Authors Guild, Inc. v. Hathitrust

Filing 106

PAGE PROOF BRIEF, on behalf of Appellee Georgina Kleege, National Federation of the Blind, Blair Seidlitz and Courtney Wheeler, FILED. Service date 05/28/2013 by email, CM/ECF. [948967] [12-4547]

12-4547-cv
United States Court of Appeals
for the

Second Circuit
THE AUTHORS GUILD, INC., THE AUSTRALIAN SOCIETY OF AUTHORS
LIMITED, UNION DES ECRIVAINES ET DES ECRIVAINS QUEBECOIS,
ANGELO LOUKAKIS, ROXANA ROBINSON, ANDRE ROY, JAMES
SHAPIRO, DANIELE SIMPSON, T.J. STILES, FAY WELDON,
THE AUTHORS LEAGUE FUND, INC., AUTHORS’ LICENSING AND
COLLECTING SOCIETY, SVERIGES FORFATTARFORBUND, NORSK
FAGLITTERAER FORFATTERO OG OVERSETTERFORENING,
THE WRITERS’ UNION OF CANADA, PAT CUMMINGS, ERIK
GRUNDSTROM, HELGE RONNING, JACK R. SALAMANCA,
Plaintiffs-Appellants,
(For Continuation of Caption See Inside Cover)
_______________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

_________________________________________________________________
PAGE PROOF REDACTED BRIEF FOR INTERVENOR
DEFENDANTS-APPELLEES
_________________________________________________________________
DANIEL F. GOLDSTEIN
JESSICA P. WEBER
BROWN, GOLDSTEIN & LEVY, LLP
120 E. BALTIMORE STREET, SUITE 1700
BALTIMORE, MARYLAND 21202
TELEPHONE: [phone]
FACSIMILE: [phone]

ROBERT J. BERNSTEIN
THE LAW OFFICE OF ROBERT J. BERNSTEIN
380 LEXINGTON AVENUE, 17TH FLOOR
NEW YORK, NY 10168
TELEPHONE: [phone]
FACSIMILE: 212-551-1001
PETER JASZI
5402 SURREY STREET
CHEVY CHASE, MARYLAND 20815
TELEPHONE: [phone]
FACSIMILE: 301-656-7483
Attorneys for Intervenor Defendants-Appellees
________________________________________________________________________
v.
HATHITRUST, CORNELL UNIVERSITY, MARY SUE COLEMAN, President,
University of Michigan, MARK G. YUDOF, President, The University of California,
KEVIN REILLY, President, The University of Wisconsin System, MICHAEL MCROBBIE,
President, Indiana University,
Defendants-Appellees,
NATIONAL FEDERATION OF THE BLIND, GEORGINA KLEEGE,
BLAIR SEIDLITZ & COURTNEY WHEELER,
Intervenor Defendants-Appellees.

CORPORATE DISCLOSURE STATEMENT
The undersigned, counsel for Intervenor Defendants-Appellees, certifies that
none of the Intervenor Defendants-Appellees have any parent corporation and no
publicly-held corporation owns 10% or more of any of the Intervenor DefendantsAppellees’ stock.
By:
/s/
Daniel F. Goldstein
Jessica P. Weber
BROWN, GOLDSTEIN & LEVY, LLP
120 E. Baltimore Street, Suite 1700
Baltimore, Maryland 21202
Telephone: [phone]
Facsimile: 410-385-0869
[e-mail]
[e-mail]
Robert J. Bernstein
THE LAW OFFICE OF ROBERT J. BERNSTEIN
380 Lexington Avenue, 17th Floor
New York, NY 10168
Telephone: [phone]
Facsimile: 212-551-1001
[e-mail]
Peter Jaszi
5402 Surrey Street
Chevy Chase, Maryland 20815
Telephone: [phone]
Facsimile: 301-656-7483
[e-mail]
Counsel for Intervenor Defendants-Appellees

TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................................................................... iii
PRELIMINARY STATEMENT ...............................................................................1
STATEMENT OF ISSUES .......................................................................................6
STATEMENT OF THE CASE ..................................................................................7
STATEMENT OF FACTS ......................................................................................10
SUMMARY OF ARGUMENT ...............................................................................16
ARGUMENT ...........................................................................................................19
I.

The district court correctly analyzed the application of the
ADA to the issues presented. .................................................................19

II.

The district court correctly concluded that the Chafee
Amendment enables the University of Michigan to
reproduce and distribute works in the HDL to the blind. ......................25
A. The district court correctly concluded that accessible
texts from the HDL are in “specialized formats,”
consistent with the Chafee Amendment. .......................................26
B. The district court correctly concluded that the
University of Michigan is an entity authorized by the
Chafee Amendment to distribute the HDL’s content to
blind and other print-disabled persons. ..........................................30

III. The district court correctly held that enabling blind
scholars to have equal access to university library
collections through the HDL is a fair use under §107 of the
Copyright Act.........................................................................................34
A. The purpose and character of use for the blind
strongly favor fair use. ..............................................................40
1. The use is highly transformative..........................................40
i

2. The purpose and character of the blind’s
use of the HDL strongly favor fair use
even if it were not viewed as
“transformative.”..................................................................47
B. The nature of the copyrighted works favors fair
use. ............................................................................................50
C. The amount and substantiality of the works
copied are consistent with the purpose of the
use. ............................................................................................51
D. Use by the blind causes no harm to any actual
or potential market. ...................................................................52
E. The overall balance favors a finding of fair use. ......................54
CONCLUSION ........................................................................................................55
CERTIFICATE OF COMPLIANCE .......................................................................57
ADDENDUM ....................................................................................................... A-1
17 U.S.C. §107 .................................................................................. A-1
17 U.S.C. §121 .................................................................................. A-2

ii

TABLE OF AUTHORITIES
Cases
A.V. ex rel. Vanderhye v. iParadigms, LLC,
562 F.3d 630 (4th Cir. 2009) ............................................................... 45, 46, 51
A.V. v. iParadigms, LLC,
544 F. Supp. 2d 473 (E.D. Va. 2008), aff’d in relevant part, 562
F.3d 630 (4th Cir. 2009) ...................................................................................45
Am. Geophysical Union v. Texaco, Inc.,
60 F.3d 913 (2d Cir. 1994) ........................................................................ 47, 53
Bill Graham Archives v. Dorling Kindersley Ltd.,
448 F.3d 605 (2d Cir. 2006) ..................................................................... passim
Blanch v. Koons,
467 F.3d 244 (2d Cir. 2006) .......................................................... 47, 49, 51, 52
Boys Mkts., Inc. v. Retail Clerks Union, Local 770,
398 U.S. 235 (1970) .........................................................................................23
Campbell v. Acuff Rose Music, Inc.,
510 U.S. 569 (1994) ................................................................................ passim
Field v. Google, Inc.,
412 F. Supp. 2d 1106 (D. Nev. 2006) ....................................................... 46, 51
Fortnightly Corp. v. United Artists Television, Inc.,
392 U.S. 390 (1968) ...........................................................................................5
Golan v. Holder,
132 S. Ct. 873 (2012) .......................................................................................34
Infinity Broad. Corp. v. Kirkwood,
150 F.3d 104 (2d Cir. 1998) .............................................................................47
Kelly v. Arriba Soft Corp.,
336 F.3d 811 (9th Cir. 2002) ......................................................... 42, 43, 46, 51
iii

Kirtsaeng v. John Wiley & Sons, Inc.,
133 S. Ct. 1351 (2013) .....................................................................................35
Lore v. City of Syracuse,
670 F.3d 127 (2d Cir. 2012) ...................................................................... 20, 42
Mary Jo. C. v. N.Y. State & Local Ret. Sys.,
707 F.3d 144 (2d Cir. 2013) ...................................................................... 20, 23
Murphy v. Millennium Radio Grp. LLC,
650 F.3d 295 (3d Cir. 2011) .............................................................................52
Nunez v. Caribbean Int’l News Corp.,
235 F.3d 18 (1st Cir. 2000) ..............................................................................51
NXIVM Corp. v. The Ross Inst.,
364 F.3d 471 (2d Cir. 2004) .............................................................................48
Peralta-Taveras v. Attorney Gen.,
488 F.3d 580 (2d Cir. 2007) .............................................................................26
Perfect 10, Inc. v. Amazon.com, Inc.,
508 F.3d 1146 (9th Cir. 2007)............................................................. 43, 46, 51
Sega Enterprises, Ltd. v. Accolade, Inc.,
977 F.2d 1510 (9th Cir. 1993)....................................................... 43, 44, 46, 51
Sony Computer Entertainment v. Connectix Corp.,
203 F.3d 596 (9th Cir. 2000) ............................................................... 44, 46, 51
Sony Corp. of Am. v. Universal City Studios, Inc.,
464 U.S. 417 (1984) ................................................................................. passim
Southeastern Comm. Coll. v. Davis,
442 U.S. 397 (1979) ...........................................................................................5
Constitutional Provisions
U.S. Const., Art. I, §8.................................................................................... 3, 25, 35
iv

Federal Statutes
17 U.S.C. §107 ................................................................................................. passim
17 U.S.C. §108 ............................................................................................ 38, 39, 40
17 U.S.C. §109 .........................................................................................................35
17 U.S.C. §121 ................................................................................................. passim
29 U.S.C. § 794 ................................................................................................ passim
42 U.S.C. §12101 ............................................................................................. passim
42 U.S.C. §12132 .....................................................................................................21
42 U.S.C. §12182 .....................................................................................................21
State Statutes
15 Ill. Comp. Stat. Ann. 323/10 ...............................................................................34
16-3 Miss. Code R. §160:1 ......................................................................................34
236 Neb. Admin. Code §005 ...................................................................................34
24 Pa. Cons. Stat. §9338 ..........................................................................................33
Ala. Code §21-1-15 ..................................................................................................33
Ariz. Rev. Stat. Ann. §41-151.07.............................................................................33
Ark. Code Ann. §13-2-207 ......................................................................................33
Cal. Educ. Code §19320 ..........................................................................................33
Colo. Rev. Stat. Ann. §24-90-105............................................................................33
Conn. Gen. Stat. Ann. §11-1a ..................................................................................33
v

Del. Code Ann. tit. 29, §8731 ..................................................................................33
Fla. Stat. Ann. §257.04 ............................................................................................33
Ga. Code Ann. §20-2-305 ........................................................................................34
Haw. Code R. §8-206.1-6 ........................................................................................34
Ind. Code Ann. §4-23-7 ...........................................................................................34
Iowa Code Ann. §216B.3.........................................................................................34
Kan. Admin. Regs. §54-3-1 .....................................................................................34
Ky. Rev. Stat. Ann. §171.145 ..................................................................................34
La. Rev. Stat. Ann. §25:16 .......................................................................................34
Mass. Gen. Laws Ann. ch. 78, §19 ..........................................................................34
Md. Code Ann., Educ. §23-105 ...............................................................................34
Me. Rev. Stat. tit. 27, §40 ........................................................................................34
Mich. Comp. Laws Ann. §397.491 ..........................................................................34
Minn. Stat. Ann. §134.31 .........................................................................................34
Mo. Ann. Stat. §181.065 ..........................................................................................34
Mont. Code Ann. §22-1-103 ....................................................................................34
N.C. Gen. Stat. Ann. §125-2 ....................................................................................34
N.H. Rev. Stat. Ann. §201-A:2 ................................................................................34
N.J. Stat. Ann. §18A:73-38.1...................................................................................34
N.Y. Edu. Law §273 ................................................................................................33
vi

