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

Filing 88

Amicus Brief as of right or by consent of the parties filed by Floyd Chapman for American Council on Education, Association of American Universities, Association of Public and Land-Grant Universities, American Association of State Colleges and Universities, and American Association of Community Colleges. 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; US mail - Attorney for Appellants: Bloom, Krugman, Larson, Rains, Rich, Singer; Attorney for Appellees: Askew, Bates, Gentry, Harbin, Levie, Miller, Quicker, Schaetzel, Volkert. (ECF: Floyd Chapman)

Case Nos. 12-14676 (FF) & 12-15147(FF)
(Consolidated Appeals)

United States Court Of Appeals
for the

Eleventh Circuit
CAMBRIDGE UNIVERSITY PRESS, et al.,
Plaintiffs-Appellants,
v.
MARK P. BECKER, et al.,
Defendants-Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
NO. 1:08-cv-01425-ODE (Evans, J.)

BRIEF OF AMICI CURIAE AMERICAN COUNCIL ON EDUCATION,
ASSOCIATION OF AMERICAN UNIVERSITIES, ASSOCIATION OF
PUBLIC AND LAND-GRANT UNIVERSITIES, AMERICAN
ASSOCIATION OF STATE COLLEGES AND UNIVERSITIES,
AMERICAN ASSOCIATION OF COMMUNITY COLLEGES, AND THE
NATIONAL ASSOCIATION OF INDEPENDENT COLLEGES AND
UNIVERSITIES IN SUPPORT OF APPELLEES MARK P. BECKER, ET
AL., AND AFFIRMANCE
Ada Meloy
General Counsel
American Council
on Education
One DuPont Circle, NW
Washington, DC 20036
[phone]
Counsel for Amici Curiae
identified on signature page

April 25, 2013

Bruce G. Joseph (pro hac vice
application pending)
Floyd B. Chapman
Karyn K. Ablin (pro hac vice
application pending)
WILEY REIN LLP
1776 K St. NW
Washington, DC 20006
[phone]
Counsel for Amici Curiae
identified on signature page

Case Nos. 12-14676-FF & 12-15147-FF
Cambridge University Press, et al. v. Mark P. Becker, et al.
CERTIFICATE OF INTERESTED PARTIES AND
CORPORATE DISCLOSURE STATEMENT
Amici American Council on Education, Association of American
Universities, Association of Public and Land-Grant Universities, American
Association of State Colleges and Universities, American Association of
Community Colleges, and the National Association of Independent Colleges and
Universities each states that it is a non-profit association, with no parent
corporation, and no publicly held corporation owns 10 percent or more of its stock.
In addition to those identified in prior briefs filed in this case, 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:
Ablin, Karyn K.
American Association of Community Colleges
American Association of State Colleges and Universities
American Council on Education
Association of American Universities
Association of Public and Land-Grant Universities
Chapman, Floyd B.
Joseph, Bruce G
-a-

Meloy, Ada
National Association of Independent Colleges and Universities

-b-

TABLE OF CONTENTS
Page
CERTIFICATE OF INTERESTED PARTIES AND CORPORATE
DISCLOSURE STATEMENT ........................................................................ a 
TABLE OF CONTENTS ........................................................................................... i 
TABLE OF CITATIONS ........................................................................................ iii 
STATEMENT OF ISSUES ...................................................................................... 1 
INTEREST OF AMICI.............................................................................................. 1 
SUMMARY OF ARGUMENT ................................................................................ 2 
ARGUMENT ............................................................................................................ 5 
I. 

FAIR USE IS INTEGRAL TO COPYRIGHT’S PUBLIC INTEREST
GOAL OF PROMOTING THE PROGRESS OF SCIENCE –
UNDERSTOOD TO MEAN LEARNING AND KNOWLEDGE –
AND THE FAIR USE FACTORS MUST BE ANALYZED IN
LIGHT OF THIS PURPOSE.......................................................................... 5 
A. 

B. 

Congress Implemented the Public Purpose of Copyright by
Creating Significantly Circumscribed Rights, Subject to
Important Limitations. .......................................................................... 8 

C. 

Fair Use Is an Integral Part of Copyright Law, Essential To
Fulfilling the Constitution’s Purpose of Promoting Learning. .......... 10 

D. 
II. 

The Constitution Grants Congress the Power To Enact
Copyright Laws for the Public Purpose of Promoting Learning,
Not for the Private Benefit of Authors. ................................................ 6 

The Fair Use Doctrine Should Be Construed To Advance
Copyright’s Public Purposes. ............................................................. 11 

FACTOR ONE HEAVILY FAVORS FAIR USE – EDUCATION IS
A CORE PUBLIC INTEREST THAT IS SYNONYMOUS WITH
THE PROMOTION OF KNOWLEDGE AND LEARNING...................... 12 

A. 

The Copyright Act Expressly Favors the Challenged Use. ............... 13 

B. 

The Public Has a Strong Interest in Fostering Higher Education,
and the Educational Use Challenged in this Case Confers
Fundamental Public Benefits Central to the Purpose of the
Copyright Clause and the First Amendment. ..................................... 14 
1. 
2. 

Academic Freedom To Present and Examine a Broad
Array of Ideas Is an Essential Right Protected by the First
Amendment and, Therefore, by Fair Use. ............................... 20 

3. 

C. 

The Public’s Vital Interest in Higher Education Is an
American Article of Faith. ....................................................... 14 

GSU’s e-Reserves Are Instrumental in Fulfilling These
Core Public Values and Are too Important To Subject to
Narrow, Limited Private Interests. ........................................... 22 

Appellants Are Incorrect in Their Effort To Limit Factor One to
Consideration of Whether a Use Is Transformative........................... 23 

III. 

FACTOR TWO HEAVILY FAVORS FAIR USE – THE WORKS IN
SUIT ARE ACADEMIC WORKS CREATED WITH THE
AUTHOR’S EXPECTATION THAT THEY WILL BE WIDELY
DISSEMINATED AND DISCUSSED FOR THE PURPOSE OF
SCHOLARSHIP. .......................................................................................... 24 

IV. 

FACTOR FOUR HEAVILY FAVORS FAIR USE – ACADEMIC
AUTHORS DO NOT REQUIRE THE ECONOMIC INCENTIVES
OF COPYRIGHT PROTECTION TO INDUCE THEM TO
CREATE, AND THE CHALLENGED USE DOES NOT
MEANINGFULLY REDUCE PUBLISHER INCENTIVES. ..................... 27 

CONCLUSION ....................................................................................................... 30 
CERTIFICATE OF COMPLIANCE ...................................................................... 31 
CERTIFICATE OF SERVICE ............................................................................... 32 

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TABLE OF CITATIONS
PAGE(S)

