Authors Guild, Inc. v. Hathitrust

Filing 107

PAGE PROOF BRIEF, on behalf of Appellee Mary Sue Coleman, Cornell University, Hathitrust, Michael McRobbie, Kevin Reilly and Mark G. Yudof, FILED. Service date 05/28/2013 by CM/ECF. [949114] [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 RØNNING, 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
REDACTED PAGE PROOF BRIEF FOR DEFENDANTS-APPELLEES

KILPATRICK TOWNSEND &
STOCKTON LLP
The Grace Building
1114 Avenue of the Americas
New York, New York 10036
212-775-8700

and
KILPATRICK TOWNSEND &
STOCKTON LLP
1100 Peachtree Street NE, Suite 2800
Atlanta, Georgia 30309
404-815-6500
Attorneys for 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
In accordance with Rule 26.1 of the Federal Rules of Appellate Procedure,
Defendants-Appellees, by and through their undersigned counsel, each certify that
they have no parent corporation and have not issued any stock.
KILPAT

SEND & STOCKTON LLP

Joseph Petersen
Robert Potter
1114 Avenue ofthe Americas
New York, New York 10036
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Joseph Beck
Andrew Pequignot
Allison Scott Roach
1100 Peachtree Street, Suite 2800
Atlanta, Georgia 30309-4530
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorneys for Defendants-Appellants

TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................................................................... .iv
PRELIMINARY STATEMENT ............................................................................... !
STATEMENT OF ISSUES PRESENTED ............................................................... 3
STATEMENT OF THE CASE .................................................................................. 4
STATEMENT OF FACTS .............................. .. ........................................................ 5
A.

TheHDL ................................................................................................ 5

B.

Problems with Printed Materials ........................................................... 6

C.

The Libraries' Early Digitization Efforts .............................................. 9

D.

The Benefits ofthe HDL's Full-Text Search
Functionality ........................................................................................ ! 0

E.

The Groundbreaking Benefits of the HDL for Individuals
with Print Disabilities .......................................................................... 14

F.

The Security of the HDL ..................................................................... 15

G.

The Orphan Works Project.. ................................................................ l6

STANDARD OF REVIEW ..................................................................................... 18
SUMMARY OF ARGUMENT ............................................................................... l9
ARGUMENT ........................................................................................................... 20
I.

THE DISTRICT COURT PROPERLY HELD THAT THE
LIBRARIES' USES FOR SEARCH, ACCESS TO THE
PRINT DISABLED, AND PRESERVATION ARE FAIR.......................... 20
A.

The Purpose and Character of the Uses Made of the
Works Within the HDL Overwhelmingly Support Fair
Use ....................................................................................................... 22

1.

Search Is "Transformative." ..................................................... 22

2.

Providing Access to the Print Disabled Is
Transformative .......................................................................... 27

3.

Preservation by Academic Research Libraries Is
Transformative .......................................................................... 28

B.

Factor One Favors the Libraries, Even if Their Uses Are
Not Deemed Transformative ............................................................... 30

C.

The Nature of the Copyrighted Works Favors Fair Use ..................... 33

D.

The Amount and Substantiality of the Use Favors Fair
Use ....................................................................................................... 35

E.

The Markets for Appellants' Works Are Not Harmed ....................... 37
1.
2.

F.

II.

There is No Harm to Any Existing Market. ............................. 38
There is No Harm to Any Potential Market.. ............................ 39

Balancing the Fair Use Factors, the Libraries' Uses Fall
Safely Within the Protection of Fair Use ........................................... .43

CONGRESS DID NOT INTEND FOR SECTION 108 TO
CURTAIL FAIR USE ................................................................................... 44
A.

B.

The Legislative History of Section 108 Reinforces Its
Plain Meaning ..................................................................................... 45

C.

III.

The Plain Language of Section 108 Leaves Application
of Section 107 Unaffected ................................................................... 45

Section 108 Complements Section 107; It Does Not
Undermine It. ...................................................................................... 46

THE LIBRARIES' USES FOR THE PRINT DISABLED ARE
PERMITTED UNDER SECTION 121 ......................................................... 48

11

IV.

THE U.S. ASSOCIATIONS LACK STANDING TO
CHALLENGE ANY ALLEGED ACTS OF INFRINGEMENT ................. 50

V.

APPELLANTS' OWP CLAIMS ARE NOT JUSTICIABLE
BECAUSE NO WORKS WERE MADE AVAILABLE
THROUGH THE PROJECT AND THERE ARE NO
CURRENT PLANS TO REINITIATE IT .................................................... 55
A.

Appellants' Abstract and Premature OWP Claims Are
Not Ripe ........................................................................ ,... .................. 55

B.

Appellants Suffer No Hardship from Awaiting
Development of Necessary Facts ........................................................ 58

C.

Appellants Also Lack Standing to Assert the OWP
Claims .................................................................................................. 59

CONCLUSION ........................................................................................................ 61
RULE 32(a)(7)(C) CERTIFICATE OF COMPLIANCE ........................................ 62
STATUTORY ADDENDUM
PURSUANT TO
FED R. APP. P. 28(f) ................................................................................................. 63

1ll

TABLE OF AUTHORITIES
Cases

A. V v. iParadigms, LLC, 562 F.3d 630 (4th Cir. 2009) .............................. 24, 26, 35
Abbott Labs. v. Gardner, 387 U.S. 136 (1967) ........................................................ 56
ABKCO Music, Inc. v. Harrisongs Music, Ltd., 944 F.2d 971 (2d Cir.
1991) ..................................................................................................................... 50
Am. Geophysical Union v. Texaco Inc., 802 F. Supp. 1 (S.D.N.Y.
1992), aff'd, 60 F.3d 913 (2d Cir. 1995) .................................................. 28, 29, 39
Associated Press v. Meltwater US. Holdings, Inc., No. 12 Civ. 1087,
2013 WL 1153979 (S.D.N.Y. Mar. 21, 2013) ..................................................... 27
Authors Guild, Inc. v. Coogle Inc., No. 05-cv-8136 (S.D.N.Y. Oct. 28,
2008) ................................................................................................................. 6, 34
Authors Guild, Inc. v. HathiTrust, 902 F. Supp. 2d 445 (S.D.N.Y.
2012) ....................................................................................................................... 5
Bill Graham Archives v. Darling Kindersley Ltd., 448 F .3d 605 (2d
Cir. 2006) ................................................................... 23, 26, 28, 33, 36, 38, 43, 44
Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006) .................................................. 19, 33
Bogle-Assegai v. Connecticut, 470 F.3d 498, 504 (2d Cir. 2006) ........................... 52
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) ............. 21, 22, 33, 35, 38
Cariou v. Prince, No. 11-1197-cv, 2013 WL 1760521 (2d Cir. Apr.
25, 2013) ......................................................................................................... 18, 19
CBS Broad. Inc. v. EchoStar Commc 'ns Corp., 450 F .3d 505 (11th
Cir. 2006) .............................................................................................................. 54
IV