Okla. Admin. Code §612:15-1-3 .............................................................................34
Or. Rev. Stat. Ann. §357.005 ...................................................................................34
R.I. Gen. Laws Ann. §29-3.1-7................................................................................34
S.C. Code Ann. §60-1-120 .......................................................................................34
S.D. Codified Laws §14-1-50 ..................................................................................34
Tenn. Code Ann. §10-1-103 ....................................................................................34
Tex. Hum. Res. Code Ann. §91.081 ........................................................................34
Utah Code Ann. §63B-5-201 ...................................................................................34
Va. Code Ann. §51.5-74 ..........................................................................................34
Vt. Stat. Ann. tit. 22, §605 .......................................................................................34
Wash. Rev. Code Ann. §27.04.045..........................................................................34
Wis. Stat. §43.03(6) .................................................................................................33
Legislative History
142 Cong. Rec. S9066 (daily ed. July 29, 1996) .............................................. 28, 29
142 Cong. Rec. S9763 (daily ed. Sept. 3, 1996) ......................................................33
Copyright Law Revision, H. R. Rep. No. 94-1476 (1976)............................ 5, 36, 48
H. R. Rep. 101-485(II), (1990), reprinted in 1990 U.S.C.C.A.N. 303......................5
Statement of the Assoc. of Am. Publishers on the NII Copyright Prot.
Act of 1995 before the House Subcomm. on Courts and
Intellectual Prop., Feb. 8, 1996, available at
http://judiciary.house.gov/legacy/441.htm .......................................................29

vii

The House Report on the Berne Convention Implementation Act of
1988, H.R. Rep. No. 100-609 (1988) ...............................................................25
Other Authorities
Wayne C. Booth et al.,
The Craft of Research (3d ed. 2008) ................................................................12
M. Suzanne Brown & LeiLani Freund, Assn. of Research Libraries,
SPEC Kit 321: Services for Users with Disabilities (Dec. 2010),
available at http://www.arl.org/bm~doc/spec-321-web.pdf ............................31
Download Books, Bookshare,
https://www.bookshare.org/_/gettingStarted/downloadBooks (last
visited May 16, 2013).......................................................................................28
Bryan A. Garner, Grammar and Usage, in The Chicago Manual of
Style (16th ed. 2010).........................................................................................28
Benjamin Kaplan, An Unhurried View of Copyright (1967) ...................................25
George Kerscher, Mastering WordPerfect 5.0 (1988).............................................10
L. Ray Patterson & Stanley W. Lindberg,
The Nature of Copyright (1991) .......................................................................25
The Largest Selection of Large Print Books Available Anywhere!,
http://www.largeprintbooks.com (last visited May 16, 2013) .........................29

viii

PRELIMINARY STATEMENT
Courtney Wheeler refrains from taking courses requiring library research.
Blair Seidlitz does not read recommended supplementary texts to complete his
physics classes. The prospect of limited library access convinced Georgina Kleege
not to pursue a graduate degree in English Literature after she received her
baccalaureate from Yale. Because they are blind—and for no other reason—they
have had little or no access to the contents of libraries that are so freely available to
their sighted peers. 1
Limited library access and, consequently, limited achievement were facts of
life for blind scholars until the creation of the HathiTrust Digital Library
(“HDL”). 2 But now, blind and print-disabled students and faculty at the University
of Michigan have equal access to the university’s library collections: what
nondisabled students can read in the print collection, blind and print-disabled
students can read in the parallel digital collection. 3 This development, unless

1

See Dkt_77-4 to 77-6.
The universities that received digital scans of their library collections from
Google refer to themselves collectively as the HathiTrust. For administrative
convenience, those universities agreed that the University of Michigan would serve
as the repository and administrator of those digital collections, collectively known
as the HDL. Dkt_110(¶55).
3
The term “print disabled” is used in this brief to refer to those who cannot
effectively read print because of a visual, physical, perceptual, developmental,
cognitive or learning disability. Thus, for example, someone who because of a
palsy could not hold her head or hands steady enough to focus on print and
someone who because of a spinal cord injury could not turn a page are included in
2

disapproved by this Court, fundamentally and dramatically changes what it means
to be blind; after all, full participation in modern society is possible only with equal
access to information. Library collections are a substantial, significant, and often
unique source of information available to those of us without print disabilities as
we pursue our individual educational, vocational, and recreational activities.
The Americans with Disabilities Act and Section 504 of the Rehabilitation
Act 4 express a national commitment to ensure that persons with disabilities can
pursue on an equal basis “those opportunities for which our free society is
justifiably famous.”5 Even so, at no point in this litigation have appellants (the
“Guild”) addressed the ADA’s application to the facts at hand; instead, they have
treated this purely as a copyright case, insisting that copyright law forbids
university libraries from affording the blind full access to their digital libraries.
The Guild is wrong to ignore the civil rights of the blind and wrong in its
reading of copyright law. The idea that animates the ADA, equal opportunity for
persons with disabilities, and that which animates the copyright law, promoting the

the term “print disabled.” See Dkt_79(¶6). For the sake of brevity, this brief will
principally refer to one group of print-disabled persons, the blind, although these
references apply with equal force to those with other print disabilities.
4
With respect to the issues in this case, there are no pertinent differences between
the ADA and the Rehabilitation Act’s requirements; accordingly, this brief will
refer to the two statutes collectively as the “ADA.”
5
42 U.S.C. §12101(a)(8).
2

“Progress of Science and useful Arts,”6 are complementary. Each promotes the
creation of and access to knowledge in different, but mutually sustaining ways.
The ADA expands the circle of persons entitled to access the collective wisdom
contained in libraries, while copyright law, through the right of fair use, enables
the use of that wisdom to promote learning.
A library is the heart of a university in the sense that, through it, the
knowledge that humanity has created and collected over thousands of years
circulates to all parts of the academy. It is the use of that collection that promotes
progress: by that means, students can identify, locate, evaluate, correlate, and
effectively synthesize information to illuminate any topic. So long as they can
access libraries, students and other scholars can advance our understanding of our
past, our present, and our future. Heretofore, the opportunity to make such
contributions required both an affiliation with a library and the ability to see. Now,
if this judgment is affirmed, blindness need no longer bar the doors to our
collective storehouses of knowledge. At stake is not only the unprecedented access
the HDL affords the blind to individual books in exponentially greater numbers
than ever before, but also the potential—for the first time—to participate fully in
the enterprise of research itself.

6

U.S. Const., Art. I, §8, cl. 8.
3

The Guild correctly urged the district court that “it is the purpose for which
the Defendant libraries digitized and used the [library print collections] that is at
issue here.”7 Even before the first book in this enterprise was scanned, the
University of Michigan was committed to making the resulting digital corpus
available to the blind. And the Guild concedes that the University of Michigan’s
“uses for the blind admittedly serve a purpose that benefits society. . . .” 8 Indeed,
in its opening brief, the Guild states that it “do[es] not object to the use of the HDL
by the blind.” 9 Nevertheless, it argues that the creation and use of the HDL is
forbidden by copyright law and could be made available to the blind only with the
permission of every copyright holder represented in the collection.
The Guild has unhitched the limited rights granted copyright holders from
the objective of copyright itself, insisting that the blind must be denied meaningful
access to university libraries, even though doing so would not encourage authors to
create. Both historically and today, authors and publishers have found no profit in
releasing their works in formats intended to be accessible to the blind, much less in
enabling the creation of entire academic libraries that could be accessed by the
blind. Moreover, they have no plans for such exploitation.

7

Dkt_115(p.19) (first emphasis added).
Dkt_135(p.24).
9
Guild Br. at 12.
8

4

The HDL and its promise for the blind spring from remarkable recent
advances in technology. Technology now makes it possible for the blind to engage
in library research to the same extent and with the same facility as sighted
readers—an opportunity that might have been thought chimerical only a decade
ago. Both civil rights and copyright jurisprudence require courts to interpret their
doctrines in the light of technological progress. As the Supreme Court has said,
“[t]echnological advances can be expected to enhance opportunities to rehabilitate
the handicapped.” 10 In enacting the ADA, Congress noted that “the types of
accommodations and services provided to individuals with disabilities, under all of
the titles of this bill, should keep pace with the rapidly changing technology of the
times.” 11 So, too, when Congress enacted §107 of the Copyright Act, it stated that
“there is no disposition to freeze the doctrine in the statute, especially during a
period of rapid technological change.” 12 As with the ADA, the Supreme Court has
insisted that copyright law be interpreted in light of new technological
circumstances and opportunities.13
From the advent of libraries until the digitization of the HDL, the blind
could draw on only a paltry number of books contained in special libraries for the
10

Southeastern Comm. Coll. v. Davis, 442 U.S. 397, 412 (1979).
H. R. Rep. 101-485(II), at 108, (1990), reprinted in 1990 U.S.C.C.A.N. 303,
391.
12
Copyright Law Revision, H. R. Rep. No. 94-1476 at 66 (1976) (hereinafter
“House Report”).
13
Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390, 396 (1968).
5
11

blind, together with the occasional print book that had been digitized on demand.
The blind scholar’s share was the beggar’s portion and not the feast available to the
sighted, merely for the taking. But the Guild desires to preserve the status quo,
consigning the blind to permanent second-class citizenship and denying the blind,
and all of society, the benefits that would flow from allowing the blind through the
library door. The Guild persists even though, as the record makes unarguably
clear, it would suffer no harm if the blind have equal access to academic library
collections. In this instance, the district court’s decision, well supported by the
record and the law, vindicates the ideals of both the ADA and copyright law and
therefore should be affirmed.
STATEMENT OF ISSUES
1.

Whether the district court correctly applied the ADA to the issues

presented.
2.

Whether the district court correctly concluded that the Chafee

Amendment, 17 U.S.C. §121, which empowers authorized entities to create and
distribute books in specialized formats exclusively for print-disabled persons,
enables the University of Michigan to reproduce and distribute works in the HDL
to the blind.

6

3.

Whether the district court correctly held that enabling blind scholars

to have equal access to university library collections through the HDL is a fair use
under §107 of the Copyright Act.14
STATEMENT OF THE CASE
The National Federation of the Blind (the “Federation”), Blair Seidlitz,
Courtney Wheeler, and Georgina Kleege (collectively, “NFB”) adopt the Guild’s
Statement of the Case and add the following:
In its complaint, the Guild sought to impound the HDL and enjoin the
University Appellees (“Universities”) from continuing to build or allow access to
the HDL. 15 Because the Guild’s requested relief would completely deny the blind
access to the HDL, NFB moved to intervene in the lawsuit.16 The Federation is the
oldest and largest membership organization of blind people in the United States,
with more than 50,000 members. 17 Mr. Seidlitz and Ms. Wheeler are blind
students at the University of Wisconsin and Ms. Kleege is a blind faculty member
at the University of California, Berkeley. 18 With the consent of all parties, the
district court granted NFB’s motion to intervene.