CASES

American Geophysical Union v. Texaco, Inc.,
802 F. Supp. 1 (S.D.N.Y. 1992), aff’d, 60 F.3d 913 (2d Cir. 1995) .................. 23
A.V. ex rel. Vanderhye v. iParadigms LLC,
562 F.3d 630 (4th Cir. 2009) .............................................................................. 24
Board of Education, Island Trees Union Free School District No. 26 v. Pico,
457 U.S. 853, 102 S. Ct. 2799 (1982)........................................................... 16, 21
Brown v. Board of Education,
347 U.S. 483, 74 S. Ct. 686 (1954)..................................................................... 16
*Cambridge University Press v. Becker,
863 F. Supp. 2d 1190 (N.D. Ga. 2012) (Dkt#423) .......................5, 23, 24, 25, 29
*Campbell v. Acuff-Rose Music, Inc.,
510 U.S. 569, 114 S. Ct. 1164 (1994)...............................................10, 11, 14, 23
Eldred v. Ashcroft,
537 U.S. 186, 123 S. Ct. 769 (2002).........................................................7, 13, 22
Feist Publications, Inc. v. Rural Telephone Service Co.,
499 U.S. 340, 111 S. Ct. 1282 (1991)................................................................... 8
Fogerty v. Fantasy, Inc.,
510 U.S. 517, 114 S. Ct. 1023 (1994)............................................................... 7, 8
*Golan v. Holder,
132 S. Ct. 873 (2012) ..................................................................................7, 8, 21
Grutter v. Bollinger,
539 U.S. 306, 123 S. Ct. 2325 (2003)........................................................... 15, 17
*Keyishian v. Board of Regents of the University of the State of NewYork,
385 U.S. 589, 87 S. Ct. 675 (1967)..................................................................... 20
*Meyer v. Nebraska,
262 U.S. 390, 43 S. Ct. 625 (1923)...........................................................4, 15, 21

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Mueller v. Allen,
463 U.S. 388, 103 S. Ct. 3062 (1983)................................................................... 5
Plyler v. Doe,
457 U.S. 202, 102 S. Ct. 2382 (1982).....................................................15, 16, 18
Regents of the University of California v. Bakke,
438 U.S. 265, 98 S. Ct. 2733 (1978)................................................................... 21
Sega Enterprises Ltd. v. Accolade, Inc.,
977 F.2d 1510 (9th Cir. 1993) ............................................................................ 11
*Sony Corp. v. Universal City Studios, Inc.,
464 U.S. 417, 104 S. Ct. 774 (1984)................................................................. 7, 9
Sundeman v. Seejay Society, Inc.,
142 F.3d 194 (4th Cir. 1998) .............................................................................. 11
*Suntrust Bank v. Houghton Mifflin Co.,
268 F.3d 1257 (11th Cir. 2001) ...................................................................passim
Sweezy v. New Hampshire,
354 U.S. 234, 77 S. Ct. 1203 (1957)................................................................... 21
Triangle Publications, Inc. v. Knight-Ridder Newspapers, Inc.,
445 F. Supp. 875 (S.D. Fla. 1978) ...................................................................... 12
Twentieth Century Music Corp. v. Aiken,
422 U.S. 151, 95 S. Ct. 2040 (1975)................................................................. 8, 9
United States v. Paramount Pictures, Inc.,
334 U.S. 131, 68 S. Ct. 915 (1941)................................................................... 3, 8
Wheaton v. Peters,
33 U.S. (8 Pet.) 591 (1834) ................................................................................... 9
Wright v. Warner Books, Inc.,
953 F.2d 731 (2d Cir. 1991) ............................................................................... 14

CONSTITUTION
*U.S. Const., art. I, § 8, cl. 8 ...................................................................................... 6
- iv -

STATUTES
17 U.S.C. § 102(b) ..................................................................................................... 9
*17 U.S.C. § 107 ..............................................................................................3, 9, 13
17 U.S.C. §§ 108-122 ................................................................................................ 9

OTHER AUTHORITIES
Treatise, Books, Periodicals, and Internet Materials
Benjamin Franklin, Proposals Relating to the Education of Youth in
Pennsylvania (1749), available at
http://www.archives.upenn.edu/primdocs/1749proposals.html ......................... 16
Claire Redhead, Open Access Scholarly Publishers Association, Growth in
Use of the CC-BY License (Mar. 8, 2013), available at
http://oaspa.org/growth-in-use-of-the-cc-by-license-2/...................................... 29
Letter from James Madison to W.T. Barry (Aug. 4, 1822) in The Writings of
James Madison (Gaillard Hunt ed.) available at
http://www.justice.gov/oip/foiapost/2008foiapost12.htm .................................. 16
Melville B. Nimmer & David Nimmer, Nimmer on Copyright (2012)................... 13
Modern Language Association, MLA Journals Adopt New Open-AccessFriendly Author Agreements (June 5, 2012), available at
http://www.mla.org/news_from_mla/news_topic&topic=596 .......................... 28
Open Access Scholarly Publishers Association, FAQ, Why does OASPA
encourage use of the CC-BY license in particular?, available at
http://oaspa.org/information-resources/frequently-askedquestions/#FAQ3 (accessed Apr. 23, 2013) ................................................. 28-29
Orrin G. Hatch & Thomas Lee, “To Promote the Progress of Science”; The
Copyright Clause and Congress’s Power To Extend Copyrights, 16 Harv.
J.L. & Tech. 1 (2002) ............................................................................................ 7

-v-

Pierre N. Leval, Commentary, Toward a Fair Use Standard, 103 Harv. L.
Rev. 1105 (1990). ............................................................................................... 10
Richard Posner, The Becker-Posner Blog, September 30, 2012, available at
http://www.becker-posner-blog.com/2012/09/do-patent-and-copyrightlaw-restrict-competition-and-creativity-excessively-posner.html ...................... 26
Robert Kasunic, Is That All There Is? Reflections on the Nature of the
Second Fair Use Factor, 31 Colum. J.L. & Arts 529 (2008) .......................11, 25
Sandy Baum and Jennifer Ma, Education Pays: The Benefits of Higher
Education for Individuals and Society (2007) available at
http://www.collegeboard.com/prod_downloads/about/news_info/trends/e
d_pays_2007.pdf ...........................................................................................17, 18
SPARC Open Access Newsletter & Form, available at
http://www.sparc.arl.org/publications/soan/ (accessed Apr. 23, 2013) ............. 28
Walter McMahon, Higher Learning, Greater Good: The Private Social
Benefits of Higher Education (2009) ............................................................17, 18
Dictionaries
Oxford University Press’ Online Dictionary, available at
http://oxforddictionaries.com/us/definition/american_english/learning ............ 12
Webster’s Third New International Dictionary (1981) ........................................... 12
Speeches
President Barack Obama, State of the Union Address (Feb. 12, 2013),
available at http://www.whitehouse.gov/the-pressoffice/2013/02/12/remarks-president-state-union-address ........................... 18-19
President George H.W. Bush, State of the Union Address (Jan. 28, 1992),
available at http://www.presidency.ucsb.edu/ws/index.php?pid=20544 ........... 19
President George W. Bush, The Third Bush-Kerry Presidential Debate (Oct.
13, 2004), available at http://www.debates.org/index.php?page=october13-2004-debate-transcript ................................................................................... 19