CBS Broad., Inc. v. EchoStar Commc'ns Corp., No. 98-2651-CIV
(S.D. Fla. Mar. 31, 2003) ,.................................................................................... 54
CBS, Inc. v. PrimeTime 24 Joint Venture, 76 F. Supp. 2d 1333 (S.D.
Fla. 1998) ............................................................'.................................................. 52
Clapper v. Amnesty Int'l USA, 133 S. Ct. 1138 (2013) ........................................... 60
Conn. Nat'! Bank v. Germain, 503 U.S. 249 (1992) .............................................. .45
Duffy v. Penguin Books USA Inc., 4 F. Supp. 2d 268 (S.D.N.Y. 1998) ................. .40
Eden Toys, Inc. v. Florelee Undergarment Co., 697 F .2d 27 (2d Cir.
1982) ............................................................................................................... 50, 54
Eldred v. Ashcroft, 537 U.S. 186 (2002) ................................................................ .47
Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991) ............................ 20
Field v. Google, Inc., 412 F. Supp. 2d 1106 (D. Nev. 2006) .................................. 28
Foad Consulting Grp., Inc. v. Musil Govan Azzalino, 270 F.3d 821
(9th Cir. 2001) ...................................................................................................... 24
Hayes v. Carlin Am., Inc. 168 F. Supp. 2d 154 (S.D.N.Y. 2001) ..................... 55, 56
Isaacs v. Bowen, 865 F.2d 468 (2d Cir. 1989) ........................................................ 57
Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2003) ............... 23, 24, 25, 34, 36
Krim v. PCOrder.com, Inc., 402 F.3d 489 (5th Cir. 2005) ..................................... 53
LaFaro v. N.Y Cardiothoracic Grp., PLLC, 570 F.3d 471 (2d Cir.
2009) ..................................................................................................................... 18
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .............................................. 60
Marchi v. Bd. of Coop. Educ. Servs. ofAlbany, 173 F.3d 469 (2d Cir.
1999) ..................................................................................................................... 56

v

Mary Jo C. v. N.Y. State & Local Ret. Sys., 707 F .3d 144 (2d Cir.
2013),petitionfor cert.filed, No. 12-9996 (U.S. Apr. 26, 2013) ....................... .48
Maxtone-Graham v. Burtchaell, 803 F.2d 1253 (2d Cir. 1986) .................. 22, 33, 35
Miller v. Silbermann, 951 F. Supp. 485 (S.D.N.Y. 1997) ....................................... 60
Mullen v. Soc yofStage Dirs. & Choreographers, No. 06 C 6818,
2007 WL 2892654 (N.D. Ill. Sept. 30, 2007) ...................................................... 51
NY. Civil Liberties Union v. Grandeau, 528 F.3d 122 (2d Cir. 2008) ....... 55, 57, 60
NXIVM Corp. v. Ross Inst., 364 F.3d 471 (2d Cir. 2004) ................................. 22, 37
Ocasekv. Hegglund, 116 F.R.D. 154 (D. Wyo. 1987) ............................................ 51
Olan Mills, Inc. v. Linn Photo Co., 795 F. Supp. 1423 (N.D. Iowa
1991), rev'd on other grounds, 23 F.3d 1345 (8th Cir. 1994) ............................. 54
Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365 (1978) ................................ 53
Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123 (2d
Cir. 2001 ) ..... .. ............... .... ............................... .................. .. .. ............................... 18
Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007) ......... 24, 25, 35
RighthavenLLCv. Hoehn, Nos. 11-16751,11-16776,2013 WL
1908876 (9th Cir. May 9, 2013) ........................................................................... 51

S. Illinois Carpenters Welfare Fund v. Carpenters Welfare Fund of
Illinois, 326 F.3d 919 (7th Cir. 2003) .................................................................. 54
Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1993) ........................ 47
Silvers v. Sony Pictures Entm 't, Inc., 402 F .3d 881 (9th Cir. 2005) ....................... 51
Simmonds v. INS, 326 F.3d 351 (2d Cir. 2003) ..................................... 55, 56, 57,59
Sony Corp. ofAm. v. Universal City Studios, Inc., 464 U.S. 417
(1984) .......................................................................................... 21, 30, 31, 35,38
Vl

Steel Co. v. Citizens for Better Env't, 523 U.S. 83 (1998) ...................................... 52
Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg LP, 861 F. Supp. 2d 336
(S.D.N.Y. 2012) ................................................................................................... 30
Twentieth Century Music Corp. v. Aiken, 422 U.S. 151 (1975) .............................. 20
United Food & Commercial Workers Union Local751 v. Brown
Group, Inc., 517 U.S. 544 (1996) ......................................................................... 52
United States v. Cambia Exacto, S.A., 166 F.3d 522 (2d Cir. 1999) ....................... 53
United States v. LaBonte, 520 U.S. 751 (1997) ....................................................... 50
Varity Corp. v. Howe, 516 U.S. 489 (1996) ........................................................... .47
Woods v. Bourne Co., 60 F.3d 978 (2d Cir. 1995) .................................................. 27

Statutes
17 U.S.C. § 106 ........................................................................................................ 25
17 U.S.C. § 107 ............................................................................................ 21, 22,47
17 U.S.C. § 108 ...................................................................................................... 1, 6
17 U.S.C. § 108(e) ....................................... ,........................................................... 57
17 u.s.c. § 108(f)( 4) ............................................................................................... 45
17 u.s.c. § 108(h) .................................................................................................. ,57
17

u.s.c. § 121 ...................................................................................................... 2, 6

17 U.S.C. § 121(a) ................................................................................................... 48
17 U.S.C. § 121(d)(1) .............................................................................................. 49
17 U.S.C. § 501(b) ............................................................................................. 50, 60
17 U.S.C. § 501(e) .................................................................................................. ,52
Vll

Other Authorities
H.R. Rep. No. 2222, 60th Cong., 2d Sess. (1909) ................................................... 21
H.R. Rep. No. 89-2237 (1966) ................................................................................. 46
H.R. Rep. No. 94-1476 (1976), reprinted in 1976 U.S.C.C.A.N. 5659 ...... 31, 32, 46
S. Rep. No. 91-1219 (1970) ............................................................. ... .. ...... ............. 46
S. Rep. No. 94-473 (1975), reprinted in 1975 WL 370213 (Nov. 20,
1975) ..................................................................................................................... 33
Staff of S. Comm. on the Judiciary (Barbara Ringer), 86th Cong.,
Renewal of Copyright 31 (Comm. Print 1960) .......................................... .......... 34
U.S. Const. art. I, § 8, cl. 8 ................................................................................... 2, 20

