The Authors Guild v. Google, Inc.

Filing 57

AMICUS BRIEF, on behalf of Amicus Curiae Academic Authors, FILED. Service date 11/16/2012 by CM/ECF. [771713] [12-3200]--[Edited 11/19/2012 by KG] [Entered: 11/16/2012 04:26 PM]

12-3200-cv
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 THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK, NO. 05-CV-8136 (CHIN, J.)

BRIEF OF AMICI CURIAE ACADEMIC AUTHORS IN
SUPPORT OF DEFENDANT-APPELLANT AND REVERSAL
[Full list of Amici is in Appendix A]

On the Brief:
PAMELA SAMUELSON
Richard M. Sherman Distinguished
Professor of Law and Information
University of California, Berkeley
DAVID HANSEN
Digital Library Fellow
University of California, Berkeley

JENNIFER M. URBAN
SAMUELSON LAW, TECHNOLOGY
& PUBLIC POLICY CLINIC
University of California, Berkeley,
School of Law
396 Simon Hall
Berkeley, California 94720
[phone]
Attorney for Amici Curiae

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .................................................................................... ii
INTEREST OF AMICI .............................................................................................. 1
SUMMARY OF ARGUMENT ................................................................................. 2
ARGUMENT ............................................................................................................. 4
I.

The Trial Court Should Have Conducted a Meaningful Inquiry into
Whether the Named Plaintiffs Are Adequately Representing the
Interests of Academic Authors ........................................................................ 4

II.

The Named Plaintiffs’ Interests Are in Fundamental Conflict with
Those of Academic Authors ............................................................................ 9

CONCLUSION ........................................................................................................ 18

i

TABLE OF AUTHORITIES
Page(s)
Cases:
Amchem Products Inc. v. Windsor,
521 U.S. 591 (1997)................................................................................... 9-10
Authors Guild v. Google, Inc.,
282 F.R.D. 384 (S.D.N.Y. 2012) ...........................................................8, 9, 16
Authors Guild v. Google, Inc.,
770 F. Supp. 2d 666 (S.D.N.Y. 2011) ............................................................. 7
Authors Guild v. Google, Inc.,
No. 05-8136 (DC) (S.D.N.Y. filed Sept. 20, 2005)......................................... 5
Authors Guild v. HathiTrust,
No. 11-6351 (HB), 2012 WL 4808939 (S.D.N.Y. Oct. 10, 2012) ..........15, 17
Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp.,
222 F.3d 52 (2d Cir. 2000) .............................................................................. 9
Bieneman v. City of Chicago,
864 F.2d 463 (7th Cir.1988) .......................................................................... 10
Bill Graham Archives v. Dorling Kindersley Ltd.,
448 F.3d 605 (2d Cir. 2006) .......................................................................... 15
Field v. Google Inc.,
412 F. Supp. 2d 1106 (D. Nev. 2006) ........................................................... 14
Gen. Tel. Co. of the Sw. v. Falcon,
457 U.S. 147 (1982)......................................................................................... 4
Hansberry v. Lee,
311 U.S. 32 (1940)...................................................................................10, 11
In re Initial Pub. Offering Sec. Litig.,
471 F.3d 24 (2d Cir. 2006) ......................................................................4, 5, 9
In re Literary Works in Elec. Databases Copyright Litig.,
654 F.3d 242 (2d Cir. 2011) .......................................................................... 10
Kelly v. Arriba Soft Corp.,
336 F.3d 811 (9th Cir. 2003) ................................................................... 14, 15

ii

Parker v. Time Warner Entm’t Co., L.P.,
331 F.3d 13 (2d Cir. 2003) .............................................................................. 9
Pickett v. Iowa Beef Processors,
209 F.3d 1276 (11th Cir. 2000) ..................................................................... 10
Wal-Mart Stores, Inc. v. Dukes,
131 S.Ct. 2541 (2011)...................................................................................... 4
Statutes & Other Authorities:
17 U.S.C. § 107 (2006) ............................................................................................ 17
17 U.S.C. § 107(4) ................................................................................................... 17
17 U.S.C. § 504(c)(1) (2006) ................................................................................... 12
Fed. R. Civ. P. 23(a)(4) .......................................................................................... 2, 9
Fed. R. App. P. 29(c)(5) ............................................................................................. 1
Local Rules of the United States Court of Appeals for the Second Circuit,
Rule 29.1 .......................................................................................................... 1
1 MCLAUGHLIN ON CLASS ACTIONS § 4:30 (8th ed., Westlaw 2012) ...................... 10
ALMA SWAN & SHERIDAN BROWN, OPEN ACCESS SELF-ARCHIVING: AN
AUTHOR STUDY 10 (2005).............................................................................. 14
Brian Lavoie & Lorcan Dempsey, Beyond 1923: Characteristics of
Potentially In-Copyright Print Books in Library Collections,
D-LIB MAG., Nov./Dec. 2009 .......................................................................... 6
BUREAU OF LABOR STATISTICS, OCCUPATIONAL OUTLOOK HANDBOOK,
2012-13 EDITION, Writers and Authors, Postsecondary Teachers
(2012) ............................................................................................................... 6
Hannibal Travis, Google Book Search and Fair Use: iTunes for Authors
or Napster for Books?, 61 U. MIAMI L. REV. 87 (2006) ............................... 15
Jonathan Band, The Long and Winding Road to the Google Books
Settlement, 9 J. MARSHALL REV. INTELL. PROP. L. 227 (2009) ..................... 15
Maria Pallante, Keynote Address: Orphan Works & Mass Digitization:
Obstacles & Opportunities, 27 BERKELEY TECH. L.J. __
(forthcoming 2012) ........................................................................................ 13
iii

Matthew Sag, The Google Book Settlement and the Fair Use
Counterfactual, 55 N.Y.L. SCH. L. REV. 19 (2010) ....................................... 15
Nari Na, Testing the Boundaries of Copyright Protection: The Google
Book Library Project and the Fair Use Doctrine, 16 CORNELL J. L.
& PUB. POL’Y 417 (2006) .............................................................................. 15
Steve Lawrence, Free Online Availability Substantially Increases a
Paper’s Impact, 411 NATURE 521 (2000) ...................................................... 14
STUDY OF OPEN ACCESS PUBLISHING, HIGHLIGHTS FROM THE SOAP
PROJECT SURVEY: WHAT SCIENTISTS THINK ABOUT OPEN ACCESS
PUBLISHING 3 (2011) ...................................................................................... 13
TBI COMM., INTECH PUB., AUTHOR ATTITUDES TOWARDS OPEN ACCESS
PUBLISHING 7 (2011) ..................................................................................... 13
U.S. COPYRIGHT OFFICE, REPORT ON ORPHAN WORKS: A REPORT OF THE
REGISTER OF COPYRIGHTS 127 (2006) ........................................................... 13
WRIGHT & MILLER, 7A FED. PRAC. & PROC. CIV. § 1768
(3d ed., Westlaw 2012) .................................................................................. 10
Letter from Pamela Samuelson to Judge Denny Chin (Feb. 13, 2012),
available at
http://www.law.berkeley.edu/files/Academic_authors_letter_to_
Judge_Chin_021312_final.pdf ........................................................................ 8

iv

INTEREST OF AMICI
Amici Curiae are academic authors who oppose the plaintiffs’ legal position
in this case on the merits and who want the Google Books project to continue to
provide public access to snippets from our books and from those of other academic
authors because this promotes the progress of science in keeping with the
constitutional purpose of copyright law. Amici include numerous academic authors
who believe ourselves to be members of the class that was certified below. 1 We
write to urge this Court to reverse the lower court’s ruling certifying the class
because of the irreconcilable conflict that exists between the interests of the three
individual plaintiffs who claim to represent all authors of books scanned as part of
the Google Library Project and the actual interests of academic authors on whose
behalf they claim to speak and whose works, we believe, make up a majority of the
works at issue in this case.2

1

This brief is filed pursuant to Fed. R. App. P. 29(a) with the consent of all parties. Pursuant to
Fed. R. App. P. 29(c)(5) and Rule 29.1 of the Local Rules of the United States Court of Appeals
for the Second Circuit, Amici 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.
Defendant-Appellant Google has consented to this filing, and Plaintiff-Appellees stated that they
do not object except “to the extent it purports to be filed on behalf of all academic authors.”
While the signatories to this letter cannot, of course, speak for all 1.756 million post-secondary
academics, but only for themselves, we nonetheless believe that the views we express in this
brief are typical of the views of academic authors more generally.
2

Although we are not prepared at this time to intervene in this lawsuit, we want the Court to
understand that the plaintiffs’ claims are antagonistic to our interests.