- vi -

Remarks by the President on College Affordability, Ann Arbor, Michigan,
University of Michigan (Jan. 27, 2012), available at
http://www.whitehouse.gov/the-press-office/2012/01/27/remarkspresident-college-affordability-ann-arbor-michigan .......................................... 18
Remarks by the President on Higher Education and the Economy at the
University of Texas at Austin (Aug. 09, 2010), available at
http://www.whitehouse.gov/the-press-office/2010/08/09/remarkspresident-higher-education-and-economy-university-texas-austin .................... 19
Remarks of U.S. Secretary of Education Arne Duncan at the TIME Higher
Education Summit (Oct. 18, 2012), available at
http://www.ed.gov/news/speeches/remarks-us-secretary-education-arneduncan-time-higher-education-summit............................................................... 15

- vii -

STATEMENT OF ISSUES
Did the district court correctly conclude that the non-profit educational use
of relatively small excerpts of academic books as e-reserves to enrich learning and
classroom teaching were fair use, when the use furthered the constitutional goal of
“promot[ing] the Progress of Science” and would not meaningfully impair the
creation or publication of academic works?
INTEREST OF AMICI
The American Council on Education, Association of American Universities,
Association of Public and Land-grant Universities, American Association of
Community Colleges, American Association of State Colleges and Universities,
and National Association of Independent Colleges and Universities submit this
brief as amici curiae in support of appellees.1 Amici are six non-profit associations
whose members include the great majority of U.S.-based public and private
colleges and universities. The associations represent all sectors of higher
education – public and private, large and small. They regularly submit amicus
briefs in cases raising legal issues important to higher education and seek to foster
high standards in higher education, believing that a strong higher education system
is the cornerstone of a democratic society.

1

No party’s counsel authored this brief in whole or in part. No party or its counsel
or anyone other than amici, their members and their counsel, contributed money
intended to fund preparation or submission of this brief.

The issues of academic fair use presented here have a profound effect on the
public-interest mission of amici and their members, a mission that the Supreme
Court has described as one of “supreme importance.” The publishers’ attempt to
distort the copyright fair use doctrine into a “narrow exception” (Br. at 5) that does
not encompass the non-profit educational activities of Georgia State University
would greatly impede teaching, learning, research, and scholarship – the very
“Progress of Science” that copyright law must promote – and would deprive
students of a rich array of critical thinking. Amici have a fundamental interest in
protecting the higher education system against such a result.
Amici offer this brief to present the fair use doctrine in its proper context, as
an integral tool for achieving the Constitution’s goal in granting Congress the
power to enact copyright laws, and to amplify the university defendants’
presentation of three of the four statutory fair use factors.2 All parties have
consented to the filing of this brief.
SUMMARY OF ARGUMENT
The Constitution grants Congress the power to enact copyright laws for a
specific purpose – “to promote the Progress of Science.” The term “the Progress

2

Amici will not add to the defendants’ discussion of the third fair use factor – “the
amount and substantiality of the portion used in relation to the copyrighted work as
a whole.” See Br. of Appellees 46-56.
-2-

of Science” is understood to refer broadly to the creation and spread of knowledge
and learning.
It is well-settled that the rights granted by Congress to accomplish this
purpose are granted to serve the public interest, not the copyright owner’s private
gain. “The copyright law, like the patent statutes, makes reward to the owner a
secondary consideration.” United States v. Paramount Pictures, Inc., 334 U.S.
131, 158, 68 S.Ct. 915, 929 (1948). Thus, copyright rights are carefully limited,
and those limitations are a structural part of the statutory balance necessary to
accomplish copyright’s constitutional purpose. The fair use doctrine is one such
important limitation, long recognized as an essential means of: (i) ensuring that
copyright law does not stifle the very learning that it should promote; (ii)
promoting the public interest; and (iii) securing First Amendment rights.
Given its importance, the fair use doctrine embodied in section 107 of the
Copyright Act, 17 U.S.C. § 107, is not properly viewed as a “narrow exception” to
exclusive property rights; rather, it is an integral part of copyright law and one
means by which that law serves the public interest by promoting the spread of
learning. The doctrine must be construed in light of that role.
Non-profit educational uses are strongly favored in fair use analysis. Indeed,
it is difficult to imagine a type of use more closely linked to the constitutional goal
of spreading knowledge and learning. The public interest in higher education is

-3-

undeniable – “[t]he American people have always regarded education and
acquisition of knowledge as matters of supreme importance which should be
diligently promoted.” See, e.g., Meyer v. Nebraska, 262 U.S. 390, 400, 43 S.Ct.
625, 627 (1923). Education is the foundation of citizenship and democracy, and
the source of enormous benefits for society, the economy, and the individual.
Moreover, the academic freedom to present and examine a broad array of thought
is an essential constitutional right protected by the First Amendment. The fair use
doctrine a primary means by which copyright law protects First Amendment
interests.
The e-reserve system at GSU is used by faculty to enrich the educational
experience and expose students to diverse sources of thought to which they would
not otherwise be exposed. It is a use that fosters learning, promotes the strong
public interest in higher education, and advances the First Amendment interest in
academic freedom and diversity of thought. The first statutory fair use factor – the
purpose and character of the use – strongly favors the challenged use.
The second statutory factor – the nature of the copyrighted work – likewise
strongly favors fair use. In addition to the district court’s reasoning, the works
were created by professors as part of their ongoing participation in the academic
enterprise. Academic authors value broad educational use of their works. In other

-4-

words, the authors’ interests in creating their works coincide with the educational
interests promoted by GSU’s e-reserve system.
The fourth statutory factor – the effect of the use on the market for and value
of the copyrighted work – also strongly favors fair use. Viewed in light of
copyright law’s goal of inducing authors to create, this finding is unassailable. The
district court found that academic authors are not motivated by royalties. Dkt#423
at 81-82. They engage in academic writing to advance knowledge and enhance
their reputation. They would write even without copyright royalties. In the
academic context, then, the bar of inducement is considerably lower than in other
contexts. Authors do not require copyright inducement to write; the only
inducement necessary is the inducement of publishers to publish. That
inducement, the court found, was not, and would not be, harmed by the challenged
use, even were it widespread.
ARGUMENT
I.

FAIR USE IS INTEGRAL TO COPYRIGHT’S PUBLIC INTEREST
GOAL OF PROMOTING THE PROGRESS OF SCIENCE –
UNDERSTOOD TO MEAN LEARNING AND KNOWLEDGE – AND
THE FAIR USE FACTORS MUST BE ANALYZED IN LIGHT OF
THIS PURPOSE.
As this Court explained in one of its leading fair use decisions, it is

important “[t]o approach [fair use] issues in the proper framework.” Suntrust Bank
v. Houghton Mifflin Co., 268 F.3d 1257, 1260 (11th Cir. 2001). To understand that

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framework, the Court examined the history and purpose of the Constitution’s
Copyright Clause. Id. at 1260-63. The Court found that “copyright laws have
been enacted to achieve three main goals: the promotion of learning, the
protection of the public domain, and the granting of an exclusive right to the
author.” Id. at 1261. It then applied the fair use factors in light of those goals. Id.
at 1267-68.
Consideration of the underlying framework and goals of copyright law is
similarly important to guide the fair use analysis here. The core constitutional
purpose of copyright law is to promote learning. It is difficult to imagine a use of
copyrighted works that is closer to that core purpose than the use at issue here –
excerpting scholarly writings as supplemental reading in higher education.
A.

The Constitution Grants Congress the Power To Enact Copyright
Laws for the Public Purpose of Promoting Learning, Not for the
Private Benefit of Authors.

Article I, Section 8, clause 8 of the Constitution grants Congress the power
“[t]o promote the Progress of Science and useful Arts, by securing for limited
Times to Authors and Inventors the exclusive Right to their respective Writings
and Discoveries.” U.S. Const., art. I, § 8, cl. 8 (emphasis added). Thus, the power
to enact copyright laws exists for a specific purpose – “to promote the Progress of
Science.”3
3

“Perhaps counterintuitively for the contemporary reader, Congress’ copyright
authority is tied to the progress of science; its patent authority, to the progress of
-6-

The “‘Progress of Science’ ... refers broadly to ‘the creation and spread of
knowledge and learning.’” Golan, 132 S.Ct. at 888; accord Eldred v. Ashcroft,
537 U.S. 186, 245, 123 S.Ct. 769, 802 (2002) (Breyer, J., dissenting) (describing
“the basic Clause objective” as “‘promot[ing] the Progress of Science,’ i.e.,
knowledge and learning”); Orrin Hatch & Thomas Lee, “To Promote the Progress
of Science”; The Copyright Clause and Congress’s Power To Extend Copyrights,
16 Harv. J.L. & Tech. 1, 7 (2002) (“Everyone agrees that the notion of ‘science’ in
the founding era referred generally to all forms of knowledge and learning.”).4
The Supreme Court consistently has emphasized that the ultimate goal of
copyright is to serve the public interest, not the author’s private interest:
The monopoly privileges that Congress may authorize are neither
unlimited nor primarily designed to provide a special private benefit.
Rather, the limited grant is a means by which an important public
purpose may be achieved.
Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 429, 104 S.Ct. 774, 782
(1984); accord Fogerty v. Fantasy, Inc., 510 U.S. 517, 526, 114 S.Ct. 1023, 1029
(1994) (“[T]he monopoly privileges that Congress has authorized ... must
ultimately serve the public good.”). Indeed, “[t]he copyright law, like the patent
(Continued . . .)
the useful arts.” Golan v. Holder, 132 S.Ct. 873, 888 (2012). This is clear from
the parallel structure of the clause.
4

The English Statute of Anne, which “[t]he Framers of the U.S. Constitution relied
on ... when drafting the Copyright Clause of our Constitution,” was “introduced as
‘[a]n act for the encouragement of learning.’” Suntrust, 268 F.3d 1257, 1260 &
n.4.
-7-

statutes, makes reward to the owner a secondary consideration.” Paramount
Pictures, 334 U.S. at 158, 68 S.Ct. at 929; accord Feist Publ’ns, Inc. v. Rural Tel.
Serv. Co., 499 U.S. 340, 349, 111 S.Ct. 1282, 1290 (1991) (observing that “[t]he
primary objective of copyright is not to reward the labors of authors”).
Copyright rights are granted to authors to induce them to create and to
disseminate their creations. See, e.g., Paramount Pictures, 334 U.S. at 158, 68
S.Ct. at 929 (“[R]eward to the author or artist serves to induce release to the public
of the products of his creative genius.”); Fogerty, 510 U.S. at 526, 114 S.Ct. at
1029 (copyright is “intended to motivate the creative activity of authors”). “But
the ultimate aim is, by this incentive, to stimulate artistic creativity for the general
public good.” Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156, 95
S.Ct. 2040, 2044 (1975). Moreover, “[e]vidence from the founding ... suggests
that inducing dissemination – as opposed to creation – was viewed as an
appropriate means to promote science.” Golan, 132 S.Ct. at 888 (emphasis in
original).
B.

Congress Implemented the Public Purpose of Copyright by
Creating Significantly Circumscribed Rights, Subject to
Important Limitations.

Congress has exercised its constitutional power to promote knowledge and
learning by creating carefully circumscribed copyright rights. The rights are not
absolute property rights but statutory creations subject to important limitations that

-8-

further the constitutional goal. E.g., 17 U.S.C. §§ 102(b), 107-122. “The limited
scope of the copyright holder’s statutory monopoly ... reflects a balance of
competing claims upon the public interest: Creative work is to be encouraged and
rewarded, but private motivation must ultimately serve the cause of promoting
broad public availability of literature.” Aiken, 422 U.S. at 154-56, 95 S. Ct. at
2044.
From the beginning, the Supreme Court has consistently held that copyright
is not grounded in any theory of the author’s natural right. It is solely a creature of
statute, and the scope of the right is strictly limited by the statutory grant. Wheaton
v. Peters, 33 U.S. (8 Pet.) 591, 659-64, 667-68 (1834); Sony Corp., 464 U.S. at
429, 104 S.Ct. at 782 (noting that copyright law “‘is not based upon any natural
right’” of the author and describing the balance between the benefit to the public
from “‘stimulat[ing] the producer’” and the detriment to the public from “‘the evils
of the temporary monopoly’” (quoting H.R. Rep. No. 2222, 60th Cong., 2d Sess. 7
(1909))). This Court has agreed, observing that “[t]he copyright is not a natural
right inherent in authorship.” Suntrust Bank, 268 F.3d at 1262-63.
In other words, the exceptions and limitations in the Copyright Act do not
contravene any natural order or property right. Rather they are a structural part of
the balanced means by which Congress fulfills its constitutional mandate to

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promote learning. They should be construed on equal footing with, and as broadly
as, the underlying rights.
C.

Fair Use Is an Integral Part of Copyright Law, Essential To
Fulfilling the Constitution’s Purpose of Promoting Learning.

One of the most important limitations in copyright law is the fair use
doctrine, on which this case turns. “From the infancy of copyright protection,
some opportunity for fair use of copyrighted materials has been thought necessary
to fulfill copyright’s very purpose … .” Campbell v. Acuff-Rose Music, Inc., 510
U.S. 569, 575, 114 S.Ct. 1164, 1169 (1994). According to Judge Leval, “Fair use
should be perceived not as a disorderly basket of exceptions to the rules of
copyright, nor as a departure from the principles governing that body of law, but
rather as a rational, integral part of copyright, whose observance is necessary to
achieve the objectives of that law.” Pierre Leval, Commentary, Toward a Fair Use
Standard, 103 Harv. L. Rev. 1105, 1107 (1990). In response to the rhetorical
question “why allow fair use,” Judge Leval explains:
First, all intellectual creative activity is in part derivative. There is no
such thing as a wholly original thought or invention. Each advance
stands on the building blocks fashioned by prior thinkers. Second,
important areas of intellectual activity are explicitly referential.
Philosophy, criticism, history, and even the natural sciences require
continuous reexamination of yesterday’s theses.
Monopoly protection of intellectual property that impeded referential
analysis and the development of new ideas out of old would strangle
the creative process.
Id. at 1109.
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D.

The Fair Use Doctrine Should Be Construed To Advance
Copyright’s Public Purposes.

It follows from the foregoing that fair use should be analyzed, and the fair
use factors applied, to advance the specific goal of fostering learning and the
general public interest. “All [of the statutory factors] are to be explored, and the
results weighed together, in light of the purposes of copyright.” Campbell, 510
U.S. at 578, 114 S.Ct. at 1171.
This Court has agreed, noting the need “to approach these issues in the
proper framework” in the context of “the Constitution’s Copyright Clause.”
Suntrust, 268 F.3d at 1260; Robert Kasunic, Is That All There Is? Reflections on
the Nature of the Second Fair Use Factor, 31 Colum. J.L. & Arts 529, 544 (2008)
(“The fair use analysis is ... an examination of the interrelationships of the facts
and the factors, while keeping in mind the primary purpose of copyright.”).
More generally, courts have recognized that the public interest in a
challenged use deserves strong consideration in fair use analysis. See Sundeman v.
Seejay Soc’y, Inc., 142 F.3d 194, 203-04 (4th Cir. 1998) (considering the public
benefit resulting from the challenged use in connection with “the development of
art, science and industry”); Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510,
1523 (9th Cir. 1993) (reasoning that “we are free to consider the public benefit
resulting from a particular use” and that “[p]ublic benefit need not be direct or
tangible, but may arise because the challenged use serves a public interest”).
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Simply put, the challenged uses should be evaluated under the fair use
doctrine in light of the inherent public benefit and constitutional goal of promoting
learning. In that light, they are fair use.
II.

FACTOR ONE HEAVILY FAVORS FAIR USE – EDUCATION IS A
CORE PUBLIC INTEREST THAT IS SYNONYMOUS WITH THE
PROMOTION OF KNOWLEDGE AND LEARNING.
Education is, of course, a primary means by which society promotes learning

and knowledge. Webster’s Third New International Dictionary 723 (1981)
(defining “education” as, inter alia, “a process or course of learning, instruction, or
training” and “educate” as, inter alia, “to develop ... by fostering to varying
degrees the growth or expansion of knowledge”). Similarly, plaintiff Oxford
University Press’ Online Dictionary defines “learning” as “knowledge acquired
through experience, study, or being taught.” Oxford Dictionaries, available at
http://oxforddictionaries.com/us/definition/american_english/learning. The link
between education and the promotion of learning and the expansion of knowledge
cannot be denied. Nor can the overarching public benefit of education.
Given this context, it is unsurprising that education is a primary objective of
the fair use doctrine. Indeed, “the development of fair use as a judicial doctrine
was catalyzed by the importance of permitting non-profit educational institutions
to utilize portions of a copyrighted work,” among other reasons. Triangle Publ’ns,
Inc. v. Knight-Ridder Newspapers, Inc., 445 F. Supp. 875, 880 (S.D. Fla. 1978).

- 12 -

As the Supreme Court observed, “[t]he fair use defense affords considerable
‘latitude for scholarship and comment.’” Eldred, 537 U.S. at 220, 123 S.Ct. at
789.
A.

The Copyright Act Expressly Favors the Challenged Use.

Section 107 itself establishes the importance of educational uses in the fair
use calculus. The preamble of the section identifies three educational activities as
prototypical examples of favored uses, including the use at issue here – “teaching
(including multiple copies for classroom use), scholarship, [and] research.” 17
U.S.C. § 107; see 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright
§ 13.05[A][1], at 13-160 (2012) (acknowledging that “‘nonprofit educational’”
uses “will tend to render a given use ‘fair’” and that “the preamble to Section 107
does enumerate certain purposes that are most appropriate for a finding of fair use:
‘criticism, comment, news reporting, teaching (including multiple copies for
classroom use), scholarship or research’”).
Moreover, in the first of the four factors that Congress ordered courts to
consider in assessing whether a particular use of a copyrighted work constitutes
fair use – “the purpose and character of the use” – the only use that Congress
mandated that courts consider favorably is “whether such use is ... for nonprofit
educational purposes.” 17 U.S.C. § 107(1).

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Congress’ explicit inclusion of multiple educational uses in the preamble
and in factor one is a strong indication that factor one favors the challenged uses.
See Campbell, 510 U.S. at 579, 114 S.Ct. at 1171 (“The enquiry here [under factor
1] may be guided by the examples given in the preamble to § 107.”). “Moreover,
there is a strong presumption that factor one favors the defendant if the allegedly
infringing work fits the description of uses described in section 107. ‘[I]f a book
falls into one of these categories [i.e., criticism, scholarship or research],
assessment of the first fair use factor should be at an end.’” Wright v. Warner
Books, Inc., 953 F.2d 731, 736 (2d Cir. 1991) (alterations in original).5
B.

The Public Has a Strong Interest in Fostering Higher Education,
and the Educational Use Challenged in this Case Confers
Fundamental Public Benefits Central to the Purpose of the
Copyright Clause and the First Amendment.
1.

The Public’s Vital Interest in Higher Education Is an
American Article of Faith.

The importance of education to society and to the individual is so selfevident as to be a truism. It was recognized by the Founders and has long been
recognized by the Supreme Court and the Executive. As the Supreme Court
observed, “[t]he American people have always regarded education and acquisition
5

The amicus brief of Marybeth Peters et al. attacks a straw man. The district court
did not “create a broad copyright exemption for nonprofit uses in education.” Br.
at 6. Rather, the court followed Congress’ express instruction to treat nonprofit
educational uses as favored uses under the first fair use factor, and then carefully
considered all of the other factors. Although Congress rejected a specific
educational exemption in 1976, it explicitly directed courts to account for the
public interest in education as part of fair use.
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of knowledge as matters of supreme importance which should be diligently
promoted.” See, e.g., Meyer, 262 U.S. at 400, 43 S.Ct. at 627; accord Plyler v.
Doe, 457 U.S. 202, 221, 102 S.Ct. 2382, 2397 (1982).
The importance of higher education in particular is similarly wellestablished. The Supreme Court has “long recognized that, given the important
purpose of public education and the expansive freedoms of speech and thought
associated with the university environment, universities occupy a special niche in
our constitutional tradition.” Grutter v. Bollinger, 539 U.S. 306, 329, 123 S.Ct.
2325, 2339 (2003). Higher education is so important that the Supreme Court has
found that it should be universally available. See id. at 331, 123 S.Ct. at 2340
(observing that “the diffusion of knowledge and opportunity through public
institutions of higher education must be accessible to all individuals”). Indeed,
“[p]olls show that three out of four Americans believe ‘in order to get ahead in life
these days, it is necessary to get a college education.’” Remarks of U.S. Secretary
of Education Arne Duncan at the TIME Higher Education Summit (Oct. 18, 2012),
available at http://www.ed.gov/news/speeches/remarks-us-secretary-educationarne-duncan-time-higher-education-summit.
An educated public provides innumerable societal benefits. Perhaps most
fundamentally, an educated citizenry is the predicate of a thriving democracy.
Mueller v. Allen, 463 U.S. 388, 395, 103 S.Ct. 3062, 3067 (1983) (observing that

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“[a]n educated populace is essential to the political and economic health of any
community”). “Indeed, the Constitution presupposes the existence of an informed
citizenry prepared to participate in governmental affairs ... .” Bd. of Educ. v. Pico,
457 U.S. 853, 876, 102 S.Ct. 2799, 2813 (1982) (Blackmun, J., concurring). As
James Madison observed, “[k]nowledge will forever govern ignorance: And a
people who mean to be their own Governors must arm themselves with the power
which knowledge gives.” Letter from James Madison to W.T. Barry (Aug. 4,
1822), in The Writings of James Madison (Gaillard Hunt ed.), available at
http://www.justice.gov/oip/foiapost/2008foiapost12.htm.
Education “is the very foundation of good citizenship.” Brown v. Bd. of
Educ., 347 U.S. 483, 493, 74 S.Ct. 686, 691 (1954); accord Plyler, 457 U.S. at
223, 102 S.Ct. at 2398. “‘[E]ducation prepares individuals to be self-reliant and
self-sufficient participants in society.’” Id. at 222, 102 S.Ct. at 2397. Inculcating
not only “an ability” but also “an inclination” “to serve mankind, one’s country,
friends and family” is “the great Aim and End of all learning.” Benjamin Franklin,
Proposals Relating to the Education of Youth in Pennsylvania (1749), available at
http://www.archives.upenn.edu/primdocs/1749proposals.html. The Supreme Court
has:
repeatedly acknowledged the overriding importance of preparing
students for work and citizenship, describing education as pivotal to
“sustaining our political and cultural heritage” with a fundamental
role in maintaining the fabric of society.
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Grutter, 539 U.S. at 331, 123 S.Ct. at 2340.
Government statistics confirm the positive influence of an education on a
person’s sense of civic duty. “Higher levels of education are correlated with
higher levels of civic participations, including volunteer work, voting, and blood
donation, as well as with greater levels of openness to the opinions of others.”
Sandy Baum and Jennifer Ma, Education Pays: The Benefits of Higher Education
for Individuals and Society, 2, 25-28 (2007) (based on data from the Bureau of
Labor Statistics, National Center for Health Statistics, the U.S. Census Bureau, and
the National Opinion Research Center), available at
http://www.collegeboard.com/prod_downloads/about/news_info/trends/ed_pays_2
007.pdf. Education also contributes to lower crime rates, air and water pollution
rates, and health and prison costs. See Walter McMahon, Higher Learning, Greater
Good: The Private Social Benefits of Higher Education 217-23, 232-35, 238-39
(2009).
In addition to the obvious civic benefits fostered by an education, higher
education contributes to tangible economic benefits in the form of higher earnings,
lower unemployment, and higher tax revenues to the public fisc:
Higher levels of education correspond to lower unemployment and
poverty rates. So, in addition to contributing more to tax revenues
than others do, adults with higher levels of education are less likely to
depend on social safety-net programs, generating decreased demand
on public budgets.

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Baum and Ma, supra at 2, 18-19 (based on U.S. Census Bureau data); see also id.
(“There is a positive correlation between higher levels of education and higher
earnings for all racial/ethnic groups and for both men and women.”); McMahon,
supra, at 238 (observing that higher education contributes to higher tax receipts).
In short, “education provides the basic tools by which individuals might lead
economically productive lives to the benefit of us all.” Plyler, 457 U.S. at 221,
102 S.Ct. at 2397.
President Obama has repeatedly recognized the economic benefits of an
educated populace, emphasizing that “in this economy, there is no greater predictor
of individual success than a good education.” Remarks by the President on
College Affordability, Ann Arbor, Michigan, University of Michigan (Jan. 27,
2012), available at http://www.whitehouse.gov/the-pressoffice/2012/01/27/remarks-president-college-affordability-ann-arbor-michigan. He
observed that:
Today, the unemployment rate for Americans with a college degree or
more is about half the national average. Their incomes are twice as
high as those who don’t have a high school diploma. College is the
single most important investment you can make in your future.
Id. He further asserted in his most recent State of the Union address that “[i]t’s a
simple fact the more education you’ve got, the more likely you are to have a good
job and work your way into the middle class.” President Barack Obama, State of

- 18 -

the Union Address (Feb. 12, 2013), available at http://www.whitehouse.gov/thepress-office/2013/02/12/remarks-president-state-union-address.
The President has stressed the duty of society to ensure that a good
education is accessible to all:
The single most important thing we can do is to make sure we’ve got
a world-class education system for everybody. That is a prerequisite
for prosperity. It is an obligation that we have for the next generation.
Remarks by the President on Higher Education and the Economy at the University
of Texas at Austin (Aug. 09, 2010), available at http://www.whitehouse.gov/thepress-office/2010/08/09/remarks-president-higher-education-and-economyuniversity-texas-austin.
Other Presidents similarly have recognized the strong public interest in
education. See, e.g., President George H.W. Bush, State of the Union Address
(Jan. 28, 1992), available at
http://www.presidency.ucsb.edu/ws/index.php?pid=20544 (“The workplace of the
future will demand more highly skilled workers than ever, more people who are
computer-literate, highly educated. We must be the world’s leader in education.”);
President George W. Bush, The Third Bush-Kerry Presidential Debate (Oct. 13,
2004), available at http://www.debates.org/index.php?page=october-13-2004debate-transcript (“But perhaps the best way to keep jobs here in America and to
keep this economy growing is to make sure our education system works. ...

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Education is how to make sure we’ve got a workforce that’s productive and
competitive.”).
2.

Academic Freedom To Present and Examine a Broad Array
of Ideas Is an Essential Right Protected by the First
Amendment and, Therefore, by Fair Use.

The benefits of a vigorous educational system are not merely abstract goals
to be pursued when convenient; the academic freedom necessary to secure these
benefits is an essential constitutional right protected by the First Amendment. It
therefore deserves special consideration under the fair use doctrine.
The Supreme Court has emphasized the importance to the First Amendment
of academic freedom and diversity of thought:
Our Nation is deeply committed to safeguarding academic freedom,
which is of transcendent value to all of us and not merely to the
teachers concerned. That freedom is therefore a special concern of the
First Amendment, which does not tolerate laws that cast a pall of
orthodoxy over the classroom. ... 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, (rather) than through
any kind of authoritative selection.”
Keyishian v. Bd. of Regents of the Univ. of the State of N.Y., 385 U.S. 589, 603, 87
S.Ct. 675, 684 (1967). It similarly wrote that:
The essentiality of freedom in the community of American
universities is almost self-evident. No one should underestimate the
vital role in a democracy that is played by those who guide and train
our youth. To impose any strait jacket upon the intellectual leaders in
our colleges and universities would imperil the future of our Nation.
No field of education is so thoroughly comprehended by man that new

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discoveries cannot yet be made. Particularly is that true in the social
sciences, where few, if any, principles are accepted as absolutes. ...
Teachers and students must always remain free to inquire, to study
and to evaluate, to gain new maturity and understanding; otherwise
our civilization will stagnate and die.
Sweezy v. New Hampshire, 354 U.S. 234, 250, 77 S.Ct. 1203, 1211-12 (1957);
accord Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 312, 98 S.Ct. 2733,
2759-60 (1978) (“Academic freedom ... long has been viewed as a special concern
of the First Amendment.”); id., 98 S.Ct. at 2760 (observing that two of the “four
essential freedoms” of a university are to determine “what may be taught” and
“how it shall be taught”).
The Court also has long recognized that the Fourteenth Amendment Due
Process clause “denotes not merely freedom from bodily restraint but also the right
of the individual ... to acquire useful knowledge.” Meyer, 262 U.S. at 399, 43 S.Ct.
at 626. This right to receive “follows ineluctably from the sender’s First
Amendment right” and “is a necessary predicate to the recipient’s meaningful
exercise of his own rights of speech, press, and political freedom.” Pico, 457 U.S.
at 867, 102 S.Ct. at 2808. For that reason, it is well-established that “‘the State
may not, consistently with the spirit of the First Amendment, contract the spectrum
of available knowledge.’” Id.
First Amendment rights, of course, are protected in the Copyright Act by the
fair use doctrine. See, e.g., Golan, 132 S.Ct. at 890 (observing that fair use serves

- 21 -

as a “built-in First Amendment accommodation[]” and “affords considerable
latitude for scholarship and comment”); Eldred, 537 U.S. at 219-20, 123 S.Ct. at
789 (same). Fair use should be applied to protect these essential rights.
3.

GSU’s e-Reserves Are Instrumental in Fulfilling These Core
Public Values and Are too Important To Subject to Narrow,
Limited Private Interests.

GSU’s e-reserve system promotes the public interest in learning that is
central to the Copyright Clause’s purpose and fulfills the core First Amendment
interest in fostering diversity of thought. Specifically, the materials at issue in this
case were placed on that e-reserve system to enrich the educational process by
expanding the range of ideas available to students for consideration and classroom
discussion. The system enables professors to make available to their students a
richer body of knowledge and more diverse streams of thought than would
otherwise be communicated in works that the students could reasonably be
expected to purchase.
The public interest would be significantly harmed if publishers could
restrain education in the name of profit, control, convenience, or an incorrect,
absolutist view of “exclusive rights.” The beneficial uses at issue should not be
subject to the whim of the copyright owner, whether that owner is willing to grant
digital licenses, chooses to license on reasonable or unreasonable terms, directly or
through a collective agent. The uses should not turn on whether the copyright

- 22 -

owner is responsive to licensing requests, responds slowly (after the professors
need to decide what to provide to their students), or simply ignores them. That is
particularly true here, where the district court rejected as “speculative and
unpersuasive on this record” the publishers’ claims that uncompensated e-reserve
use would force them to reduce their scholarly publishing. Dkt#423 at 84.
C.

Appellants Are Incorrect in Their Effort To Limit Factor One to
Consideration of Whether a Use Is Transformative.

Appellants’ attempt to twist factor one exclusively into an inquiry of
whether the use is “transformative” is badly misplaced. Appellants’ Br. at 49-55.
Appellants quote selectively from cases that dealt with non-educational,
commercial uses. Id. Thus, those cases understandably focused on other means by
which the works were claimed to promote “the Progress of Science.”
Where, as here, noncommercial educational uses for teaching and in the
classroom are at issue, the transformative use inquiry is far less important, as the
Supreme Court made clear in the very case in which it first discussed the relevance
of the transformative use inquiry: “The obvious statutory exception to this focus
on transformative uses is the straight reproduction of multiple copies for classroom
distribution.” Campbell, 510 U.S. at 579 n.11, 114 S.Ct. at 1171 n.11.6 Similarly,
6

The uses at issue arguably are “transformative” within the meaning of relevant
precedent, as the works-in-suit were not created specifically for classroom use. Cf.
A.V. ex rel. Vanderhye v. iParadigms LLC, 562 F.3d 630 (4th Cir. 2009) (verbatim
copying of student papers to create a plagiarism detection database deemed
transformative). Although the district court did not rely on this argument below, it
forms another basis for affirming the decision.
- 23 -

in American Geophysical Union v. Texaco, Inc., 802 F. Supp. 1 (S.D.N.Y. 1992),
aff’d, 60 F.3d 913 (2d Cir. 1995), Judge Leval observed that “Secondary users
have succeeded in winning the first factor by reason of either (1) transformative (or
productive) nonsuperseding use of the original, or (2) noncommercial use,
generally for a socially beneficial or widely accepted purpose.” Id. at 12.7 It is
difficult to imagine a use that is closer to copyright’s core goal, or more socially
beneficial, than the educational uses such as those at issue here.
III.

FACTOR TWO HEAVILY FAVORS FAIR USE – THE WORKS IN
SUIT ARE ACADEMIC WORKS CREATED WITH THE AUTHOR’S
EXPECTATION THAT THEY WILL BE WIDELY DISSEMINATED
AND DISCUSSED FOR THE PURPOSE OF SCHOLARSHIP.
The district court correctly found that the second fair use factor – the nature

of the copyrighted work – favored fair use because the works at issue were factual
in nature. Dkt#423 at 50-54. Beyond that attribute, however, there is more about
the nature of the works in suit that strongly supports a finding of fair use here.
The district court correctly reasoned that, in light of the purpose of
copyright, “a primary consideration must be whether use of small unpaid
excerpts ... would discourage authorship of new academic books.” Id. at 81. The
court found that it would not. Id. at 81-82. Although the court discussed this issue

7

The court of appeals’ decision on which the publishers here rely deemed this
discussion “insightful” and recognized that “courts are more willing to find a
secondary use fair when it produces a value that benefits the broader public
interest.” Texaco, 60 F.3d at 921-22.
- 24 -

under the heading “Additional Considerations,” id. at 81, it is equally at home as a
consideration relevant to the “nature of the works,” which, among other things,
properly considers the effect of copyright on the incentive to create particular types
of works. See, e.g., Kasunic, supra, at 530 (“In particular, the second factor
provides a means of assessing how copyright provided the author of the original
work with the incentive to create the work.”); id. at 113 (“What is important [in
analysis of the second factor] is not whether the type of work created is valued, but
what motivations lie behind the act of creation.”).
Absent testimony from the authors of the allegedly infringed works, the
court credited the testimony of GSU professors that “royalties are not an important
incentive for academic writers.” Dkt#423 at 81-82. The court correctly concluded
that professors, in their role as authors, “value education” and “value publication as
an enhancement to professional reputation and achievement” and “as a
contribution to academic knowledge.” Id. at 82. In other words, academic writers
are part of the learning ecosystem. As a general rule, they want their works widely
read and discussed, particularly in the very type of academic setting at issue in this
case. That is an important method by which academic writing promotes the
“Progress of Science.”
Institutions of higher learning, such as GSU, provide the environment and
critical support for the process of academic writing. Research and writing are

- 25 -

commonly performed as part of a professor’s employment, using university
resources. Publishing works of research and scholarship is commonly a key
standard for faculty members’ achievement of tenure. Faculty members’ teaching
loads are frequently calibrated to enable them to undertake significant scholarly
publishing. Further, faculty salaries are not based solely upon teaching but also
reflect publishing of the research and scholarship expected of them. These
institutional contributions are all part of the accepted ecosystem by which learning
is advanced. And faculty and the institutions themselves have a reasonable
expectation that they may use at least parts of the fruit of that ecosystem to which
they contribute in order to further the spread of learning.
These factors have led one noted jurist to question whether there is any
justification for copyright protection for academic books and articles, because they
“are produced as a byproduct of academic research that the author must conduct in
order to preserve his professional reputation and that would continue to be
produced even if not copyrightable at all.” Richard Posner, The Becker-Posner
Blog, September 30, 2012, available at http://www.becker-posnerblog.com/2012/09/do-patent-and-copyright-law-restrict-competition-andcreativity-excessively-posner.html. Judge Posner comments that “[i]t is doubtful
that there is any social benefit to the copyrighting of academic work other than
textbooks.” Id. As discussed in Part IV below, there is some social benefit to

- 26 -

inducing publishers to publish academic books and articles, and the law grants
copyright protection to academic writing. These characteristics of academic books
and articles, however, are properly considered in connection with the fair use
analysis of educational uses of such works.
IV.

FACTOR FOUR HEAVILY FAVORS FAIR USE – ACADEMIC
AUTHORS DO NOT REQUIRE THE ECONOMIC INCENTIVES OF
COPYRIGHT PROTECTION TO INDUCE THEM TO CREATE,
AND THE CHALLENGED USE DOES NOT MEANINGFULLY
REDUCE PUBLISHER INCENTIVES.
Part I demonstrates that the four statutory fair use factors should be

evaluated in the context of the purpose of copyright. The fourth factor – the effect
on the “market for or value of the copyrighted work” – looks to the extent to which
a use may reduce the incentive necessary to induce the creation and dissemination
of the copyrighted work that is used. The significance of the effect of a use under
the fourth factor should, therefore, be evaluated in that context. Will the use
interfere with the inducement of creation and dissemination of scholarly writing?
As discussed above, and as the district court found, academic authors
typically do not need market incentives to create scholarly writing. Supra Part III.
They are most often motivated by the prospect of enhanced reputation, institutional
expectations, and the desire to contribute to the advance of knowledge and
learning. In fact, the importance of scholarly writing to the advancement of
knowledge is measured more meaningfully by the number of citations to it in the

- 27 -

respected literature, not by the royalties paid to the author – in the rare instance any
are paid. Thus, academic uses of the type at issue in this case will not adversely
affect the inducement of creation.
If anything, the academic community is exploring ways to enhance the
availability of scholarly works, even at no charge, to the reading public. Digital
dissemination is virtually costless, and the “open access” movement – “the
worldwide movement to disseminate scientific and scholarly research literature
online, free of charge, and free of unnecessary licensing restrictions” – is gaining
in popularity. See SPARC Open Access Newsletter & Form, available at
http://www.sparc.arl.org/publications/soan/ (accessed Apr. 23, 2013); see also
Modern Language Association, MLA Journals Adopt New Open-Access-Friendly
Author Agreements (June 5, 2012), available at
http://www.mla.org/news_from_mla/news_topic&topic=596. Similarly, use of the
Creative Commons “CC-BY” license, which permits the “unrestricted reuse of
content, subject only to the requirement that the source work is appropriately
attributed,” has increased dramatically. See Open Access Scholarly Publishers
Association, FAQ, Why does OASPA encourage use of the CC-BY license in

- 28 -

particular?, available at http://oaspa.org/information-resources/frequently-askedquestions/#FAQ3 (accessed Apr. 23, 2013).8
Given that authors do not require economic inducement to create, it follows
that the only economic inducement that may be needed to maintain the flow of
scholarly works is an adequate return to the publishers to induce them to publish.
In evaluating that return, it is important to remember that the publisher pays
nothing or next to nothing for the intellectual content of their publications. The
thinking and writing are provided by the author; other resources are provided by
the institution.
Publishers play a significant role in the scholarly publishing system, but
given the considerable contributions made by professors and their institutions, the
bar that must be met to provide adequate return to induce publication is low.9 The
district court correctly found that the publishers’ claims that they “might be forced
to cut back on scholarly publications is speculative and unpersuasive on this
record.” Dkt#423 at 84.

8

Almost no articles were published under this license in 2000. That number
increased to approximately 10,000 in 2006 and to 80,000-plus in 2012. See Claire
Redhead, Open Access Scholarly Publishers Association, Growth in Use of the
CC-BY License (Mar. 8, 2013), available at http://oaspa.org/growth-in-use-of-thecc-by-license-2/.
9

The proper question is not whether there is a licensing market for the challenged
use, but whether the incremental revenue from any such market is necessary to
serve copyright’s purposes.
- 29 -

CONCLUSION
The district court’s judgment should be affirmed.

Respectfully submitted,

Ada Meloy
American Council
on Education
One Dupont Circle, NW
Washington, DC 20036
202-939-9300
[e-mail]
Counsel for Amici Curiae American
Council on Education and the
National Association of Independent
Colleges and Universities

/s/ Floyd Chapman
Bruce Joseph (pro hac vice application
pending)
Floyd Chapman
Karyn Ablin (pro hac vice application
pending)
WILEY REIN LLP
1776 K St. NW
Washington, DC 20006
202-719-7000
[e-mail]
[e-mail]
[e-mail]
Counsel for Amici Curiae American
Council on Education, Association of
American Universities, Association of
Public and Land-Grant Universities,
American Association of State
Colleges and Universities, and
American Association of Community
Colleges

April 25, 2013

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CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. P. 32(a)(7), the undersigned certifies that this brief
complies with the type-volume limitations of Fed. R. App. P. 29(d) and Fed. R.
App. P. 32(a)(7)(B).
1.

Exclusive of the exempted portions in Fed. R. App. P. 32(a)(7)(B)(iii),

this brief contains 6,962 words.
2.

This brief has been prepared in proportionally spaced 14-point font

typeface using Microsoft Office Word 2010 in Times New Roman typeface.

/s/ Floyd Chapman

April 25, 2013

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CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this 25th day of April, 2013, the
Brief of Amici Curiae American Council on Education, Association of American
Universities, Association of Public and Land-Grant Universities, American
Association of State Colleges and Universities, American Association of
Community Colleges, and the National Association of Independent Colleges and
Universities in Support of Appellees Mark P. Becker, et al., and Affirmance was
electronically filed with the Clerk of the Court for the United States Court of
Appeals for the Eleventh Circuit using the CM/ECF system, which will
automatically send e-mail notification of such filing to all attorneys of record. In
addition, a copy of the Brief was served via First Class mail, postage prepaid, upon
the counsel for the parties listed below:
Edward B. Krugman
John H. Rains IV
Bondurant, Mixson & Elmore, LLP
1201 West Peachtree Street NW, Suite 3900
Atlanta, GA 30309
R. Bruce Rich
Jonathan Bloom
Randi Singer
Todd D. Larson
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
John Harbin
Mary Katherine Bates
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King & Spalding
1180 Peachtree Street
Atlanta, GA 30309
Katrina M. Quicker
Richard W. Miller
Ballard Spahr LLP
999 Peachtree Street, Suite 1000
Atlanta, GA 30309
Anthony B. Askew
Stephen M. Schaetzel
Robin L. Gentry
Walter Hill Levie, III
Meunier Carlin & Curfman, LLC
817 W. Peachtree Street, Suite 500
Atlanta, Georgia 30308
Samuel S. Olens
W. Wright Banks, Jr.
Denise Whiting-Pack
Mary Jo Volkert
Office of the Georgia Attorney General
40 Capitol Square
Atlanta, Georgia 30334

/s/ Floyd Chapman

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