Rules
13A Charles Alan Wright et al., Federal Practice and Procedure §
3531.9.5 (3ded. 2011) .......................................................................................... 53
4 William F. Patry, Patry on Copyright § 11 :3 (20 11 ) ............................. .. ............ .46
6 William F. Patry, Patry on Copyright§ 21:28 (2011) .......................................... 51
Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105
(1990) ................................................................................................................... 22
Stewart E. Sterk, Intellectualizing Property: The Tenuous
Connections Between Land and Copyright, 83 Wash. U.L.Q. 417
(2005) ........................................................................ .......... .................. .. ............. 21

V111

PRELIMINARY STATEMENT
This case involves the fair use of copyrighted books by university libraries
that are digitizing those materials for limited purposes: helping scholars identify
(but not read) potentially relevant works; providing the print disabled with access
to books that until now have been largely unavailable to them; and preserving the
libraries' irreplaceable collections for future generations of scholars.
The HathiTrust Digital Library ("HDL") is a secure repository of digital files
drawn from the collections of leading university libraries. It enables
groundbreaking research capabilities that are simply impossible with conventional
printed texts, such as full-text searches and "text mining"-the search for word
combinations and other textual patterns. The HDL makes works available to blind
and other print-disabled individuals on a scale never before achievable. It preserves
works in digital form to ensure that, if the original text deteriorates or is lost and
copies are no longer available for purchase, a new copy can be created.

But of all the facts of record concerning the HDL, perhaps the single most
important fact for purposes of this appeal is this-the HDL is not a vehicle for
reading books online. It does not provide access to the text of copyrighted books,
except for uses authorized by a copyright holder, uses authorized under 17 U.S.C.
§ 108 (such as replacing out-of-print or stolen books), and to users with certified

print disabilities. The HDL thus respects copyright holders' rights while promoting
fair use rights codified by Congress.
The HDL' s services are limited, but its benefits are immense. Through the
HDL, out-of-print, rarely checked-out books in offsite storage facilities can be
searched and discovered online (and then read offline). Men and women who
cannot see or turn physical pages may access knowledge. Deteriorating books that
would have been lost are preserved.
In this case, Appellants, which are associations and individual authors,
brought suit, claiming the HDL infringed their copyrights. After discovery and
briefing, the District Court rejected those claims. The court concluded, among
other things, that the HDL's functions constitute fair use of copyrighted works. It
further held that the HDL' s uses for blind and print-disabled individuals are
authorized by the Chafee Amendment, 17 U.S.C. § 121.
This Court should affirm. The limited uses permitted by the HDL serve the
Constitutional requirement that copyright law "promote the Progress of Science,"
(U.S. Const. art. I, § 8, cl. 8), and they do no harm to authors. They are fair uses
and lawful reproductions for people who have disabilities. Accordingly, the
District Court was correct in concluding that these uses are rightfully made without
the authorization of Appellants, because they have the authorization of Congress.

2

STATEMENT OF ISSUES PRESENTED

1.

Whether it is fair use for nonprofit university libraries, for purposes of

scholarship and research, to digitize books in their collections to make those books
text-searchable, when Appellants have identified no meaningful likelihood of harm
arising from such use.

2.

Whether it is fair use for nonprofit university libraries, for purposes of

scholarship and research, to digitize books in their collections to provide access to
those collections, in specialized formats, for patrons with print disabilities, when
Appellants have identified no meaningful likelihood of harm arising from such use.

3.

Whether it is fair use for nonprofit university libraries, for purposes of

scholarship and research, to digitize books in their collections for the limited
purposes of preserving books within their collections so that a replacement copy
can be made in case of deterioration, theft, or natural disaster, when Appellants
have identified no meaningful likelihood of harm arising from such use.

4.

Whether an academic institution can be an "authorized entity" that can

rely upon Section 121 of the Copyright Act to provide access to works in
specialized formats for the blind and other people with print disabilities, when the
undisputed evidence establishes that the academic institution has a primary goal of
improving access for print-disabled individuals.

3

5.

Whether the U.S. appellant associations who are neither the legal nor

beneficial holder of a copyright lack statutory standing because Section 501 (b) of
the Copyright Act provides that only the "legal or beneficial owner of an exclusive
right under a copyright" is entitled to institute an action for infringement.
6.

Whether a claim is not ripe where it seeks a declaration that certain

uses of unidentified copyrighted works, if they took place, would constitute
infringement, when those uses have not yet been made and there are no current
plans to proceed with them.
STATEMENT OF THE CASE
Appellants are individuals who hold copyrights in various published works
and U.S. and foreign associations of copyright holders. Appellees (the "Libraries")
are individuals and institutions associated with several public and private
university libraries. Also named in the action is the "HathiTrust," a service offered
by the University of Michigan ("Michigan") for the benefit of the HathiTrust
member organizations as well as users of the HathiTrust website located at
www .hathitrust.org.

The Libraries have been digitizing books in their collections and storing
digital copies in a secure repository that has come to be called the HathiTrust
Digital Library or "HDL." In 2011, seven years after Appellants first had notice

4

that Google would help digitize books found in the Libraries' collections,
Appellants sued the Libraries for copyright infringement.
In an omnibus ruling on October 10, 2012 ("Op."), the District Court
resolved various cross motions for summary judgment and judgment on the
pleadings. See Authors Guild, Inc. v. HathiTrust, 902 F. Supp. 2d 445 (S.D.N.Y.
2012). The District Court ruled that the U.S. associations of copyright holders
lacked statutory standing under the Copyright Act (Op. at 8-9), and that
infringement claims against the Orphan Works Project ("OWP") were unripe (Op.
at 11-12). On the merits, the court ruled that the Libraries' digitization efforts were
not infringing because they were a fair use of the copyrighted materials and
permissible under the statutory provision allowing reproduction and distribution
"exclusively for use by the blind or other persons with disabilities." (Op. at 21-23.)
STATEMENT OF FACTS
A.

The HDL.

The HDL represents a collaboration of more than 60 colleges, universities,
and other nonprofit institutions (including the Libraries) that have pooled their
collections of digitized books. 1 (Dkt#11 0 ~~55-56.)
The permitted uses of copyrighted works in the HDL are extremely limited:

1

The number currently stands at eighty.
5

•

•

Access for persons with print disabilities. As an authorized entity
under 17 U.S.C. § 121, as well as consistent with fair use, Michigan
has enabled uses for the blind and others with certified print
disabilities.

•

(Id.