-1-

SUMMARY OF ARGUMENT
Class certification was improperly granted below because the District Court
failed to conduct a rigorous analysis of the adequacy of representation factor, as
Rule 23(a)(4) requires. The three individual plaintiffs who claim to be class
representatives are not academics and do not share the commitment to broad access
to knowledge that predominates among academics. Although the District Court, in
rejecting the proposed Google Books settlement last year, recognized that the class
representatives and their lawyers had not adequately represented the interests of
academic authors when negotiating the proposed settlement, the court brushed
aside concerns about adequacy of representation when the case went back into
litigation, despite an academic author submission that challenged class certification
because of inadequacies in the plaintiffs’ representation of academic author
interests. These concerns should have been taken seriously because academic
authors make up a substantial proportion of the class that the District Court
certified; most of the books that Google scanned from major research library
collections were written by academics. Academic authors overall greatly
outnumber generalist authors such as the named plaintiffs.
Academic authors desire broad public access to their works such as that
which the Google Books project provides. Although the District Court held that the
plaintiffs had inadequately represented the interests of academic authors in relation

-2-

to the proposed settlement, it failed to recognize that pursuit of this litigation
would be even more adverse to the interests of academic authors than the proposed
settlement was. That settlement would at least have expanded public access to
knowledge, whereas this litigation seeks to enjoin the Google Book Search
operations and shut down access to works of class members even though academic
authors would generally favor greater public access to their works. Because of this,
the interests of academic authors cannot be adequately accommodated in this
litigation by opting out of the class, as the District Court assumed. Indeed, the only
way for the interests of academic authors to be vindicated in this litigation, given
the positions that the plaintiffs have taken thus far, is for Google to prevail on its
fair use defense and for the named plaintiffs to lose.
For this reason, there is a fundamental conflict between the interests of the
named class representatives and the interests of academic authors. Academic
authors typically benefit from Google Books, both because it makes their books
more accessible to the public than ever before and because they use Google Books
in conducting their own research. Google’s fair use defense is more persuasive to
academic authors than the plaintiffs’ theory of infringement. The plaintiffs’ request
for an injunction to stop Google from making the Book Search corpus available
would be harmful to academic author interests.

-3-

In short, a “win” in this case for the class representatives would be a “loss”
for academic authors. It is precisely this kind of conflict that courts have long
recognized should prevent class certification due to inadequate representation. The
District Court failed to adequately address this fundamental conflict in its
certification order, though it was well aware of the conflict through submissions
and objections received from the settlement fairness hearing through to the
hearings on the most recent class certification motions. Because of that failure, the
order certifying the class should be reversed.
ARGUMENT
I.
The Trial Court Should Have Conducted a Meaningful Inquiry into
Whether the Named Plaintiffs Are Adequately Representing the Interests of
Academic Authors.
Supreme Court and Second Circuit precedents require courts to conduct a
“rigorous analysis” to determine that each element of the Rule 23 standards for
class certification has been satisfied. Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct.
2541, 2551 (2011); Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 160-61
(1982); In re Initial Pub. Offering Sec. Litig., 471 F.3d 24, 29 (2d Cir. 2006). One
of those standards is adequacy of representation by the class representatives.
Determinations about adequacy and other factors “can be made only if the judge
resolves factual disputes relevant to each Rule 23 requirement . . . and is persuaded
to rule, based on the relevant facts and the applicable legal standard that the

-4-

requirement is met.” In re IPO Sec. Litig., 471 F.3d at 41. Failure to engage in this
kind of rigorous analysis constitutes an abuse of discretion.
Several submissions have brought to the District Court’s attention the
likelihood that academic authors constitute a substantial part of the class. See
Letter from Pamela Samuelson, Professor of Law and Information, UC Berkeley to
Judge Denny Chin (Feb. 13, 2012), available at
http://www.law.berkeley.edu/files/Academic_authors_letter_to_Judge_Chin_0213
12_final.pdf (“[S]o many of the books that Google has scanned are academic
works that are out-of-print and/or orphan works.”); A95-A118 (Letter from Pamela
Samuelson, Professor of Law and Information, UC Berkeley to Judge Denny Chin
(Jan. 27, 2010) ECF No. 893) (“[Authors Guild members] are unrepresentative of
the interests of academic authors whose books constitute most of the GBS
corpus.”); 3 Letter from the American Association of University Professors to Judge
Denny Chin (Sept. 4, 2009) ECF No. 398; Letter from Pamela Samuelson,
Professor of Law and Information, UC Berkeley to Judge Denny Chin (Sept. 3,
2009) ECF No. 336; Letter from University of California Faculty to Judge Denny
Chin (Aug. 13, 2009) ECF No. 134. This substantiality is, moreover, evident given
that the Google Library Project, which is the focus of this litigation, involved
3

Several of the documents cited herein are included in the docket from the record below, but not
in the parties’ joint appendix. To aid the Court, we cite these documents in standard form
followed by their CM/ECF docket number from the record of the case below, Authors Guild v.
Google, Inc., No. 05-8136 (DC) (S.D.N.Y. filed Sept. 20, 2005).

-5-

scanning of millions of books from the collections of major research libraries.
Fourth Amd. Class Action Comp., at ¶3, ECF 985. One empirical study reports
that scholarly works predominate in the collections of Google’s library partners.
See Brian Lavoie & Lorcan Dempsey, Beyond 1923: Characteristics of Potentially
In-Copyright Print Books in Library Collections, D-LIB MAG., Nov./Dec. 2009,
http://www.dlib.org/dlib/november09/lavoie/11lavoie.html (reporting that 93% of
the collections of three major academic partners in the Google Books project are
nonfiction and that 78% of those are aimed at a scholarly audience). This
proposition is bolstered by the fact that in the United States, academics far
outnumber generalist writers (such as the named plaintiffs in this case)4 by a factor
of more than ten to one. See BUREAU OF LABOR STATISTICS, OCCUPATIONAL
OUTLOOK HANDBOOK, 2012-13 EDITION, Writers and Authors, Postsecondary
Teachers (2012) (listing 145,900 writer and author jobs, as compared to 1,756,000
postsecondary jobs).5

4

Representative Plaintiffs include Betty Miles, an author of children’s and young adult fiction,
Joseph Goulden, author of books such as The Superlawyers, and Jim Bouton, author of a baseball
memoir. Fourth Amd. Class Action Comp., at ¶¶ 12, 15, 16, ECF 985.
5

The survey of published authors on which Google relied in opposing class certification suggests
that the class plaintiffs here may not even represent adequately the interests of non-academic
authors. Dec. of Hal Poret in Support of Google’s Opp. to Pltf’s Mot. for Class Cert., at 6-12,
ECF No. 1001 (showing that only a small minority of published authors object to Google’s
making snippets of their books available or think that snippet views are harmful to their
interests).

-6-

The District Court’s failure to investigate class composition and the risks of
inadequate representation is surprising given that the very same court had ruled
only just over a year before that the very same lawyers and named plaintiffs had
inadequately represented the interests of academic authors, among others, when
they negotiated a proposed settlement of the class action lawsuit brought against
Google for scanning books from major research library collections. Authors Guild
v. Google, Inc., 770 F. Supp. 2d 666, 679 (S.D.N.Y. 2011) (“[T]he class plaintiffs
have not adequately represented the interests of at least certain class members.”).
The court cited inadequacy of representation as one of the major reasons why the
proposed settlement had to be rejected. Id.
The court's decision quoted from an academic author submission that
explained one of the key reasons for this inadequacy: “ ‘Academic authors, almost
by definition, are committed to maximizing access to knowledge. The [Authors]
Guild and the [Association of American Publishers], by contrast, are institutionally
committed to maximizing profits.’ (Samuelson Letter 3 (ECF No. 893)).” Id. A
footnote also observed that academic authors, unlike the named plaintiffs, thought
that orphan works should be available on an open access basis. Id. at 679 n.16. The
court further found that the named plaintiffs had inadequately represented the
interests of authors of unclaimed works. Id. at 680.