14

NFB adopts the Guild’s proposed standards of review.
Dkt_4(pp.27-28).
16
Dkt_25(p.6).
17
Dkt_27-1(¶6).
18
Dkt_25(pp.4-6).
7
15

Although styled as a motion for summary judgment, the Guild’s motion
addressed only liability and not the factors that determine the appropriateness of
equitable remedies.
In its ruling on the parties’ motions for summary judgment, the lower court
held that the HDL’s creation and use as a resource for blind readers is permissible
pursuant to the ADA and §121 of the Copyright Act (“the Chafee Amendment”)
and is a protected fair use under §107 of the Copyright Act.19
The court ruled that on the facts of this case “[t]he provision of equal access
to copyrighted information for print-disabled individuals is mandated by the ADA
. . . .” 20 It also found that University of Michigan was an “authorized entity”
under the Chafee Amendment, explaining that the “ADA requires that libraries of
educational institutions have a primary mission to reproduce and distribute their
collections to print-disabled individuals,” and that the record clearly demonstrated
that the University of Michigan had embraced this goal as a primary mission. 21
With respect to fair use, the district court determined that the first, third, and
fourth nonexclusive fair use factors favored the Universities and NFB, and that the
second factor was neutral. On these points, the lower court’s reasoning may be
summarized as follows:

19

Dkt_156(pp.14-23).
Id.(p.22).
21
Id.(pp.22-23).
20

8

1. (a) The “purpose of the use is for scholarship and research,” which
constitutes an “invaluable contribution to the progress of science and the
cultivation of the arts that at the same time effectuates the ideals
espoused by the ADA,” and such uses are “explicitly mentioned in the
preamble to Section 107,” thereby tilting the first factor toward a finding
of fair use;
(b) Providing blind individuals with “access to the wealth of information
within library collections” is a transformative use; and
(c) Making copies of works in formats accessible to blind persons is
expressly identified in the legislative history of the 1976 Copyright Act
as an example of a fair use;
2. Given the transformative purpose of the HDL, the nature of the
copyrighted works is a consideration of limited usefulness;
3. Digitization of the works in their entirety is necessary to ensure equal
access for the blind; and
4. The uses are noncommercial and the Guild has failed to show any
meaningful likelihood of market harm; the transformative nature of the
contested uses weighs against any inference of market substitution
because:
(a) “A copyright holder cannot preempt a transformative market”;
(b) The Universities and NFB provided “substantial evidence that it
would be prohibitively expensive to develop a market to license the use
of works for search purposes, access for print-disabled individuals, or
preservation purposes”; and
(c) The blind constitute such “a tiny minority” that the development of a
market to provide them with equal access to library collections is “almost
impossible to fathom.” 22

22

Id.(pp.14-22).
9

The court then concluded that the totality of the factors favor fair use
because the “copyright law’s ‘goal of promoting the Progress of Science . . . would
be better served by allowing the use than by preventing it.’” 23
STATEMENT OF FACTS
Digital books were invented to benefit blind readers. In 1988, George
Kerscher, a blind graduate student in computer science, issued the first publicly
available digital book, “Mastering WordPerfect 5.0,” through his company,
Computerized Books for the Blind and Print Disabled. Unlike a print book, a
digital book can be accessible to a blind person who may read it using screenaccess software with a text-to-speech program or a refreshable Braille display. To
encourage the development of digital books as a specialized format for the blind,
Kerscher refrained from seeking patents on any of the technology he developed.24
Unfortunately for him, every book he needed for his graduate degree studies was
inaccessible, and he was forced to drop out. 25 Had the HDL existed and been
available, he could have pursued his education.
Apart from the HDL, a blind scholar’s lot has not greatly improved since
Kerscher’s graduate school days. Despite Kerscher’s decision not to patent his
technology, only a few books, such as iBooks or audio books, may be purchased in
23

Id.(p.21) (quoting Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d
605, 608 (2d Cir. 2006)).
24
Dkt_79(¶¶8, 9).
25
Id.(¶¶7,10).
10

formats accessible to the blind.26 Accessible books that may be borrowed through
a library are still fewer in number (about 200,000) 27 and the number added
annually is a small fraction of the number of print books published each year. 28
For the most part, accessible books available for borrowing are best sellers or
primary-school textbooks. 29 Moreover, library books that are accessible as
narrated recordings are unsuitable for academic use because of their limited
navigability and the slowness with which they must be read.30 By contrast, the
HDL includes more than 10 million digitized texts spanning over five-hundred
years and more than forty different languages, including titles in nearly every
discipline imaginable. 31
Universities have not been able to do much to address the needs of blind
students. Making a truly usable and accessible e-book from a print copy of a
typical university library book is a painstaking process. 32 As a result, universities
can rarely manage to make assigned texts accessible and, even these are rarely
available on the timely basis that an academic schedule requires. 33

26

Dkt_78(¶39).
Id.(¶¶9-10); Dkt_79(¶38).
28
Dkt_78(¶10).
29
Dkt_79(¶¶37-38); Dkt_80(¶16).
30
Dkt_79(¶20).
31
Dkt_110(¶¶57,59-61).
32
Dkt_80(¶¶17,24-27).
33
Dkt_79(¶¶32-35).
27

11

Research, however, requires more than just the access to individual books
(with a significant time lag between each request for access and its fulfillment)
currently available to blind students. Research involves, among other things,
searching among an array of books, consulting their tables of contents and indices,
and skimming through selected passages—all necessary just to identify which
books may offer insight into the issue in question.34 From the time of the library in
Alexandria until the development of the HDL, the printed nature of books
prevented blind scholars from engaging in library research like their sighted peers.
A student at the University of Michigan who is free from impairments has
access to some eleven million print volumes. 35 The nearly four million patron
visits to the Michigan library in fiscal year 2011 dramatically demonstrate the
library’s utility. 36 Now the HDL offers blind users the revolutionary opportunity to
join in research endeavors: to use a comprehensive library to locate accumulated
knowledge on specific points, to trace the development of ideas from age to age
and from scholar to scholar, and to synthesize seemingly unrelated data into
startling new results.37 The HDL transports blind students and scholars from a

34

See, e.g., Wayne C. Booth et al., The Craft of Research 74-76 (3d ed. 2008)
(explaining research strategies such as physically scanning the library stacks and
skimming books’ indices and chapters to determine relevancy).
35
Dkt_110(¶9).
36
Id.(¶10).
37
Dkt_78(¶11); Dkt_110(¶33).
12

world of delayed access to individual titles on a limited, ad hoc basis to a world
where they have immediate and equal access to a new universe of knowledge. 38
Blind and sighted members of the University of Michigan community can
search the entire HDL to locate books of possible interest.39 Uniquely, only printdisabled readers can then enter the HDL through a secure, password-protected
portal that allows full-text access to those whose disabilities have been certified by
a qualified expert. 40 This access enables blind HDL users to read and evaluate
items in the collection independently. 41 They can sample and investigate the
contents of different volumes just as sighted individuals search physical library
stacks and flip through titles to gauge their relevance.42 Only those with proven
print disabilities have access to the HDL’s digital content.43 Those without print
disabilities who wish to see the content of the library’s collection must use the
same resources that have always been available to them.
Not every digital text is accessible, but those in the HDL are. 44 This was not
an incidental consequence of the scanning process, but an intended result. The
University of Michigan, the lead institution in the HathiTrust, consciously

38

Dkt_79(¶¶18,40).
Dkt_110(¶68).
40
Id.(¶105).
41
Dkt_79(¶21).
42
Id.(¶¶31,34).
43
Dkt_110(¶¶16,105).
44
Dkt_79(¶¶16,22).
39

13

prioritized accessibility in the design and execution of the project. 45 It did so “to
ensure that students and faculty with print disabilities had access to works within
the HDL on par with their non-disabled peers,” in furtherance of one of the
University of Michigan’s “primary missions of providing specialized services to
the blind or other persons with disabilities.” 46 As early as 2005, the Federation and
George Kerscher met with various HathiTrust universities and other stakeholders
to ensure that the end product of the digitization process would be accessible.47 As
a result of these collective efforts, the software selected to create the HDL
maximized accessibility for blind users. 48
In creating a digital library that is both comprehensive and fully accessible,
the University of Michigan and other HathiTrust universities had a purpose
altogether different from the authors and publishers who have written off the blind
as an audience for their books. 49

45

REDACTED

Id.(¶30); Dkt_78(¶¶13-14); Dkt_110(¶103).
Dkt_110(¶47); see Dkt_114-6(86:17-87:13) (Paul Courant, University Librarian
and Dean of Libraries at the University of Michigan, confirming that one of the
reasons the University of Michigan asked Google for a digital copy of its library
collection was “to provide accessibility to people with print disabilities”).
47
Dkt_79(¶30);Dkt_78(¶¶12-13).
48
Dkt_79(¶31).
49
See Dkt_114-1(pp.56:15-57:3) (Appellant Pat Cummings answering “no” when
asked if she believed “the print disabled should have access to those [the HDL]
works” and refusing to agree that it is “beneficial to individuals with disabilities to
have access to the works that have been digitized as part of the HathiTrust
project”); Dkt_114-2(p.80:22-25) (Appellant Helge Rønning testifying, in response
14
46

REDACTED. 50

Similarly, the Association of American Publishers has determined that there is no
market for accessible books.51 On the whole, publishers, authors, and e-book
platform developers have not only failed to promote e-book accessibility, but have
actively worked to frustrate it.52 For this reason, the HDL stands alone in its ability
to provide blind students and scholars an equal opportunity to pursue knowledge. 53
The Guild’s interrogatory answers further acknowledge the absence of any
economic harm to authors as a result of making texts accessible to the blind. Thus,
the Guild admitted that “Plaintiffs . . . have not identified any specific, quantifiable
past harm, or any documents relating to any such past harm, suffered as a result of
the actions of Defendants in making books in fully accessible formats available for

to the question of whether he understood how “a US student with a print disability
would obtain access to your works,” “No. Why should I?”).
50
REDACTED.
51
Dkt_79(¶ 42).
52
Id.(¶43); Dkt_78(¶¶20-39).
53
Dkt_79(¶ 17).
15

library lending to persons who cannot access print versions of such books.”54 Nor
has the Guild in any way contradicted (or even responded to) the substantial record
evidence establishing unequivocally that there has never been, nor is ever likely to
be, a market-based solution to the book scarcity that confronts blind students and
scholars. 55
The HDL represents the first—and the only foreseeable—opportunity for
blind individuals to achieve truly equal access to university library collections and
thus to equal opportunity in higher education, research, and professional
employment. Access to the HDL makes it possible for the blind to realize their
true potential to contribute to the academic, cultural, and scientific advancement of
society.
SUMMARY OF ARGUMENT
Overarching this case is an unprecedented and historic opportunity for the
blind to get at the accumulated knowledge and wisdom that our culture has
developed and stored in libraries. The district court correctly identified three
independent legal bases for embracing this opportunity. In response, the Guild
offers only strained and dogmatic arguments that ignore that this is a use that does
society much good and the Guild no harm.