Full-Text Search. Users may search for one or more terms or phrases
across all works within the HDL. The search results indicate only the
page numbers on which a term is found within a particular book and
the number of times it appears on each page. Search results do not
show any text, and patrons do not have electronic access to any
copyrighted content (unless they are users with a certified print
disability).

Preservation. The HDL is a safeguard against the sudden or ongoing
loss of print books and enables the Libraries to make future noninfringing uses, such as replacing a work under 17 U.S.C. § 108.

~68.)

The HDL now totals more than ten million works published over many
centuries, in a multitude of languages, covering almost every subject imaginable.
(Id.

~~57-61.)

B.

Problems with Printed Materials.

Libraries are entrusted with preserving books for generations of future
scholars, including those researching some of the most arcane subjects known to
humanity. (Id.

~41)

The vast majority ofthese books are out of print, meaning that

replacements cannot be acquired easily, if at all. (Id.

~66.)

See also Memorandum

of Law in Support of Plaintiffs' Motion for Preliminary Settlement Approval at 27,
Authors Guild, Inc. v. Google Inc., No. 05-cv-8136 (S.D.N.Y. Oct. 28, 2008).

6

There are numerous threats to books. Millions of volumes in libraries were
destroyed during the World Wars, and the collection ofthe National Library in
Sarajevo lost over one million volumes due from shelling in the 1990s. 2 (Dkt#110
~32.)

Hurricane Katrina devastated Tulane University's Howard-Tilton Memorial

Library in 2005, with flooding destroying 90% of the 500,000 volumes in one of
the library's collections. (!d.

~31.)

Just last year, the University of Wisconsin

suffered significant losses to its collection due to severe flooding. (Dkt# 107 ~~613.) Many of these works may be lost forever. (Jd.

~~16-19.)

Images ofthe

Wisconsin destruction appear below.

Nor is sudden loss the only threat. For instance, many books in the Libraries'
collections-books printed between 1850 and 1990-were printed on high-acid
paper that is particularly prone to deterioration through a chemical reaction caused
by moisture in the air. (Dkt#110 ~~22-25.) Even materials printed on non-acidic
2

Perhaps the most famous example of a loss of a library, of course, is the
destruction of the Library of Alexandria. (Dkt#110 ~32.)
7

paper often do not survive their years of library circulation unscathed: tom pages,
worn covers, and broken spines are common. Because most books in the Libraries'
collections are now out of print, the physical books have become irreplaceable. (/d.
~

66.) As of2004, Michigan estimated that approximately 3.5 million of its books

were particularly vulnerable to deterioration and, ultimately, loss. (!d.

~25.)

Michigan's experience is typical of other libraries.
In addition to being prone to damage, deterioration, loss, and theft, books in
printed form present two further limitations. First, a book's contents are not readily
searchable. Scholars researching specific references, terms, or phrases invariably
must review many irrelevant books to find pertinent ones. (See Dkt#102 ~~5-7.)
The printed form also makes many types of textual or statistical analyses of printed
materials painstaking, if not impossible. (See Dkt# 104 ~~7, 21.)
Second, a book's printed contents are largely inaccessible to individuals with
visual and other print disabilities (such as cerebral palsy, quadriplegia, or missing
arms). (Dkt#79 ~6.) Without accessible digital books, print-disabled individuals
depend on the limited existing audio, braille, or large-font versions of books, or
must rely on lengthy and cumbersome processes to have a book read and recorded
or converted into braille or another accessible format. (!d.

~~7,

10, 18-20, 32, 34-

36; Dkt #77-4 (Kleege Decl.) ~~4-5; Dkt#77-5 (Seidlitz Decl.) ~~5-6; Dkt#110
~102.)

8

C.

The Libraries' Early Digitization Efforts.

To protect their collections against the types of losses summarized above,
more than twenty years ago Michigan and other libraries began digitizing
deteriorating books in their collections. (Dkt# 110 ~41.) Their efforts could not
begin to keep up with the rate of book losses (id.

~~25-29,

42); it would have taken

Michigan more than 1,000 years to digitize its entire collection, then consisting of
more than 7 million volumes (id.

~44 ).

In 2004, Michigan entered into an agreement with Google to convert its
hardcopy books into a digital format. (Jd.
give Michigan a digital copy. (!d.

~47.)

~46.)

The agreement required Google to

With Google's involvement, what would

have taken Michigan a millennium to accomplish took less than a decade. (Jd.
~~44-45.)

day. (Jd.

The HDL comprises more than 10 million books and is growing every

~57.)

While Michigan was the first academic library to work with Google to
digitize Michigan's library collection, Google ultimately partnered with a number
of other universities and research libraries (including the other Library defendants
in this action and Harvard, Stanford, Oxford, Columbia, Princeton, and the
Universities of Virginia and Texas at Austin, among others). (!d.

9

~52.)

D.

The Benefits of the HDL's Full-Text Search Functionality.

Full-text searching is the most significant advance in library search
technology in the last five decades. (!d.

~75.)

Rather than combing through paper,

card, or electronic catalog records and attempting to discern from author, title, and
subject heading whether works may be relevant, scholars can go to the HathiTrust
website and search-but not read or copy-the actual text of copyrighted books
and journals. (Jd.

~~76-81.)

The search results display bibliographic information-

including title, author, publisher, and publication date-for in-copyright books
containing the search term. (!d.

~77 -79.)

The search results also display the page

numbers on which the term is found within the book and the number of times it
appears on each page, thereby providing some clues as to how useful the book
might be. (Id. ~~77 , 80.) The text itself, however, is not made digitally available
(readable or downloadable) unless it is determined that it is in the public domain or
the rights holder has given permission to provide access to the work's content. (ld.
~81;

see also id.

~16.)

Scholars and former scholars of a certain age can remember the process of
endlessly thumbing through well-worn card catalogues in search of potentially
relevant books. (Dkt#102

~~5 - 7.)

Now, through the HDL, library search can be

performed anywhere with an Internet connection yielding, in milliseconds, results
like this:
10

l lt11hi Tnm

Di~t al

Librnt)' • l!(l] ~rQU: AllcrJ,y and U UO IU\"tlllxolitm
M

Hom e

Abo u t

Collectto n s

My Collecti o n s

Catalog Search

I C Full view only c:::::J

L....- - - - - - - - ----11 AI' •··· ••

and

leite r ~

:f Vl.c.rras l•;·ty S,-

Cut.,~, Searc11

!• Crtu th rt.
Allergy and tissue metabolism (by) W. G. Smith .

