The Authors Guild v. Google, Inc.

Filing 106

AMICUS BRIEF, on behalf of Amicus Curiae The Dramatists Guild, The Dramatists Legal Defense Fund, The National Writers' Union, The Romance Writers of America, The Society of Children's Book Writers and Illustrators, The Songwriters Guild of America and The Text and Academic Authors Association, FILED. Service date 02/15/2013 by CM/ECF. [848382] [12-3200]--[Edited 02/21/2013 by KG] [Entered: 02/15/2013 06:29 PM]

12-3200
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
_________________
THE AUTHORS GUILD, INC., Associational Plaintiff, BETTY MILES, JOSEPH
GOULDEN, and JIM BOUTON, individually and on behalf of all others similarly
situated,
Plaintiffs-Appellees,
v.
GOOGLE INC.,
Defendant-Appellant.
_________________
On Appeal from an Order Granting Certification of a Class Action, Entered on
May 31, 2012, by the United States District Court for the Southern District of New
York, No. 1:05-cv-08136-DC Before the Honorable Denny Chin
BRIEF AMICI CURIAE OF THE DRAMATISTS GUILD; THE
DRAMATISTS LEGAL DEFENSE FUND; THE NATIONAL WRITERS’
UNION; THE ROMANCE WRITERS OF AMERICA; THE SOCIETY OF
CHILDREN’S BOOK WRITERS AND ILLUSTRATORS; THE
SONGWRITERS GUILD OF AMERICA, AND THE TEXT AND
ACADEMIC AUTHORS ASSOCIATION IN SUPPORT OF APPELLEES
AND AFFIRMANCE.
Christopher A. Mohr*
Michael R. Klipper
Meyer, Klipper & Mohr, PLLC
923 15th Street, N.W.
Washington, DC 20005
[phone]
[e-mail]
*Counsel of Record
Attorneys for Amici Curiae

CORPORATE DISCLOSURE STATEMENT
No amicus has a corporate parent. No public corporation controls 10 percent
of any amicus’ stock.

i

TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT ................................................... i
TABLE OF AUTHORITIES.............................................................................. iii
STATEMENT OF CONSENT TO FILING...................................................... vi
INTEREST AND IDENTITY OF THE AMICI ................................................ 1
SUMMARY OF ARGUMENT ........................................................................... 6
ARGUMENT ....................................................................................................... 9
I.

THE CLASS CERTIFIED BY THE DISTRICT COURT ADEQUATELY
REFLECTS THE INTERESTS OF CLASS MEMBERS ................................... 9

II.

COPYRIGHT LAW RECOGNIZES NO DISTINCTION BETWEEN THE
AUTHOR’S PROFIT MOTIVE AND PROMOTION OF THE PUBLIC
BENEFIT ............................................................................................11
A.

The Academic Amici Are Unrepresentative of Academics .....13

B.

The Academic Amici’s Claims are at Odds with Customary
Practice. ..................................................................................18

III.

“TOO BIG TO FAIL” IS NOT A DEFENSE TO CLASS CERTIFICATION
UNDER RULE 23 ................................................................................20

IV.

GOOGLE’S CONDUCT IS NOT FAIR USE ...............................................22

CONCLUSION ...................................................................................................27
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE & CM/ECF FILING

ii

TABLE OF AUTHORITIES
Cases
A&M Records Inc., v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001) ......................23
American Geophysical Union v. Texaco Inc.,
802 F. Supp. 1 (S.D.N.Y. 1992).........................................................................11
Basic Books, Inc. v. Kinko’s Graphics Corp.,
758 F. Supp. 1522 (S.D.N.Y. 1991) ...................................................................26
Campbell v. Acuff Rose-Music, Inc., 510 U.S. 569 (1994)............................... 25, 27
Craft v. Kobler, 667 F. Supp. 120 (S.D.N.Y. 1987) ..............................................26
Ebay v. MercExchange, L.L.C., 547 U.S. 388 (2006) ............................................27
Eisen v. Carlisle & Jacquelin, 391 F.2d 555 (2d Cir. N.Y. 1968) .........................13
Eldred v. Ashcroft, 537 U.S. 186 (2003) ...............................................................11
Elvis Presley Enters. v. Passport Video, 357 F.3d 896 (9th Cir. 2003) ..................27
Harper & Row v. The Nation, 471 U.S. 539 (1985) ..............................................11
In re Napster, Inc. Copyright Litigation, No. C 00-1369 MPH,
2005 U.S. Dist. LEXIS 11498 (N.D. Cal., May 31, 2005) .................................23
Mazer v. Stein, 347 U.S. 201 (1954) .....................................................................11
McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,
672 F.3d 482 (7th Cir. 2012), cert. denied, 133 S. Ct. 338 (2012) .....................21
New York Times Co. v. Tasini, 533 U.S. 483 (2001) .............................................27
Princeton University Press v. Michigan Document Serv.,
99 F.3d 1381 (6th Cir. 1996) .............................................................................26
UMG Recordings, Inc. v. MP3.com, Inc., 00 Civ. 472,
2000 U.S. Dist. LEXIS 7439 (S.D.N.Y. June 1, 2000).......................................24
UMG Recordings, Inc. v. MP3.com, Inc., 92 F. Supp. 2d 349 (S.D.N.Y.) .............24
Wal-Mart v. Dukes, 131 S. Ct. 2541 (2012) ........................................ 13, 20, 21, 23

iii

Statutes and Constitutional Provisions
17 U.S.C. § 108 ....................................................................................................25
17 U.S.C. § 110(2) ................................................................................................25
17 U.S.C. § 412 ....................................................................................................10
U.S. Const. art. I, § 8, cl. 8 ................................................................................6, 11
Other Authorities
Audrey Williams June & Jonah Newman, Adjunct Project Reveals Wide Range in
Pay, The Chronicle of Higher Education (Jan. 4, 2013),
http://chronicle.com/article/Adjunct_Pay_Conditions/136439 ...........................15
Audrey Williams June, Adjuncts Build Strength in Numbers, The Chronicle of
Higher Education (Nov. 5, 2012), http://chronicle.com/article/Adjuncts-BuildStrength-in/135520 ............................................................................................14
Colleen Flaherty, Making Room for the Majority, Inside Higher Ed, (Jan. 23,
2013), http://www.insidehighered.com/news/2013/01/23/aaup-recommendsmore-adjunct-faculty-participation-governance .................................................15
Company Overview, Google, http://www.google.com/about/company (last visited
Feb. 14, 2013) ...................................................................................................12
Jeffrey Toobin, Google’s Moon Shot, The New Yorker (Feb. 5, 2007),
http://www.newyorker.com/reporting/2007/02/05/070205fa_fact_toobin#ixzz2K
PhdbYPr ........................................................................................................9, 12
Laasko and Björk, Anatomy of Open Access Publishing: A Study of Longitudinal
Development and Internal Structure, 10:124, BMC Medicine (2012), available
at http://www.biomedcentral.com/content/pdf/1741-7015-10-124.pdf ..............16
Mary Ellen Lepionka, Writing and Developing your College Textbook (2d ed.
2008) ........................................................................................................... 18, 19
S. Rep. No. 105-190 (1998) ..................................................................................25
S. Rep. No. 94-473 (1976) ....................................................................................25
Study of Open Access Publishing, Highlights from the SOAP Project Survey
(2011), available at http://arxiv.org/ftp/arxiv/papers/1101/1101.5260.pdf .........18
TBI Comm., Intech Pub., Author Attitudes Towards Open Access Publishing
(2011), available at
http://www.intechopen.com/public_files/Intech_OA_Apr11.pdf .......................17
iv

Text and Academic Authors Association, TAA Debunks the Top 7 Myths
Regarding Textbook Costs, available at
http://www.taaonline.net/notes/TAAmythsflyer.pdf ..........................................19
The Federalist No. 43 (James Madison) ................................................................11
William F. Patry, Patry on Fair Use (2012) ...........................................................25
William Germano, Getting it Published: A Guide for Scholars and Anyone Else
Serous about Serious Books (2d ed. 2008) .........................................................19

v

STATEMENT OF CONSENT TO FILING
Amici are authorized to file this brief under Fed. R. App. P. 29(a), as all
parties have consented to its filing.

vi

INTEREST AND IDENTITY OF THE AMICI*
Amici are associations of individual songwriters, illustrators, playwrights
and authors who rely on the revenue streams from the sale, licensing, and
exploitation of their copyrighted works to make a living. The effect of advances in
digital technology on the dissemination of their works has both provided a
tremendous opportunity and a tremendous risk: opportunity, in that they have the
ability to reach a mass audience that they could not reach before, and risk in that
through the use of the technology their works may be subject to large-scale
misappropriation and made available without permission or payment.
In this case, a technology provider centrally and unilaterally decided that it
would scan several entire libraries’ worth of published works and make portions of
them available over the Internet for the provider’s own benefit. That provider
asserts not only that it may do so without permission or payment, but also that the
sheer indiscriminate scope and scale of that copying renders its alleged wrong
incapable of adjudication via Rule 23.

* Pursuant to Local Rule 29.1(b), no portion of this brief has been authored, in
whole or in part, by a party or counsel for any party. Neither counsel for a party
nor a party has contributed money intended to fund the preparation or submission
of this brief. The sole entities that have contributed money to its preparation or
submission are the ones whose names appear on the cover.

1

Conduct like the defendant’s, if not redressed through the class action
procedure, tilts the balance irrevocably from “opportunity” entirely to “risk.”
Although amici earn a living from their creations, in many if not most cases, it is
not an affluent one. Without the ability to aggregate their claims against infringing
technology providers, amici fear that the exclusive rights that the copyright act
promises will be illusory to all except the largest and best-heeled copyright
owners: it will encourage technology providers to simply take first, and worry
about the consequences later. That position has implications for all amici, who
will face a similar digitization of songs, sheet music, plays, and other derivative
works—indeed virtually any copyrighted work, without a meaningful ability to
deter that wrong. The amici are as follows:
The Dramatists Guild of America, Inc. is the national association of
professional playwrights, librettists, lyricists and composers writing for the stage,
with nearly 7,000 members around the world. The Guild is governed by an elected
Board of Directors, who currently include such artists as Marsha Norman (The
Color Purple, 'Night, Mother), Edward Albee (Who's Afraid of Virginia Woolf,
Seascape), Stephen Sondheim (Sweeney Todd, Company), John Guare (House of
Blue Leaves, Six Degrees of Separation), current president Stephen Schwartz
(Wicked, Godspell) and past president John Weidman (Assassins, Pacific
Overtures). Since its inception in 1912, the Guild’s elected board of authors has
2

worked to advance the rights of dramatists everywhere. Toward that end, the
Guild provides services and institutional advocacy on behalf of its membership.
The Dramatists Legal Defense Fund, Inc., was organized by the
Dramatists Guild of America, Inc., to act as a legal defense fund protecting
constitutional rights and conducting educational programs and activities focused on
supporting freedom of speech and artistic integrity in the world of theater, and
protecting the culture from the illegal diminishment of artistic expression freely
available in the public domain. It also focuses on educating the public, the theater
industry and the legal community about the protections afforded authors under the
Copyright Act, the interaction and balance between such copyright protection and
the First Amendment, and the proper administration of copyrights as the best
means of serving the public interest.
The National Writers Union (“NWU”) is a national labor union that
advocates for freelance and contract writers. The NWU includes local chapters as
well as at-large members nationwide and abroad. The NWU works to advance the
economic conditions of writers in all genres, media, and formats. NWU
membership includes, among others, book authors, journalists, business and
technical writers, website and e-mail newsletter content providers, bloggers, poets,
playwrights, editors, and academic writers. The NWU is a national amalgamated
union (Local 1981) of the United Auto Workers, AFL-CIO.
3

The Romance Writers of America® (“RWA”) is a nonprofit association
dedicated to advancing the professional interests of career-focused romance writers
through networking and advocacy. RWA was founded in 1980. It has more than
10,000 members and 145 chapters. RWA acts as the collective voice of romance
writers and works to support the efforts of its members to earn a living from the
publication of their romance novels and novellas. RWA’s mission is based on the
principles that writers have the right to reasonable remuneration and preservation
of authorial and intellectual property rights; literacy is individually and culturally
vital; storytelling is fundamental to human experience; and romance fiction
explores issues of universal and eternal human interest.
The Society of Children’s Book Writers and Illustrators (“SCBWI”) is a
non-profit, 501(c)(3) organization and the only professional organization
specifically for those individuals writing and illustrating for children and young
adults in the fields of children’s literature, magazines, film, television, and
multimedia. Several of the most prestigious children’s literature professionals sit
on the SCBWI Board of Advisors. SCBWI serves as a consolidated voice for
professional writers and illustrators the world over. SCBWI acts to effect
important changes within the field of children's literature, promoting new copyright
legislation, equitable treatment of authors and artists, and fair contract
terms. There are currently more than 22,000 members worldwide, in over 70
4

regional chapters writing and illustrating in all genres for young readers from
board books to young adult novels, making it the largest children's writing
organization in the world.
The Songwriters Guild of America, Inc. (“SGA”) is the nation’s oldest and
largest organization run exclusively by and for songwriters, with more than five
thousand members nationwide and over eighty years of advocacy experience
concerning the rights of music creators, songwriters, and their heirs. SGA’s
activities on behalf of all U.S. songwriters include advocacy before the U.S.
Congress to obtain favorable legislation for music creators and heirs, and
participation as a party or as amicus curiae in litigation of significance to the
creators of the American canon of popular music.
The Text and Academic Authors Association, Inc. (“TAA”) is the only
nonprofit membership association dedicated solely to assisting authors of scholarly
books, textbooks, and journal articles. Formed in 1987, the TAA has over 1,400
members, primarily consisting of authors or aspiring authors of scholarly books,
textbooks, and academic articles. Many of the TAA’s members serve on college or
university faculties. The TAA’s mission is to enhance the quality of educational
materials and to assist text and academic authors by, for example, providing
information on tax, copyright, and royalty matters; and fostering a better
appreciation of their work within the academic community.
5

SUMMARY OF ARGUMENT
Class action suits provide a vehicle to vindicate statutory policies in
situations where the filing of individual actions is inefficient. The court below
correctly recognized the underlying policies of the copyright law and certified a
class that reflects them. The goals of U.S. Const. art. I, § 8, cl. 8, as reflected in
our copyright law, are twofold: to "promote the Progress of Science . . . by
securing for limited Times to Authors . . . the exclusive Right to their . . .
Writings.” The copyright system thus depends on two premises: first, that the
creation and dissemination of works is, ultimately, for the public benefit; and
second, that the provision of economic incentives is the best way to accomplish
that end.
Google, and in particular its Academic Authors in Support ( “Academic
Amici”) attempt to sever those conjoined principles and argue that the district court
abused its discretion in certifying that class because some academic authors do not
write primarily for a profit motive, and that making works available to the public is
the only legitimate goal of the copyright statute and the constitutional provision
that undergirds it. They challenge the lower court’s class certification from first
principles.
These arguments advanced by Google and its amici promise to frustrate the
constitutional design and the way that Congress has implemented it. The two
6

copyright policies have never been severable. As the Founders, this Circuit, and
the Supreme Court have repeatedly recognized "the public good … fully coincides
with the claims of individuals." The profit motive is what stimulates the creation
of particular works, and that incentive has formed the basis of every copyright law,
which has given exclusive rights to authors and prohibited others from exploiting
those works without authorization. The class certified by the district court fits
those contours perfectly.
The Academic Amici argue that the class is too broad because they do not
write for profit, but for some other reason. Those other reasons are both irrelevant
and not representative of the class. And even if no academic author was interested
in earning a profit from his or her intellectual labors, they do not publish their own
works but are dependent upon the interest and efforts of university and commercial
presses, which must recover or at least defray the cost of publication in order to
take on publication of those scholarly works. Indeed, were the holy grail of tenure
unavailable, we suspect that Academic Amici’s views on the scope of copyright
protection would be substantially different. The academic amici, however, do not
represent most U.S. copyright owners or most U.S. academics.
Amici do not enjoy the sinecure of lifetime employment, and depend on the
revenue derived from their exclusive rights to earn a living. It is that activity—and
control over those rights—that is at the heart of amici's participation in this
7

case. Google and its amici attempt to turn their greatest weakness into a strength:
namely, that the sheer size, scope, and indiscriminate nature of Google's copying is
"too big to fail." If that is the rule, then individual authors like amici will simply
have no realistic means of enforcing their rights against mass digitization.
To the extent that Google’s fair use claims are bound up with certification,
those claims are of dubious value. No case has ever excused wholesale copying on
the scale that Google has embarked, and the availability of works (especially
scholarly ones) on Google Books will readily substitute for the use of an
authorized copy. Such uses are neither “transformative,” nor presumptively fair.
Finally, amici agree that there may be some public benefits to Google's
digitization of works. Amici would like to see those benefits continue—on a legal
and revenue-producing basis. If those benefits truly are shown to exist after the
merits of this case have been litigated, it is certainly within the power of the parties
to negotiate, and for the courts to approve, a fair settlement or remedy permitting
Google to continue its activity within legally prescribed contours. Google simply
has to pay to exercise the author’s exclusive rights.

8

ARGUMENT
I.

THE CLASS CERTIFIED BY THE DISTRICT COURT ADEQUATELY REFLECTS
THE INTERESTS OF CLASS MEMBERS
In 2007, one of Google’s founders observed, “thousands of years of human

knowledge, and probably the highest-quality knowledge is captured in books.”1
The defendant in this case then attempted to capture those books for its own
commercial benefit when, without permission or payment, it scanned over 12
million books given to it by several major research libraries. (SPA 5.) It returned
digital copies to those libraries, but forbade those libraries from making those
copies available to anyone else. (Br. of Appellee 8, 11.) It also kept copies for its
own purposes, which include, but are by no means limited to, offering “snippets”
of those works in response to its users’ specified search terms. (SPA 5.) With
some relatively trivial skill with its search engine, a persistent user can reveal
roughly 78% of most scanned works. (See Br. of Appellee 9-10.)
The District Court correctly certified a class under Fed. R. Civ. P. 23
consisting of all U.S.-resident copyright owners and authors of full-length books,
who had registered those works in the first three months of publication. 2 As a

1

Jeffrey Toobin, Google’s Moon Shot, The New Yorker (Feb. 5, 2007),
http://www.newyorker.com/reporting/2007/02/05/070205fa_fact_toobin#ixzz2KPh
dbYPr.
2

“All persons residing in the United States who hold a United States copyright
interest in one or more Books reproduced by Google as part of its Library Project,
9

result of that registration, the class members’ works are eligible for statutory
damages and attorneys’ fees. See 17 U.S.C. § 412. The law requires nothing more
of the copyright holder.
As the District Court decided, and the class plaintiffs make clear in their
filing, the unprecedented scope and scale of Google’s copying renders its legality
perfectly susceptible to class resolution. (See, e.g., Br. of Authors Guild 14; SPA
23-26.) Google and in particular the Academic Authors in Support of Google
(“Academic Amici”) now contest that certification on two grounds: one express,
one implied. First, Google argues that the District Court abused its discretion
when it certified that class because the class was not representative of its members.
(See Br. of Google17-18; Br. of Amici Curiae Academic Authors in Supp. of Def.Appellant and Reversal 4 [hereinafter Academic Amici Br.].) The second, more
subtle point is that permitting the class to assert its registered rights harms the
public weal by interfering with the increased access to information that the Google

who are either (a) natural persons who are authors of such Books or (b) natural
persons, family trusts or sole proprietorships who are heirs, successors in interest
or assigns of such authors. “Books” means each full-length book published in the
United States in the English language and registered with the United States
Copyright Office within three months after its first publication. Excluded from the
Class are the directors, officers and employees of Google; personnel of the
departments, agencies and instrumentalities of the United States Government; and
Court personnel[.]” (SPA 2.)
10

Books project provides. (See, e.g., Academic Amici Br. 2-3; Br. of Google 2-5.)
Amici write to address both of these issues.
II.

COPYRIGHT LAW RECOGNIZES NO DISTINCTION BETWEEN THE AUTHOR’S
PROFIT MOTIVE AND PROMOTION OF THE PUBLIC BENEFIT
Amici and Google disagree on first principles. Copyright exists “[t]o

promote the Progress of Science . . . by securing for limited Times to Authors . . .
the exclusive Right to their . . . Writings . . . .” U.S. Const. art. I, § 8, cl. 8. The
Clause therefore creates an “end” (Progress) and a “means” (exclusive right). “The
public good fully coincides in both cases with the claims of individuals.” The
Federalist No. 43 (James Madison). Thus, “[t]he economic philosophy behind the
[Copyright] [C]lause … is the conviction that encouragement of individual effort
by personal gain is the best way to advance public welfare through the talents of
authors and inventors.” Mazer v. Stein, 347 U.S. 201, 219 (1954). That is why, as
a matter of fundamental public policy, “copyright law celebrates the profit motive,
recognizing that the incentive to profit from the exploitation of copyrights will
redound to the public benefit by resulting in the proliferation of knowledge. . . .
The profit motive is the engine that ensures the progress of science.” American
Geophysical Union v. Texaco Inc., 802 F. Supp. 1, 27 (S.D.N.Y. 1992) (emphasis
in original), aff’d, 60 F.3d 913 (2d Cir. 1994); Eldred v. Ashcroft, 537 U.S. 186,
212 n.18 (2003); see Harper & Row v. The Nation, 471 U.S. 539, 558 (1985). The

11

receipt of income from the dissemination of copyrighted works both enables the
author to earn a living, and encourages him or her to create additional works in the
future (and also encourages the publisher, whose motives are even more financially
dependent and without whom the subject works will never see the light of day).
By such means does public access to creative works advance.
That simple premise forms the entire basis of the copyright system, and
conflicts to a large degree with Google’s stated mission to “organize the world’s
information and to make it universally accessible and useful.” 3 Amici do not
gainsay the utility of Google’s search functionality, but “universal access” to
information enabled by widespread, unauthorized and uncompensated copying of
protected works, and the policies reflected in and advanced by the copyright law
are not the same thing. “Such messianism cannot obscure the central truth about
Google Book Search: it is a business.” Toobin, supra note 1. In fundamental
respects, Google’s mission and copyright’s conflict, and where it does, Google
must be held responsible.

3

Company Overview, Google, http://www.google.com/about/company (last
visited Feb. 14, 2013).
12

A.

THE ACADEMIC AMICI ARE UNREPRESENTATIVE OF ACADEMICS

In their filing, the Academic Amici attempt to sever those basic principles,
emphasizing that the class certification interferes with their wish to make these
works accessible to the broadest possible audience. They argue that the District
Court abused its discretion by certifying a class that fails to take into account the
interests of academic authors because there is a “strong likelihood” that academic
authors are a substantial portion of the class, and that academic authors will be
harmed by the injunctive relief that the Authors’ Guild seeks. (See Academic
Amici Br. 5, 9.)
Those assertions are incorrect. Fed. R. Civ. P. 23(a)(4) requires only that the
class “fairly and adequately protect” the interests of the class. Although the
adequacy of that protection must receive a “rigorous analysis,” Wal-Mart v. Dukes,
131 S.Ct. 2541, 2551 (2012), the Rule does not require absolute perfection: “A
class action should not be denied merely because every member of the class might
not be enthusiastic about enforcing his rights.” Eisen v. Carlisle & Jacquelin, 391
F.2d 555, 563 n.7 (2d Cir. N.Y. 1968). The District Court correctly noted that it
“need only concern itself with whether those members who are parties are
interested enough to be forceful advocates and with whether there is reason to
believe that a substantial portion of the class would agree with their representatives
were they given a choice.” (SPA 31 (quoting Eisen, 391 F.2d at 563 n.7).)

13

Google’s primary challenge to the adequacy of the class is based on a survey
that it conducted of published authors that showed a majority “approved” of
Google’s scanning of their works. (Br. of Google 20.) The District Court correctly
rejected that survey. (SPA 30-31.) The survey, tellingly, did not ask any
participant whether they would prefer to receive compensation for the use of their
work as a result of participating in a lawsuit. (See id.) The Academic Amici
attempt to fill that gap by claiming that academics are motivated by “maximizing
access to knowledge” (Academic Amici Br. 7.) and that the assertion of the class’s
rights denies them “the benefits that flow from greater public access to their works
that Google Books made possible.” (Id. at 11.)
There are several problems with the Academic Amici’s assertion. The first is
that they are atypical of those persons teaching post-secondary education: roughly
seventy percent of which are in adjunct, non-tenure track positions. See Audrey
Williams June, Adjuncts Build Strength in Numbers, The Chronicle of Higher
Education (Nov. 5, 2012), http://chronicle.com/article/Adjuncts-Build-Strengthin/135520. These instructors typically make far less than their tenure track
counterparts, do not receive benefits such as health insurance or a retirement plan,
and have no or de minimis roles in institutional governance. See Audrey Williams
June & Jonah Newman, Adjunct Project Reveals Wide Range in Pay, The
Chronicle of Higher Education (Jan. 4, 2013),
14

http://chronicle.com/article/Adjunct_Pay_Conditions/136439. As importantly,
these professionals also typically lack any academic freedom: their employment is
contingent on remaining in the good graces of the tenured faculty or the university
administration. See id.; see also Colleen Flaherty, Making Room for the Majority,
Inside Higher Ed, (Jan. 23, 2013),
http://www.insidehighered.com/news/2013/01/23/aaup-recommends-moreadjunct-faculty-participation-governance (noting that the American Association of
University Professors had taken note that the adjunct faculty “are legitimately open
to influence and intimidation and all those sorts of things because they don’t have
academic freedom”).
Of the 155 signatories to the Academic Amici brief, only three identified
themselves using the term adjuncts (a non-tenure track instructor). One hundred
twenty-five of those signatories are self-identified or identified on their school’s
web sites in tenure-track positions (e.g., Assistant, Associate, or Full Professor).
What the Academic Amici neglect to discuss is that as academic writers, they can
afford, as few other authors can, to waive the relatively modest royalties they
would earn and insist instead on free distribution of their books. Educational
institutions significantly compensate such authors for publishing books: whether it
is through gaining tenure (and all its benefits) for their first academic book, or the
promotion and pay raises that only come —and in some public institutions are
15

mandated—for subsequent books. Even tenured professors ultimately depend
upon the interest of scholarly publishers for publication of the works that
contribute substantially to earning them tenure, promotion, and merit pay increases
the effect of which is compounded over the course of an academic career.
Academic authors like most of the Academic Amici therefore can and do earn
thousands more a year in salary for the rest of their academic careers from each
book published. While the Academic Amici’s views may be heartfelt, they are by
no means representative either of the class or academics themselves.
Similar selection bias appears throughout their brief. For example, the
Academic Amici proffer a survey of academic authors, which found that “over 75%
of the more than 8,000 respondents indicated that it was very important or
important to be able to offer their work free online to a global audience” via “open
access.”4 (Academic Amici Br. 13 (internal quotations omitted).) The Academic
Amici neglected to mention that the touted survey, funded by a for-profit open
access publisher, consisted solely of its “customer list:” authors that signed up to
publish under that firm’s for-profit model.5 Academic Amici also neglect to
4

Amici note that 83 percent of scholarly articles are published through
traditional channels, not open access. Laasko and Björk, Anatomy of Open Access
Publishing: A Study of Longitudinal Development and Internal Structure, 10:124,
BMC Medicine 8 (2012), available at
http://www.biomedcentral.com/content/pdf/1741-7015-10-124.pdf.
5

See TBI Comm., Intech Pub., Author Attitudes Towards Open Access Publishing
16

mention that of 8,015 respondents, only 240 potentially class eligible respondents
supported the Academic Amici’s position.6
There is also no indication of how many of these respondents would
consider it “very important” or “important” to receive royalties for their open
access publications. The survey merely indicates that 75% of those globally
solicited individuals actually responding to the question feel that it is “very
important” or “important” to be able to offer their work free online to a global
audience even if the author pays: it does not provide any significant insight into the
potential class members’ opinions on receiving royalties for such publication. See
TBI Comm, Author Attitudes, supra note 5, at 7 (emphasis added).
With respect to the other survey cited by the Academic Amici for the
proposition that 89% of those surveyed thought that “open access” to journals was
beneficial to their field (Academic Amici Br. 13), only 12 percent of those surveyed
paid in whole or part for their submissions to be published: the balance had the
publication fees paid by their institution or through research funds. See Study of

6 (2011), available at
http://www.intechopen.com/public_files/Intech_OA_Apr11.pdf.
6

Of the total 8,015 respondents, only 339 identified as being from the United
States and answered the cited question. See id. at 8. Even for that small number
of American respondents, the rate that thought open access was "important" or
"very important" was actually 70.8 percent (e.g., 240 respondents), not the "over
seventy five percent" rate that the Academic Amici claim.
17

Open Access Publishing, Highlights from the SOAP Project Survey 9 (2011),
available at http://arxiv.org/ftp/arxiv/papers/1101/1101.5260.pdf. Nothing in
either of these surveys suggests that, if presented with the opportunity to receive
income from their works, any meaningful percentage of these authors would
forego it.
B.

THE ACADEMIC AMICI’S CLAIMS ARE AT ODDS WITH CUSTOMARY
PRACTICE.

In amici’s view, this distorted and incomplete picture does not represent the
typical academic publication. Most authors, including academic ones, do not
forego compensation if that compensation is available. For example, the process
of authoring a textbook requires an enormous amount of work. All told, the
publishing cycle—from the author’s conception of an idea for a new textbook to
the time that the text reaches bookshelves—generally takes two to four years.
Mary Ellen Lepionka, Writing and Developing your College Textbook 43 (2d ed.
2008). During this time, a textbook author must complete a wide range of tasks
including actually writing the text, requiring both extensive knowledge and
research. Authors of text materials must be able to transform expert knowledge and
field-specific jargon into accessible and understandable formats. Furthermore,
many authors also will have a role in creating a new textbook, for example:
compiling appendices, references, and bibliographies; producing figures and

18

tables; obtaining necessary permissions for the use of photographs, artwork,
quotations, and other illustrative materials; providing feedback as to the book’s
design; and proofing the text at various stages. See generally Lepionka, supra, at
29-42 (explaining the publication process); William Germano, Getting it
Published: A Guide for Scholars and Anyone Else Serous about Serious Books
139-54 (2d ed. 2008) (advising authors on the process of obtaining necessary
permissions to use others’ work in a textbook). As an academic field develops, the
previously authored textbook will require revision and updating. As just one
example, the TAA found that the effort to update one textbook from the sixth to
seventh edition required over 8,000 hours of work by the authors and
contributors—and over ten man-years altogether (when accounting for
development, editing, artistic production, and other necessary tasks). Text and
Academic Authors Association, TAA Debunks the Top 7 Myths Regarding
Textbook Costs, available at http://www.taaonline.net/notes/TAAmythsflyer.pdf.
Authoring a textbook is neither an easy nor financially certain task, but it is
one that takes an extraordinary amount of work to complete. While there are a
number of reasons that authors engage in this endeavor—career enhancement, the
desire to augment existing literature—authors are entitled to, and motivated in
substantial part by, the compensation they receive from sales of their textbooks.

19

Academic writers, like all writers, illustrators, and other creative
professionals, want to get compensated for their work and enjoy the protection of
copyright. In amici’s experience, it would be highly unusual for any author to
forego that royalty income, especially those (as is often the case) that write
textbooks and do not hold a “tenure-track” position of any kind. Unlike a typical
publishing contract, which splits royalties on an 85/15 basis between publisher and
author, the textbook split of permission fees and revenue from licensing is
generally 50/50. To the extent that the Academic Amici wish to forego such
payments, Rule 23 permits them simply to opt out of the lawsuit. The Academic
Amici’s claim that the main reward scholars receive is the pleasure of seeing their
work as contributing to dialogue is, in amici’s experience, nonsense.
III.

“TOO BIG TO FAIL” IS NOT A DEFENSE TO CLASS CERTIFICATION UNDER
RULE 23
Google’s next argument is that there are so many differing kinds of potential

factual inquiries into the millions of books that they copied that class resolution
will be impossible. (See, e.g., Br. of Google 15-16; 29-30 (citing Wal-Mart v.
Dukes, 131 S. Ct. 2541, 2561 (2012) .) There is, however, a fundamental
difference between Wal-Mart and this case: there was no specific practice at issue
in Wal-Mart. See 131 S. Ct. at 2553-54. The plaintiffs there had alleged a

20

“corporate culture” that resulted in sex discrimination, but could allege no specific
employment practice that affected all the class members. See id.
Here, in contrast, Google made a centralized decision to copy verbatim
millions of the class’s works, make substantial portions of them available over the
Internet and use their entireties for its own internal purposes. Moreover, the
plaintiffs have not invoked anything approaching a “detailed remedial scheme:”
Wal-Mart, 131 S. Ct. at 2561, as the class seeks the set statutory minimum of $750
per work. (See also Br. of Appellee 2.) The District Court correctly concluded
that it could, if need be, conduct fair use evaluations of types of books. (See SPA
30.) See also McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 672
F.3d 482, 488 (7th Cir. 2012), cert. denied, 133 S. Ct. 338 (2012) (reversing
district court and granting class certification because of existence of company-wide
policy, and permitting recovery despite having to have several “mini-trials”).
The District Court properly recognized that having made a decision to copy
these works indiscriminately, Google may not turn the massive scale of its
centralized decision into a legal shield, rendering it literally “too big to fail.” For
amici, the practical result of such a rule would be devastating, and puts control
over their works in the hands of technology providers. While it has become trivial
for one entity to copy and distribute copyrighted works on scales unimaginable just
a decade ago, writing songs, monographs, romance novels, and plays still takes an
21

enormous amount of individual time and effort, and carries uncertain prospects of
return. Many romance writers, playwrights, songwriters, illustrators, and other
authors have other careers, and simply will not be able to afford to hire a lawyer to
engage against a technology behemoth. That some of them may even prevail is
irrelevant, as those that have the inclination to undergo the time, expense, and
burden of a lawsuit will pale before the scale of infringement not just by Google,
but by any technology provider with the desire and wherewithal to do what Google
has done. Google’s activity not only threatens the royalty streams for existing
works, it jeopardizes the revenue from works yet to be written. Without the
authors’ ability to band together to fight these practices, many of these revenue
streams—and the future works that will be created because of them—will
disappear.
IV.

GOOGLE’S CONDUCT IS NOT FAIR USE
Google’s attempts to color the Google Books program as “fair” are

unavailing. Its brief touts its copying program as “transformative” (Br. of Google
1.) Academic Amici find Google’s theory of fair use more persuasive than that of
the class plaintiffs’ because, in their view, (a) the works at issue are mainly
scholarly which favors a finding of fair use; and (b) Google’s copying is
“transformative” and has benefitted the public by increasing its access to these
works. (See Academic Amici Br. 14-15.)

22

The District Court correctly resolved the issues involved in this case by
noting that the issues of fair use and the use of “snippets” are capable of class-wide
resolution. (See SPA 29-32.) To the extent that the question of class-wide
certification is bound with a decision on the merits, see Wal-Mart, 131 S. Ct. at
2552, the merits tilt in the plaintiffs’ favor. The class plaintiffs address these
points in detail; amici write to emphasize a few brief points.
First, the fact that the Academic Amici benefit from the availability of these
works is legally irrelevant to the fair use defense or to the validity of the class. No
doubt Napster users (and occasionally artists) may have benefitted from having
access to or promotion of a variety of songs and sound recordings, but that fact
neither shielded Napster from infringement nor aggregate liability. See A&M
Records Inc., v. Napster, Inc., 239 F.3d 1004, 1018 (9th Cir. 2001) (noting that
even if the copyright owner receives an ultimate benefit from unauthorized public
distribution, that should not deprive the copyright owner the opportunity to license
works); see In re Napster, Inc. Copyright Litigation, No. C 00-1369 MPH, 2005
U.S. Dist. LEXIS 11498, at *44 (N.D. Cal., May 31, 2005) (certifying the class).
The copyright grants the author the right to set the terms and conditions under
which the market may access his or her works. Such are the benefits of exclusive
rights.

23

Google argues that its “snippets” are not a substitute for reading the book
and considers its wholesale copying “transformative.” (Br. of Google 7.) That
statement rather misses the point. See UMG Recordings, Inc. v. MP3.com, Inc., 92
F. Supp. 2d 349, 351 (S.D.N.Y.) (finding that reproduction of audio CD into MP3
format is not transformative), certification denied, 00 Civ. 472, 2000 U.S. Dist.
LEXIS 7439, at *2 (S.D.N.Y. June 1, 2000) (denying an interlocutory appeal
because infringement “clothed in the exotic webbing of the Internet does not
disguise its illegality"). A student or scholar looking to quote a list of proteins
present in DNA or a key explanation of existential philosophy, for example, could
easily find that information (complete with page citation, title and year of
publication) for inclusion in a term paper. The student’s use is unquestionably a
“fair” one, but made from an infringing copy, a copy from which that student may
view 78% of the work to gain context from both the information that the author
conveys and the manner in which he or she conveyed it. That same situation exists
whether the user researches science or the collective works of Nora Roberts.
Google has no more “transformed” these works than the public library has.
Nothing it has done “‘supersede[s] the objects’ of the original creation, or instead
adds something new, with a . . . different character, altering the first with new
expression, meaning or message.” See Campbell v. Acuff Rose-Music, Inc., 510
U.S. 569, 579 (1994) (alteration in original) (internal citations omitted) (quoting
24

Story, J.). Rather than seek that information from an authorized copy, the user
simply uses an unauthorized one.
Second, Google and the Academic Amici overstate significantly the weight
to be accorded a scholarly work in the fair use analysis under Section 107. The
mere fact that a work is “scholarly” does not automatically entitle a user to copy
that work in its entirety. Indeed, amici note that when enacting the Copyright Act
of 1976, Congress eschewed creating a special category of exemptions for
nonprofit institutions to use works for scholarly purposes. See William F. Patry,
Patry on Fair Use § 3:6 (2012); see also S. Rep. No. 94-473, at 63 (1976).
Similarly, in 1998, concern over unauthorized digital copying of works by libraries
caused Congress to limit the amount of copies that a library could make. S. Rep.
No. 105-190, at 61 (1998) (explaining amendments to 17 U.S.C. § 108). Here, of
course, that copying has been performed by a commercial entity, and made
available to both for-profit and nonprofit users—indeed anyone with an Internet
connection. If Congress rejected creation of a special fair use presumption for
scholarly uses in a nonprofit university setting, it stands to reason that no such
presumptive favoritism would attach to Google’s for-profit indiscriminate copying;
indeed, the likelihood of qualitative substitution cuts against a fair use finding. Cf.
e.g., 17 U.S.C. § 110(2) (providing exemptions for use of works in distance
education, except for those works created for use in that specific market).
25

Third, amici note that even from a quantitative standpoint, Google’s focus
on “snippets” is misleading and by no means determinative, as 78% of the copied
works are available to Google users. Infringement in cases involving the copying
of academic coursepacks has been found when the copying percentage was much
less, even when done in or for an educational setting. See Princeton University
Press v. Michigan Document Serv., 99 F.3d 1381, 1384-85 (6th Cir. 1996)
(copying ranging from 5% to 18%); Basic Books, Inc. v. Kinko’s Graphics Corp.,
758 F. Supp. 1522, 1527 (S.D.N.Y. 1991) (copying ranging from 5% to 28%); See
also Craft v. Kobler, 667 F. Supp. 120, 125, 128, 130 (S.D.N.Y. 1987) (Leval, J.)
(finding quotation or paraphrase of 3,500 words from Igor Stravinsky
conversations both infringing and unprotected by fair use, and noting that 13% of a
work can represent a qualitative taking).
What really seems to worry the Academic Amici, however, is the prospect
Google Books project will terminate, and some scholars’ ability to “mine” the
contents of the copied works for research purposes will be cut off. (See, e.g.,
Academic Amici Br. 2-3.) But amici have no interest in seeing the Google Books
project come to an end. They have no issue with data “mining” of their works;
they simply want Google to pay for the ore so that new sources of works can
continue to emerge. Further, the works that are likely to go wanting for an
interested publisher because of the loss of licensing revenue are precisely those
26

works of highest value, those works on the margins of economic viability, at the
frontier of scientific and literary advancement, where the market is simultaneously
most sophisticated and necessarily thinnest. There is no reason to believe that,
given the history of this case, Google Books cannot operate legally. The proper
time to consider such issues is not at the time of determining liability (much less
class certification), but when considering injunctive relief. In the unlikely event
that the parties cannot agree on a continuing royalty, the Court may effectively
create a compulsory license if the public purpose is strong enough and the equities
balance in that direction after full resolution on the merits. See, e.g., Ebay v.
MercExchange, L.L.C., 547 U.S. 388, 392-93 (2006) (explaining and equating the
principles of injunctions for patent law with copyright law); New York Times Co. v.
Tasini, 533 U.S. 483, 505 (2001) (citing Campbell, 510 U.S. at 578, n. 10); Elvis
Presley Enters. v. Passport Video, 357 F.3d 896, 899 (9th Cir. 2003) (reversing
injunctive grant for consideration of the public interest in seeing Elvis Presley
materials).
CONCLUSION
In short, the District Court correctly certified a class of authors justifiably
concerned about protecting their work from mass misappropriation. In defense,
Google has offered a theory that rips from all individual authors the ability to join

27

together and combat massive, systematic, and centralized infringement, at the cost
of undermining the incentives on which the copyright law depends.
For the foregoing reasons, the District Court’s certification of the class
should be AFFIRMED.
Respectfully Submitted,
/S/
Christopher A. Mohr*
Michael R. Klipper
MEYER, KLIPPER & MOHR, PLLC
923 15th St., N.W.
Washington, DC 20005
[phone]
*Counsel of Record

28

CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limitation of Fed. R. App. P. 29(d)
and 32(a)(7)(B), because this brief contains 6,354 words, excluding the parts of the
brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). The word count was measured
by the word-processing program used to prepare the brief, Microsoft Word 2010.

This brief complies with the typeface requirement of Fed. R. App. P.
32(a)(5) and the typestyle requirements of Fed. R. App. P. 32(a)(5) and the
typestyle requirements of Fed. R. App. P. 32(a) (6) because it has been prepared in
a proportionately spaced typeface using Microsoft Word 2010 in 14 point Times
New Roman Font.

/S/
Christopher A. Mohr
Attorney for Amici

Dated: February 15, 2013

CERTIFICATE OF SERVICE & CM/ECF FILING
I hereby certify that on this 15th day of February, 2013, I caused a pdf
version of the foregoing brief to be filed electronically using the CM/ECF system.
Prior to transmittal, the pdf was scanned for viruses and no viruses were detected.

On this 15th day of February 2013.
/S/
Christopher Mohr