54

Dkt_77-3(p.7) (Pls. Resp. to NFB Interrogatory No. 5); see id.(p.5) (Pls.’ Resp.
to NFB Interrogatory No. 1).
55
See Dkt_79(¶¶41-50); Dkt_78(¶¶ 9, 20-23, 25-29, 31-38); Dkt_80(¶ 29).
16

First, the district court correctly held that: (a) the ADA requires universities
that have already digitized their print collections to make their digital libraries
available to the blind; (b) the ADA’s mandate imposes on universities a primary
mission of providing equal access to the blind and thus permits the University of
Michigan to create and distribute books to the blind under the aegis of the Chafee
Amendment; and (c) the ADA supports the creation and use of the HDL for the
blind as a fair use. The Guild does not dispute the applicability of the ADA to the
facts at hand; it simply assumes that the ADA and copyright law are in conflict and
that the ADA must give way. The use of the HDL for the blind, however, furthers
the goals of both copyright law and the ADA: promoting learning by expanding
access to knowledge.
Second, the district court correctly concluded that the conduct of the
University of Michigan was within the scope of the Chafee Amendment. Based on
the ADA mandate and the historic practices of the University of Michigan, the
district court correctly concluded that the university has a primary mission of
facilitating the education, adaptive reading, and information access needs of
persons with disabilities, rendering it an authorized Chafee entity. Furthermore,
because the University of Michigan, just as long-established Chafee entities do,
distributes digital texts exclusively for use by the print disabled these digital copies
constitute “specialized formats” within the meaning of this statutory provision.
17

Third, the court below correctly determined that the creation and
maintenance of the HDL to serve the blind constitute fair use. Even assuming
arguendo, that these activities may not qualify as transformative (as the Guild
incorrectly maintains), the HDL’s availability to the blind serves the critical ends
of education, scholarship, and research—purposes expressly referred to in §107 of
the Copyright Act. As the lower court properly ruled, however, use of the HDL for
the blind is transformative. It serves a new purpose (allowing the blind to perform
library research), has a different character (as a means for equal educational
opportunity for the blind), and gives the works in the HDL new meaning (because
the print texts were previously devoid of meaning for the blind). Furthermore, use
of the HDL as a source of accessible texts falls within a paradigmatic example of
fair use—making copies for the blind—acknowledged by both Congress and the
Supreme Court. Thus, the first factor in the fair use analysis, the purpose and
character of the use, strongly supports the district court’s finding of fair use.
The second factor—the nature of the works used—also supports this finding
as most of the works in the HDL are factual in nature or used for scholarly
purposes. That copying the entire corpus was necessary to effectuate the goal of
equal access for the blind also inclines the third factor—the amount and
substantiality of the portion used—in favor of fair use. Finally, the record
establishes that there has never been, nor is there ever likely to be, a market for
18

creating a digital database of library collections accessible to the blind, thereby
causing the fourth factor—the effect of the use on the market—to favor fair use as
well. Thus, the HDL’s use by the blind creates no disincentives to the creation of
new works by authors who have never considered the blind to be a potential source
of economic reward. The absence of an existing or potential market is significant
not merely as it relates to the Guild’s economic well-being. If this use of the HDL
is disallowed, there would be no market drivers giving rise to another method for
the blind to participate in academic work on an equal basis.
The ADA, the Chafee Amendment, and the fair use doctrine each provides
ample support for the district court’s decision denying the Guild’s effort to shut
down the only chance the blind may ever have to conduct library research and
engage in the exchange and creation of new ideas on an equal basis. Accordingly,
this Court should affirm the decision below.
ARGUMENT
I.

The district court correctly analyzed the application of the ADA to the
issues presented.
The district court properly made three distinct holdings with respect to the

ADA’s significance to the facts at hand. First, as to an existing digital library that
mirrors a university’s print collection, the ADA’s mandate of equal access to
programs and activities requires that university to make that digital collection
available to blind students. Second, because the ADA makes equal access a
19

primary mission of universities, a university may be an authorized entity under the
Chafee Amendment. Third, the ADA supports the conclusion that creation of an
accessible digital library from a print collection and its use by blind persons
constitute fair use.
On these facts, the district court held that the “provision of equal access to
copyrighted information for print-disabled individuals is mandated by the ADA
and the Rehabilitation Act . . . .” 56 On appeal, the Guild ignores this holding. This
unchallenged determination by the district court constitutes an independent basis
for affirmance without consideration of other unrelated arguments offered by the
Guild.57
The district court was correct that under the present facts the ADA mandates
the provision of equal access to copyrighted information. As this Court reiterated
only a few months ago:
“In the ADA, Congress provided a broad mandate” to “effectuate its
sweeping purpose to . . . forbid discrimination against disabled
individuals in major areas of public life, including . . . public services
. . . .” “As a remedial statute, the ADA must be broadly construed to
effectuate its purpose of providing a clear and comprehensive national
mandate for the elimination of discrimination against individuals with
disabilities.”58
56

Dkt_156(p.22).
See Lore v. City of Syracuse, 670 F.3d 127, 149 (2d Cir. 2012) (noting that “any
challenges by [the appellant] to adverse decisions that are undiscussed” in the
opening brief are deemed abandoned).
58
Mary Jo. C. v. N.Y. State & Local Ret. Sys., 707 F.3d 144, 160 (2d Cir. 2013)
(quoting PGA Tour, Inc. v. Martin, 532 U.S. 661, 675 (2001) and Noel v. N.Y. City
20
57

In education, as with public services, the ADA forbids discrimination. 59 Thus,
effectuating the ADA’s purpose to eliminate discrimination in education requires
public and private universities to provide equal access to their programs and
activities, except to the extent that affording equal access may unduly burden the
universities, fundamentally alter the nature of the universities’ programs or, in
limited circumstances, be unreasonable. 60 Where, as here, the HDL is already in
digital form and ready for use, employing it imposes no burden on the participating
universities nor fundamentally alters their programs.
The record establishes that outside of the University of Michigan the blind
do not have equal access to research and library programs. 61 As one witness noted,
blind students “compete under a severe handicap. That handicap is not lack of
sight, but a lack of access to information in a world in which information is the key
to success.”62

Taxi & Limousine Comm’n, 67 F.3d 63, 68 (2d Cir. 2012)) (alteration marks
omitted).
59
42 U.S.C. §12132 (prohibiting discrimination by public entities); 42 U.S.C.
§12182 (prohibiting discrimination by private entities); see 42 U.S.C. §12101
(a)(3) (finding that “discrimination against individuals with disabilities persists in
such critical areas as . . . education”).
60
See 42 U.S.C. §§12132, 12182.
61
Dkt_79(¶32); Dkt_78(¶11); see Dkt_79(¶51) (George Kerscher describing the
HDL as providing “an unparalleled opportunity to achieve true equality in higher
education for blind and print-disabled students and scholars”).
62
Dkt_78(¶7).
21

The Guild does not contest the social utility of enabling the blind to engage
in research across an entire library collection on an equal footing, acknowledging
that “Defendants’ uses for the blind admittedly serve a purpose that benefits
society.” 63 Moreover, the Guild does not contest the inequality of access that has
existed for blind students or that the University of Michigan, employing the HDL,
currently affords equal access. Nonetheless, the Guild claims that only with the
consent of all copyright holders of every text and image in that collection could a
blind student have equal access to the copyrighted material it contains—although
the Guild admits that obtaining those consents “might be difficult.” 64
Because sighted library patrons do not need similar consents to study and
conduct research, what the Guild proposes would constitute decidedly unequal
access for the blind. In the absence of seven million plus prior consents, the Guild
insists, an accessible book can only be made in response to a specific request. 65
Such a haphazard and belated provision of books—which is the sad state of affairs
today for blind scholars without access to the HDL—does not enable blind
scholars “to search the library or skim materials in the way that sighted researchers

63

Dkt_135(p.24).
Transcript of Motions Hearing (“Hrg. Tr.”) at 11:13-17, 24-25 (Aug. 6, 2012).
65
Dkt_110(¶62); Guild Br. at 51; Dkt_135(p.23).
22
64

can,”66 nor does it provide them the timely access that their sighted peers expect
and receive. 67
Because the Guild focuses exclusively on copyright doctrine, with no
discussion of the ADA, it appears that the Guild assumes that copyright law and
the ADA are at cross purposes, and that copyright prevails. Fortunately, civil
rights and copyright are not on a collision course in this case. The Chafee
Amendment embraces the goal of access for the blind. Likewise, the doctrine of
fair use welcomes consideration of public benefits and goals such as those
embodied in the ADA. 68
Even assuming arguendo, that the ADA and Copyright Act were at odds,
when faced with the interplay of different statutes, a court must consider “the total
corpus of pertinent law and the policies that inspired ostensibly inconsistent
positions.” 69 To adopt the Guild’s view that copyright law must reign alone would
render the ADA “effectively impotent, which would be contrary to the broad
remedial purpose of the ADA—an act that has been described as a milestone on
the path to a more decent, tolerant, progressive society.” 70

66

Dkt_79(¶18).
Id.(¶32).
68
See infra Part III at 34-38.
69
Boys Mkts., Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 250 (1970).
70
Mary Jo C., 707 F.3d at 160 (quoting Martin, 532 U.S. at 675 and Bd. of Trs. of
Univ. of Ala. v. Garrett, 531 U.S. 356, 375 (2001) (Kennedy, J., concurring))
(internal quotation marks omitted).
23
67

The trial court also concluded that, as a government entity with a primary
mission of reproducing and distributing books for the blind, the University of
Michigan met the Chafee Amendment’s requirements to be an “authorized
entity.” 71 Although disputing its implications for Chafee purposes, the Guild does
not deny that the ADA imposes on universities “a primary mission to provide
specialized services relating to . . . education . . . or information access needs of
blind and other persons with disabilities.”72
The Guild’s only rebuttal to the district court’s reasoning is that because
libraries are subject to the ADA, any library could choose to also be a Chafee
Amendment authorized entity. It fails to explain, however, why having more
institutions qualify to serve the needs of blind readers would be undesirable. As
noted in Section II.B, infra, many mainstream libraries have already chosen to be
Chafee Amendment entities that distribute accessible books to their blind patrons.
With respect to fair use, the district court correctly recognized that providing
“print-disabled individuals with ‘access to the wealth of information within library
collections’” 73 promotes “scholarship and research—uses explicitly mentioned in
the preamble to Section 107.” 74 The first policy listed in the Copyright Clause, “to

71

Dkt_156(pp.22-23) (citing 17 U.S.C. §121(d)(1)).
Dkt_156(p.22) (quoting 17 U.S.C. §121).
73
Dkt_156(p.15) (citations omitted).
74
Id. (citing NXIVM Corp. v. Ross Inst., 364 F.3d 471, 477 (2d Cir. 2004)).
24
72

promote the Progress of Science and useful Arts,” 75 is intended to “facilitate the
flow of ideas in the interest of learning.” 76 Facilitating that flow to the blind
expands the universe of those who may learn and thereby add to our collective
knowledge. Thus, the policy underlying the ADA here furthers the primary
purpose of the Copyright Clause.
The district court correctly recognized the impact of the ADA in its own
right and in connection with the Chafee Amendment and fair use.
II.

The district court correctly concluded that the Chafee Amendment
enables the University of Michigan to reproduce and distribute works in
the HDL to the blind.
The Chafee Amendment, 17 U.S.C. §121 (a), provides that:
[I]t is not an infringement of copyright for an authorized entity to
reproduce or to distribute copies or phonorecords of a previously
published, nondramatic literary work if such copies or phonorecords
are reproduced or distributed in specialized formats exclusively for
use by blind or other persons with disabilities.

In turn, an “authorized entity” is defined in §121 (d)(1) as

75

U.S. Const., Art. I, §8, cl. 8.
The House Report on the Berne Convention Implementation Act of 1988, H.R.
Rep. No. 100-609, at 22 (1988); see also Benjamin Kaplan, An Unhurried View of
Copyright 74 (1967) (“Copyright law wants to give any necessary support and
encouragement to the creation and dissemination of fresh signals or messages to
stir human intelligence and sensibilities: it recognizes the importance of these
excitations for the development of individuals and society.”); L. Ray Patterson &
Stanley W. Lindberg, The Nature of Copyright 52 (1991) (describing copyright as
“a functional concept: its function was to encourage the author to distribute the
works he or she created; its purpose was to promote learning”).
25

76

a nonprofit organization or a governmental agency that has a primary
mission to provide specialized services relating to training, education, or
adaptive reading or information access needs of blind or other persons with
disabilities.
Although these provisions are unambiguous,77 the Guild disputes their plain
meaning, arguing (1) that accessible digital books, such as those in the HDL, are
not in a “specialized format” because sighted people can also read digital books; 78
and (2) that the University of Michigan is not an “authorized entity” under the
Chafee Amendment. 79 As discussed below, these strained interpretations run
counter to both the letter and the spirit of the Chafee Amendment.
A.

The district court correctly concluded that accessible texts from
the HDL are in “specialized formats,” consistent with the Chafee
Amendment.

In the context of the Chafee Amendment, a specialized format is one that
someone who is blind or has another print disability can use to access the content
of a book. The Guild, however, insists that the HDL collection is not in a
specialized format because “people without disabilities” can use the same format. 80

77

See Peralta-Taveras v. Attorney Gen., 488 F.3d 580, 584 (2d Cir. 2007) (noting
that “where the statutory language provides a clear answer, [the inquiry] ends
there”) (internal quotation marks omitted).
78
Guild Br. at 50.
79
Guild Br. at 49. The Guild incorrectly characterizes the decision below, which
held that the University of Michigan, not the HathiTrust, is the Chafee-authorized
entity. Dkt_156(p.23).
80
Guild Br. at 50.
26

In other words, the Guild apparently believes that a “specialized format exclusively
for use by [the] blind” is a format that nondisabled people cannot use.
A disability is an impairment. Being blind means that a person cannot see,
not that he or she has some additional sense unavailable to the sighted. The Guild
presupposes a format that cannot and does not exist. It certainly does not describe
what that format might be.
The Chafee Amendment recognizes phonorecords as a “specialized format.”
But any person with hearing can access a format that uses sound to convey
meaning. And any person with a sense of touch who learns Braille can access a
format that uses tactile characters to convey meaning. Plainly, “specialized”
describes a format that makes content accessible to those who cannot access print
by virtue of a disability.
A digital format, when produced correctly, as is the case with the HDL, is
accessible with assistive technology to those who cannot access print, but who
retain a sense of hearing or touch. 81 Given the undisputed evidence that
commercial digital books were first developed specifically for use by the blind, the
Guild’s assertion that a digital format is not a specialized format seems particularly
absurd.82 Indeed, Senator Chafee anticipated the development of “new digital

81
82

Dkt_79(¶21); Dkt_110(¶105).
Dkt_79 (¶¶8,9).
27

formats that can be used for special software” 83 as “specialized formats” that
would be covered by his amendment. Today, long-established Chafee entities like
Bookshare and the Library of Congress National Library Service, regularly
distribute books to qualifying individuals in digital formats that they can read with
“special software” (assistive technology). 84
A grammatical reading of the relevant restrictive language in §121 also
contradicts the Guild’s gloss on “specialized formats.” The adverb “exclusively”
can properly modify a verb, adjective, or phrase, but not a noun. 85 “Exclusively
specialized” makes no sense and “exclusively” cannot modify “format.” Thus,
“exclusively” must modify the phrase “for use by blind and other persons with
disabilities.” A grammatical interpretation of this sentence fulfills the promise of
the section while putting the interpretative emphasis where it belongs: not on the

83

142 Cong. Rec. S9066 (daily ed. July 29, 1996) (statement of Sen. John H.
Chafee) (“Chafee Statement”).
84
See, e.g., Download Books, Bookshare,
https://www.bookshare.org/_/gettingStarted/downloadBooks (last visited May 16,
2013) (“Once you have found the book you want, on the book information page,
choose the format that best suits your needs:
• DAISY (Digital Accessible Information System)
This format is used for many devices and software applications, such as
Victor Reader Soft Bookshare Edition and READ:OutLoud Bookshare
Edition.
• BRF (Braille Refreshable Format)
This format is used with Braille reading devices or Braille printers.”).
85
See Bryan A. Garner, Grammar and Usage, in The Chicago Manual of Style
243-244 (16th ed. 2010) (stating that an adverb may qualify a verb, adjective,
another adverb, preposition, conjunction, or clause, but not a noun or pronoun).
28

noun and its modifier (“specialized formats”) that precede the word “exclusively,”
but on the prepositional phrase that follows. It is undisputed that the University of
Michigan reserves full expressive access to the HDL’s digital texts exclusively for
persons with demonstrated print disabilities. 86 This exclusive use by the print
disabled, therefore, falls well within the requirements of §121. 87
Finally, the Guild argues that because §121 does not extend generally to the
reproduction and distribution of “large print” formats 88 the HDL exceeds its safe
harbor by allowing print-disabled persons with limited or impaired vision to
employ software that produces enhanced screen displays. Here the Guild indulges
in category confusion: “Large print” books are a particular kind of physical
information commodity 89 that the publishing industry, in the negotiations around
the enactment of §121, succeeded in reserving as its own special province. 90 This

86

Dkt_110(¶105).
In introducing his amendment, Senator Chafee made a similar point about the
generally accessible format of audio recording, noting that would qualify as a
specialized format because the National Library Service restricts the distribution of
those audio records to eligible individuals. See Chafee Statement at S9066.
88
See 17 U.S.C. §121(d)(4)(B).
89
See, e.g., the listings at http://www.largeprintbooks.com (last visited May 16,
2013) (advertising “The Largest Selection of Large Print Books Available
Anywhere!”).
90
See Statement of the Assoc. of Am. Publishers on the NII Copyright Prot. Act of
1995 before the House Subcomm. on Courts and Intellectual Prop., Feb. 8, 1996,
available at http://judiciary.house.gov/legacy/441.htm (discussing the carve-out for
“large-type books”) (emphasis added).
29
87

reservation does not, of course, give copyright holders an effective monopoly over
all processes for enlarging print, whether by optical or technological means.
B.

The district court correctly concluded that the University of
Michigan is an entity authorized by the Chafee Amendment to
distribute the HDL’s content to blind and other print-disabled
persons.

The district court held that the University of Michigan, as the HDL’s
administrator, is an entity authorized under the Chafee Amendment to reproduce
and distribute the HDL’s content to the blind and other persons with disabilities.
The statute sets forth in straightforward language the two requirements to be an
authorized entity, both of which the University of Michigan meets.
First, an authorized entity must be a governmental or nonprofit entity, which
the University of Michigan is. Second, an authorized entity must have as “a
primary mission the provision of specialized services relating to training,
education, or adaptive reading or information access needs of blind or other
persons with disabilities.”91 This language describes the University of Michigan: to
meet its obligations under the ADA, it daily provides specialized services relating
to the education, adaptive reading, and information access needs of persons with
disabilities.92 And even apart from the ADA, universities and their libraries have

91

Section 121 refers to “a primary mission” of a qualifying institution, using the
indefinite article in preference to the definite one. Thus, the statutory phrase
necessarily contemplates the possible existence of a plural class of such missions.
92
Dkt_110(¶¶100-106).
30

long understood assisting blind and print-disabled members of their communities
in achieving equality of access to print materials to be among their fundamental
functions. 93
The record supports the University of Michigan’s assertion that one of its
primary missions is “providing specialized services to the blind or other persons
with disabilities.”94 That mission has been front and center from the beginning of
the HDL. Even during preliminary negotiations, the University of Michigan
addressed the requirement that the digitized books be accessible to the blind. 95 The
University insisted on the right to keep a digital copy of the works to “ensure that
students and faculty with print disabilities had access to works within the HDL on
par with their non-disabled peers.”96
The Guild’s argument that “[i]t simply cannot be that every library in the
country” 97 is a potential Chafee authorized entity is not grounded in the language
of the statute. The Guild has accurately stated that §121 was the product of
negotiation among stakeholders, including authors and publishers as well as the
blind. Under those circumstances, if further restrictions were called for to define

93

See generally M. Suzanne Brown & LeiLani Freund, Assn. of Research
Libraries, SPEC Kit 321: Services for Users with Disabilities (Dec. 2010),
available at http://www.arl.org/bm~doc/spec-321-web.pdf.
94
Dkt_110(¶47).
95
Dkt_114-9(35:18-36:9, 43:13-25, 136:14-20); Dkt_78(¶14).
96
Dkt_110(¶47).
97
Guild Br. at 49.
31

who might be authorized, those restrictions would have been explicitly stated in the
statute. At the end of the day, the statute states the restrictions that the industry
called for and that were consistent with Senator Chafee’s purpose to expand access
for those with print disabilities to the wealth of information that informs, guides,
educates, and enriches the lives of those who can see.
The Guild’s concern that recognizing some academic libraries as authorized
entities for purposes of §121 would somehow lead to an unruly proliferation of
such designations, in and out of higher education, is misplaced. The Guild
apparently believes that recognizing Michigan’s basis for choosing to be a Chafee
authorized entity would somehow require every entity “with 15 or more
employees” to make their books accessible. 98 This is far from the truth. What the
district court recognized is that serving as a Chafee authorized entity is one way
that a governmental or non-profit entity with a library program can choose to meet
its ADA obligations.99 There are many reasons why a library might choose not to
be an authorized entity and the University of Michigan’s willingness to take on that
role may reduce the necessity for others to do so. In practice, few universities (let
98

Hrg. Tr. at 13:17-22.
Similarly, the assertion by the Association of American Publishers (“AAP”) that
the ruling below opens the door to “all ‘public accommodations’ under the ADA
[qualifying as] ‘authorized entities,’” ignores that most places of public
accommodation are neither governmental nor non-profit entities that could qualify
under §121 and that few public accommodations other than public libraries and
universities have library programs to which equal access must be granted. See
AAP Br. at 22.
32

99

alone public libraries or other non-profits) can match the level of commitment to
accessibility that the University of Michigan has manifested. However, institutions
that are able to prioritize accessibility should have the option to function as
authorized entities under the Chafee Amendment if they so choose. Denying
qualifying institutions that status would be at odds with the Chafee Amendment’s
purpose—to “end the unintended censorship of blind individuals’ access to current
information” that is “readily available to sighted individuals in libraries.” 100
Indeed, it is commonplace for a mainstream library to have as an additional
primary mission the distribution of books in specialized formats for the blind. The
New York Public Library, for example, is apportioned aid by the State of New
York for doing precisely that.101 In Wisconsin, the State Superintendent enters into
an annual contract with a library in “a 1st class city” to provide library services for
the blind.102 In Pennsylvania, a district library center can receive additional money
for providing services to patrons with disabilities.103 There has not been and
should not now be a quota on how many of these libraries may provide additional
services for the blind.104

100

142 Cong. Rec. S9763, S9764 (daily ed. Sept. 3, 1996).
N.Y. Edu. Law §273.
102
Wis. Stat. §43.03(6).
103
24 Pa. Cons. Stat. §9338(c)(2)(iii).
104
See Ala. Code §21-1-15; Ariz. Rev. Stat. Ann. §41-151.07; Ark. Code Ann.
§13-2-207; Cal. Educ. Code §19320; Colo. Rev. Stat. Ann. §24-90-105; Conn.
Gen. Stat. Ann. §11-1a; Del. Code Ann. tit. 29, §8731; Fla. Stat. Ann. §257.04; Ga.
33
101

In ruling that the University of Michigan qualifies as an authorized entity
under §121, the district court wisely rejected the Guild’s unwarranted narrow
reading of the statute. This Court should do the same.
III.

The district court correctly held that enabling blind scholars to have
equal access to university library collections through the HDL is a fair
use under §107 of the Copyright Act.
Enabling the blind to engage in the same ordinary academic uses of

university collections as their sighted counterparts serves the primary goal of
copyright, “the creation and spread of knowledge and learning.” 105 As the
Supreme Court explained in Campbell v. Acuff Rose Music, Inc., “[f]rom the
infancy of copyright protection, some opportunity for fair use of copyrighted

Code Ann. §20-2-305; Haw. Code R. §8-206.1-6; 15 Ill. Comp. Stat. Ann. 323/10;
Ind. Code Ann. §4-23-7; Iowa Code Ann. §216B.3; Kan. Admin. Regs. §54-3-1;
Ky. Rev. Stat. Ann. §171.145; La. Rev. Stat. Ann. §25:16; Me. Rev. Stat. tit. 27,
§40; Md. Code Ann., Educ. §23-105; Mass. Gen. Laws Ann. ch. 78, §19; Mich.
Comp. Laws Ann. §397.491; Minn. Stat. Ann. §134.31; 16-3 Miss. Code R.
§160:1; Mo. Ann. Stat. §181.065; Mont. Code Ann. §22-1-103; 236 Neb. Admin.
Code §005; N.H. Rev. Stat. Ann. §201-A:2; N.J. Stat. Ann. §18A:73-38.1; N.C.
Gen. Stat. Ann. §125-2; Okla. Admin. Code §612:15-1-3; Or. Rev. Stat. Ann.
§357.005; R.I. Gen. Laws Ann. §29-3.1-7; S.C. Code Ann. §60-1-120; S.D.
Codified Laws §14-1-50; Tenn. Code Ann. §10-1-103; Tex. Hum. Res. Code Ann.
§91.081; Utah Code Ann. §63B-5-201; Vt. Stat. Ann. tit. 22, §605; Va. Code Ann.
§51.5-74; Wash. Rev. Code Ann. §27.04.045.
105
Golan v. Holder, 132 S. Ct. 873, 888 (2012) (citation and internal quotation
marks omitted).
34

materials has been thought necessary to fulfill copyright’s very purpose, ‘[t]o
promote the Progress of Science and useful Arts’ . . . .” 106
It is because of “copyright’s very purpose” that Congress insisted that the
courts, when evaluating fair use, give special consideration to uses that are “for
purposes such as . . . teaching (including multiple copies for classroom use),
scholarship, or research . . . .” 107 Use of the HDL for and by the blind is precisely
for the purposes of teaching, scholarship, and research and, in turn, enables the
blind to engage in a range of culturally productive activities, including criticism
and comment (also singled out explicitly in §107).108
The Supreme Court’s most recent copyright pronouncement again reminds
us that promoting access to knowledge is the preeminent goal of copyright
policy. 109 In ruling that the first sale doctrine set forth in §109(b) of the Copyright
Act applies to goods lawfully manufactured abroad, the Court emphasized the
importance of library collections as repositories of knowledge available to the
public.110 Likewise, this Court should recognize that if the contents of library
collections cannot be digitized and made available to the blind, the blind will be
unable to engage in the productive cultural and intellectual activities that library
106

510 U.S. 569, 575 (1994) (quoting U.S. Const., Art. I, §8, cl. 8) (alterations in
original) (emphasis added).
107
17 U.S.C. §107.
108
Id.
109
Kirtsaeng v. John Wiley & Sons, Inc., 133 S. Ct. 1351, 1354 (2013).
110
Id.
35

collections support, and will lose the opportunity to contribute as fully to the
advancement of knowledge as those who can readily access printed information.
Affording the blind access to the wealth of knowledge and information
contained in library collections is such an obvious vindication of fundamental
copyright policy that in 1976 the House Judiciary Committee singled out “the
making of copies or phonorecords of works in the special forms needed for the use
of blind persons” as an example of fair use.111 Thirty-six years later, thanks to the
HDL, the Universities now have the capability to fulfill blind students’ and
scholars’ requests for particular books in accessible formats quickly and
completely–the very goal that the Committee’s report contemplates.
The Guild badly misreads the House Judiciary Committee’s statement,
taking it not as a clear-cut example of fair use in action, but as the source of an
implied limitation on fair use for the blind—to the creation of single copies on
demand for individual blind users. 112 Even were this interpretation correct,
Michigan has not exceeded this notional limitation: it offers each blind student
only a single copy of any title for her own use. More fundamentally, the Guild’s
gloss cannot be reconciled with the policies driving fair use. Instead, the passage
must be understood as having been written before the prospect of making an entire
111

House Report at 73. See also Sony Corp. of Am. v. Universal City Studios, Inc.,
464 U.S. 417, 455 n.40 (1984) (citing this section of House Report with approval).
112
Guild Br. at 51 (pointing to language in the House Report requiring permission
of the copyright holder for the making of multiple copies for general circulation).
36

university library accessible to the blind by digitizing its print collection was a
feasible concept.
The error in the Guild’s thinking is traceable to its failure to accept that the
copyright holder’s limited monopoly is not “designed to provide a special private
benefit.”113 Rather, it is intended to extend authors’ economic interest only far
enough to “give the public appropriate access to their work product,” 114 and not so
far as to hinder that access. The four non-exclusive factors associated with a fair
use analysis, together with applicable equitable and public policy considerations,
are the calculus by which the border between these competing considerations is
located in any given circumstance.
Thus, Campbell instructs that in determining whether a use is fair, the four
statutory factors “are to be explored, and the results weighed together, in light of
the purposes of copyright.” 115 Such analysis strongly favors fair use here in view
of:
1. the transformative nature 116 of use for the blind and its nonprofit
educational purpose;
2. the predominance of informational content in the HDL database;

113

Sony, 464 U.S. at 429.
Id. (emphasis added).
115
510 U.S. at 578.
116
See infra Part III.A.2 (discussing why factor 1 strongly favors fair use here
whether or not the use is characterized as transformative).
37
114

3. the necessity for comprehensive digitization to provide equal access to
library collections; and
4. the absence of any harm to the Guild’s actual or potential market.
Where, as here, a use confers great public benefits by providing equal
educational and research opportunities for the blind and does not harm copyright
holders, the equities strongly favor fair use. The public benefits generated by using
the HDL for accessibility are not counterbalanced by harm to authors and
publishers, who have never considered the blind to be a significant market or

REDACTED. 117 Allowing the blind equal access to library collections does not
affect the economic incentives for authors and publishers to create and disseminate
new works.118 Thus, the district court correctly held that the HDL’s creation,
maintenance, and use for accessibility fully serve the constitutional purpose of
copyright.
Before turning to the fair use factors, it should be noted that neither §121 nor
§108 of the Copyright Act affects the application of fair use to the facts of this
case. Thus, for example, certain works in a library, such as unpublished and
nondramatic literary works, are excluded from the scope of the Chafee
Amendment, but should be considered under the fair use doctrine so that they can

117

REDACTED; Dkt_79(¶¶42-43); Dkt_78(¶¶20-39); Dkt_114-1(pp.56-57);
Dkt_114-2(p.80).
118
See infra Part III.D.
38

be as equally available to a blind college student as to a sighted one. Without
supporting authority, the Guild argues that if the doctrine of fair use permitted the
blind to access the HDL, the Chafee Amendment would have been unnecessary. 119
The Guild, however, concedes that the doctrine of fair use applies to providing an
accessible copy of a book on request to a blind reader, even when the provider is
not a Chafee entity. 120 In light of the Guild’s concession that fair use has some
application to the provision of accessible texts to the blind, it follows that its
application in the present case must be assessed in exactly the same way as any
other invocation of fair use. As demonstrated below, that analysis leads to the
conclusion that use of the HDL for the blind is fair use.
For the first time on appeal, the Guild also suggests that §108 should inform
the analysis of libraries’ right to fair use. Below, the Guild argued that libraries
had no fair use rights beyond those outlined in §108 and therefore could not rely on
§107 to serve the blind—a position antithetical to the plain language of §108 (f)(4):
“Nothing in this section . . . in any way affects the right of fair use as provided by
section 107.” The Guild’s new argument should fare no better. Because §108
does not address what non-infringing actions are open to libraries to address the
needs of blind patrons, it has no bearing on the fair use analysis.

119
120

Guild Br. at 51.
Id.
39

Both §121 and §108 are congressional enactments that define a safe harbor
for certain permitted non-infringing institutional practices without in any way
limiting rights under §107. Accordingly, as demonstrated below, application of the
traditional fair use factors establishes the correctness of the district court’s
decision.
A.

The purpose and character of use for the blind strongly favor fair
use.

In Campbell, the Court explained that a fair use may, but need not be,
transformative in nature, so long as it furthers the goal of copyright to promote
science and the arts. 121 The educational purpose of this use—to enable the blind to
engage in study and research—tilts the first factor in favor of fair use. In addition,
the district court correctly found that the “use of digital copies to facilitate access
for print-disabled persons is . . . transformative.”122
1.

The use is highly transformative.

Pursuant to Campbell, a transformative use adds something new or has a
further purpose, a different character, or new meaning, 123 in contradistinction to a

121

Campbell, 510 U.S. at 579.
Dkt_156(p.18).
123
510 U.S. at 579 (citing Leval, Toward a Fair Use Standard, 103 Harv. L. Rev.
1105, 1111 (1990)).
40
122

use that merely “supersede[s] the objects” of the original creation. 124 For several
of the reasons set forth by the Court, the HDL’s creation to serve the blind
qualifies as transformative: (i) that use has a “further purpose”—to enable the
entire corpus of university libraries to be searched and studied by blind teachers,
students, and scholars (whereas, in printed form, the HDL’s texts were neither
written, published, nor marketed to be accessible to the blind); (ii) it has a
“different character”—to serve as the foundation of equal educational opportunity
for the blind and fulfillment of the moral values, societal norms, and legal
imperatives that call for the abolition of discrimination against individuals with
disabilities; and (iii) it “alter[s] the first [work] with new . . . meaning . . .” by
making the library collections accessible to the blind, and thus imbuing them with
vast new significance for those whose print disabilities previously rendered those
collections devoid of meaning. The district court correctly found that, in contrast,
the purpose of works presented in print format is for the edification and enjoyment
of people who can see. 125
In holding that the use by the blind is transformative, the district court
explicitly relied on this Court’s holding in Bill Graham Archives v. Dorling

124

Id. (citing Folsom v. Marsh, 9 F. Cas. 342, 348 (No. 4,901) (CCD Mass. 1841);
and Harper & Row Publishers, Inc. v. National Enter., 471 U.S. 539, 562 (1985)
(“supplanting” the original)).
125
Dkt_156(p.18).
41

Kindersley Limited. 126 that an unauthorized use of unaltered images from Grateful
Dead concert posters and tickets was transformative because it used the images for
a wholly different purpose. Citing Bill Graham Archives, the district court
correctly reasoned that “a transformative use can also be one that serves an entirely
different purpose” even when there is no change to the original work. 127 Notably,
the Guild is silent as to the district court’s view of the significance of Bill Graham
Archives. 128
The use here is also analogous to the use found transformative in Kelly v.
Arriba Soft Corp.129 (explicitly relied on by this Court in Bill Graham Archives 130),
which involved the wholesale, unmodified copying of entire works to create an
enormous database of photographs.131 Because the defendant’s purpose in
displaying thumbnail versions of the photographs on its website was to enable
users to research available photographs and to locate the websites from which they
could be obtained, the Ninth Circuit reasoned that the use was “significantly
transformative.” 132 Just as the court found that “Arriba’s use of the images serves
a different function than Kelly’s use—improving access to information on the
126

448 F.3d at 611 (2d Cir. 2006).
Dkt_156(p.16).
128
Cf. Lore, 670 F.3d at 149 (challenges to the district court’s ruling should not be
raised for the first time in reply).
129
336 F.3d 811, 818-20 (9th Cir. 2002).
130
448 F.3d at 611.
131
336 F.3d at 815.
132
Id at 817-20.
42
127

internet . . . ,” 133 so, too, the digitization of library collections improves access to
information for the blind. Digitization makes it possible for the blind to locate and
study books in academic libraries. This use differs completely from the authors’
original purpose in creating works accessible only to those who could read the
print in which they were fixed. 134
Similarly, in Sega Enterprises, Ltd. v. Accolade, Inc., where Accolade’s
purpose to develop new, compatible video games required copying Sega’s security
software, in part because its original object code was visually inaccessible, the
Ninth Circuit held that the copying was transformative. 135 Likewise, the print texts
from which the HDL was created are not in a format that can be read by the blind,
but when digitized to make them accessible, serve the societal goal of equal
educational opportunity for the blind.136 In both Arriba Soft and Sega, as in this
case, (1) the resulting public benefit represented a new purpose relevant to the
determination of fair use, (2) the digital copying was necessary to access (literally,
to see) the works, and (3) that which was copied was not altered.