Similar Items
l:(.,

!l.ov:UTce<f

I'"

t>tevct '"IICII ·'OJ~l e ra 1 'Jr• ted States
.. otun tHn rB;.\J !1.1137
ly Srnlh W.dt!Gto rgt. \854· 1P24
Pu blhlltd IIB981

Marn Author

t/ fVI

Pubii<Jt'ted

Spnngfteld. Ill .. C. C. Thomas (1964)

Subjects

tc. Endr~VIe

Engh$1'1

8y. Godooi!,W. Zbqntw z_
Publifllt'd IIH21

E ...poe t

Smith WaltE.r Gnorge.

Lanflu:Jge(s l

I

SPruch Tips

A<t('rgy

A. Cl\h and ''"'rhylil.•JS as merab:lo

·~

T• !..:..~ me!Jbol sm

hletl'OOI•tl'l o f .:.no-' trssues

P11bll"'td (19601

Ph}"SICll Oe-;:crrpt;on

11 0 p illus. 22 em.

On• c•· ·mmur(logylilnJ c!'e''h
By. Cntp L•oHt rm ll'ln. 1896·
Pt.o bll$tltd {\969J

Ong nal Form;Jt:

Book

Ortg tnal CtasSif•C"-J!'Orl I• rmbe!
H

OR 185 .M $662

Locate a Pr rnt Vers•Orl :

FrnU m" library

A~o.:Oib,,

n.el~bo!·&~n 11 1 3dr"n:il
r er.rvJuc\1~'! !issues t~l the

<lC•d

gtou1 lt'\J
.:J
~Htlltlo"g

~y . Otvrtt . t.l •jof .. MN!rfr.

Viewability:

Pt.~bli~t'd. l l 9117 1

l.letabolt·: bone 0.-aeat!t ce' IJ.t1 ou--.1
nssue ,...ec:har•·~,.-,1 r
Pt.lblllll.c!( 1i8ll l
A~'II(JW: ~nue

f i!I)Uia•coh

.,,~lobo'•: 'vf'I,~COns

;,n::

I

Pu blished t 19701

E'1t r':11'"'etat;:icm bU\1$
eel ....., (l•r '--~'al t e:; 1

cl'!I~H'·•fliln \:; a•~ I

Publl~..:ltlfXI21

Lprd me:fibo· sm

In

bn;..u cu-llom cells 1

Published t 1K7 t
L p 1 lllt!OO OI ~II III IIUtA t:'-' 11..11:1 eel~
d
Publi~ed

(19671

I W. G. !milil ,

~omE>

About

Collechons

My

Col!er:t 1on~

• Bad< to page

Search In this text

L:l:.:"':<:ph:!C •d::::..:"""=''-------'IC!:]
a . ~::: ~

<Ill Go to the beginning of the book

0 About this Book
Alergy and tissue metabolism (by] W .

Full view is not available for this item
due to copyright© restrictions .

G. Smith . ... . Sm ith, W aller George.
View full catalog record
Copyright: Protected by oopyrighl taw

~

Get this Book

anaphylactic AND shock matched 41 pages in this item.

Find in a library

Broaden your search to pages having just one or more or your terms.

l[l Add to Cottecaon

Vle'Ning resulls for: 1 to 10 of 41 pages
11 11 131 132 1nextlt>

login to make your personal
collecUons permanent

p.17- 12 matching terms
! s.k<tCollediool

p.26 - 13 match ing terms

p.30 - 11 matching terms
p.27 - 12 matching terms
...,~ Share

p.15 - 11 matching terms

Permanent link to this book

p.88 - 9 mstch/ng terms

Ih1tp1M.Iwldtt.ne!J2077..tndp.3901~70MTO I

p .9

~8

mstchlng tenns

p.26 - 8 matchlnQ terms

p.16- 8 mstchlng terms
Vel'llon: 2012.0S·07 09:10 UTC

(l)

p.21 - 8 matching tenns
VIewing results for. 1 to 10 of 41 pages

11 11 131 132 1next•

< >
'>

11

f. l o u

IPIC

If'• !1;1 •

~·,,.II

,__.,l lt mPI 11 ,

I' JII<l ,

( ,11 ;l<

(Dkt#110 ~~76-81.)
Absent full-text search, the information within the Libraries' collections may
be all but invisible to scholars. As explained by Dr. Stanley Katz, the renowned
American historian at Princeton, "[s]ophisticated digital searching over the text of
large numbers of books has permitted me to search for specific words or names (or
words or names in relation to each other) that simply was not possible using a
library card catalog, the electronic [Online Public Access Catalogs], or other
bibliographic sources." (Dkt#102 ~9 (emphasis added).) Author Margaret Leary
similarly used HathiTrust search to discover books otherwise unknown to her for
her own scholarship, noting: "In seven years of research, I did not find [the]
information anywhere else." (Dkt# 103

~~1 0-13.)

Both researchers, after identifying

relevant books, located physical copies of the books and read the relevant portions

in those copies, not online. (Dkt#102 ~~14-16; Dkt#103

~10.)

The HDL also empowers researchers to engage in a form of scholarship or
research known as "text mining." Text mining is the use of technology to extract
meaningful information from text, for example identifying patterns and trends or
performing statistical analyses. (Dkt#104 ~~3-7.) The text files produced by the
digitization can also be aggregated into datasets and fed into specialized statistical
and analytical software tools to extract valuable information. (Jd.
29.)
12

~~7,

14-21, 25-

As University of Illinois at Chicago Professor Neil Smalheiser explained,
text mining has been used to identify "influential experts .. .in a particular subject,
predict[] civil unrest in third world countries, or track[] the emergence of infectious
disease outbreaks or terrorist cells." (Jd.

~4.)

One researcher used text mining to

infer that fish oil supplementation would ameliorate "Raynaud Syndrome," a blood
disorder potentially causing necrosis and gangrene. (Id.

~13 . )

Likewise, the same

researcher used this technique to propose that magnesium supplementation would
ameliorate migraine headaches. (Id.) Another researcher used text mining to
identify a molecule likely to be involved in Huntington' s Disease, a
neurodegenerative genetic disorder. (Jd.

~~15-17.)

All three hypotheses developed

through text mining were validated through clinical testing. (Id. ~~13,17 . )
In both search and text mining, the end user never sees the underlying
work' s text. (See Dkt#110 ~~16, 77-81; Dkt#104 ~~3, 7, 14-21, 27.) The user
obtains only bibliographical information about the book that contains her search
terms along with a listing of pages where the terms appear. (Dkt#110 ~~77- 81.) If
the user wishes to view a book, she must obtain it from the library by reviewing a
copy on the premises or checking out a physical copy. (See id. ; see also Dkt#102
~~15-16;

Dkt#103

~10.)

13

E.

The Ground breaking Benefits of the HDL for Individuals with
Print Disabilities.

For centuries, students and scholars with a broad range of disabilities have
been denied equal access to library collections. (Dkt#110 ~101; see also Dkt#77-4
(Kleege Decl.) ~~5-7; Dkt#77-5 (Seidlitz Decl.) ~~5-8; Dkt#77-6 (Wheeler Decl.)
~~6-8 ;

Dkt#79 ~~7, 10, 32-36.) A visually impaired student or scholar must wait

weeks or months for requested works to be converted into accessible formats
without knowing beforehand whether the works will be of any value to her
research. (Dkt#110 ~102; see also Dkt#79 ~~18-20, 32, 34-36.)
In response to the roadblocks faced by print-disabled scholars, Michigan
developed an accessibility program that affords scholars with print disabilities full
access to its libraries' works within the HDL. (Dkt#110 ~~103-06 . ) Other
HathiTrust member libraries intend to provide similar specialized services through
the HDL to print-disabled scholars on their campuses. (Dkt#125-5 (Ex.9) (Wilkin
Tr. 217:8-218:7); Dkt#145

~3 ,

Ex.B at 1.)

Access for individuals with visual or print disabilities is subject to rigorous
safeguards. To use the HDL, a person with a print disability must obtain
certification ofthat disability from a qualified expert. (Dkt#110 ~105.) Such
certified users obtain secure access using their unique digital access passwords and
are trained on the system and warned about possible copyright infringement. (Id. ;
14

Dkt#125-5 (Ex.9) (Wilkin Tr. 213:17-214:10).) With digital access, a printdisabled patron can perceive the works within the HDL using adaptive
technologies such as software that converts the text into spoken words. (Dkt# 110
~105;

Dkt#144 ~~7-8.) In addition, images can be used with magnification displays

to show an enlarged copy of a work to a print-disabled individual, including those
non-textual parts of the book-pictures, charts, diagrams, and the like-that are
difficult to convert to text or spoken form. (Dkt# 144 ~~7 -8; see also Dkt# 148 ~~1617.)

F.

The Security of the HDL.

The works within the HDL are stored on secure servers at Michigan and
Indiana University's Indianapolis campus. 3 (Dkt#110 ~88.) The facilities at both
institutions implement a number of physical and electronic security measures to
thwart unauthorized access. (!d.

~~93-99;

see also Dkt#137 ~14.) The Center for

Research Libraries, through its rigorous assessment program, has certified the
HDL as a trustworthy digital repository. (Dkt#110 ~91; see also Dkt#137 ~9.)
Extensive physical controls restrict access to the HDL. The HDL servers,
storage, and networking equipment at Michigan and Indiana are mounted in locked
3

Maintenance of copies at two different locations mitigates the risk of destruction
or loss of the digital files, ensuring that physical damage to one site, for example
from a fire or earthquake, would not completely destroy the digital files. (Dkt# 110
~~87-89.) Encrypted tape backups of the HDL are also maintained and stored
securely offline. (!d. ~90.)
15

racks, and only six individuals at Michigan and three at Indiana have keys to those
racks. (Dkt#110 ~94.) The data centers housing that equipment are monitored by
video surveillance, and entry requires use of a keycard and recognition by a
biometric sensor. (Id.)
Web access to the HDL corpus is also highly restricted. (Id.

~96.)

Access by

users of the HDL service is governed by the HDL rights database, and also by a
user's authentication to the system (e.g., as an individual certified to have a print
disability by Michigan's Office of Services for Students with Disabilities). (Id.)
The Libraries began the digitization project at issue in this lawsuit more than
seven years ago and, as testified by the individual in charge of the HDL's security,
"in all that time there is absolutely no reason to believe that anyone has managed to
pierce Michigan's or the HDL's security protections and obtain unauthorized
access to the text of a single in-copyright work." 4 (Dkt#137 ~9.)

G.

The Orphan Works Project.

In 2011, Michigan announced a project called the "Orphan Works Project"
(or "OWP" for short). (Dkt#110 ~109.) Orphan works are still in copyright but

4

Appellants' security expert admitted: "I don't know about all of the security
systems that [the Libraries] have." (Dkt#137 ~8, Ex.A (Edelman Tr. 248:11-12).)
He acknowledged that "I don't think I would be the best person to evaluate [an
entity's] security systems, but I think I would be able to assist them in selecting an
appropriate person." (Id. (Edelman Tr. 288:15-18).)
16

prospective users cannot readily identify or locate the copyright holders (Dkt#133
,-r76; see also Dkt#llO ,-ri08). The (unrealized) goal of the OWP had two stages:
1)

identify out-of-print works, try to find their copyright holders, and, if

no copyright holder could be found, publish a list of orphan works candidates
before moving to the second stage (Dkt#llO ,-r,-ri09-10, 112-13; Dkt#114-75 at 2021 (response to Interrogatory 5));
2)

enable limited, non-infringing uses of the works by Michigan Library

patrons (Dkt#llO ,-r,-ri09-10). 5
Before any works were made accessible, Michigan-the only library that has
actively engaged in the work ofthe OWP (Dkt#llO ,-rii5)-sought to identify and
locate contact information for potential copyright holders through a number of
different avenues. (Dkt#114-75 at 20-21 (response to Interrogatory 5).) Michigan
posted a list of potential orphan works that it had identified through this process.
(Dkt# 110 ,-r112.) If the public listing led to the identification of a copyright holder
for a work, that work would have been removed as a candidate from the program.

(Id. ,-rii3; see also Dkt#114-75 at 21-22 (response to Interrogatory 5).) Michigan

5

Had Michigan implemented the OWP, the number of users permitted to view a
given orphan work at any one time would have been limited to the number of
hardcopies owned by the library. (Dkt# 110 ,-rill.)
17

discovered that a number of the works initially identified as potential orphan works
had ascertainable copyright holders. (Dkt#110 ~113.)
Concluding that its initial screening mechanism might have been
insufficient, Michigan did not implement the OWP. (Id.

~114.)

The director of the

OWP testified that he does not know "whether or how the OWP will continue."
(!d.

~116.)

Not a single patron has been given access to a work through the OWP, and
no additional works have been publicly identified as potential orphan works under
the project. (Id.

~~114,

116; Dkt#133

~~84,

86.)

STANDARD OF REVIEW
This Court reviews the district court's entry of summary judgment de novo.

Cariou v. Prince, No. 11-1197-cv, 2013 WL 1760521, at *4 (2d Cir. Apr. 25,
2013). A Rule 12(c) entry of judgment on the pleadings is reviewed similarly. See

Patel v. Contemporary Classics ofBeverly Hills, 259 F.3d 123, 126 (2d Cir. 2001)
(specifying de novo review); see also LaFaro v. NY Cardiothoracic Grp., PLLC,
570 F.3d 471,475-76 (2d Cir. 2009) (in reviewing judgment on pleadings, courts
must accept as true factual allegations of complaint, and draw all inferences in
favor of pleader). "[T]his court has on numerous occasions resolved fair use
determinations at the summary judgment stage where there are no genuine issues

18

of material fact." Cariou, 2013 WL 1760521, at *4 (quoting Blanch v. Koons, 467
F.3d 244, 250 (2d Cir. 2006)) (ellipsis omitted).
SUMMARY OF ARGUMENT
The Libraries' nonprofit educational uses of digitized works for search,
access to the print disabled, and preservation are fair uses, as demonstrated by the
relevant factors. The Libraries' uses are favored purposes under Section 107 of the
Copyright Act, are transformative, and do not harm the market for the copyrighted
works (Section 107 Preamble and Factors 1 and 4). The books in the HDL are
predominantly factual, published, and out of print (Factor 2); and complete
digitizations are necessary for the Libraries' educational and transformative
purposes (Factor 3).
The Libraries' fair use rights are not preempted or limited by Section 108 of
the Copyright Act, and Michigan, as an "authorized entity" under Section 121 of
the Copyright Act, is entitled to provide access to works in specialized formats to
the blind and other people with print disabilities.
Finally, certain of Appellants' claims are not justiciable. The Appellant
associations based in the United States lack statutory standing under Section
501(b) of the Copyright Act because they are neither the legal nor beneficial holder
of the copyrights in their members works. The Hunt test for associational standing

19

governs only constitutional and prudential standing; it does not address statutory
standing.
Appellants' infringement claims based on prospective uses of unidentified
works through the OWP are not ripe because they present abstract hypothetical
disputes and lack facts crucial to deciding whether such uses, were they to occur,
would be non-infringing uses under Sections 107 or 108. Appellants likely would
not even be the relevant rights holders in a potential future dispute, and therefore
also lack standing for their OWP claims.

ARGUMENT
I.

THE DISTRICT COURT PROPERLY HELD THAT THE
LIBRARIES' USES FOR SEARCH, ACCESS TO THE PRINT
DISABLED, AND PRESERVATION ARE FAIR.
The primary objective of copyright "is not to reward the labor of authors, but

'[t]o promote the Progress of Science and useful Arts.' "Feist Publ 'ns, Inc. v.

Rural Tel. Serv. Co., 499 U.S. 340, 349 (1991) (alteration in original) (quoting
U.S. Const. art. I, § 8, cl. 8). A copyright is a statutorily limited right and "reflects
a balance of competing claims upon the public interest: Creative work is to be
encouraged and rewarded, but private motivation must ultimately serve the cause
of promoting broad public availability of literature .... " Twentieth Century Music

Corp. v. Aiken, 422 U.S. 151, 156 (1975). Copyright "is not based upon any natural
right" of authors but rather reflects a weighing of the benefits to the public arising
20

from "stimulating the producer" of copyrighted works against "the evils of the
temporary monopoly." Sony Corp. ofAm. v. Universal City Studios, Inc., 464 U.S.
417, 429 n.10 (1984) (quoting H.R. Rep. No. 2222, 60th Cong., 2d Sess. 7
(1909)). 6
Inherent in the Act's objective to promote the "Progress of Science" is the
right of the public to make fair use of copyrighted works. See Campbell v. Acuff-

Rose Music, Inc., 510 U.S. 569,575 (1994) ("From the infancy of copyright
protection, some opportunity for fair use of copyrighted materials has been thought
necessary to fulfill [this] very purpose .... "). Thus, as Congress has instructed,
"notwithstanding the provisions of section 106 ... fair use of a copyrighted
work .. .is not an infringement of copyright." 17 U.S. C. § 107.
Section 107 enumerates four factors courts consider in evaluating fair use:
(1) the purpose and character of the use; (2) the nature of the copyrighted work; (3)
the amount and substantiality of the portion used; and (4) the effect of the use upon
the potential market for or value of the copyrighted work. Courts have "the

6

Appellants' references to eminent domain and takings without compensation
(Appellants' Br. at 1, 40) are misplaced. Copyright law is not derived from, nor is
it the equivalent of, common law protections for real property. See generally
Stewart E. Sterk, Intellectualizing Property: The Tenuous Connections Between
Land and Copyright, 83 Wash. U.L.Q. 417, 417 (2005). Further, there has been no
"taking" of Appellants' works. Appellants who are the legal or beneficial holders
of a copyright can continue making such uses of their works as they see fit.
21

freedom to adapt [fair use] to particular situations on a case-by-case basis, in light
of changing technology." Maxtone-Graham v. Burtchaell, 803 F.2d 1253, 1260 (2d
Cir. 1986).
A.

The Purpose and Character of the Uses Made of the Works
Within the HDL Overwhelmingly Support Fair Use.

The Libraries' "nonprofit educational" uses-for "teaching," "scholarship,"
and "research"-perfectly match the examples Congress intended as fair uses
under Factor One. See 17 U.S.C. § 107. Indeed, as this Court has held, Factor One
strongly favors fair use where the use falls within the categories listed in Section
107. NXIVM Corp. v. Ross Inst., 364 F.3d 471, 477 (2d Cir. 2004).
Factor One heavily favors the Libraries. If there is any doubt (and there
should be none), the transformative purpose ofthe HDL removes it.
1.

Search Is "Transformative."

Factor One evaluates whether new uses "supersede the objects" of the works
used or instead "add[] something new, with a further purpose or different
character, altering the first with new expression, meaning, or message ... [,]"

Campbell, 510 U.S. at 579 (citing Pierre N. Leval, Toward a Fair Use Standard,
103 Harv. L. Rev. 1105, 1111 (1990)). In courts' lexicon, Factor One asks whether
the new uses are "transformative."

22

Enabling the contents of millions of books to be fully searchable and
analyzable for scholarship and research purposes-but not read online-is a highly
trans formative use. 7 Original works provide scholarly or artistic value in book
format by allowing users to peruse and enjoy their contents. By contrast, search
and text mining of the digital format allows individual words or phrases in the
works to be located and analyzed algorithmically. (See Dkt#110 ~~16, 77-81;
Dkt#104 ~3, 7, 14-21, 27.) Such uses are quintessentially transformative.
The District Court's finding of a transformative use is grounded in Circuitlevel authority. In Kelly v. Arriba Soft Corp., 336 F.3d 811, 819 (9th Cir. 2003)
(cited favorably in Bill Graham Archives v. Darling Kindersley Ltd., 448 F.3d 605,
609 (2d Cir. 2006)), the Ninth Circuit concluded that copying for purposes of
search is a transformative use and thus fair. Although the defendant in Arriba Soft
made and displayed "exact replications" of millions of works, the use was
transformative because the copied images appearing in search engine results served

7

The HDL's search results do not reveal any portion of the text of the underlying
work. (Dkt #110 ~~77-81.) However, even search results that revealed a portion or
snippet of the content would have a strong claim of transformative purpose. But
that is not an issue before this Court. (See Dkt#133 ~~50-51.)
23

a different purpose, "improving access to information on the internet versus artistic
expression. " 8 I d. at 819.
In Perfect 10, Inc. v. Amazon. com, Inc., 508 F.3d 1146 (9th Cir. 2007), the
Ninth Circuit drew the same conclusion when it examined Google's copying of
Internet content: "Although an image may have been created originally to serve an
entertainment, aesthetic, or informative function, a search engine transforms the
image into a pointer directing a user to a source of information. " 9 I d. at 1165
(emphasis added); see also A. V. v. iParadigms, LLC, 562 F .3d 630, 640 (4th Cir.
2009) (finding defendant's copying and archiving of student papers to detect
plagiarism a protected fair use as it "was completely unrelated to expressive
content").

8

Through the HDL, library patrons do not see even a low-resolution or reducedsize copy of books; rather they see only book titles and the page numbers where
their search terms appear, neither of which is protected by copyright. (Dkt#110
~~16, 77-81.)
9

Appellants seek to distinguish Arriba Soft and Perfect 10 on the ground that
"such owners have provided an implied license to search engines to copy and index
their contents." (Appellants' Br. at 33.) But an implied license is a separate defense
to copyright infringement; if an implied license is found, there is no need to engage
in the fair use analysis. See, e.g., Foad Consulting Grp., Inc. v. Musil Govan
Azzalino, 270 F.3d 821, 832 n.19 (9th Cir. 2001) (finding it unnecessary to address
fair use where there was an implied license). Moreover, as amicus Associated
Press recognizes, "[n]either decision makes any distinction between publication on
the Internet versus another medium, and neither decision ever mentions an implied
license argument." (The Associated Press ("AP") AP Br. at 24 n.ll.)
24

The search functionality enabled by the digitization here is legally
indistinguishable from the transformative search engines found to be fair uses in

Perfect 10 and Arriba Soft. Search and text mining allows HDL users to identify
works based on criteria of interest and to analyze-but not read-text through
means impossible in their original form. (See Dkt#102 ~9; Dkt#104 ~~7, 21.)
Whereas the original works derive value from their contents, search and text
mining reveal their value from extracting information about the text or from
aggregating information from multiple sources. Such uses serve "an entirely
different function," Arriba Soft, 336 F.3d at 818, than the original expressive
purpose of the books and are unquestionably transformative.
Appellants argue that "even if ingesting a copyrighted work into a search
engine is transformative, it does not follow that the permanent storage of the
original content is also transformative." (Appellants' Br. at 33.) But the mere
storage of a lawfully made, non-infringing copy does not implicate any rights
protected by copyright. See 17 U.S.C. § 106. Moreover, as the District Court
recognized, permanent storage of the content fulfills the purposes of preservation
and is the only way to provide immediate, meaningful access for those with print
disabilities. 10 (Op. at 19 n.26.)

10

Appellants point out that the full-size copies created by Arriba Soft were not
retained (even though the thumbnails that were created and displayed clearly
25

Appellants' amici claim that a transformative use must add something to the
original work and result in a new expressive work. (See The Associated Press
("AP") Br. at 12-21; American Society of Journalists and Authors, Inc. Br. at 1011.) Amici confuse the distinct concepts of derivative works (which require new
copyrightable expression) and transformative uses under Section 107 (which do
not). See Bill Graham Archives, 448 F.3d at 609 (holding that the unauthorized use
of entire, unaltered concert posters to illustrate points in a book was for an
"entirely different purpose" and thus was transformative); iParadigms, 562 F.3d at
639 (holding that a use "can be transformative in function or purpose without

altering or actually adding to the original work.") (emphasis added).
The ultimate question is whether a new use "supersedes" the original
purpose of the copyrighted work. Non-expressive uses such as search are less likely
to be superseding, not more. Appellants' amicus agrees: the Associated Press
recognizes that "[i]n this unusual case, in which an educational, non-commercial
institution has created an index that does not display any actual text from the

were). (Appellants' Br. at 33.) But the Ninth Circuit's decision does not suggest
anywhere that this was relevant to the holding. Nor should it be, since the focus in
fair use is logically and naturally on the "use" and not the copying that enabled it.
26

allegedly infringed works, the index .. .likely does not supercede [sic] the objects of
the copyrighted books." 11 (AP Br. at 12.)

2.

Providing Access to the Print Disabled Is Transformative.

The District Court found that the "use of digital copies to facilitate access for
print-disabled persons is also transformative" (Op. at 18), noting that providing
access to print-disabled persons was not an intended use of the printed book. That
finding is supported by an undisputed factual record. The Secretary of Appellant
The Authors Guild, Inc. testified that she did not believe the print disabled should
have access to her works. (Dkt#111

~22,

Ex.U (Cummings Tr. 56:23-57 :3).)

Appellants miss the mark in asserting that accommodating the print disabled
is not a transformative use, comparing it to a translation that violates a copyright
holder's control over derivative works. The hallmark of a derivative work, under
Section 101, is the addition of copyrightable expression to existing works. See

Woods v. Bourne Co., 60 F.3d 978, 990 (2d Cir. 1995) ("[F]or a work to qualify as
a derivative work it must be independently copyrightable."). That is a distinct issue

11

Amicus the Associated Press appears to be primarily motivated by the impact
that this Court's decision will have on its pending case against Meltwater News.
(See AP Br. at 3 n.2.) That case has no real application here because the district
court found that the uses at issue in that case superseded the need to read the
original articles. Associated Press v. Meltwater US. Holdings, Inc., No. 12 Civ.
1087,2013 WL 1153979, at *12-14 (S.D.N.Y. Mar. 21, 2013). Here, in contrast,
the Libraries' limited uses are not superseding.
27

from whether the use is transformative under Section 107, a Factor One inquiry
that focuses on the purpose underlying the use and not the work itself.
3.

Preservation by Academic Research Libraries Is
Transformative.

Preserving books for future lawful uses is "transformatively different from
the original expressive purpose" of the books. See Bill Graham Archives, 448 F.3d
at 609; cf Am. Geophysical Union v. Texaco Inc., 802 F. Supp. 1, 14 (S.D.N.Y.
1992) (noting that copying an article "onto durable archival paper to prevent
deterioration, or onto microfilm to conserve space, ... might be a persuasive
transformative use"), aff'd, 60 F.3d 913 (2d Cir. 1995); Field v. Coogle, Inc., 412
F. