Cambridge University Press, et al v. J.L. Albert, et al
Filing
91
Amicus Brief as of right or by consent of the parties filed by Jason M. Schultz, Attorney for Amicus Curiae Academic Authors and Legal Scholars. 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: Jason Schultz)
Case Nos. 12-14676-FF and 12-15147-FF
(Consolidated Appeals)
In the
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,
Atlanta Division · D.C. No. 1:08-cv-01425-ODE (Evans, J.)
BRIEF OF AMICUS CURIAE ACADEMIC AUTHORS AND LEGAL SCHOLARS
IN SUPPORT OF DEFENDANTS-APPELLEES AND AFFIRMANCE
JASON M. SCHULTZ, ESQ.
Counsel of Record
UNIVERSITY OF CALIFORNIA,
BERKELEY SCHOOL OF LAW
396 Simon Hall
Berkeley, California 94720
(510) 642-6332 Telephone
(510) 643-4625 Facsimile
Email: jschultz@law.berkeley.edu
Attorney for Amicus Curiae,
Academic Authors and Legal Scholars
COUNSEL PRESS · (800) 3-APPEAL
PRINTED ON RECYCLED PAPER
Case Nos. 12-14676-FF & 12-15147-FF
Cambridge University Press, et al. v. Mark P. Becker, et al.
CERTIFICATE OF INTERESTED PERSONS
AND CORPORATE DISCLOSURE STATEMENT
Amici are not corporate entities and are therefore not subject to the corporate
disclosure statement requirements in Fed. R. App. Proc. 26(1).
In compliance with Fed. R. App. Proc. 29(c)(5), amici curiae hereby state that
none of the parties to this case nor their counsel authored this brief in whole or in
part; no party or any party’s counsel contributed money intended to fund preparing
or submitting the brief; and no one else other than amici and their counsel
contributed money that was intended to fund preparing or submitting this brief.
In compliance with 11th Cir. R. 28-1(b) & 26.1-1, in addition to the list of
interested persons contained in Defendant-Appellee Becker et al.’s principal brief,
the following is a list of additional interested trial judge(s), attorneys, persons,
associations of persons, firms, partnerships, or corporations that have an interest in
the outcome of this appeal, and other identifiable legal entities related to a party:
Academic Authors and Legal Scholars amici signers listed in Appendix A of
this brief
Jason M. Schultz
C-1
TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS AND
CORPORATE DISCLOSURE STATEMENT .....................................................C-1
TABLE OF AUTHORITIES .................................................................................... ii
TABLE OF RECORD REFERENCES .................................................................. vii
STATEMENT OF INTEREST OF AMICI ...............................................................1
STATEMENT OF THE ISSUES...............................................................................2
SUMMARY OF THE ARGUMENT ........................................................................2
ARGUMENT .............................................................................................................3
I. Educational Uses of Excerpts from Copyrighted Material on Courserelated E-reserves Sites Are Examples of Productive, Transformative
Fair Use ............................................................................................................3
A. Considerations of Transformative “Purpose” Favor
the Educational Uses at Stake in this Case............................................6
II. Scholarly Works Are Factual and Informative in Nature;
the Second Factor Weighs in Favor of the Use ............................................13
III. The Amount and Substantiality Used by GSU Faculty
Was Reasonable .............................................................................................15
IV. Educational Use of the Works at Issue Benefits the Public and Publishers
Have Not Shown Evidence of Actual Harm to a Relevant Market ...............16
A. Publishers Have Failed to Prove That Faculty Uses of Excerpts
in this Case Will Harm Any Relevant Markets...................................17
B. Publishers Have Failed To Prove That Educational Use of Their
Works Has Any Impact on Author, or Even Publisher, Incentives to
Create or Disseminate Works ..............................................................22
CONCLUSION ........................................................................................................28
CERTIFICATE OF COMPLIANCE .......................................................................29
APPENDIX A ....................................................................................................... A-1
CERTIFICATE OF SERVICE
i
TABLE OF AUTHORITIES
Page(s)
CASES
A.V. ex rel. Vanderhye v. iParadigms LLC,
562 F.3d 630 (4th Cir. 2009) .................................................................. 10, 19
Basic Books, Inc. v. Kinko’s Graphics Corp.,
758 F. Supp. 1522 (S.D.N.Y 1991) .............................................................. 21
Bill Graham Archives v. Dorling Kindersley Ltd.,
448 F.3d 605 (2d Cir. 2006) .............................................................10, 18, 19
Blanch v. Koons,
467 F.3d 244 (2d. Cir. 2006) ....................................................................7, 12
Campbell v. Acuff-Rose-Music, Inc.,
510 U.S. 569 (1994)...........................................................5, 11, 12, 13, 15, 18
Castle Rock Entm’t v. Carol Publ’g Grp.,
150 F.3d 132 (2d Cir. 1998) .......................................................................... 19
eBay Inc. v. MercExchange, L.L.C.,
547 U.S. 388 (2006)....................................................................................... 20
Eldred v. Ashcroft,
537 U.S. 186 (2003)...................................................................................9, 17
Golan v. Holder,
132 S.Ct. 873 (2012)........................................................................................ 9
Hofheinz v. Discovery Communications, Inc.,
60 U.S.P.Q. 2d1845 (S.D.N.Y. 2001) ............................................................. 5
Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group of Boston,
515 U.S. 557 (1995)......................................................................................... 9
Kelly v. Arriba Soft Corp.,
336 F.3d 811 (9th Cir. 2003) ........................................................................ 11
ii
Keyishian v. Bd. of Regents of Univ. of State of N. Y.,
385 U.S. 589 (1967)....................................................................................... 17
New Era Publications Int'l ApS v. Carol Pub. Group,
904 F.2d 152(2d Cir. 1990) ......................................................................... 5, 6
Núñez v. Caribbean Int’l News Corp.,
235 F.3d 18 (1st Cir. 2000)........................................................................... 11
Palmer v. Braun,
287 F. 3d 1325 (11th Cir. 2002) .................................................................... 14
Perfect 10, Inc. v. Amazon.com, Inc.,
508 F.3d 1146 (9th Cir. 2007) ..................................................................... 7, 9
Perfect 10, Inc. v. Google, Inc.,
653 F.3d 976 (9th Cir. 2011) ......................................................................... 20
Peter Letterese & Associates, Inc. v. World Inst. of Scientology Enters. Int’l,
533 F.3d 1287 (11th Cir. 2008) ...............................................................15, 17
Princeton Univ. Press v. Mich. Doc. Servs., Inc.,
99 F.3d 1381 (6th Cir.1996) ....................................................................18, 21
Random House, Inc. v. Rosetta Books LLC,
150 F. Supp. 2d 613 (S.D.N.Y. 2001) .......................................................... 26
Resnick v. Copyright Clearance Center, Inc.,
422 F.Supp.2d 252, 257(D. Mass. 2006) ....................................................... 27
Salinger v. Colting,
607 F.3d 68 (2d Cir. 2010) ............................................................................ 20
Sony Corp. of America v. Universal City Studios, Inc.,
464 U.S. 417 (1984) ..................................................................................... 18
Suntrust Bank v. Houghton Mifflin Co.,
268 F.3d 1257 (11th Cir. 2001) ..................................................12, 13, 14, 18
Twentieth Century Music Corp. v. Aiken,
422 U.S. 151 (1975)......................................................................................... 4
iii
Williams & Wilkins Co. v. United States,
487 F.2d 1345, 1351, 1353-57 (Ct. Cl. 1973)
aff’d by an equally divided Court, 420 U.S. 376 (1975) ...................10, 17, 18
STATUTES
17 U.S.C. § 107 .................................................................................................passim
CONSTITUTIONAL PROVISIONS
U.S. CONST., art. 1, § 8, cl. 8. .................................................................................... 1
LEGISLATIVE MATERIALS
H.R. REP. NO. 94-1476, 94th Cong., 2d Sess. (1976).............................................. 16
OTHER AUTHORITIES
Shahren Ahmad Zaidi Adruce, Academic Authors’ Perception on Copyright
Protection (March 11, 2004) (Ph.D Dissertation, Syracuse University)
(available via ProQuest) ..........................................................................23, 24
Assoc. Res. Libr., Code of Best Practices in Fair Use for Academic
and Research Libraries (2012), http://www.arl.org/storage/documents/
publications/code-of-best-practices-fair-use.pdf ............................................. 4
Jonathan Band, Cautionary Tales About Collective Rights Organizations
(unpublished manuscript, Sept. 2012), http://ssrn.com/abstract=2149036 .. 27
Ann Bartow, Educational Fair Use in Copyright: Reclaiming the Right to
Photocopy Freely, 60 U. PITT. L. REV. 149 (1998) ......................................... 7
Julie E. Cohen, Copyright and the Perfect Curve,
53 VAND. L. REV. 1799 (2000) ........................................................................ 5
DIRECTORY OF OPEN ACCESS BOOKS, http://www.doabooks.org/
(last visited April 23, 2013) ........................................................................... 24
DIRECTORY OF OPEN ACCESS JOURNALS, http://www.doaj.org/
(last visited April 23, 2013) ........................................................................... 24
iv
Deborah Gerhardt & Madelyn Wessel, Fair Use and Fairness on Campus,
11 N.C. J. L. & TECH. 461 (2010) .................................................................... 8
Wendy Gordon, Fair Use as Market Failure: A Structural and Economic
Analysis of the Betamax Case and its Predecessors,
82 COLUM. L. REV. 1600 (1982) ...................................................................... 8
Robert Kasunic, Is That All There Is? Reflections on the Second Fair
Use Factor, 31 COLUMBIA J. L. & ARTS 529 (2008) ...............................14, 15
Ariel Katz, The GSU Copyright Case: Some Canadian Perspectives,
ARIELKATZ.ORG, May 14, 2012, http://arielkatz.org/the-gsucopyright-case-some-canadian-perspectives/ ............................................... 27
Mark Lemley, Should a Licensing Market Require Licensing?,
70 L. & CONTEMP. PROB. 185 (2007) ............................................................ 21
Pierre Leval, Toward a Fair Use Standard, 103 HARV. L. REV. 1105 (1990) ........ 14
Lydia Pallas Loren, Redefining the Market Failure Approach to Fair Use
in an Era of Copyright Permission Systems,
5 J. INTELL. PROP. L. 1 (1997) ......................................................................... 9
Michael J. Madison, Madisonian Fair Use,
30 CARDOZO ARTS & ENT. L.J.101 (2012) ...................................................... 6
OPEN HUMANITIES PRESS, http://openhumanitiespress.org/index.html
(last visited April 23, 2013) ........................................................................... 24
Poetry Foundation, Code of Best Practices in Fair Use for Poetry (2010),
www.poetryfoundation.org/foundation/bestpractices. .................................... 4
RANDOM HOUSE WEBSTER’S COLLEGIATE DICTIONARY (2001) .............................. 13
R. Anthony Reese, Transformativeness and the Derivative Work Right,
31 COLUM. J.L. & ARTS 467 (2008) ................................................................ 6
Pamela Samuelson, Unbundling Fair Uses, 77 FORDHAM L.REV. 2537 (2009) ....... 6
SOCIAL SCIENCE RESEARCH NETWORK, http://www.ssrn.com/
(last visited April 23, 2013) ........................................................................... 25
v
Submission of Copyright Advisory Group –Schools to Australian Law
Reform Commission Consultation of Copyright and Digital Economy
(Nov. 2012), http://www.alrc.gov.au/sites/default/files/subs/231._org_
thecopyrightadvisorygroup_schools.pdf ...................................................... 27
ALMA SWAN & SHERIDAN BROWN, OPEN ACCESS SELF-ARCHIVING:
AN AUTHOR STUDY (2005),
http://www.jisc.ac.uk/uploaded_documents/Open%20Access%
20Self%20Archiving-an%20author%20study.pdf ....................................... 23
Rebecca Tushnet, Copy This Essay, 114 YALE L.J. 535 (2004) ............................ 5, 7
University of California, Academic Personnel Policy, available at
http://www.ucop.edu/academic-personnel/academic-personnel-policy/ ...... 23
U.S. COPYRIGHT OFFICE, REPORT ON ORPHAN WORKS (2006),
http://www.copyright.gov/orphan/orphan-report.pdf ................................... 26
USPTO, Position on Fair Use of Copies of NPL Made in Patent Examination
(January 19, 2012),
www.uspto.gov/about/offices/ogc/USPTOPositiononFairUse_of_CopiesofN
PLMadeinPatentExamination.pdf.................................................................. 10
Eugene Volokh, Freedom of Speech and Intellectual Property: Some Thoughts
After Eldred, 44 Liquormart, and Bartnicki,
40 HOUS. L. REV. 697(2003). .......................................................................... 5
Diane Zimmermann, Modern Technology, Leaky Copyrights and Claims
of Harm: Insights from the Curious History of Photocopying
(NYU Law & Economics Working Paper #12-22, 2012),
http://ssrn.com/abstract=2129458 ................................................................ 22
vi
TABLE OF RECORD REFERENCES
DOCKET
/TAB #
DESCRIPTION
BRIEF PAGE #
423
Order with the Court’s Findings of Fact and
Conclusions of Law following non-jury trial
426
Plaintiffs’ Memorandum of Law in Support of
Their Post-Trial Proposed Declaratory
Judgment and Permanent Injunction
26
441
Order directing Defendants to maintain
copyrighted policies for GSU which are not
inconsistent with the Court’s Findings of Fact
and Conclusions of Law and this Order
25, 26
vii
14, 16, 18, 20,
22, 26, 27
STATEMENT OF INTEREST OF AMICI
Amici are authors and scholars who write, teach, and research with scholarly
works like the ones at issue in this case. Academic Author amici’s interest in this
case stems from a strong desire to see their works reach the largest possible
audience and have the greatest possible impact and use, especially by users at
educational institutions like Georgia State University (“GSU”) in order to promote
scholarly exchange and further research. A ruling that restricts reuse of scholarly
works would frustrate these objectives. Many Academic Author amici have
authored works published by Cambridge University Press, Oxford University Press
and Sage Publications (“Publishers”). At least one signer, Professor Lyle F.
Bachman, is the original creator of two works on which Publishers have based
their infringement claims in this case.
Legal Scholars amici share the same values and concerns, and have an
additional interest in the sound development of intellectual property law.
Educational uses of copyrighted works are at the core of what the fair use doctrine
is designed to protect. The resolution of this case will have a profound impact on
the continued ability of fair use to foster these and other uses that support the
Constitutional mission of copyright, “to promote the progress of science and useful
arts.” U.S. CONST., art. 1, § 8, cl. 8. Appendix A contains the full list of amici.
1
STATEMENT OF THE ISSUES
1. Did the district court correctly conclude that GSU’s use of Publishers’
copyrighted works is a fair use under 17 U.S.C. § 107?
2. Did the district court incorrectly conclude that the use of existing
scholarship for the new purpose of educating students was not a transformative
use?
SUMMARY OF THE ARGUMENT
For centuries, scholars and educators have excerpted the works of their
colleagues, transforming them from individual, static monographs into dynamic
pedagogical and intellectual tools for classroom learning. Such transformations
reside at the heart of fair use, a core copyright law doctrine established to protect
socially beneficial uses of works that increase public access and promote the
progress of human understanding.
In this case, Plaintiff Publishers accuse GSU and its faculty of violating their
copyrights through this practice. But, as the district court correctly found, such
uses are fair, especially because they primarily use factual information to promote
the purposes of education and teaching, the amount taken was reasonable in light
of its purpose, and because Plaintiffs’ evidence of a cognizable copyright market
harm was speculative at best. However, the district court erred when it incorrectly
concluded that these uses are not transformative. Using an unduly narrow
2
definition of the concept, it failed to consider how educators repurpose scholarly
works in productive ways that bring new meaning to and understanding of the
works used.
As scholars and educators who produce and repurpose such works, amici
urge this Court to affirm that these uses constitute a transformative use under the
first fair use factor, and to reaffirm the findings under the other factors that these
uses are fair. A finding of fair use in this case not only furthers the underlying
goals of scholarship and education—access to knowledge—but also the very
purposes of the Copyright Act itself.
ARGUMENT
I. Educational Uses of Excerpts from Copyrighted Material on Course-related
E-reserves Sites Are Examples of Productive, Transformative Fair Use
Educational uses of copyrighted material are routinely productive and
transformative in precisely the way contemplated by the fair use doctrine because
they put the works to new and different purposes than those for which they were
originally created. Consider a college instructor teaching “Trends in Central
European Political History” who uses scholarly articles and book chapters written
over the past 70 years to illustrate and provoke class discussion of shifting
historiographical trends in writing about the fall of the Austro-Hungarian Empire.
These were writings produced and intended to be read in an academic setting. But
3
whereas they were originally designed to provide authoritative specialist accounts
of various features of the Dual Monarchy in decline, they are being employed here
for another, independently valuable educational purpose: to display the ways in
which thinking and writing about the subject have changed over time.1 Set in
context, each excerpt informs and contextualizes the others, giving students a
perspective that they could not gain from the individual works. This standard
instructional practice, in which excerpts of existing scholarship are turned to the
new purpose of teaching the next generation of students to read, think and write
critically, represents a significant, new “transformative” use of copyrighted
material.
“[Copyright law] 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,
music, and the other arts.” Twentieth Century Music Corp. v. Aiken, 422 U.S. 151,
156 (1975). Providing access to excerpts of specially chosen selections so that an
instructor can knit together an overall educational message develops students’
1
See, e.g., Poetry Foundation, Code of Best Practices in Fair Use for Poetry
(2010), www.poetryfoundation.org/foundation/bestpractices (addressing the
transformative use of copyrighted poetry in teaching (Principle Four)); Assoc. Res.
Libr., Code of Best Practices in Fair Use for Academic and Research Libraries
(2012), http://www.arl.org/storage/documents/publications/code-of-best-practicesfair-use.pdf (addressing issues such as the on-line availability of selections of
copyrighted material in support of college and university courses (Principle One)).
4
capacity to understand, interpret, and subsequently contribute to the world of
ideas—the purpose of copyright, and of fair use.2 The educational purpose of a use,
particularly when undertaken in a non-profit institution of higher education,
therefore deserves special consideration in any fair use analysis.
Certain productive, “transformative” uses were specifically enumerated by
Congress in the preamble to § 107: criticism, comment, news reporting, teaching
(with specific reference to multiple copies for classroom use), scholarship, or
research. These enumerated uses, according to the legislative history, were “the
sorts of copying that courts and Congress most commonly had found to be fair
uses.” Campbell v. Acuff-Rose-Music, Inc., 510 U.S. 569, 577-78 (1994) (citations
omitted). “There is a strong presumption that the use of a copyrighted work is
transformative when the allegedly infringing work falls within one of several
categories described in Section 107.” Hofheinz v. Discovery Communications, Inc.,
60 U.S.P.Q. 2d 1845, 1848 (S.D.N.Y. 2001) (citing New Era Publications Int'l ApS
2
See Julie E. Cohen, Copyright and the Perfect Curve, 53 VAND. L. REV. 1799,
1816 (2000) (noting the connection and potential temporal gap between access and
new creative works); Rebecca Tushnet, Copy This Essay, 114 YALE L.J. 535, 565
(2004) (“Copying promotes democracy by literally putting information in citizens’
hands…. Access . . . was a precondition of any further response to or use of those
works. When Paul Goldstein writes that uses in schools and libraries ‘advance
copyright’s general aim of promoting cultural and political discourse,’ he is also
invoking the value of access, which can sometimes only be had if the copyright
owner’s price need not be paid.” (citations omitted)); Eugene Volokh, Freedom
of Speech and Intellectual Property: Some Thoughts After Eldred, 44 Liquormart,
and Bartnicki, 40 HOUS. L. REV. 697, 726 (2003).
5
v. Carol Pub. Group, 904 F.2d 152, 156 (2d Cir. 1990) (if the new use constitutes
criticism, scholarship or research, “the assessment of the first fair use factor should
be at an end”)). In other words, the Copyright Act means what it says when it
specifically identifies “teaching,” including “multiple copies for classroom use,”
as an illustrative example of fair use.
A. Considerations of Transformative “Purpose” Favor
the Educational Uses at Stake in this Case
The presence of a new, expressive purpose qualifies a use as transformative
and thus likely fair and non-infringing.3 Few activities are closer to the heart of the
protected zone of expression than the efforts of a graduate-level instructor to
engage students in critical reading and discussion of both primary source materials
and prior scholarly communications. The goal of such efforts, as Ann Bartow has
explained, is “to expose students to a variety of viewpoints, which are arguably
3
Anthony Reese has identified trends in fair use case law emphasizing that
transformative purpose outweighs change in the material form—identical copying
has been protected as fair use in several significant cases covering large sectors of
the economy where it serves the purpose of increasing access. See R. Anthony
Reese, Transformativeness and the Derivative Work Right, 31 COLUM. J.L. & ARTS
467, 484-85 (2008) (“In assessing transformativeness, the courts generally
emphasize the transformativeness of the defendant’s purpose in using the
underlying work, rather than any transformation (or lack thereof) by the defendant
of the content of the underlying work.”). See also Pamela Samuelson, Unbundling
Fair Uses, 77 FORDHAM L.REV. 2537 (2009); Michael J. Madison, Madisonian
Fair Use, 30 CARDOZO ARTS & ENT. L.J.101 (2012).
6
most pedagogically useful when unadulterated.”4 Instructors’ transformative
purposes are fulfilled through both the contrasts between selected excerpts and
their incorporation into a broader context: a change in meaning occurs when the
works are placed in dialogue with one another, just as there can be transformation
when multiple works are used in search engines5 or collages.6
Transformativeness in this form allows learning and critique that cannot
otherwise occur. It prevents instructors’ decisions about what excerpts to use from
being distorted by owners’ refusals to grant permission or by payment demands;
without fair use as a safety valve, the resulting educational materials may be
biased. This would interfere with the congressionally favored educational purpose.7
This is not a theoretical concern. Fair use is critical to educational
institutions, whose societal role is centered on learning and critique, and whose
4
Ann Bartow, Educational Fair Use in Copyright: Reclaiming the Right to
Photocopy Freely, 60 U. PITT. L. REV. 149, 178 (1998) (noting that instructors
compiling excerpts for course support “inevitably make editorial” choices in the
process).
5
See Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007).
6
See Blanch v. Koons, 467 F.3d 244 (2d. Cir. 2006).
7
See Tushnet, supra note 2, at 565-66 (“Copyright’s prohibition on copying can
create differential access in precisely the way some First Amendment theorists fear
government regulation can subtly distort debate. For example, Who Built America?
is an award-winning historical CD-ROM series for high school and college
students that uses numerous primary sources. Owners of the sources’ copyrights
often wanted large payments for use of historically significant works, payments the
authors couldn’t afford. They substituted federal government and public domain
works, altering the way students will understand the past; the materials now
overemphasize the federal government’s role in Depression-era society and
culture.”) (citation omitted).
7
limited resources do not allow them to license every excerpt. But the fair use right
involved here is one that belongs to all instructors, and benefits all students,
regardless of their economic situation. Deborah Gerhardt and Madelyn Wessel
document vast disparities in access to content, even among relatively wellresourced institutions; the situation is much more dire for smaller institutions,
community colleges, and the like.8
Giving special weight to educational uses recognizes that such uses have
positive externalities, conferring benefits on society for which neither nonprofit
educational institutions nor their students can practically internalize—a classic
market failure of the kind that fair use was designed to avoid.9 The uses
enumerated in the preamble to Section 107 “provide external societal benefits far
beyond the benefits to the individual who . . . is making the criticism, the
comment, the news report or the individual who is doing the teaching, the
8
Deborah Gerhardt & Madelyn Wessel, Fair Use and Fairness on Campus,
11 N.C. J. L. & TECH. 461, 482 (2010) (“A legal position that payment is always
required in contravention of this explicit authorization [of ‘multiple copies for
classroom use’] exacerbates these fundamental disparities in access to information
and removes an important remedial mechanism available by law.”).
9
See Wendy Gordon, Fair Use as Market Failure: A Structural and Economic
Analysis of the Betamax Case and its Predecessors, 82 COLUM. L. REV. 1600, 1640
(1982) (teaching uses create positive externalities because “all of society benefits
[by] having an educated citizenry and advances in knowledge”).
8
scholarship or the research. But these societal benefits are impossible to internalize
in any bargained-for exchange between the copyright owner and the user.”10
1. The First Fair Use Factor Recognizes and Promotes Expressive
Uses of Copyrighted Content
The first fair use factor (“the purpose and character of the use…” 17 U.S.C.
§ 107(1) (2006)) is capacious enough to recognize these needs. Transformativeness
is a dynamic concept that has been applied to diverse uses, as a way of recognizing
the speech and speech-related functions that copyright exists to promote and
defend.11 In Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1165 (9th Cir.
2007), the Ninth Circuit concluded that use of copyrighted images in a thumbnail
search index was “highly transformative,” even though there was no argument that
the search tool itself was a new work. In A.V. ex rel. Vanderhye v. iParadigms
10
Lydia Pallas Loren, Redefining the Market Failure Approach to Fair Use in
an Era of Copyright Permission Systems, 5 J. INTELL. PROP. L. 1, 50 (1997).
(“The fact that a copyright owner has been able to convince others to pay the fee
demanded and therefore now can claim to have a ‘workable’ permission system
should not change the analysis. The Court’s refusal to recognize a mere desire to
be paid as evidence of market harm when a defendant does not meet that desire
with cash emphasizes the fundamental role that fair use plays in the scheme of
copyright law—permitting certain kinds of uses that can have significant, diffuse,
external benefits in society regardless of whether the copyright owner would
permit such a use or would like to be paid for such a use.” (citations omitted)).
11
See Eldred v. Ashcroft, 537 U.S. 186, 219-20 (2003) and Golan v. Holder, 132
S.Ct. 873, 890-91 (2012). Cf. Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group
of Boston, 515 U.S. 557, 570 (1995) (“[T]he presentation of an edited compilation
of speech generated by other persons is a staple of most newspapers’ opinion
pages, which, of course, fall squarely within the core of First Amendment security .
. . .” (citation omitted)).
9
LLC, 562 F.3d 630 (4th Cir. 2009), a case involving the use of student papers to
create a database facilitating the detection of plagiarism, the Fourth Circuit
approvingly noted the trial judge’s determination that the database was “‘highly
transformative,’… and ‘provides a substantial public benefit through the network
of [participating] educational institutions.’” Id. at 638.12 Recently, the General
Counsel of the U.S. Patent and Trademark Office concluded that copying journal
articles for the purpose of allowing applicants and patent examiners to understand
“prior art” was a transformative fair use, notwithstanding the existence of an
established licensing market for such reproductions. USPTO, Position on Fair Use
of Copies of NPL Made in Patent Examination (January 19, 2012),
www.uspto.gov/about/offices/ogc/USPTOPositiononFairUse_of_CopiesofNPLMa
deinPatentExamination.pdf.
The case law thus clearly rejects any suggestion that transformativeness
requires physical modification or the creation of a new, copyrightable work.
Transformative use also can occur when a work is meaningfully
reconcontextualized to serve the user’s new purpose.13 That is, uses can be favored
under the first factor because of the way in which they are given context by the
12
See also Williams & Wilkins Co. v. United States, 487 F.2d 1345, 1351, 1353-57
(Ct. Cl. 1973) (upholding copying of entire articles by library for research purposes
as fair use even if the material is not “crucial” as long as it is “stimulating or
helpful”), aff’d by an equally divided Court, 420 U.S. 376 (1975).
13
See Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir.
2006).
10
user, and that context need not be a physical collage. See Kelly v. Arriba Soft
Corp., 336 F.3d 811, 818-20 (9th Cir. 2003); Núñez v. Caribbean Int’l News Corp.,
235 F.3d 18, 22-23 (1st Cir. 2000).
2. The District Court’s Refusal to Consider the Eligibility
of the Challenged Educational Practices as Transformative
Uses Was Based on Several Misplaced Concerns
The district court declined to characterize GSU’s uses as transformative
because they did not meet one form of the concept—to reach a different audience.
However, Campbell has defined the term “transformative” to include different
purposes, Campbell 510 U.S. at 579, and so the fact that the district court failed to
so find should not preclude this Court from deciding that the uses were
transformative whenever assigned for a different purpose from the original
intended audience for the work. The district court strayed from this principle by
focusing on two misplaced concerns:
First, the district court focused on the apparently straightforward proposition
that the “purpose” of material from a monograph does not change when it is
excerpted for students’ on-line use: material that was designed for reading is being
presented anew with the expectation that it will be read. This argument misses the
mark by focusing on the “mechanical” aspects of information consumption rather
than on the expressive purposes of the use. On this logic, repurposing a photograph
as an emblem of consumer culture in an iconoclastic painting could not be a
11
transformative use because both photographer and painter intended their work to
be viewed.14 Nor could a parody of a bestseller be seen as a transformative use if
the parodist also aspired to sell books to the general reading public.15 More
appropriately, a decision-maker in a case about e-reserves should compare the
“discursive” purpose of the original text, on the one hand, with the goals of the
instructor who has posted it for his or her class to read, discuss, criticize, and
incorporate into a broader context. It is this new purpose that controls, not the
overlap in audiences.
Second, the district court was concerned with dictum in footnote 11 of
Campbell, which states that “[t]he obvious statutory exception to th[e general]
focus on transformative uses is the straight reproduction of multiple copies for
classroom distribution.” Campbell, 510 U.S. at 579. The point is an important one:
not all fair uses necessarily need be transformative. An elementary school teacher
who hands out photocopies—for example, a poem about spring at springtime, or a
news article following up on an issue discussed in class—may not have a
transformative purpose, even though the use is one specifically approved in
Section 107. But the Court’s language cannot fairly be read to mean that all efforts
by instructors at all levels are categorically “non-transformative.” The Supreme
Court’s language roughly paraphrases the preamble to Section 107 but introduces a
14
15
See Blanch v. Koons, 467 F.3d 244 (2d. Cir. 2006).
See Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257 (11th Cir. 2001).
12
significant new qualifier, “straight,”16 whose only apposite dictionary definition is
“undiluted, unmixed [as in] straight whiskey.” RANDOM HOUSE WEBSTER’S
COLLEGIATE DICTIONARY 1208 (2001) (sense 15). “Straight reproduction” cannot,
however, describe the use of excerpts from monographs in e-reserves for graduate
courses. No competent instructor would ever offer such material without providing
an explanation for its appearance in relation to the goals of the course, whether on
the e-reserves site, in other course materials (such as a syllabus), or in classroom
discussion.
II. Scholarly Works Are Factual and Informative in Nature; the Second
Factor Weighs in Favor of the Use
Campbell tells us that the fair use factors are interrelated and must be
weighted together. Campbell 510 U.S. at 578. When the first factor is
transformative, this has spillover effects for the other factors; given the
transformative educational purpose here, the question is whether each of the other
factors is reasonable in light of that.
The second fair use factor requires an examination of “the nature of the
copyrighted work.” 17 U.SC. § 107, recognizing that “there is a hierarchy of
copyright protection in which original, creative works are afforded greater
protection than derivative works or factual compilations.” Suntrust Bank v.
16
This is on the assumption that e-reserves are functionally equivalent to the
distribution of paper copies.
13
Houghton Mifflin Co., 268 F. 3d 1257, 1271 (11th Cir. 2001). This is so because
copyright protects creative expressions, not ideas or facts, no matter how creative
or how much effort was expended to compile them. Palmer v. Braun, 287 F. 3d
1325 (11th Cir. 2002).
We agree with the district court that the scholarly works used in this case are
“informational in nature, within the spectrum of factual materials and hence
favoring fair use.” Dkt#423 at 52. While the district court recognized that scholarly
works require a tremendous amount of effort and expense to create, id., and that it
“inevitably involves some amount of creativity,” id., the court understood that such
effort and creativity is focused on non-copyrightable elements: ideas and facts. The
district court rightly weighed the second factor in favor of the use.
In addition, this Court should recognize that the second factor is sensitive to
the purposes for which scholars write and for which instructors provide students
with excerpts. Robert Kasunic and Judge Pierre Leval have reminded us that a
complete second factor analysis includes many elements, including an inquiry into
“whether copyright might have reasonably encouraged or provided an incentive for
an author to create the work.” Robert Kasunic, Is That All There Is? Reflections on
the Second Fair Use Factor, 31 COLUMBIA J. L. & ARTS 529, 540 (2008); see also
Pierre Leval, Toward a Fair Use Standard, 103 HARV. L. REV. 1105, 1118-19
(1990). As discussed above, publication and broad access generally are key goals
14
for academic authors, who “want recognition for their theories and analysis, and
also want their works to be as widely read as possible.” Kasunic, supra, at 540.
Given these goals, the nature of the works counsels in favor of freely allowing
exactly the sort of discursive repurposing in which the instructors involved in this
case engaged.
III. The Amount and Substantiality Used by GSU Faculty Was Reasonable
The third fair use factor looks at “the amount and substantiality of the
portion used in relation to the copyrighted work as a whole.” The third factor
inquiry “partly functions as a heuristic to determine the impact on the market for
the original.” Peter Letterese & Associates, Inc. v. World Inst. of Scientology
Enters. Int’l, 533 F.3d 1287, 1314 (11th Cir. 2008). In terms of transformative
uses, the test is whether “the quantity and value of the material used . . . are
reasonable in relation to the purpose of the use.” Campbell, 510 U.S. at 586. The
standard is reasonableness, not (as sometimes is suggested) necessity, and any
instructor who relies on fair use to justify the inclusion of excerpts from published
works on e-reserves should be prepared to explain the rationale for both the choice
of material and the amount employed. No numerical metric or “rule of thumb,”
whether stated in absolute or proportional terms, can substitute effectively for this
assessment.
15
Publishers criticize the district court’s work-by-work analysis as “rigid,”
Appellants’ Br. at 46, yet at the same time suggest that the court should have
instead followed a set of prescriptive, 1970s-era Classroom Guidelines created for
photocopying uses.17 Id. at 63. The district court was correct that application of the
Classroom Guidelines as a presumptive maximum would cripple the ability of
GSU and institutions like it to make many undisputedly legitimate fair uses of
scholarly works. Dkt#423 at 70-71. Furthermore, such an inflexible rule would cut
against the very heart of what the district court correctly described as the “factintensive, value-laden review” that fair use requires. Id. at 19. Publishers reject that
level of analysis because, as explained below, it requires evidence of likely harm
that they cannot produce.
IV. Educational Use of the Works at Issue Benefits the Public and Publishers
Have Not Shown Evidence of Actual Harm to a Relevant Market
The fourth fair use factor asks the court to examine “the effect of the use
upon the potential market for or value of the copyrighted work.” 17 U.S.C. § 107.
Two key factors central to this case and at the heart of amici’s role in the university
17
Although we reject the notion that the 1976 Classroom Guidelines are relevant
at all to the present case, to the extent that the Court does consider them it should
recognize their intended purpose. Publishers assert that the Classroom Guidelines
“place strict limits on nonprofit educational copying.” Appellants’ Br. at 63. That
is incorrect. The Guidelines drafters warned, in the very first sentence of the
document, that “[t]he purpose of the following guidelines is to state the minimum
and not the maximum standards of educational fair use under 107.” H.R. REP. NO.
94-1476 at 68-71, 94th Cong., 2d Sess. (1976).
16
context are important to analyzing market effect: (1) public interest and
(2) academic freedom. Eldred v. Ashcroft, 537 U.S. 186, 220 (2003) (fair use
serves as a First Amendment accommodation that provides for “considerable
latitude for scholarship and comment”) (citation omitted)); Keyishian v. Bd. of
Regents of Univ. of State of N. Y., 385 U.S. 589, 603 (1967) (“[A]cademic freedom
. . . 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.”); Williams &
Wilkins Co. v. U. S., 487 F.2d 1345, 1352 (Ct. Cl. 1973) (courts must sometimes
“subordinate the copyright holder’s interest in a maximum financial return to the
greater public interest” to fulfill copyright’s Constitutional purpose), aff'd by an
equally divided Court., 420 U.S. 376 (1975).
With these in mind, the fourth factor requires an examination of “(1) ‘the
extent of the market harm caused by the particular actions of the alleged infringer,’
and (2) ‘whether unrestricted and widespread conduct of the sort engaged in by the
defendant [ ] would result in a substantially adverse impact on the potential
market.’ ” Peter Letterese & Assoc. Inc., 533 F. 3d at 1315 (citing Campbell, 510
U.S. at 590).
A. Publishers Have Failed to Prove That Faculty Uses of Excerpts
in this Case Will Harm Any Relevant Markets
In this inquiry, the Court should carefully scrutinize whether Publishers
(1) have identified a relevant and proper market and (2) shown their claims of
17
harm to that market, specifically. See Bill Graham Archives v. Dorling Kindersley
Ltd., 448 F.3d 605, 615 (2d Cir. 2006) (transformative markets are improper
markets to consider under the fourth factor); Williams & Wilkins Co. v. U.S..,
487 F. 2d at 1357 (rejecting studies that have “assumed, without real proof, that
the journal publishers have been and will be injured” by educational
photocopying). A high burden of proof on both elements is appropriate given the
educational, nonprofit context of the use. See Princeton Univ. Press v. Mich. Doc.
Servs., Inc., 99 F.3d 1381, 1385 (6th Cir.1996) (“The burden of proof as to market
effect rests with the copyright holder if the challenged use is of a ‘noncommercial’
nature.”); see also Sony Corp. of America v. Universal City Studios, Inc., 464 U.S.
417, 451 (1984) (“What is necessary is a showing by a preponderance of the
evidence that some meaningful likelihood of future harm exists.”); Suntrust Bank,
268 F.3d at 1275 (“[E]vidence of harm to the potential market for or value of the
original copyright is crucial to a fair use determination.”).18 They have failed to
do either.
18
Citing to Campbell, the district court incorrectly distinguished this rule and held
instead that the burden rests on the Defendant to prove that “any harm from the
infringing use is insubstantial.” Dkt#423 at 72 & n.43 (citing Campbell, 510 U.S.
at 590). While the Supreme Court did reject “hard evidentiary presumptions” about
harm, it did so in the context of commercial uses, explaining that the district court
in that case incorrectly made “a presumption about the effect of commercial use, a
presumption which as applied here we hold to be error.” Campbell, 510 U.S at 591.
18
First, as the section above explains, many of the educational uses of the kind
made by GSU faculty are transformative. Because transformative uses do not
substitute for or supersede the original, courts in other circuits have made clear that
“copyright owners may not preempt exploitation of transformative markets”
through proposed licensing regimes. Bill Graham Archives, 448 F.3d at 615;
Castle Rock Entm’t v. Carol Publ’g Grp., 150 F.3d 132, 146 n.11 (2d Cir. 1998)(
“[B]y developing or licensing a market for . . . educational or other transformative
uses of its own creative work, a copyright owner plainly cannot prevent others
from entering those fair use markets.”); iParadigms, 562 F.3d at 644 (harm caused
by transformative use “is not of the kind protected against by copyright law”).
These fair use markets are therefore not proper for consideration of market harm
under the fourth factor.
Second, even for uses that are not transformative in the classic sense, the fair
use doctrine especially supports educational uses including “teaching . . . ,
scholarship, or research.” 17 U.S.C § 107. Congress identified these activities for
protection because of their clear public benefit and a recognition that they are very
likely to be fair. Without careful scrutiny of the Publishers’ assertions of harm, the
19
Court runs the risk of restricting socially valuable uses that fulfill one of the key
constitutional purposes of copyright, namely increasing access to knowledge.19
Publishers argue, for example, that their market for book sales is harmed by
the use of short excerpts by GSU faculty. The district court rejected this simplistic
assumption on logical grounds. “[T]he excerpts were generally a small part
(averaging around 10%) of the whole copyrighted work. Such a small excerpt does
not substitute for the book as a whole. . . . The 10% excerpt would not substitute
for the original, no matter how many copies were made. In short, Defendants’ use
of small excerpts did not affect Plaintiffs’ actual or potential sales of books.”
Dkt#423 at 74. But beyond Publishers’ poor logic is also their lack of proof. The
record contains no evidence to suggest that faculty excerpts made for the purposes
of teaching, and for enhancing and encouraging student research and scholarship,
have ever harmed the market for sales of complete books. Moreover, if anyone had
such evidence, it would be the Publishers who have all the relevant sales data. If
book sales dropped due to faculty excerpting, Publishers could easily demonstrate
19
Due in part to such concerns, even in the context of a finding of intellectual
property infringement, several courts have held that plaintiffs much show evidence
of actual harm for injunctive relief purposes; presumptions are not enough. See
Salinger v. Colting, 607 F.3d 68, 82 (2d Cir. 2010) (“courts must not presume
irreparable harm”); Perfect 10, Inc. v. Google, Inc., 653 F.3d 976, 981 (9th Cir.
2011); see also eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006) (in
the patent context, “plaintiff must demonstrate . . . that it has suffered an
irreparable injury” and (among other things) “that the public interest would not be
disserved” for an injunction to issue).
20
this with a timeline of book sales mapped to courses taught using excerpts from
those books. But no such evidence is anywhere to be found, reinforcing the
longstanding experience that academic excerpts do not cause harm to a relevant
copyright market under the fourth factor.
Lacking actual evidence, Publishers urge the Court instead to adopt the
reasoning and conclusions about market harm found in a few “coursepack” cases,
with little regard for the differences between the pure educational uses here and the
reproductions by commercial intermediaries there. See, e.g., Appellants’ Br. at 69
(citing Princeton Univ. Press, 99 F.3d at 1387; Basic Books, Inc. v. Kinko’s
Graphics Corp., 758 F. Supp. 1522, 1534 (S.D.N.Y 1991)).
Publishers’ market harm argument based on the availability of licensed
excerpts is similarly superficial. Again, presenting no actual evidence, Publishers
instead ask the Court to assume harm simply because they have made licenses
available for some of the excerpts at issue. Appellants’ Br. at 79. But the mere
availability of a license is not proof of harm, nor should it be enough to create any
presumption thereof. See Mark Lemley, Should a Licensing Market Require
Licensing?, 70 L. & CONTEMP. PROB. 185 (2007). Market harm comes from actual,
not presumed, substitution.
21
B. Publishers Have Failed To Prove That Educational Use of
Their Works Has Any Impact on Author, or Even Publisher,
Incentives to Create or Disseminate Works
Next, Publishers and their amici argue that, unless the Court finds
educational use of their works infringing, academic authors and publishers will no
longer have sufficient incentives to create or disseminate academic work. This
argument is both purely speculative, and belied by academic authors’ rapidly
growing adoption of open access practices and technologies.20 Publishers again
offer no evidence of potential adverse impacts. Appellants’ Br. at 79 (citing instead
what they describe as “predictable” adverse impacts on their business).21 Similarly,
Publishers’ amici suggest that “the district court’s decision, if upheld, is likely to
have a direct impact on the copyright incentives to disseminate works that are
specifically intended to further human knowledge.” Text and Academic Authors
Association and the Authors Guild Amicus Br. at 14-15.22 Yet behind these bold
20
The district court correctly concluded that there was “no persuasive evidence
that Plaintiffs’ ability to publish high quality scholarly books would be appreciably
diminished by the modest relief from academic permissions payments.” Dkt#423 at
86.
21
Similarly, in the context of photocopying, researchers have tried in vain to
identify evidence of negative effects on publishers’ markets. See Diane
Zimmermann, Modern Technology, Leaky Copyrights and Claims of Harm:
Insights from the Curious History of Photocopying (NYU Law & Economics
Working Paper #12-22, 2012), http://ssrn.com/abstract=2129458.
22
Text and Academic Authors Association and the Authors Guild amici also
suggest that “[s]alary increases and merit pay in most research institutions are tied
directly to the professors’ publishing record. In some cases, there are very direct
economic benefits to academics from publishing scholarly works.” Text and
22
assertions are no citations to actual evidence that scholarly publishing or human
knowledge are actually at risk. Rather, these assertions ignore several important
developments in the scholarly publishing ecosystem that undermine these
arguments.
First, Publishers ignore the reasons why many of the materials in question
were produced in the first place. They fail to acknowledge that many if not most
academic authors write primarily for reasons unrelated to the profitability of any
particular work, instead focusing on reaching the widest possible audience and
making the greatest possible contributions to their field. See ALMA SWAN &
SHERIDAN BROWN, OPEN ACCESS SELF-ARCHIVING: AN AUTHOR STUDY 10 (2005),
http://www.jisc.ac.uk/uploaded_documents/Open%20Access%20Self%20Archivin
g-an%20author%20study.pdf (explaining that “[t]he principle of free access for all
readers” was the most oft-cited reason indicated by academic author surveyrespondent as to why they publish in open access journals); see also Shahren
Academic Authors Assoc. and the Authors Guild Amicus Br. at 14-15. Amici cite
to the University of California, Academic Personnel Policy, available at
http://www.ucop.edu/academic-personnel/academic-personnel-policy/, to support
the contention that “University of California provides a promotion that comes with
an approximately $5,000 salary increase for each book published.”
Several signatories to this brief are University of California faculty and are
familiar with its academic personnel policies. None of us—nor our contacts at the
University of California Office of the President—have been able to confirm the
existence of this policy. The University typically awards promotion or tenure only
after an in-depth review of a candidate’s performance. This would include an
assessment of the publishing record but also many other factors.
23
Ahmad Zaidi Adruce, Academic Authors’ Perception on Copyright Protection,
149-50 (March 11, 2004) (Ph.D Dissertation, Syracuse University) (available via
ProQuest) (in a survey of tenured, tenure-track, adjunct and emeritus faculty,
concluding that “academic authors are not primarily motivated by monetary
rewards when they write/create works. . . . Academic authors who are motivated in
this context write/create . . . to get appreciation, to get acknowledgement, to gain
recognition and popularity, and to leave an intellectual legacy to others.”).
If anything, a fair use rule that allows for the uses made in this case
promotes academic authors’ interests and enhances their incentive to create and
distribute scholarly works because it increases access to their works in educational
settings, one of the most important markets to academics in terms of building
reputational capital and increasing the impact of their work.
These motivations are now supported by a growing number of new, high
quality academic publishers who support making scholarly works openly and
freely available. See, e.g., OPEN HUMANITIES PRESS,
http://openhumanitiespress.org/index.html (last visited April 23, 2013)(publisher of
open access monographs); DIRECTORY OF OPEN ACCESS BOOKS,
http://www.doabooks.org/ (last visited April 23, 2013) (listing 1,410 academic
peer-reviewed books available for free); DIRECTORY OF OPEN ACCESS JOURNALS,
http://www.doaj.org/ (last visited April 23, 2013) (listing 9,006 freely available
24
academic journals). Many open access publishing platforms offer faculty a simple
process for uploading their works directly, see SOCIAL SCIENCE RESEARCH
NETWORK, http://www.ssrn.com/ (last visited April 23, 2013), thus allowing the
creation and dissemination of more academic works with a few simple clicks of a
mouse, and at no cost to the author. The recent development of these high quality
publishing outlets means that academic authors can now publish in forums that
allow for far more permissive uses than those contemplated by the district court’s
fair use ruling.
Publishers’ narrative about market harm and aggregate effect also fails to
account for serious market failures. Educational users often cannot license access
to Publishers’ works even if they wanted to. Digital licenses were available in only
44 of the 75 claimed instances of infringements in this case, and those 75 claims
were hand-picked by Publishers as presumably their best cases. Dkt#441 at 14
(district court order explaining Publishers’ selection of claims). Looking at
widespread use, the likelihood of harm is small because so few works are actually
available in the markets in which users can participate while still fulfilling the
learning and discussion goals described above. Recognizing this, the district court
correctly concluded that “[f]or loss of potential license revenue to cut against fair
use, the evidence must show that licenses for excerpts of the works at issue are
25
easily accessible, reasonably priced, and that they offer excerpts in a format which
is reasonably convenient for users.” Dkt#423 at 75.
Indeed, in many instances it is unlikely that Publishers can offer licenses at
all because they do not own the necessary rights to the work in digital formats;
instead, those rights belong to academic authors like amici. See Random House,
Inc. v. Rosetta Books LLC, 150 F. Supp. 2d 613 (S.D.N.Y. 2001) (author retained
digital rights because contract with publisher to publish “in book form” did not
cover electronic versions);23 Dkt#441 at 14 (Publishers could not establish a prima
facie claim of infringement in 26 of 75 claimed instances of infringement, in part
because of an inability to prove ownership).
Despite this, Publishers’ proposed injunctive relief would require GSU to
either license access or comply with a rigid set of guidelines that do not match the
flexible case-by-case analysis that fair use requires or academics need. Dkt#426,
Exhibit A (Plaintiffs’ proposed injunction). While some digital licenses may be
available through collective management organizations like the Copyright
Clearance Center (“CCC”), the use of those services raise other risks. CCC admits,
for example, that its licenses are “net of fair use,” meaning their license fees do not
23
For many other works, educational users face market failure because they
confront the problem of “orphan works”—i.e. copyrighted works whose owners
cannot be located—and therefore are unable to seek permission. See U.S.
COPYRIGHT OFFICE, REPORT ON ORPHAN WORKS (2006),
http://www.copyright.gov/orphan/orphan-report.pdf.
26
take into account fair use. Dkt#423 at 30. Without taking fair use into account,
these licenses become blunt tools that charge for, and therefore discourage,
legitimate educational uses of the kind that fair use is meant to foster.24 Further,
requiring licensing that practically would flow through clearinghouses like the
CCC could concentrate the market and undermine the development of other
competing models that better support academics’ needs.25
While licensing regimes and rigid use guidelines—along with Publishers’
more general unsupported assumptions about market harm—would benefit
Publishers, they do not match the evidence in this case. Acceptance of these
24
In countries where licensing for educational uses are the norm, overaggressive
licensing regimes have quickly smothered educational copyright exceptions and
have led to abusive pricing practices even when they are supposedly regulated. See
Submission of Copyright Advisory Group –Schools to Australian Law Reform
Commission Consultation of Copyright and the Digital Economy 5, 58 (Nov.
2012),
http://www.alrc.gov.au/sites/default/files/subs/231._org_thecopyrightadvisorygrou
p_schools.pdf (reporting for educational uses a steady and significant increase in
licensing fees over time, from AU$9,756,254 in 1998 to over AU$80 million in
2011); Jonathan Band, Cautionary Tales About Collective Rights Organizations 1
(unpublished manuscript, Sept. 2012), http://ssrn.com/abstract=2149036 (review of
licensing organizations “reveals a long history of corruption, mismanagement,
confiscation of funds, [and the aggressive pursuit of] fees to which they were not
legally entitled”); see also Resnick v. Copyright Clearance Center, Inc., 422 F.
Supp.2d 252, 257 (D. Mass. 2006) (CCC is aware that it licenses (and therefore
collects fees for) works for which it has no rights); Ariel Katz, The GSU Copyright
Case: Some Canadian Perspectives ARIELKATZ.ORG, May 14, 2012
http://arielkatz.org/the-gsu-copyright-case-some-canadian-perspectives/
25
CCC presents a special risk because, as the district court found, “CCC is the only
reproduction rights organization in the United States, and is the world’s largest
licensing organization for text licensing. It has no real competitors in that arena.”
Dkt#423 at 24 (citations omitted).
27
assertions would prevent a large number of socially beneficial educational uses.
Publishers have failed to prove a genuine likelihood of harm to a relevant market,
and therefore the fourth fair use factor should weigh in favor of the use by GSU.
CONCLUSION
For the foregoing reasons, amici urge the Court to affirm the decision
below and to affirm the transformative nature of the educational uses made by
GSU faculty.
Dated: April 25, 2013
/s/ Jason Schultz
Counsel of Record
University of California, Berkeley,
School of Law
396 Simon Hall
Berkeley, CA 94720
Telephone: 510-642-6332
Fax: 510-643-4625
Email: jschultz@law.berkeley.edu
Attorney for Amici Curiae Academic
Authors and Legal Scholars
28
CERTIFICATE OF COMPLIANCE
1.
This brief complies with the type-volume limitations of Fed. R. App.
P. 32(a)(7)(B) because it contains 6,973 words, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
2.
This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the types style requirements of Fed. R. App. P. 32(a)(6) because it has
been prepared in a proportionally spaced typeface using Microsoft Word 2010 in
14 point Times New Roman.
/s/ Jason Schultz
Attorney for Amici Curiae Academic
Authors and Legal Scholars
Dated: April 25, 2013
29
APPENDIX A
List of Amici Curiae Academic Authors and Legal Scholars
Affiliation is provided for identification purposes only. The views stated here
are those of the signers and do not reflect the position, if any, of the named
institutions.
Julie Ahrens
Director of Copyright and Fair Use
Center for Internet and Society
Stanford Law School
Mike Ananny, PhD
Assistant Professor
Annenberg School for Communication & Journalism
University of Southern California
Howard C. Anawalt
Professor Emeritus
Santa Clara University Law School
Jane Anderson
Assistant Professor
Department of Anthropology
University of Massachusetts Amherst
Timothy K. Armstrong
Professor of Law
University of Cincinnati College of Law
Jonathan Askin
Founder/Director
Brooklyn Law Incubator & Policy Clinic
Brooklyn Law School
Pat Aufderheide
University Professor and Director
Center for Social Media, School of Communication
American University
A-1
Lyle F. Bachman
Professor Emeritus
Department of Applied Linguistics
University of California, Los Angeles
Margo A. Bagley
Professor of Law
University of Virginia School of Law
Eric Baković
Professor of Linguistics
UC San Diego
Ann Bartow
Professor of Law
Pace Law School
Steven W. Bender
Professor
Seattle University School of Law
John Beverley
Distinguished Professor of Hispanic Languages and Literatures
University of Pittsburgh
Joye Bowman
Professor and Chair
Department of History
University of Massachusetts Amherst
Annemarie Bridy
Associate Professor
College of Law
University of Idaho
Laura Briggs
Professor and Chair, Women, Gender, Sexuality Studies
University of Massachusetts Amherst
A-2
Dan L. Burk
Chancellor's Professor of Law
University of California, Irvine
Dr. Irene Calboli
Professor of Law
Marquette University Law School
Visiting Professor, Faculty of Law
National University of Singapore
Michael A. Carrier
Professor of Law
Rutgers Law School – Camden
Michael W. Carroll
Professor of Law
Director, Program on Information Justice and Intellectual Property
American University, Washington College of Law
Bernard Chao
Assistant Professor
University of Denver Sturm College of Law
Margaret Chon
Donald & Lynda Horowitz Professor for the Pursuit of Justice
Seattle University School of Law
Danielle Keats Citron
Lois K. Macht Research Professor and Professor of Law
University of Maryland School of Law
Ralph D. Clifford
Professor of Law
University of Massachusetts School of Law
Julie E. Cohen
Professor of Law
Georgetown Law
A-3
Danielle M. Conway
Michael J. Marks Distinguished Professor of Business Law &
Director, University of Hawai`i Procurement Institute
Robert Cooter
Herman Selvin Professor of Law
Co-Director of Law and Economics Program
University of California, Berkeley, School of Law
Paul N. Courant
Harold T. Shapiro Professor of Public Policy
Arthur F. Thurnau Professor
Professor of Economics and Professor of Information
The University of Michigan
Kate Crawford
Associate Professor
University of New South Wales
Visiting Professor
MIT Center for Civic Media
Benjamin G. Davis
Associate Professor of Law
University of Toledo College of Law
Joseph Donohue
Professor Emeritus of English
University of Massachusetts Amherst
Peter DiCola
Associate Professor
Northwestern University School of Law
Paul Duguid
Adjunct Full Professor
School of Information
University of California, Berkeley
A-4
Edward Feigenbaum
Kumagai Professor of Computer Science Emeritus
Stanford University
Kristelia A. Garcia
Frank H. Marks Fellow in Intellectual Property and
Visiting Associate Professor
The George Washington University Law School
Deborah R. Gerhardt
Assistant Professor of Law
UNC School of Law
Llewellyn Joseph Gibbons
Associate Professor
University of Toledo College of Law
James Gibson
Professor of Law
Director, Intellectual Property Institute
University of Richmond
Robert J. Glushko
School of Information
University of California, Berkeley
Mary L. Gray
Senior Researcher,
Microsoft Research New England, Cambridge MA
Associate Professor, Communication and Culture
Adjunct Faculty, American Studies; Anthropology; Gender Studies
Indiana University, Bloomington
Lawrence Grossberg
Morris Davis Distinguished Professor of Communication Studies
University of North Carolina at Chapel Hill
David Hansen
Digital Library Fellow
University of California, Berkeley, School of Law
A-5
James A. Harrell, Ph.D.
Professor Emeritus of Geology
University of Toledo
Carla Hesse
Peder Sather Professor History
Dean of Social Sciences
University of California, Berkeley
Harry Hochheiser
Assistant Professor
University of Pittsburgh
Philip N. Howard
Professor
University of Washington
P. Bernt Hugenholtz
Professor of Copyright Law
Director, Institute for Information Law
University of Amsterdam
Alan Hyde
Distinguished Professor and Sidney Reitman Scholar
Rutgers University School of Law
Lewis Hyde
Thomas Professor of Creative Writing
Kenyon College
Judith Innes
Professor Emerita
City and Regional Planning
University of California Berkeley
Colleen Jankovic
Visiting Instructor, English Department Liaison to the College of General Studies
PhD, English Department
University of Pittsburgh
A-6
Peter Jaszi
Professor of Law
American University, Washington College of Law
Henry Jenkins
Provost’s Professor of Communication, Journalism, Cinematic Art, and Education
University of Southern California
Matthew L. Jockers
Assistant Professor of English
University of Nebraska-Lincoln
Douglas W. Jones
Associate Professor of Computer Science
University of Iowa
Faye E. Jones
Director and Professor
College of Law Research Center
The Florida State University
Dan Jurafsky
Professor
Linguistics Department
Stanford University
Dennis S. Karjala
Jack E. Brown Professor of Law
Sandra Day O'Connor College of Law
Arizona State University
Ariel Katz
Associate Professor
Innovation Chair in Electronic Commerce
Faculty of Law
University of Toronto
A-7
Deidre A. Keller
Assistant Professor of Law
Ohio Northern University
Minjeong Kim, Ph.D.
Associate Professor
Department of Journalism and Technical Communication
Colorado State University
Sapna Kumar
Assistant Professor of Law
University of Houston Law Center
Yolanda M. King
Assistant Professor
Northern Illinois University College of Law
Lawrence Lessig
Roy L. Furman Professor of Law and Leadership
Harvard Law School
Yvette Joy Liebesman
Assistant Professor of Law
Saint Louis University School of Law
Jessica Litman
John F. Nickoll Professor of Law
University of Michigan
Lyn H. Lofland
Research Professor of Sociology (Emerita title)
University of California, Davis
Lydia Pallas Loren
Kay Kitagawa & Andy Johnson-Laird Intellectual Property Faculty Scholar &
Professor of Law
Lewis & Clark Law School
A-8
Glynn S. Lunney, Jr.
McGlinchey Stafford Professor of Law
Tulane University School of Law
Michael J. Madison
Professor of Law
Faculty Director, Innovation Practice Institute
University of Pittsburgh
Dr. Daniel D. Martin
Associate Professor
Department of Sociology & Anthropology
University of Minnesota Duluth
Donald J. Mastronarde
Melpomene Professor of Classics
University of California
Editorial Board Chair, California Classical Studies (a peer-reviewed open-access
monograph series)
Jerome McGann
The John Stewart Bryan University Professor
University of Virginia
Stephen McJohn
Professor
Suffolk University Law School
Mark McKenna
Professor of Law
Notre Dame Presidential Fellow
University of Notre Dame Law School
Tara McPherson
Associate Professor
USC School of Cinematic Arts
Joseph Scott Miller
Professor
University of Georgia Law School
A-9
Viva R. Moffat
Associate Professor
University of Denver Sturm College of Law
Opal Moore
Associate Professor, English Department
Director, Honors Program
Spelman College
Lateef Mtima
Professor of Law and Director
Institute for Intellectual Property and Social Justice
Howard University School of Law
Ira Steven Nathenson
Associate Professor of Law
St. Thomas University School of Law
Mary Beth Norton
Mary Donlon Alger Professor of American History &
Stephen H. Weiss Presidential Fellow
History Department
Cornell University
Dr. Bethany Nowviskie
President, Association for Computers and the Humanities
Director of Digital Research and Scholarship
University of Virginia Library and Scholarly Communication Institute
Tyler T. Ochoa
High Tech Law Institute
Santa Clara University School of Law
David W. Opderbeck
Seton Hall University School of Law
Professor of Law
Director, Gibbons Institute of Law, Science & Technology
Livingston Baker Research Fellow
A-10
Aaron Perzanowski
Associate Professor
Case Western Reserve University
School of Law
Eric E. Poehler
Assistant Professor
Classics Department
University of Massachusetts Amherst
David G. Post
Professor of Law
Beasley School of Law, Temple University
Laura Quilter
Copyright and Information Policy Librarian
University of Massachusetts, Amherst
Stephen Ramsay
Associate Professor of English
University of Nebraska-Lincoln
Jerome H. Reichman
Bunyan S. Womble Professor of Law
Duke Law
Michael Risch
Associate Professor of Law
Villanova University School of Law
Jacob H. Rooksby
Assistant Professor of Law
Duquesne University School of Law
Elizabeth Rosenblatt
Assistant Professor and Director, Center for Intellectual Property Law
Whittier Law School
A-11
Matthew Sag
Associate Professor
Loyola University Chicago Law School
Joshua D. Sarnoff
Professor of Law and
Director, Center for Intellectual Property Law and Information Technology
DePaul University College of Law
Pamela Samuelson
Richard M. Sherman Distinguished Professor
University of California, Berkeley, School of Law
Sharon K. Sandeen, J.D., LL.M.
Professor of Law
Hamline University School of Law
Howard T. Senzel
Public Services Coordinator
University of Massachusetts School of Law Library
Lea Shaver
Associate Professor
Indiana University
Robert H. McKinney School of Law
Jessica Silbey
Professor of Law
Suffolk University Law School
Brenda Simon
Associate Professor
Thomas Jefferson School of Law
Eugene H. Spafford
Professor
Purdue University
A-12
Philip B. Stark
Professor of Statistics
University of California, Berkeley
Katherine J. Strandburg
Professor of Law
New York University
Peter Suber
Director, Harvard Open Access Project
Faculty Fellow, Berkman Center for Internet & Society, Harvard University
Senior Researcher, Scholarly Publishing and Academic Resources Coalition
Research Professor of Philosophy, Earlham College
Kara W. Swanson, J.D., Ph.D.
Associate Professor
Northeastern University School of Law
Stefan Tanaka
Professor of Communication
Director, Center for the Humanities
University of California, San Diego
Dr. Elizabeth Townsend Gard
Jill H. and Avram A. Glazer Professor in Social Entrepreneurship Associate
Professor in Law Co-Founder and Co-Director, Tulane Center for IP Law and
Culture Co-Inventor and Director, Durationator(r) Copyright Experiment
Tulane University
Samuel E. Trosow
Associate Professor
University of Western Ontario
Faculty of Information & Media Studies / Faculty of Law
Tisha Turk
Associate Professor of English
University of Minnesota, Morris
A-13
Rebecca Tushnet
Professor of Law
Georgetown Law
Deborah Tussey
Professor
Oklahoma City University School of Law
Ted Underwood
Associate Professor of English
University of Illinois, Urbana-Champaign
Jennifer M. Urban
Assistant Clinical Professor of Law
University of California, Berkeley, School of Law
Siva Vaidhyanathan
Chair, Department of Media Studies
Robertson Professor
Department of Media Studies
& School of Law
University of Virginia
Dan S. Wallach
Professor, Department of Computer Science and
Rice Scholar, Baker Institute for Public Policy
Rice University
Sarah K. Wiant
Professor of Law
Washington and Lee University School of Law
Matthew Wilkens
Assistant Professor of English
University of Notre Dame
John Willinsky
Khosla Family Professor of Education
Stanford University
A-14
Jane K. Winn
Charles I. Stone Professor
Asian Law Center
Law, Technology & Arts Group
University of Washington School of Law
Terry Winograd
Professor Emeritus of Computer Science
Stanford University
Jonathan Zittrain
Professor of Law
Harvard Law School and
Professor of Computer Science
Harvard School of Engineering and Applied Sciences
A-15
CERTIFICATE OF SERVICE
I hereby certify that on April 25, 2013, I electronically filed the foregoing
with the Clerk of the Court for the United States Court of Appeals for the Eleventh
Circuit by using the appellate CM/ECF system.
I certify that all participants in the case are registered CM/ECF users and
that service will be accomplished by the appellate CM/ECF system.
s/
Stephen Moore
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