-7-

Concerns about inadequacy of representation of the interests of academic
authors were further brought to the District Court’s attention during the pendency
of the class certification motion through a letter submitted to the District Court.
Letter from Pamela Samuelson to Judge Denny Chin (Feb. 13, 2012), available at
http://www.law.berkeley.edu/files/Academic_authors_letter_to_Judge_Chin_0213
12_final.pdf.
Despite the strong likelihood that academic authors constitute a substantial
portion of the class and despite the court’s previous recognition that the named
plaintiffs had inadequately represented the interests of academic authors, the
District Court did not undertake any fact-finding about class composition. Rather,
it assumed the Rule 23 standard would be satisfied if the plaintiffs “are interested
enough to be forceful advocates and [if] there is reason to believe that a substantial
portion of the class would agree with their representatives were they given a
choice.” Authors Guild v. Google, Inc., 282 F.R.D. 384, 394 (S.D.N.Y. 2012). The
court was, however, merely speculating that this was so and presumed that the
relief requested by the representative plaintiffs—a massive award of statutory
damages and an injunction to stop, among other things, Google from offering
snippets from in-copyright books in response to search queries—would benefit the
class if forcefully sought by the plaintiffs. The court further assumed that insofar
as some class members had different interests than the named plaintiffs, they

-8-

“could request to be excluded from the class,” presumably by opting out. Id. at
394, n.8. But the interests of academic authors cannot be satisfied by opting out of
the class because academic authors will be harmed by the very injunctive relief that
these plaintiffs seek.
This Court has previously remanded on the issue of class certification when
the District Court certified a class based on “assumptions of fact rather than on
findings of fact.” Parker v. Time Warner Entm’t Co., L.P., 331 F.3d 13, 21 (2d Cir.
2003). While In re IPO Litigation makes clear that the full extent of the factual
inquiry is largely within the discretion of the district court, In re IPO Litig., 471
F.3d at 41, that discretion can be abused, as it was in this case. Given the
persistence and prior notice of academic authors’ objections, the district court
should have, at a minimum, made an inquiry into the nature of the works in the
corpus and the types of authors who have interests in those works.
II.
The Named Plaintiffs’ Interests Are in Fundamental Conflict with
Those of Academic Authors.

Federal Rule of Civil Procedure 23(a)(4) requires that representative
plaintiffs fairly and adequately represent the interest of all class members.
Adequacy “entails inquiry as to whether . . . plaintiff’s interests are antagonistic to
the interest of other members of the class.” Baffa v. Donaldson, Lufkin & Jenrette
Sec. Corp., 222 F.3d 52, 60 (2d Cir. 2000). The Supreme Court in Amchem

-9-

Products Inc. v. Windsor explained that the focus of the inquiry is on uncovering
“conflicts of interest between named parties and the class they seek to represent.”
521 U.S. 591, 625 (1997). The conflict “must be ‘fundamental’ to violate Rule
23(a)(4).” In re Literary Works in Elec. Databases Copyright Litig., 654 F.3d 242,
249 (2d Cir. 2011).
Fundamental conflicts exist where “class members’ interests directly oppose
those of the proposed representative.” 1 MCLAUGHLIN ON CLASS ACTIONS § 4:30
(8th ed., Westlaw 2012); see also Pickett v. Iowa Beef Processors, 209 F.3d 1276,
1280 (11th Cir. 2000) (“a class cannot be certified when its members have
opposing interests or when it consists of members who benefit from the same acts
alleged to be harmful to other members of the class”); Bieneman v. City of
Chicago, 864 F.2d 463, 465 (7th Cir.1988). The Supreme Court’s decision in
Hansberry v. Lee, 311 U.S. 32 (1940) has been characterized as “a classic example
of the type of disqualifying conflict that can arise between representatives and
some class members.” WRIGHT & MILLER, 7A FED. PRAC. & PROC. CIV. § 1768 (3d
ed., Westlaw 2012). In Hansberry, the plaintiffs sought to enforce a racially
restrictive covenant on behalf of a class of landowners, although some of these
landowners objected to the enforcement of the covenant (most notable were the
objections raised by African American landowners included in the class).
Hansberry, 311 U.S. at 33-45. Concluding that class representation was

-10-

inadequate, Justice Stone (writing for the Court) explained that “[b]ecause of the
dual and potentially conflicting interests of those who are putative parties to the
agreement in compelling or resisting its performance, it is impossible to say, solely
because they are parties to it, that any two of them are of the same class.” Id. at 4445.6
Like Hansberry, the conflict in this case is not conjectural or speculative, but
very real to those academic authors who face the prospect of losing access to
Google Books and to the benefits that flow from greater public access to their
works that Google Books has made possible. In addition, like the land-owners in
Hansberry who objected to being included in a class that sought to enforce
racially-restrictive covenants, Amici disagree with plaintiffs’ pursuit of this
litigation both because of the immediate harm to their interests if the plaintiffs
prevail and because we disagree in principle with litigation that seeks to restrict

6

Justice Stone went on to explain: “It is one thing to say that some members of a class may
represent other members in a litigation where the sole and common interest of the class in the
litigation, is either to assert a common right or to challenge an asserted obligation. . . . It is quite
another to hold that all those who are free alternatively either to assert rights or to challenge them
are of a single class, so that any group merely because it is of the class so constituted, may be
deemed adequately to represent any others of the class in litigating their interests in either
alternative. Such a selection of representatives for purposes of litigation, whose substantial
interests are not necessarily or even probably the same as those whom they are deemed to
represent, does not afford that protection to absent parties which due process requires.”
Hansberry, 311 U.S. at 44-45.

-11-

access to information and to reap a windfall from the defendant for uses that we
consider beneficial. 7
The plaintiffs have taken a position on the record about one conflict of
interest between them and academic authors when they responded to an academic
author objection to the proposed settlement in February 2010. The academic
author objection asserted that orphan works should be available on an open access
basis instead of being commercialized on restrictive proprietary terms through the
end of the works’ copyrights, as the proposed settlement would have done. Letter
from Pamela Samuelson to Judge Denny Chin (Sept. 3, 2009) ECF No. 336; see
also Letter from the American Association of University Professors to Judge
Denny Chin (Sept. 4, 2009) ECF No. 398 (“The AAUP believes that open access
to academic research and the ability to disseminate scholarly publications freely
are essential to the academic enterprise.”). The plaintiffs responded by saying that
“[t]he interests of ‘open access’ advocates, many of who initially shared Google’s
expansive notions of fair use, plainly are inimical to the Class.’ Pltf’s Supp. Mem.
Responding to Specific Objections 23, ECF No. 955 (emphasis in the original).

7

In addition to injunctive relief, plaintiffs seek a statutory damage award in this case. Fourth
Amd. Class Action Comp., at 14-15 ECF No. 985. A statutory damage award for an estimated 12
million in-copyright books that Google has scanned from research library collections could result
in a minimum award of more than $9 billion. 17 U.S.C. § 504(c)(1) (2006) (setting the minimum
statutory damage award for non-innocent infringement at $750 per work infringed).

-12-

This statement plainly shows that the plaintiffs have a contrary view to academic
authors on this important point.8
Amici and the academic objectors to which the Supplemental Memorandum
responded are by no means alone in their support of open access principles. A
2011 survey of academic authors, which asked about attitudes toward open access
publishing, showed 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.” TBI COMM., INTECH PUB., AUTHOR ATTITUDES
TOWARDS OPEN ACCESS PUBLISHING 7 (2011),
http://www.intechopen.com/public_files/Intech_OA_Apr11.pdf. Indeed, support
for open access is so strong that authors agree to this approach even when it might
mean that the author rather than the user paid for accessibility. Id.; see also STUDY
OF OPEN ACCESS PUBLISHING, HIGHLIGHTS FROM THE SOAP PROJECT SURVEY:

WHAT SCIENTISTS THINK ABOUT OPEN ACCESS PUBLISHING 3 (2011),
http://arxiv.org/ftp/arxiv/papers/1101/1101.5260.pdf (finding that 89% of nearly
8

It is worth noting that the U.S. Copyright Office has taken the position that orphan works
should be freely reusable. U.S. COPYRIGHT OFFICE, REPORT ON ORPHAN WORKS: A REPORT OF
THE REGISTER OF COPYRIGHTS 127 (2006) (proposing a legislative amendment that would
encourage the free use of true orphan works after a diligent search for their owners); see also
Maria Pallante, Keynote Address: Orphan Works & Mass Digitization: Obstacles &
Opportunities, 27 BERKELEY TECH. L.J. __ (forthcoming 2012), available at
http://www.law.berkeley.edu/files/2012-04-12_Pallante_Orphan_Works_Speech-1(1).pdf (“We
seem to have general agreement that in the case of a true orphan, where there is no copyright
owner and therefore no beneficiary of the copyright term, it does not further the objectives of the
copyright system to deny use of the work, sometimes for decades. In other words, it is not good
policy to protect a copyright when there is no evidence of a copyright owner.”).

-13-

40,000 published researchers thought that journals publishing articles on an open
access basis were beneficial to their field).
While academic authors reap many benefits from making their works
available on an open access basis, see, e.g., Steve Lawrence, Free Online
Availability Substantially Increases a Paper’s Impact, 411 NATURE 521 (2000),
one of the primary motivations for academic authors to publish works on an open
access basis is their support for “[t]he principle of free access for all readers.”
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 (noting that this principle is the most oft-cited reason
by survey respondents for publishing with journals whose policies allow for open
access).
However, the most fundamental conflict of interest that warrants
decertification of the class concerns the merits of the plaintiffs’ claims. Academic
authors like Amici find Google’s fair use defense more persuasive than the named
plaintiffs’ theory of infringement. Making digital copies of works to index their
contents and to make small portions more accessible is a transformative use that
supports a finding of fair use. Kelly v. Arriba Soft Corp., 336 F.3d 811, 818-20 (9th
Cir. 2003); Field v. Google Inc., 412 F. Supp. 2d 1106, 1115 (D. Nev. 2006);

-14-

Authors Guild v. HathiTrust, No. 11-6351 (HB), 2012 WL 4808939, at *11-12
(S.D.N.Y. Oct. 10, 2012); see also Bill Graham Archives v. Dorling Kindersley
Ltd., 448 F.3d 605, 609 (2d Cir. 2006). Most of the books in the Google Books
corpus are non-fiction scholarly works which tends to favor fair use, especially
when a use is transformative. HathiTrust, at *12. Although Google scanned the
contents of whole books, this factor does not weigh against fair use if it was
necessary to do so in order to make the transformative uses at issue. Id. at *12;
Arriba Soft , 336 F.3d at 821. Because Google only displays a few short snippets
of in-copyright works, there is unlikely to be any harm to the market for these
works. HathiTrust, at *13-14 (finding unpersuasive the Authors Guild's arguments
about harm to licensing markets); see also Bill Graham Archives, 448 F.3d at 61415 (copyright holders cannot preempt transformative markets). Indeed, academic
authors benefit from greater accessibility to their works made possible by Google
Books. 9

9

Google’s fair use defense has found support with numerous legal commentators. See, e.g.,
Jonathan Band, The Long and Winding Road to the Google Books Settlement, 9 J. MARSHALL
REV. INTELL. PROP. L. 227, 237-60 (2009); Nari Na, Testing the Boundaries of Copyright
Protection: The Google Book Library Project and the Fair Use Doctrine, 16 CORNELL J. L. &
PUB. POL’Y 417, 434-45 (2006); Matthew Sag, The Google Book Settlement and the Fair Use
Counterfactual, 55 N.Y.L. SCH. L. REV. 19, 23 (2010); Hannibal Travis, Google Book Search
and Fair Use: iTunes for Authors or Napster for Books?, 61 U. MIAMI L. REV. 87, 91-94
(2006). See also Br. of Amici Curiae American Library Association, et al., 4–10 ECF No. 1048
(describing in great detail the enormous educational and public benefits of GBS and how those
benefits tend to tilt the analysis in favor of fair use).

-15-

Amici are, in other words, not authors who “prefer to leave the alleged
violation of their rights unremedied,” as the District Court assumed. Authors Guild
v. Google, Inc., 282 F.R.D. 384, 394 (S.D.N.Y. 2012). There is, in our view, no
infringement that requires the grant of injunctive or monetary relief. The only way
that the named plaintiffs could adequately represent the interests of academic
authors at this point would be by dropping this litigation.
The most recent evidence of a conflict between the interests of the plaintiffs
in this case and the interests of academic authors is the fact that the plaintiffs'
lawyers opposed the filing of an academic author amicus brief earlier this year to
express a legal theory that directly contradicts the plaintiffs’ position. Br. Digital
Humanities and Law Scholars as Amici Curiae in Partial Support of Defendants’
Mot. for Sum. Judg. or in the Alternative Sum. Adjud., ECF No. 1055; see also
Plaintiffs’ Mem.in Opp.to Mot. for Leave to File Amicus Briefs, ECF No. 1056.
The District Court accepted the filing of this brief over plaintiffs’ objection. Order
dated Aug. 15, 2012, ECF. No. 1060. Amici in that brief observed that “[m]ass
digitization, like that employed by Google, is a key enabler of socially valuable
computational and statistical research (often called “data mining” or “text
mining”),” Br. Digital Humanities and Law Scholars, at 1 ECF No. 1055, which
allows researchers to discover and use the non-copyrightable facts and ideas that
are contained within the collection of copyrighted works themselves.

-16-

The brief argued that copying of copyrighted works undertaken in order to
gain access to facts and ideas they contain is fair use, not copyright infringement.
Id. The computational uses of the Google Books corpus that Google has pioneered
have greatly enhanced public access to information and have promoted scholarship
and research, all of which are favored uses under the first fair use factor, 17 U.S.C.
§ 107 (2006) (fair use “for purposes such as . . . scholarship, or research, is not an
infringement”), while causing little (if any) harm to the market for the work. 17
U.S.C. § 107(4) (requiring the court to examine “the effect of the use upon the
potential market for or value of the copyrighted work”). A virtually identical brief
helped to persuade a District Court in the Authors Guild v. HathiTrust lawsuit to
uphold the fair use defense of Google’s library partners because of the
nonexpressive uses the latter were making of copyrighted works in the digital
corpus that the libraries got from Google. Authors Guild v. HathiTrust, No. 116351 (HB), 2012 WL 4808939, at *14 (S.D.N.Y. Oct. 10, 2012) (characterizing
the uses being made by the libraries as “fall[ing] safely within the protection of fair
use”) and at *11, n.22 (citing approvingly to the Digital Humanities and Law
Scholars brief).

-17-

CONCLUSION
In sum, a fundamental conflict of interests exists between the interests of the
plaintiffs and the interests of academic authors. The former have not and cannot
adequately represent the interests of the latter in this litigation. This Court should
consequently reverse the District Court’s decision to certify the class in this case.

Dated: November 16, 2012
/s/ Jennifer M. Urban
Jennifer M. Urban
SAMUELSON LAW,
TECHNOLOGY
& PUBLIC POLICY CLINIC
University of California, Berkeley,
School of Law
396 Simon Hall
Berkeley, California 94720
510-642-7338

-18-

CERTIFICATE OF COMPLIANCE WITH FRAP 32(a)
1. This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) and 29(d) because this brief contains 4,49 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 type style requirements of Fed. R. App. P. 32(a)(6) because this brief has
been prepared in a proportionally spaced typeface using Microsoft Word in Times
New Roman, 14 point font.

/s/ Jennifer M. Urban
SAMUELSON LAW,
TECHNOLOGY
& PUBLIC POLICY CLINIC
University of California, Berkeley,
School of Law
396 Simon Hall
Berkeley, California 94720
510-642-7338

-19-

ADDENDUM

-20-

APPENDIX A
List of Amici Academic Authors (whose academic affiliations are for identification
purposes only):
Harold Abelson
Professor of Computer Science and Engineering
MIT
Author of: STRUCTURE AND INTERPRETATION OF COMPUTER PROGRAMS (MIT Press,
1985)
Steve Anderson
Associate Professor, School of Cinematic Arts
University of Southern California
Author of: TECHNOLOGIES OF HISTORY: VISUAL MEDIA AND THE ECCENTRICITY OF
THE PAST (Dartmouth College Press, 2011)
Eric Bakovic
Associate Professor
Linguistics
University of California, San Diego
Author of: BLOCKING AND COMPLEMENTARITY IN PHONOLOGICAL THEORY
(Equinox Publishing, 2012)
Ann M. Bartow
Professor of Law
Pace Law School
Steven W. Bender
Professor
Seattle University School of Law
Author of, among others: RUN FOR THE BORDER: VICE AND VIRTUE IN U.S.–
MEXICO BORDER CROSSINGS (NYU Press, 2012)
Mario Biagioli
Distinguished Professor of Law, Science and Technology Studies, and History
University of California, Davis
Author of: MAKING AND UNMAKING INTELLECTUAL PROPERTY (with Martha
Woodmansee & Peter Jaszi) (University of Chicago Press, 2011)

21

James Boyle
William Neal Reynolds Professor of Law
Duke University School of Law
Author of, among others: THE PUBLIC DOMAIN: ENCLOSING THE COMMONS OF THE
MIND (Yale University Press, 2008)
Annemarie Bridy
Associate Professor
College of Law
University of Idaho
Dan L. Burk
Chancellor’s Professor of Law
University of California, Irvine
Author of: THE PATENT CRISIS AND HOW THE COURTS CAN SOLVE IT (University of
Chicago Press, 2009).
Dwayne K. Buttler
Evelyn J. Schneider Endowed Chair for Scholarly Communication
Professor
University Libraries
University of Louisville
L. Jean Camp
Professor of Informatics
Indiana University
Author of, among others: THE ECONOMICS OF FINANCIAL AND MEDICAL IDENTITY
THEFT (with M. Eric Johnson) (Springer, 2012)
Michael A. Carrier
Professor of Law
Rutgers School of Law-Camden
Author of: INNOVATION FOR THE 21ST CENTURY: HARNESSING THE POWER OF
INTELLECTUAL PROPERTY AND ANTITRUST LAW (Oxford, 2009)
Michael Carroll
Professor of Law
Director, Program on Information Justice and Intellectual Property
Washington College of Law
American University
22

Eric Cheyfitz
Ernest I. White Professor of American Studies and Humane Letters
Cornell University
Author of: THE POETIC OF IMPERIALISM: TRANSLATION AND COLONIZATION FROM
THE TEMPEST TO TARZAN (Oxford University Press, 1991)
Margaret Chon
Donald & Lynda Horowitz Professor for the Pursuit of Justice
Seattle University
Author of: RACE, RIGHTS AND REPARATION: LAW AND THE JAPANESE AMERICAN
INTERNMENT (Aspen Publishers, 2001)
Michael J. Churgin
Raybourne Thompson Centennial Professor in Law
The University of Texas at Austin
Daniel Cohen
Associate Professor of History
Director, Roy Rosenzweig Center for History and New Media
George Mason University
Author of: EQUATIONS FROM GOD: PURE MATHEMATICS AND VICTORIAN FAITH
(Johns Hopkins University Press, 2007)
Julie E. Cohen
Professor of Law
Georgetown Law Center
Author of: CONFIGURING THE NETWORKED SELF: LAW, CODE, AND THE PLAY OF
EVERYDAY PRACTICE (Yale University Press, 2012)
Kevin Emerson Collins
Professor of Law
Washington University School of Law
Kenneth D. Crews
Director, Copyright Advisory Office
Faculty Member, Columbia Law School
Author of, among others: COPYRIGHT LAW FOR LIBRARIANS AND EDUCATORS:
CREATIVE STRATEGIES AND PRACTICAL SOLUTIONS (3d ed., ALA Editions,
2012).

23

William M. Cross
Director, Copyright and Digital Scholarship Center
North Carolina State University Libraries
Jonathan Culler
Class of 1916 Professor of English
and Comparative Literature
Cornell University
Author of: ON DECONSTRUCTION: THEORY AND CRITICISM AFTER STRUCTURALISM
(Cornell University Press, 1982)
Robert Darnton
Carl H. Pforzheimer University Professor and
University Librarian
Harvard University
Author of, among others: POETRY AN THE POLICE: COMMUNICATION NETWORKS IN
EIGHTEENTH-CENTURY PARIS (Harvard University Press, 2010).
Peter Decherney
Associate Professor of Cinema Studies, English, and Communication
University of Pennsylvania
Author of, among others: HOLLYWOOD’S COPYRIGHT WARS: FROM EDISON TO THE
INTERNET (Columbia University Press, 2012)
Peter DiCola
Associate Professor
Northwestern University School of Law
Author of, among others: CREATIVE LICENSE: THE LAW AND CULTURE OF DIGITAL
SAMPLING (with Kembrew McLeod) (Duke University Press, 2011)
David L Dill
Professor
Stanford University
Author of: TRACE THEORY FOR AUTOMATIC HIERARCHICAL VERIFICATION OF
SPEED-INDEPENDENT CIRCUITS (ACM Distinguished Dissertation) (MIT
Press, 2003)

24

Danielle Dirks, Ph.D.
Assistant Professor of Sociology
Occidental College
Author of: HOW ETHICAL SYSTEMS CHANGE: LYNCHING AND CAPITAL PUNISHMENT
(with Sheldon Ekland-Olson) (Routledge, 2011)
Holly Doremus
James H. House and Hiram H. Hurd Professor of Law
University of California, Berkeley
Author of, among others: ENVIRONMENTAL POLICY LAW (with Albert C. Lin &
Ronald H. Rosenberg) (6th ed. Foundation Press, 2012)
Johanna Drucker
Martin and Bernard Breslauer Professor of Bibliographical Studies
Graduate School of Education and Information Studies
University of California, Los Angeles
Author of, among others: SPECLAB: DIGITAL AESTHETICS AND SPECULATIVE
COMPUTING (University of Chicago Press, 2008)
Paul Duguid
Adjunct Professor
School of Information
University of California, Berkeley
Author of: THE SOCIAL LIFE OF INFORMATION (with J.S. Brown) (Harvard Business
School Press, 2000)
Joseph Dumit
Director of Science and Technology Studies
Professor of Anthropology
University of California, Davis
Author of, among others: PICTURING PERSONHOOD: BRAIN SCANS AND BIOMEDICAL
AMERICA (Princeton University Press, 2004)
Jeffrey L. Elman
Dean of Social Sciences
University of California, San Diego
Author of, among others: RETHINKING INNATENESS: A CONNECTIONIST
PERSPECTIVE ON DEVELOPMENT (MIT PRESS, 1996)

25

Malcolm Feeley
Claire Sanders Clements Dean’s Professor
University of California, Berkeley
Author of, among others: THE PROCESS IS THE PUNISHMENT (New York: Russell
Sage Foundation, 1979, 1992)
Edward Feigenbaum
Kumagai Professor of Computer Science (Emeritus)
Stanford University
Author of, among others: THE FIFTH GENERATION: ARTIFICIAL INTELLIGENCE AND
JAPAN’S COMPUTER CHALLENGE TO THE WORLD (Addison Wesley, 1983)
Brett Frischmann
Professor of Law
Benjamin N. Cardozo School of Law
Author of: INFRASTRUCTURE: THE SOCIAL VALUE OF SHARED RESOURCES (Oxford
University Press, 2012)
William T. Gallagher
Professor of Law
Associate Dean for Faculty Scholarship
Golden Gate University School of Law
Laura N. Gasaway
Paul B. Eaton Distinguished Professor of Law
University of North Carolina School of Law
Author of, among others: COPYRIGHT QUESTIONS AND ANSWERS FOR INFORMATION
PROFESSIONALS: FROM THE COLUMNS OF AGAINST THE GRAIN (Purdue
University Press, 2012)
Shubha Ghosh
Vilas Research Fellow & Professor of Law
The University of Wisconsin Law School
Author of, among others: UNDERSTANDING INTELLECTUAL PROPERTY LAW (with
Donald S. Chisum, Tyler T. Ochoa, and Mary LaFrance) (2d ed. LexisNexis,
2011)

26

Tarleton Gillespie
Associate Professor
Department of Communication and Department of Information Science
Cornell University
Author of: WIRED SHUT: COPYRIGHT AND THE SHAPE OF DIGITAL CULTURE (MIT
Press, 2007)
Robert J. Glushko
School of Information
University of California, Berkeley
Author of: DOCUMENT ENGINEERING: ANALYZING AND DESIGNING DOCUMENTS FOR
BUSINESS INFORMATICS AND WEB SERVICES (MIT Press, 2005)
Tanya Maria Golash-Boza
Associate Professor
Department of Sociology
University of California, Merced
Author of, among others: DUE PROCESS DENIED: DETENTIONS AND DEPORTATIONS
IN THE UNITED STATES (Routledge, 2012)
Eric Goldman
Professor of Law and Director, High Tech Law Institute
Santa Clara University School of Law
Mary L. Gray
Associate Professor
Indiana University
Author of, among others: OUT IN THE COUNTRY: YOUTH, MEDIA, AND QUEER
VISIBILITY IN RURAL AMERICA (NYU Press, 2009)
Bronwyn Hall
Professor of the Graduate School
Department of Economics
University of California, Berkeley
Author of, among others: HANDBOOK OF THE ECONOMICS OF INNOVATION (with
Nathan Rosenberg) (North-Holland, 2010)

27

Dina Francesca Haynes
Professor
New England School of law
Author of, among others: ON THE FRONTLINES: GENDER, WAR, AND THE POSTCONFLICT PROCESS (with Fionnuala Ní Aoláin & Naomi Cahn) (Oxford
University Press, 2010)
Carla Hesse
Dean of Social Sciences
Peder Sather Professor of History
University of California, Berkeley
Author of, among others: THE OTHER ENLIGHTENMENT: HOW FRENCH WOMEN
BECAME MODERN (Princeton University Press, 2001)
Michael Heyman
Professor
John Marshall Law School
Peter B. Hirtle
Senior Policy Advisor
Cornell University Library
Cornell University
Author of, among others: COPYRIGHT AND CULTURAL INSTITUTIONS: GUIDELINES
FOR DIGITIZATION FOR U.S. LIBRARIES, ARCHIVES, AND MUSEUMS (with
Emily Hudson and Andrew Kenyon) (Cornell University Library, 2009)
Harry Hochheiser
Assistant Professor
Department of Biomedical Informatics
University of Pittsburgh
Author of: RESEARCH METHODS IN HUMAN COMPUTER-INTERACTION (Wiley, 2010)
Alan Hyde
Distinguished Professor and Sidney Reitman Scholar
Rutgers University School of Law
Author of, among others: WORKING IN SILICON VALLEY: ECONOMIC AND LEGAL
ANALYSIS OF A HIGH-VELOCITY LABOR MARKET (M E Sharpe, 2003)

28

Lewis Hyde
Richard L. Thomas Professor of Creative Writing
Kenyon College
Author of, among others: COMMON AS AIR (Farrar, Straus & Giroux, 2010) and
THE GIFT (Random House, 1983)
Judith E. Innes
Professor Emerita
Department of City and Regional Planning
University of California, Berkeley
Author of, among others: PLANNING WITH COMPLEXITY: INTRODUCTION TO
COLLABORATIVE RATIONALITY FOR PUBLIC POLICY (with David Booher)
(Routledge, 2010)
Dr. Pamela Irving Jackson
Professor of Sociology
Director, Justice Studies Program
Rhode Island College
Author of, among others: MINORITY GROUP THREAT, CRIME, AND POLICING:
SOCIAL CONTEXT AND SOCIAL CONTROL (Praeger, 1989)
Peter Jaszi
Washington College of Law
American University
Author of, among others: RECLAIMING FAIR USE (with Patricia Aufderheide)
(University of Chicago Press, 2011)
Sarah Jeong
Associate Librarian, Research & Instruction - Science
Wake Forest University
Matthew L. Jockers
Assistant Professor of English
Fellow, Center for Digital Research in the Humanities
University of Nebraska-Lincoln

29

Douglas W. Jones
Associate Professor
Department of Computer Science
University of Iowa
Author of: BROKEN BALLOTS: WILL YOUR VOTE COUNT (CSLI Publications, 2012)
Faye E. Jones
Director and Professor
The Florida State University
College of Law Research Center
Russell Jones
Professor of the Graduate School
Department of Plant and Microbial Biology
University of California, Berkeley
Author of, among others: THE MOLECULAR LIFE OF PLANTS (with Helen Ougham,
Howard Thomas, and Susan Waaland) (Wiley-Blackwell, 2012)
Dan Jurafsky
Professor
Stanford University
Author of: SPEECH AND LANGUAGE PROCESSING (Pearson 2009)
Steven Justice
Professor
University of California, Berkeley
Author of: WRITING AND REBELLION: ENGLAND IN 1381 (University of California
Press, 1994)
Amy Kapczynski
Associate Professor of Law
Yale Law School
Author of: “Access to Knowledge: A Conceptual Genealogy,” in ACCESS TO
KNOWLEDGE IN THE AGE OF INTELLECTUAL PROPERTY (Krikorian &
Kapczynski, eds.) (Zone Press, 2010).
Dennis S. Karjala
Jack E. Brown Professor of Law
Sandra Day O’Connor College of Law
Arizona State University
30

Molly Keener
Associate Librarian, Scholarly Communication
Wake Forest University
Christopher Kelty
Associate Professor
Information Studies Department
UCLA Graduate School of Education & Information Studies
Author of: TWO BITS: THE CULTURAL SIGNIFICANCE OF FREE SOFTWARE (Duke
University Press, 2008)
S. Bruce King
Associate Provost of Research
Professor of Chemistry
Wake Forest University
Chapter author, among others, in: NITRIC OXIDE DONORS: FOR PHARMACEUTICAL
AND BIOLOGICAL APPLICATION (Peng George Wang et al., eds.) (John Wiley,
2010)
Virginia Kuhn, PhD
Associate Director
Institute for Multimedia Literacy
Assistant Professor
School of Cinematic Arts
University of Southern California
Leslie Kurke
Gladys Rehard Wood Professor
Departments of Classics and Comparative Literature
University of California, Berkeley
Author of, among others: AESOPIC CONVERSATIONS: POPULAR TRADITION, GREEK
DIALOGUE, AND THE INVENTION OF GREEK PROSE (Princeton University
Press, 2011)
Abdessadek Lachgar
Professor of Chemistry
Wake Forest University

31

Lisa Lampert-Weissig
Professor, Literature
Katzin Chair in Jewish Civilization
University of California, San Diego
Author of, among others: MEDIEVAL LITERATURE AND POSTCOLONIAL THEORY
(University of Edinburgh Press, 2010)
Michael B. Landau
Professor of Law
Georgia State University College of Law
David Lange
Melvin G. Shimm Professor of Law
Duke University School of Law
Author of: NO LAW: INTELLECTUAL PROPERTY IN THE IMAGE OF AN ABSOLUTE
FIRST AMENDMENT (with H. Jefferson Powell) (Stanford University Press,
2009)
Thomas Laqueur
Helen Fawcett Professor
Department of History
University of California, Berkeley
Author of, among others: MAKING SEX: BODY AND GENDER FROM THE GREEKS TO
FREUD (Harvard University Press, 1992)
MaryJo Benton Lee, Ph.D.
South Dakota State University
Author of: ETHNICITY MATTERS: RETHINKING HOW BLACK, HISPANIC AND INDIAN
STUDENTS PREPARE FOR AND SUCCEED IN COLLEGE (Peter Lang Pub.)
Thomas C. Leonard
University Librarian
Professor
Graduate School of Journalism
University of California, Berkeley
Author of, among others: ABOVE THE BATTLE: WAR MAKING IN AMERICA FROM
APPOMATTOX TO VERSAILLES (Oxford University Press, 1978)
Lawrence Lessig
Roy L. Furman Professor of Law and Leadership
32

Harvard Law School
Author of, among others: FREE CULTURE: THE NATURE AND FUTURE OF
CREATIVITY (Penguin Press, 2004)
Harry R. Lewis
Gordon McKay Professor of Computer Science
School of Engineering and Applied Sciences
Harvard University
Author of, among others: ELEMENTS OF THE THEORY OF COMPUTATION (with
Christos H. Papadimitriou) (2d ed. Prentice-Hall, 1997)
Jessica Litman
John F. Nickoll Professor of Law
University of Michigan Law School
Author of, among others: DIGITAL COPYRIGHT (Prometheus Books, 2001)
Lydia Pallas Loren
Kay Kitagawa & Andy Johnson-Laird IP Faculty Scholar & Professor of Law
Lewis & Clark Law School
Author of: COPYRIGHT LAW IN A GLOBAL INFORMATION ECONOMY (with Julie
Cohen, Ruth Okediji & Maureen O’Rourke) (3d ed. Aspen Publishing,
2010)
Lisa Alsing Macklin
Director, Scholarly Communications Office
Emory University
Author of: DIGITAL IMAGING OF PHOTOGRAPHS: A PRACTICAL APPROACH TO
WORKFLOW DESIGN AND PROJECT (with Sarah L. Lockmiller) (American
Library Association, 1999)
Michael J. Madison
Professor of Law
University of Pittsburgh School of Law

33

Donald J. Mastronarde
Melpomene Professor of Classics
Department of Classics
University of California, Berkeley
Author of: THE TEXTUAL TRADITION OF EURIPIDES’ PHOINISSAI xv-444, vol. 27
(with Jan Maarten Bremer) (University of California Publications: Classical
Studies, Berkeley, 1982)
Jarom McDonald
Associate Research Professor
Director, Office of Digital Humanities
Brigham Young University
Author of: SPORTS, NARRATIVE, AND NATION IN THE FICTION OF F. SCOTT
FITZGERALD (Routledge, 2007)
Jerome J. McGann
The John Stewart Bryan University Professor
University of Virginia
Author of, among others: RADIANT TEXTUALITY: LITERATURE AFTER THE WORLD
WIDE WEB (Palgrave Macmillan, 2001)
Henry W. McGee, Jr.
Professor of Law, Seattle University
Professor Emeritus, UCLA
Author of: Kushner et al., HOUSING AND COMMUNITY DEVELOPMENT: CASES AND
MATERIALS (4th ed. Carolina Academic Press, 2010)
Stephen McJohn
Professor
Suffolk University Law School
Author of: INTELLECTUAL PROPERTY: EXAMPLES AND EXPLANATIONS (4th ed.
Aspen, 2012)
Mark P. McKenna
Professor of Law and Notre Dame
Presidential Fellow
Notre Dame Law School

34

Kembrew McLeod
Associate Professor
Communication Studies
University of Iowa
Author of, among others: CREATIVE LICENSE: THE LAW AND CULTURE OF DIGITAL
SAMPLING (with Peter DiCola) (Duke University Press, 2011)
Michael J. Meurer
Abraham and Lillian Benton Scholar and Professor of Law
Boston University School of Law
Author of: PATENT FAILURE: HOW JUDGES, BUREAUCRATS, AND LAWYERS PUT
INNOVATORS AT RISK (with James Bessen) (Princeton University Press,
2008)
Lateef Mtima
Professor of Law and Director
Institute for Intellectual Property and Social Justice
Howard University School of Law
Deirdre K. Mulligan
Professor of Law
School of Information
Faculty Director of the Berkeley Center for Law and Technology
University of California, Berkeley
A. D. Nakhimovsky
Associate Professor
Computer Science
Colgate University
Author of, among others: GOOGLE, AMAZON AND BEYOND: CREATING AND
CONSUMING WEB SERVICES (with Tom Myers) (Apress 2003)
Mary Beth Norton
Mary Donlon Alger Professor of American History & Stephen H. Weiss
Presidential Fellow
History Department
Cornell University
Author of, among others: SEPARATED BY THEIR SEX: WOMEN IN PUBLIC AND
PRIVATE IN THE COLONIAL ATLANTIC WORLD (Cornell University Press,
2011)
35

Geoffrey Nunberg
Adjunct Full Professor
School of Information
University of California at Berkeley
Author of, among others: THE LINGUISTICS OF PUNCTUATION (University of
Chicago Press, 1989)
Michael A Olivas
William B. Bates Distinguished Chair in Law
University of Houston
Author of, among others: HIGHER EDUCATION AND THE LAW: CASES AND
MATERIALS ON COLLEGES IN COURT (3d ed. Carolina Academic Press, 2006)
Pamela Oliver
Professor
Department of Sociology
University of Wisconsin, Madison
Author of: THE CRITICAL MASS IN COLLECTIVE ACTION: A MICRO-SOCIAL THEORY
(with Gerald Marwell) (Cambridge University Press, 2007)
Aaron Perzanowski
Assistant Professor
Wayne State University Law School
Visiting Associate Professor
University of Notre Dame Law School
Thomas F. Pettigrew
Research Professor of Social Psychology
University of California, Santa Cruz
Author of, among others: HOW TO THINK LIKE A SOCIAL SCIENTIST (Harper Collins,
1996)
Thomas Pogge
Leitner Professor of Philosophy and International Affairs
Yale University
Author of, among others: JOHN RAWLS: HIS LIFE AND THEORY OF JUSTICE (Oxford
University Press, 2007)

36

Malla Pollack
Author of, among others: CALLMANN ON UNFAIR COMPETITION, TRADEMARKS &
MONOPOLIES (with Louis Altman) (4th ed. Thomson-Reuters, 2011)
Theodore M. Porter
Professor
Department of History
University of California, Los Angeles
Author of, among others: KARL PEARSON: THE SCIENTIFIC LIFE IN A STATISTICAL
AGE (Princeton University Press, 2004)
David G. Post
Professor of Law
Beasley School of Law
Temple University
H. Jefferson Powell
Professor of Law
Duke University School of Law
Author of: NO LAW: INTELLECTUAL PROPERTY IN THE IMAGE OF AN ABSOLUTE
FIRST AMENDMENT (with David Lange) (Stanford University Press, 2009)
Lauren Pressley
Associate Librarian, Head of Instruction
Wake Forest University
Author of: SO YOU WANT TO BE A LIBRARIAN (Library Juice Press, 2009)
Margaret Jane Radin
Henry King Ransom Professor of Law
University of Michigan, and
William Benjamin Scott & Luna M Scott Professor of Law, emerita
Stanford University.
Author of: BOILERPLATE: THE FINE PRINT, VANISHING RIGHTS, AND THE RULE OF
LAW (Princeton University Press, 2012)
Kaushik Sunder Rajan
Associate Professor of Anthropology
University of Chicago
Author of: BIOCAPITAL: THE CONSTITUTION OF POST-GENOMIC LIFE (Duke
University Press, 2006)
37

Jerome Reichman
Professor of Law
Duke University School of Law
Editor of, among others: Maskus and Reichman, eds., INTERNATIONAL PUBLIC
GOODS AND TRANSFER OF TECHNOLOGY UNDER A GLOBALIZED
INTELLECTUAL PROPERTY REGIME (Cambridge University Press, 2005)
Matthew Sag
Associate Professor
Loyola University Chicago School of Law
Akbar Salam
Associate Professor of Chemistry
Wake Forest University
Author of: MOLECULAR QUANTUM ELECTRODYNAMICS: LONG-RANGE
INTERMOLECULAR INTERACTIONS (John Wiley, 2010)
Pamela Samuelson
Richard M. Sherman Distinguished Professor of Law and Professor of Information
School of Law and School of Information
University of California, Berkeley
Author of: SOFTWARE & INTERNET LAW (with Mark A. Lemley, Peter S. Menell,
Robert P. Merges, and Brian W. Carver) (4th ed. Wolters Kluwer, 2011)
Natalia Sarkisian
Associate Professor of Sociology
Boston College
Author of: NUCLEAR FAMILY VALUES, EXTENDED FAMILY LIVES: THE IMPORTANCE
OF GENDER, RACE, AND CLASS (with Naomi Gerstel) (ROUTLEDGE, 2012)
AnnaLee Saxenian
Professor and Dean
School of Information
University of California, Berkeley
Author of, among others: THE NEW ARGONAUTS: REGIONAL ADVANTAGE IN A
GLOBAL ECONOMY (Harvard University Press, 2006)

