological and philosophical works in order to
develop insight into the themes of a fictionalized memoir by John Phillip Santos.
Professor Franz assigns these supplemental articles not for the substance of their
arguments, but as tools with which to contextualize another work and raise new
questions about how Americans grapple with issues of memory and history.
Similarly, in Professor Franz’s course on American popular culture, students
study the rise of commercialized leisure between 1840 and 1980. To begin this
critical examination, students are required to look at commercialized media such as
theater, the circus, movies, radio, and folk and blues music—not for their original
entertainment and aesthetic purposes, but to enable students to understand and
comment on how these cultural forms evolved over time to create a global
marketplace. Later in the semester, Professor Franz makes similar uses of visual
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works and written articles in a classroom discussion on the development of western
genres of performance, film, dime novels and comic books from their inception to
the 21st Century. Again, Professor Franz does not assign these works for their
original informational, entertainment or aesthetic purposes. Rather, she uses the
works to illustrate certain themes in historical development, requiring students to
comment on the works in a discussion that is only possible through critical
comparison of multiple works from different time periods. These discussion topics
are not fully contemplated by any one work, but can only be generated by allowing
students to discover patterns of development over time through the comparison of
the works she makes available through e-reserves.
These examples show just a few of the many ways that professors routinely
use assigned materials for transformative purposes that are essential to the practice
of teaching in higher education. Although the district court found many of the uses
in question to be fair, professors often may need to use more than a modest amount
of the work in order to make their point—such as displaying an entire photographic
image in order to critique the image or compare it with others. Such a use has been
held to be fair in other contexts. See, e.g., Bill Graham Archives, 448 F.3d at 60810. Critical expression made in teaching is no less deserving of protection under
the fair use doctrine merely because the expression manifests as classroom
instruction rather than scholarly literature or some other form. When considering
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fair use in educational settings involving more than a modest use of material, it is
therefore important to consider transformative use in order to preserve common
teaching practices that are part and parcel of higher education.
III.

TRANSFORMATIVE USES ARE SUBJECT TO A MODIFIED FAIR
USE ANALYSIS, WHICH OFTEN RESULTS IN GREATER FAIR
USE PROTECTION
The doctrine of fair use gives special protection to transformative uses in

order to provide a “guarantee of breathing space within the confines of copyright,”
Campbell, 510 U.S. at 579, 114 S. Ct. at 1171, and to prevent a chill on free
expression, see Golan v. Holder, 565 U.S. __, 132 S. Ct. 873, 890 (2012) (citing
Eldred, 537 U.S. at 219, 123 S. Ct. at 788-89 ) (fair use is a “built-in First
Amendment accommodation” within copyright law). This “breathing space”
protects the types of debate and criticism that are central to a democratic society.
Accordingly, it is well-established that using a copyrighted work for a
transformative purpose both tips factor one in favor of fair use and shifts the
analysis of the rest of the Section 107 statutory factors in favor of fair use.
It is hard to imagine that copyright holders could be given the exclusive right
to authorize and monetize these important forms of discourse. See Campbell, 510
U.S. at 592, 114 S. Ct. at 1178 (“there is no protectable derivative market for
criticism”). But a rule that does not make clear that professors’ use of e-reserves
can be transformative would impose just such a regime, because in some
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circumstances it is appropriate to use more than a modest amount of a work for a
transformative purpose. It is contrary to the goals of copyright and the mission of
education to compel professors to obtain permission from—and pay a fee to—
copyright owners in order to express arguments about and critically analyze texts
in the classroom.
A. There is No Need to Remand with Respect to the Uses That the District
Court Determined to be Fair, Because a Transformative Use Analysis
Would Only Have Strengthened a Finding of Fair Use
Transformative use is not a necessary element of fair use, Campbell, 510
U.S. at 579, 114 S. Ct. at 1171. However, a finding of transformative use heavily
favors fair use in the analysis of each statutory factor. As a result, even if the
district court had conducted a transformative use inquiry, none of the uses in
question would have been found to be infringing.
The Supreme Court has instructed that “the more transformative the new
work, the less will be the significance of other factors . . . that weigh against a
finding of fair use.” Id.; accord Suntrust Bank v. Houghton Mifflin Co., 268 F.3d
1257, 1271 (11th Cir. 2001). Courts that have considered the issue have
overwhelmingly held that transformative use pushes the first factor strongly in
favor of fair use even when the use is commercial. Nunez v. Caribbean Int’l News
Corp., 235 F.3d 18, 23 (1st Cir. 2000) (transformative use outweighs finding that
photograph was copied without permission for commercial purpose); accord
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Mattel, Inc. v. Walking Mountain Productions, 353 F.3d 792, 803 (9th Cir. 2003)
(due to “the extremely transformative nature” of the defendant’s use “its
commercial qualities become less important”). Similarly, when evaluating the
second factor—“the nature of the copyrighted work,” 17 U.S.C. § 107(2)—
transformative use can outweigh a finding that the original work is highly
expressive, Bill Graham Archives, 448 F.3d at 612 (“the second factor may be of
limited usefulness where the creative work of art is being used for a transformative
purpose”), or unpublished, Sundeman, 142 F.3d at 202 (use of work for purposes
of comment outweighs unpublished nature of work).
When a use is found to be transformative, courts do not impose bright-line
limits on the amount used. Under Campbell, the third factor’s evaluation of
“amount and substantiality” of the portion used, 17 U.S.C. § 107(3), must only be
“reasonable in relation to the [transformative] purpose of the copying.” 510 U.S.
at 586-87, 114 S. Ct. at 1175. For example, in Kelly, a search engine’s copying of
entire images was permissible because the search engine’s use of the images—to
facilitate searches for information—served a different purpose than that of the
original images. 336 F.3d at 821; see also Authors Guild, Inc. v. Hathitrust, No.
1:11-cv-06351-HB, 2012 WL 4808939, at *10 (S.D.N.Y. Oct. 10, 2012) (research
library’s digitization of entire texts for the purpose of improved search and
preservation was fair use). Similarly, courts have held that when a user is making
26

transformative use, it may be appropriate to incorporate the “heart of the work.”
E.g., A.V. ex rel Vanderhye, 562 F.3d at 642.
When evaluating whether a use is transformative in the educational context,
district courts should be directed to evaluate whether the amount and substantiality
used by a professor was reasonable in relation to the transformative purpose of
commentary or criticism. For example, Professor Richard Hazlett uses
photographs of environmental art in his Introduction to Environmental Analysis
course not to provide the aesthetic value intended by the artists, but rather to
explore how society has imagined the environment over time. In order to
accomplish this transformative purpose of comparing the images, it is appropriate
for Professor Hazlett to display the entire photograph, or at the very least the heart
of the image. Given that Professor Hazlett extensively critiques and comments on
the photographs, it would be a novel and dangerous proposition to set a bright-line
limit preventing him from sharing the entire photograph with his students.
Where transformative use is concerned, bright-line limits are unsuitable
because they can arbitrarily cabin or chill expression that re-contextualizes and
adds new meaning to the copyrighted work. Nunez, 235 F.3d at 24 (amount and
substantiality inquiry “must be a flexible one, rather than a simple determination of
the percentage used” because “to copy any less would have made the picture
useless to the” transformative purpose); see also H.R. Rep. No. 94-1476 at 66,
27

reprinted in 1976 U.S.C.C.A.N. 5659, 5680 (“the endless variety of situations and
combinations of circumstances that can rise in particular cases precludes the
formulation of exact rules” defining a fair use).
A finding of transformative use will also minimize the degree to which the
fourth factor’s market harm analysis weighs against fair use. As the Supreme
Court has instructed, “there is no protectable derivative market for criticism.”
Campbell, 510 U.S. at 592, 114 S. Ct. at 1178. Thus, when a professor uses only
as much as is appropriate to accomplish a transformative purpose, there is no
cognizable market harm and the fourth factor will not weigh against fair use.
Indeed, courts have repeatedly refused to consider market harm that might flow
from transformative uses. See, e.g., Bill Graham Archives, 448 F.3d at 615
(despite the potential for a licensing market, transformative use of images in a
historical book eliminated the possibility of market harm under the fourth factor).
Transformative uses receive additional protection in the fair use analysis in
order to further the goals of copyright and the First Amendment. Although some
uses by professors may be non-transformative, many uses will undoubtedly be
transformative. However, in this case there is no need to remand with regard to the
uses held to be fair because conducting a transformative use inquiry would only
have strengthened the case for fair use.

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B. An Approach That Does Not Recognize Professors’ Transformative
Uses Would Subject Them to a Licensing Regime That Would Harm
Education and Chill Expression
The district court concluded that the GSU professors’ uses were nontransformative. Becker, 863 F. Supp. at 1224. As a result, the court imposed strict
limits on the amount of the work that may be used when licenses are “easily
accessible, reasonably priced, and . . . reasonably convenient for users.” Id. at
1237. This approach, while perhaps appropriate in a case evaluating a nontransformative use in a nonprofit educational setting, could inappropriately limit
the amount of a copyrighted work that a professor may use for a transformative
purpose, cf. Campbell, 510 U.S. at 586-87, 114 S. Ct. at 1175 (portion used must
only be reasonable in light of the transformative purpose), or improperly subject
transformative uses to a licensing regime, cf. id. at 592, 114 S. Ct. at 1175 (no
market harm for criticism). If the district court had not upheld the uses as fair, then
the proper transformative use analysis would have required evaluating how the
professors intended to use the materials.
If courts do not recognize the transformative use of assigned materials, then
Professor Decherney’s practice of showing clips to analyze the relationship
between Hollywood’s internal policies and its depiction of society could be
considered infringing if a reasonable licensing market for those clips existed.
Similarly, Professor Hazlett’s practice of assigning a significant portion of a
29

journal article to his students in order to critique the article and compare it to other
readings could be considered an infringement so long as a reasonable licensing
market existed for the article. To allow copyright holders to monetize these
transformative uses would discourage, or simply prevent, countless professors
from using such works in their teaching when the use calls for more than a modest
portion of a work.4 Furthermore, in many cases professors, students, or their
schools may not be able to afford the individual or aggregate cost of the licenses.
The proper transformative use inquiry appropriately reduces the risk of
arbitrary limits or licensing requirements by allowing professors to criticize or
comment on copyrighted works so long as the amount used is reasonable in
relation to the transformative purpose. This flexible standard allows professors to
educate their students without subjecting their teaching methods to a licensing
regime that is simply not cognizable under copyright law.

4

Some rightsholders routinely condition licenses on a promise not to disparage the
licensed work. See Comment of Int’l Documentary Ass’n et al., In the Matter of
Exemption to Prohibition on Circumvention of Copyright Protection Sys. for
Access Control Techs., Docket No. RM 2011-07, at 4-5, n.11, 52, 53 (Dec. 1,
2011), http://www.copyright.gov/1201/2011/initial/IDA_Mark_Berger.pdf.
Furthermore, even if appellants agreed to license the rights they possess in their
works, often several disparate rightsholders possess rights to a given work. See id.
at 5.
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CONCLUSION
This Court should affirm the district court’s holding that the use of modest
amounts of copyrighted works for a nonprofit educational purpose can be fair use.
However, it cannot be presumed that all uses of materials on e-reserves are nontransformative. When a professor utilizes more than a modest amount of a work
for a nonprofit educational purpose, the court should also evaluate the use under
the more robust and flexible fair use inquiry afforded to transformative uses.
Amici respectfully urge this court to clarify that when a professor’s use is not
fair use under a non-transformative analysis, district courts must also evaluate
whether the use was transformative by comparing the original purpose of the
assigned material with the professor’s intended use. If the court determines the use
to be transformative, then it must evaluate the statutory factors in light of the
transformative purpose.

Date: April 25, 2013

/s/ Jack I. Lerner
Jack I. Lerner
USC Intellectual Property and
Technology Law Clinic
699 Exposition Blvd.
Los Angeles, CA 90089
Telephone: [phone]
Counsel for Amici Curiae

31

CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with the type-volume limitations
under Fed. R. App. P. 29(d) because this brief contains 6,999 words, excluding the
parts exempted under Fed. R. App. P. 32(a)(7)(B)(iii), as counted by Microsoft
Word 2010.
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 the proportionally spaced typeface, Times New Roman
in 14-point font.

Date: April 25, 2013

/s/ Jack I. Lerner
Jack I. Lerner
USC Intellectual Property and
Technology Law Clinic
699 Exposition Blvd.
Los Angeles, CA 90089
Telephone: [phone]
Counsel for Amici Curiae

32

CERTIFICATE OF SERVICE
I hereby certify that that on April 25, 2013, the forgoing Brief of amici
curiae American Association of University Professors, International
Communication Association, Modernist Studies Association, Society for Cinema
and Media Studies, Peter Decherney, and Tsitsi Jaji was electronically filed with
the Clerk of Court for the United States Court of Appeals for Eleventh Circuit
using the CM/ECF system, which will automatically send notifications of this
filing to all attorneys of record.
In addition, I certify that on April 25, 2013, seven paper copies of this Brief
were dispatched to a third-party commercial carrier for delivery to the Clerk of this
Court within 3 days.

Date: April 25, 2013

/s/ Jack I. Lerner
Jack I. Lerner
USC Intellectual Property and
Technology Law Clinic
699 Exposition Blvd.
Los Angeles, CA 90089
Telephone: [phone]
Counsel for Amici Curiae

33