133

Id. at 819. See also Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1166
(9th Cir. 2007) (amended decision) (holding that Google search engine’s gathering
and displaying thumbnail versions of plaintiff’s photographs was “significantly
transformative,” and noting the “importance of analyzing fair use flexibly in light
of new circumstances”) (citing Sony, 464 U.S. at 431–32)).
134
Dkt_114-1(pp.56-57); Dkt_114-2(p.80).
135
977 F.2d 1510, 1525 (9th Cir. 1993) (amended decision) (“[T]he record clearly
establishes that humans cannot read object code”) (emphasis in original).
136
Dkt_79(¶18).
43

The Sega court emphasized the importance of a strong public interest as a
consideration favoring fair use, stating:
[W]e are free to consider the public benefit resulting from a particular
use . . . . Public benefit need not be direct or tangible, but may arise
because the challenged use serves a public interest . . . . It is precisely
this growth in creative expression, based on the dissemination of other
creative works, and the unprotected ideas contained in those works,
that the Copyright Act was intended to promote. 137
The same observation applies to benefits flowing from making library collections
accessible to the blind: increased educational and research opportunities for the
blind will, in turn, generate substantial new creative expression to the benefit of
society.
In Sony Computer Entertainment v. Connectix Corp., 203 F.3d 596 (9th Cir.
2000) the Ninth Circuit held that intermediate copying of the Sony Playstation
basic input-output operating system (BIOS), in order to reverse engineer the BIOS
software and create new platforms on which Playstation videogames could be
played, was a transformative fair use. 138 The court reasoned that prohibiting the
copying inherent to reverse engineering “would erect an artificial hurdle in the way
of the public’s access to the ideas contained within copyrighted software programs
. . . [and] decline[d] to erect such a barrier . . . .” 139 Likewise, the barrier of printed

137

977 F.2d at 1523 (citing Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S.
340, 349 (1991)).
138
203 F.3d 596, 605 (9th Cir. 2000).
139
Id.
44

text is an artificial hurdle for the blind to the ideas in that text and this Court should
similarly decline to bless the unnecessary maintenance of such a barrier. Indeed,
the public clearly has a greater interest in equal educational opportunity for the
blind, an interest for which Congress has provided “a clear and comprehensive
national mandate”140 than in the creation of new interoperable videogames and
game platforms.
In A.V. ex rel. Vanderhye v. iParadigms, LLC, the Fourth Circuit considered
whether the creation of a huge database of student papers for the purpose of
detecting plagiarism was a transformative fair use. 141 The database was generated
in part by copying millions of past student papers, against which current student
work could be electronically compared for telltale signs of plagiarism. 142 Plaintiffs
were students who protested the involuntary digital ingestion of their papers as an
infringement of their copyrights. The court held this use to be highly
transformative because the purpose and character of the defendant’s use were
different from those of the student-author plaintiffs, and because it provided a
substantial public benefit. 143 The same analysis applies here: the different purpose
(accessibility) and the important public benefit (equality in educational

140

42 U.S.C. §12101 (b)(1).
562 F.3d 630 (4th Cir. 2009).
142
A.V. v. iParadigms, LLC, 544 F. Supp. 2d 473, 478 (E.D. Va. 2008), aff’d in
relevant part, 562 F.3d 630 (4th Cir. 2009).
143
iParadigms, 562 F.3d at 638-640.
45
141

opportunity) justify both creating the HDL and employing it to promote
accessibility for the blind.144 The Guild’s brief does not address iParadigms, even
though the district court relied on it as one of several cases in which a court
“upheld wholesale copying of works where the use and purpose for the copies was
clearly distinguishable from those of the original.”145
Kelly, Perfect 10, Sega, Connectix, and iParadigms demonstrate that uses
can be transformative in circumstances where the original work is neither altered
nor significantly re-contextualized. Otherwise, Campbell’s most basic tenet—that
fair use must be decided in a flexible manner in light of all circumstances,
including the public interest and the purpose of copyright—would be gone with the
wind. In all these cases, the transformative nature of the uses in question arose
from their new and publicly beneficial purposes in furtherance of the goals of
copyright. Similarly, here, the transformative nature of the use by the blind derives
from its significant and socially beneficial new purpose.
In contrast, the cases relied upon by the Guild, holding that certain uses were
neither fair nor transformative, concerned copying by a multinational oil company

144

See also Field v. Google, Inc., 412 F. Supp. 2d 1106, 1119 (D. Nev. 2006)
(holding that “[b]ecause Google serves different and socially important purposes in
offering access to copyrighted works through “[c]ached” links and does not merely
supersede the objectives of the original creations, the Court concludes that
Google’s alleged copying and distribution of Field’s Web pages containing
copyrighted works was transformative”).
145
Dkt_156(p.16).
46

seeking to cut costs and maximize profits, and for-profit, telephonic retransmission
of radio broadcasts by a company that charged fees to subscribers for listening to
distant radio stations.146 Neither offers a useful analogy to the non-commercial
digitization of library books to allow access to a group of previously excluded
students and scholars.
The HDL does not merely allow blind individuals to read; it grants them
unprecedented entry into a universe of information, insight, and understanding that
has long been available to the rest of us. The HDL transforms blind students from
sidelined bystanders to full participants in the development, exchange, and
dissemination of ideas. In light of the highly transformative nature of use of the
HDL as a tool to promote accessibility, and of its educational purposes, the first
factor weighs heavily in favor of fair use.
2.

The purpose and character of the blind’s use of the HDL
strongly favor fair use even if it were not viewed as
“transformative.”

As stated above, the Guild is wrong in arguing that the use is not
transformative. Even if, arguendo, the use were not transformative, it would still
be fair. 147 In 1976, long before Campbell introduced the concept of transformative
use into the judicial copyright lexicon, Congress set forth its understanding that
146

Am. Geophysical Union v. Texaco, Inc., 60 F.3d 913 (2d Cir. 1994); Infinity
Broad. Corp. v. Kirkwood, 150 F.3d 104 (2d Cir. 1998).
147
See Campbell, 510 U.S. at 578; Sony, 464 U.S. at 455 n.40; Blanch v. Koons,
467 F.3d 244, 252, n.3 (2d Cir. 2006).
47

providing blind persons with accessible copies of books was a paradigmatic
example of fair use. 148
In 1984, the Supreme Court reiterated that use by the blind is an example of
fair use in Sony Corporation of America v. Universal City Studios, Inc.149 In Sony,
consumers using home video recorders had made copies of television programs for
later personal viewing at times that suited their own needs. Accordingly, the Court
reasoned that such copying was a fair use. Here, the copying enables access to
learning to print-disabled readers. This important public purpose of promoting
equal access to education is even more in keeping with the letter of fair use, to say
nothing of its spirit—advancing the development of knowledge—than the
facilitation of postponed home television viewing.
This Court has recognized that uses mentioned specifically in the text of
§107 tip the first fair use factor in favor of fair use.150 Campbell likewise instructs
that the first factor enquiry “may be guided by the examples in the preamble to
§107 . . . .” 151 Educational use appears both among the illustrations provided in the
section’s preamble and in the text relating to the first factor itself (contrasting use
“of a commercial nature” with use for “nonprofit educational purposes”). A
148

See House Report at 73.
464 U.S. at 464-65.
150
NXIVM Corp. v. The Ross Inst., 364 F.3d 471, 477 (2d Cir. 2004) (“there is a
strong presumption that factor one favors the defendant if the allegedly infringing
work fits the description of uses described in §107”) (internal citation omitted).
151
Campbell, 510 U.S. at 578-79.
48
149

purpose that not only is educational, but implements other important public
policies such as equal access for the blind, should weigh even more heavily in
favor of fair use.
Where, as here, the copying provides equal educational opportunity for blind
scholars, thereby dramatically increasing dissemination of knowledge to the blind
and enabling them to make new intellectual contributions, the purpose and
character of the use weigh overwhelmingly in favor of fair use, regardless of
whether it is characterized as transformative. In dismissing the significance of
non-transformative fair use, without actually addressing the point, 152 the Guild
ignores Campbell’s directive to engage in “an open-ended and context-sensitive
inquiry,” 153 and instead embraces a disfavored “bright-line” approach 154 to
unjustifiably exclude the blind.
Now that digitization enables a vastly larger number of books to be
accessible to the blind, the role of fair use in promoting accessibility, recognized
by Congress and in Sony, is more significant than ever. Thus, the fair use purpose
of making accessible copies for the blind, as identified in the 1976 House Judiciary
Committee Report, applies with full force now that digital technology has made
comprehensive access to university library collections possible. Based on the

152

Guild Br. at 32-33.
Blanch, 467 F. 3d at 251.
154
Campbell, 510 U.S. at 578 (citations omitted).
49
153

revolutionary context of the HDL’s use by the blind, and its furtherance of
scholarship, equality of opportunity, and the advancement of the arts and sciences,
the first factor weighs heavily in favor of a finding of fair use.
B.

The nature of the copyrighted works favors fair use.

Factor two—“the nature of the copyrighted work”—concerns whether the
work is at the core of copyright’s protective purpose (fiction, painting, poetry,
theatrical film, songs) or instead is more in the nature of a factual or informational
work (historical or scientific works, statistical compilations, maps, political
commentaries, sociological studies). The use of works of a more factual nature is
more likely to qualify as fair. 155 Although, the second factor may have “limited
usefulness” in light of the transformative nature of the use, 156 it nevertheless favors
a finding of fair use.
University libraries do not abound in best sellers, but instead focus on
collecting works of interest to scholars and on creating a comprehensive record of
our cultural history. 157 In the case of most university libraries, such as the
University of Michigan’s, a majority of the works will be closer to the
factual/informational end of the spectrum rather than the creative end. 158 Blind

155

See, e.g., Campbell, 510 U.S. at 585; see also, Bill Graham Archives, 448 F.3d
at 612.
156
Bill Graham Archives, 448 F.3d at 612 (citing Campbell, 510 U.S. at 586).
157
Dkt_110(¶¶11,86).
158
Id.(¶59).
50

scholars will generally retrieve even works of fiction, drama and poetry from the
HDL as objects of study, rather than as sources of entertainment. 159 Factor two
therefore favors fair use.
C.

The amount and substantiality of the works copied are consistent
with the purpose of the use.

The third factor—“the amount and substantiality of the portion used in
relation to the copyrighted work as a whole”—concerns whether the amount
copied is reasonable in light of the purpose of the use.160 Where, as here, the entire
work must be copied to accomplish the purpose of the use, this factor is fully
consistent with a finding of fair use. 161 Equality of access for the blind cannot be
obtained unless the blind can use the same collections that are available to sighted
students and scholars in the same ways—that is, with the capacity to browse and
search the collection to identify relevant research materials, as well as to study the
159

See Bill Graham Archives, 448 F.3d at 612-13 (even where all works used were
“creative,” “the second factor has limited weight in our analysis because the
purpose of DK’s use was to emphasize the images’ historical rather than creative
value”).
160
Campbell, 510 U.S. at 586.
161
Courts have repeatedly found fair use even though the entire work or works
were copied. See iParadigms, 562 F.3d 630, Perfect 10, 508 F.3d 1146; Bill
Graham Archives, 448 F.3d 605; Arriba Soft, 336 F.3d 811; Sega, 977 F.2d 1510,
Connectix, 203 F.3d 596; Field, 412 F. Supp. 2d 1106; see also Blanch, 467 F.3d
at 257-58 (Where copying is “reasonable when measured in light of [its] purpose . .
. [the third factor] weighs distinctly in [defendant’s] favor.”); Nunez v. Caribbean
Int’l News Corp., 235 F.3d 18, 24 (1st Cir. 2000) (“[T]o copy any less than [the
entire image] would have made the picture useless to the story”) (citing Castle
Rock Entertainment, Inc. v. Carol Publishing Group, Inc., 150 F.3d 132, 144 (2d
Cir. 1998)).
51

material located as a result. That highly important purpose requires comprehensive
digitization of library collections so that they can be made available in an
accessible form.
D.

Use by the blind causes no harm to any actual or potential
market.

The fourth factor—“the effect of the use upon the potential market for or
value of the copyrighted work”—weighs strongly in favor of fair use for both legal
and factual reasons. Campbell and its progeny instruct that where, as here, a use is
transformative, factor four generally favors fair use. The different purpose and
character of a transformative use makes it unlikely to affect, much less usurp, the
market for the original work. 162 Moreover, as this Court has noted, a copyright
holder is not entitled to monopolize transformative uses. If it were, a primary
purpose of the Copyright Clause and fair use—promoting progress—would be
obstructed.163 This rationale applies with full force to the Guild’s efforts to

162

Campbell, 510 U.S. at 591 (“[W]hen . . . the second use is transformative,
market substitution is at least less certain, and market harm may not be so readily
inferred.”); see Bill Graham Archives, 228 F.3d at 615 (“Since DK’s use of BGA’s
images falls within a transformative market, BGA does not suffer market harm due
to the loss of license fees.”); Blanch, 467 F.3d at 258 (“The fourth fair-use factor
greatly favors Koons” because his transformative uses did not “usurp[] the market
for the original work.”); Murphy v. Millennium Radio Grp. LLC, 650 F.3d 295, 308
(3d Cir. 2011) (“[A] copyright owner cannot claim market harm simply because he
would have liked to charge for the use in question. If that were the case, then it
would be difficult indeed for any fair use defense to succeed.”).
163
Bill Graham Archives, 448 F.3d at 615 (A “copyright holder cannot prevent
others from entering fair use markets merely by developing or licensing a market
52

frustrate the availability of the HDL to blind students and scholars—without
pointing to any meaningful practical alternative.
In addition, the record below establishes that, as a purely factual matter,
there is no harm to any of the Guild’s actual or potential markets. As evidenced by
the declarations of George Kerscher, James Fruchterman, and Dr. Marc Maurer,

REDACTED, there has never been, nor is there ever likely to be, a market for
creating a digital database of library collections accessible to blind students. 164
Neither the Guild nor its members’ publishers have ever attempted to develop such
a “market” because they believe there is no profit to be made in it. The
Association of American Publishers, after study, determined that there was no
market for books for the blind.165 The market is so devoid of commercial value
“that it is common practice in the publishing industry for authors to forgo royalties
that are generated through the sale of books manufactured in specialized formats
for the blind.” 166
The absence of a market that could be harmed is a critical distinction
between this case and Texaco, on which the Guild relies so heavily. 167 There, an

for . . . transformative uses of its own creative work.”) (internal citation and
quotation marks omitted).
164
Dkt_78(¶¶20-40); Dkt_79(¶¶41-50); Dkt_80(¶¶9-10); REDACTED.
165
Dkt_79(¶42).
166
Guild Br. at 34.
167
Texaco, 60 F.3d 913.
53

active licensing market was in place and each unlicensed copy represented a sale
lost. Here,

REDACTED

and no

evidence suggests that copyright holders believe that licensing works in library
collections for accessibility purposes would represent a worthwhile business
model; indeed, the evidence is to the contrary. 168
The enormous cost of creating the HDL, and the lack of a profitable market
for the provision of accessible books in general, demonstrate why no specialized
market offering the blind comprehensive access to library collections is likely to
develop, even in the absence of the HDL. 169 As no actual or potential market is
impaired by this use, factor four weighs decidedly in favor of fair use.
E.

The overall balance favors a finding of fair use.

The foregoing requires these conclusions: (1) the creation and use of the
HDL to facilitate access to library collections by the blind is a fair use, and without
it the goal of universal accessibility will not be achieved; (2) the ADA’s mandate
of equal access in all spheres of life, including education, gives even greater weight
to the public interest in this use; and (3) this use dovetails with the constitutional
mandate that copyright serve the goal of advancing learning and knowledge. Thus,

168

REDACTED; Dkt_77-3(pp.5,7).
Dkt_79(¶17); Dkt_77-2(56:2-9) (Google testifying that “the cost just of the
scanning of the book, not of the development of the technology, would be $10,
estimate”).
54
169

in the words of this Court in Bill Graham Archive, “copyright law’s goal of
promoting the Progress of Science . . . would be better served by allowing the use
than by preventing it.” 170 The record unequivocally establishes that the district
court correctly determined that the activities at issue, insofar as they concern
access by the blind to library collections, constitute a fair and non-infringing use.
CONCLUSION
For the reasons set forth above, the judgment of the district court should be
affirmed.
Dated: May 28, 2013
Respectfully submitted,
By:
/s/
Daniel F. Goldstein
Jessica P. Weber
BROWN, GOLDSTEIN & LEVY, LLP
120 E. Baltimore Street, Suite 1700
Baltimore, Maryland 21202
Telephone: [phone]
Facsimile: 410-385-0869
[e-mail]
[e-mail]
Robert J. Bernstein
THE LAW OFFICE OF ROBERT J. BERNSTEIN
380 Lexington Avenue, 17th Floor
New York, NY 10168
Telephone: [phone]
Facsimile: 212-551-1001
[e-mail]

170

448 F.3d at 608 (internal quotation marks omitted).
55

Peter Jaszi
5402 Surrey Street
Chevy Chase, Maryland 20815
Telephone: [phone]
Facsimile: 301-656-7483
[e-mail]
Counsel for Intervenors Defendant-Appellees

56

CERTIFICATE OF COMPLIANCE
As counsel of record to the Intervenor Defendants-Appellees, I hereby
certify that this brief complies with the type-volume limitations set forth in Rule
32(a)(7)(B) of the Federal Rules of Appellate Procedure. I am relying upon the
word count of the word-processing system (Microsoft Word) used to prepare the
brief, which indicates that 13,198 words appear in the brief, except for the portions
excluded from the word count pursuant to Federal Rule of Appellate Procedure
32(a)(17)(B)(iii).
By:
/s/
Daniel F. Goldstein
Jessica P. Weber
BROWN, GOLDSTEIN & LEVY, LLP
120 E. Baltimore Street, Suite 1700
Baltimore, Maryland 21202
Telephone: [phone]
Facsimile: 410-385-0869
[e-mail]
[e-mail]
Robert J. Bernstein
THE LAW OFFICE OF ROBERT J. BERNSTEIN
380 Lexington Avenue, 17th Floor
New York, NY 10168
Telephone: [phone]
Facsimile: 212-551-1001
[e-mail]

57

Peter Jaszi
5402 Surrey Street
Chevy Chase, Maryland 20815
Telephone: [phone]
Facsimile: 301-656-7483
[e-mail]
Counsel for Intervenors Defendant-Appellees

58

ADDENDUM
17 U.S.C. §107
Notwithstanding the provisions of sections 106 and 106A, the fair use of a
copyrighted work, including such use by reproduction in copies or phonorecords or
by any other means specified by that section, for purposes such as criticism,
comment, news reporting, teaching (including multiple copies for classroom use),
scholarship, or research, is not an infringement of copyright. In determining
whether the use made of a work in any particular case is a fair use the factors to be
considered shall include—
(1)

the purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes;

(2)

the nature of the copyrighted work;

(3)

the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and

(4)

the effect of the use upon the potential market for or value of the
copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if
such finding is made upon consideration of all the above factors.

A-1

17 U.S.C. §121
(a)

Notwithstanding the provisions of section 106, it is not an infringement
of copyright for an authorized entity to reproduce or to distribute copies
or phonorecords of a previously published, nondramatic literary work if
such copies or phonorecords are reproduced or distributed in specialized
formats exclusively for use by blind or other persons with disabilities.

(b)
(1) Copies or phonorecords to which this section applies shall—
(A)

not be reproduced or distributed in a format other than a
specialized format exclusively for use by blind or other persons
with disabilities;

(B)

bear a notice that any further reproduction or distribution in a
format other than a specialized format is an infringement; and

(C)

include a copyright notice identifying the copyright owner and
the date of the original publication.

(2) The provisions of this subsection shall not apply to standardized,
secure, or norm-referenced tests and related testing material, or to
computer programs, except the portions thereof that are in
conventional human language (including descriptions of pictorial
works) and displayed to users in the ordinary course of using the
computer programs.
(c)

Notwithstanding the provisions of section 106, it is not an infringement
of copyright for a publisher of print instructional materials for use in
elementary or secondary schools to create and distribute to the National
Instructional Materials Access Center copies of the electronic files
described in sections 612(a)(23)(C), 613(a)(6), and section 674(e) of the
Individuals with Disabilities Education Act that contain the contents of
print instructional materials using the National Instructional Material
Accessibility Standard (as defined in section 674(e)(3) of that Act), if—
(1)

the inclusion of the contents of such print instructional materials is
required by any State educational agency or local educational
agency;
A-2

(2)

(3)

(d)

the publisher had the right to publish such print instructional
materials in print formats; and
such copies are used solely for reproduction or distribution of the
contents of such print instructional materials in specialized
formats.

For purposes of this section, the term—
(1)

“authorized entity” means a nonprofit organization or a
governmental agency that has a primary mission to provide
specialized services relating to training, education, or adaptive
reading or information access needs of blind or other persons with
disabilities;

(2)

“blind or other persons with disabilities” means individuals who
are eligible or who may qualify in accordance with the Act entitled
“An Act to provide books for the adult blind”, approved March 3,
1931 (2 U.S.C. 135a; 46 Stat. 1487) to receive books and other
publications produced in specialized formats;

(3)

“print instructional materials” has the meaning given under section
674(e)(3)(C) of the Individuals with Disabilities Education Act;
and

(4)

“specialized formats” means—
(A)

braille, audio, or digital text which is exclusively for use by
blind or other persons with disabilities; and

(B) with respect to print instructional materials, includes large
print formats when such materials are distributed exclusively
for use by blind or other persons with disabilities.

A-3