38

Niels Schaumann
Dean and Professor of Law
California Western
School of Law, San Diego
Rich Schneider
Associate Professor
University of California, San Francisco
Jason Schultz
Assistant Clinical Professor of Law
UC Berkeley School of Law
Stuart M. Shieber
James O. Welch, Jr. and Virginia B. Welch Professor of Computer Science
School of Engineering and Applied Sciences
Harvard University
Author of, among others: PROLOG AND NATURAL-LANGUAGE ANALYSIS (CSLI
Publications, 1987; Microtome Publishing, 2002)
Jessica Silbey
Professor of Law
Suffolk University Law School
Ronald C. Slye
Professor
Seattle University School of Law
University of the Witwatersrand (South Africa)
Author of, among others: INTERNATIONAL CRIMINAL LAW & ITS ENFORCEMENT
(co-author with van Schaack) (2d ed. Foundation Press, 2010)
Kevin L. Smith
Director Copyright and Scholarly Communication
Duke University
Perkins Library
Author of: HANDBOOK ON INTELLECTUAL PROPERTY FOR SCHOLARS (forthcoming,
University of Chicago Press)

39

Susan Sharpless Smith
Associate Dean
Z. Smith Reynolds Library
Wake Forest University
Author of: WEB BASED INSTRUCTION: A GUIDE FOR LIBRARIES (3d ed. ALA
Editions, 2010)
Eugene H. Spafford
Professor and Executive Director
Purdue University CERIAS
Author of: PRACTICAL UNIX AND INTERNET SECURITY (with Simson Garfinkel &
Alan Schwartz) (3d ed. O’Reilly, 2003)
Christopher Jon Sprigman
Class of 1963 Research Professor in honor of Graham C. Lilly and Peter W. Low
University of Virginia Law
Author of: THE KNOCKOFF ECONOMY: HOW IMITATION SPARKS INNOVATION (with
Kal Raustiala) (Oxford University Press USA, 2012)
Philip B. Stark
Professor and Chair
Department of Statistics
University of California, Berkeley
Author of, among others: “A Primer of Frequentist and Bayesian Inference in
Inverse Problems” in LARGE SCALE INVERSE PROBLEMS AND
QUANTIFICATION OF UNCERTAINTY (with L. Tenorio) (Biegler et al., eds.)
(John Wiley & Sons, 2010)
Jacqueline Stevens
Professor, Political Science and Legal Studies Board Northwestern University
Director, Deportation Research Clinic
Buffett Center for International and Comparative Studies
Author of, among others: STATES WITHOUT NATIONS: CITIZENSHIP FOR MORTALS
(Columbia University Press, 2009)
Katherine J. Strandburg
Professor of Law
New York University School of Law

40

Peter Suber
Director, Harvard Open Access Project
Faculty Fellow, Berkman Center for Internet & Society
Senior Researcher, Scholarly Publishing and Academic Resources Coalition
Research Professor of Philosophy
Earlham College
Author of, among others: OPEN ACCESS (MIT PRESS, 2012)
Stephen D. Sugarman
Roger J. Traynor Professor of Law
University of California, Berkeley School of Law
Author of: DOING AWAY WITH PERSONAL INJURY LAW (Quorum Books, 1989)
Madhavi Sunder
Professor of Law
University of California, Davis
Author of: FROM GOODS TO A GOOD LIFE: INTELLECTUAL PROPERTY AND GLOBAL
JUSTICE (Yale University Press 2012)
Henry Sussman
Visiting Professor
Germanic Languages and Literatures
Yale University
Author of, among others: AROUND THE BOOK: SYSTEMS AND LITERACY (Fordham
University Press, 2011)
Lynn Sutton
Dean, Z. Smith Reynolds Library
Wake Forest University
Author of: ACCESS DENIED: HOW INTERNET FILTERS IMPACT STUDENT LEARNING IN
HIGH SCHOOLS (Cambria Press, 2006)
Stefan Tanaka
Professor of Communication
Director, Center for the Humanities
University of California, San Diego
Author of, among others: NEW TIMES IN MODERN JAPAN (Princeton University
Press, 2004)

41

Timothy Tangherlini
Professor and Chair
The Scandinavian Section
University of California, Los Angeles and
Professor
Department of Asian Languages and Cultures
University of California, Los Angeles
Author of, among others: TALKING TRAUMA (University Press of Mississippi,
1998)
John Tehranian
Irwin R. Buchalter Professor of Law
Southwestern Law School &
Biederman Entertainment & Media Law Institute
Author of, among others: INFRINGEMENT NATION: COPYRIGHT 2.0 AND YOU
(Oxford University Press, 2011)
Elizabeth Townsend Gard
Associate Professor
Tulane University Law School
Vilna Bashi Treitler
Associate Professor
Department of Black & Hispanic Studies
Baruch College, City University of New York
and
Department of Sociology
Graduate Center, City University of New York
Author of: SURVIVAL OF THE KNITTED: IMMIGRANT SOCIAL NETWORKS IN A
STRATIFIED WORLD (Stanford University Press, 2007)
Rebecca Tushnet
Professor
Georgetown Law
Deborah Tussey
Professor
Oklahoma City University School of Law
Author of: COMPLEX COPYRIGHT: MAPPING THE INFORMATION ECOSYSTEM
(Ashgate, 2012)
42

Jeffrey D. Ullman
Stanford W. Ascherman Professor of Computer Science (Emeritus)
Stanford University
Author of, among others: DATABASE SYSTEMS: THE COMPLETE BOOK (with Hector
Garcia-Molina and Jennifer Widom) (2d ed. Prentice Hall, 2008)
Siva Vaidhyanathan
Robertson Professor in Media Studies
Chair, Department of Media Studies
University of Virginia
Author of, among others: THE GOOGLIZATION OF EVERYTHING (AND WHY WE
SHOULD WORRY) (University of California Press, 2011)
Kathleen Vanden Heuvel
Adjunct Professor of Law, Director of the Law Library
University of California, Berkeley School of Law
Molly S. Van Houweling
Professor of Law
University of California, Berkeley
Barbara van Schewick
Associate Professor of Law and (by courtesy) Electrical Engineering
Helen L. Crocker Faculty Scholar Director
Center for Internet and Society
Stanford Law School
Author of: INTERNET ARCHITECTURE AND INNOVATION (MIT Press, 2010)
Katherine L. Vaughns
Professor of Law
University of Maryland Francis King Carey School of Law
Eric von Hippel
T. Wilson Professor of Innovation
MIT Sloan School of Management
Massachusetts Institute of Technology
Author of, among others: DEMOCRATIZING INNOVATION (MIT Press, 2005)

43

Dan Wallach
Professor
Department of Computer Science
Rice University
Thomas Wasow
C.I. Lewis Professor of Philosophy and Professor of Linguistics
Stanford University
Author of: POSTVERBAL BEHAVIOR (CSLI Publications, 2002)
Alan Weinstein
Professor of the Graduate School
Department of Mathematics
University of California, Berkeley
Author of: GEOMETRIC MODELS FOR NONCOMMUTATIVE ALGEBRAS (with A.
Cannas da Silva) (American Mathematical Society, 1999)
Mark E. Welker
William L. Poteat Professor of Chemistry
Wake Forest University
Chapter author, among others, in: ADVANCES IN CYCLOADDITION VOL. 4 (Mark
Lautens, ed.) (JAI Press, 1997)
Emmet James Whitehead, Jr.
Professor, Computer Science
University of California, Santa Cruz
Author of: COLLABORATIVE SOFTWARE ENGINEERING (Springer, 2010)
Matthew Wilkens
Assistant Professor
Department of English
University of Notre Dame
John Willinsky
Khosla Family Professor of Education
Stanford University
Author of, among others: THE ACCESS PRINCIPLE: THE CASE FOR OPEN ACCESS TO
RESEARCH AND SCHOLARSHIP (MIT Press, 2006)

44

Terry Winograd
Professor Emeritus
Computer Science
Stanford University
Author of, among others: UNDERSTANDING COMPUTERS AND COGNITION: A NEW
FOUNDATION FOR DESIGN (with Fernando Flores) (Addison-Wesley, 1987)
Richard Wittman
Associate Professor
Department of the History of Art & Architecture
University of California, Santa Barbara
Author of: ARCHITECTURE, PRINT CULTURE, AND THE PUBLIC SPHERE IN
EIGHTEENTH-CENTURY FRANCE (Routledge, 2007)
Martha Woodmansee
Professor of English and Law
Case Western Reserve University
Author of, among others: THE AUTHOR, ART AND THE MARKET (Columbia
University Press, 1994)
Jonathan Zittrain
Professor of Law
Harvard Law School and
Professor of Computer Science
Harvard School of Engineering and Applied Sciences

45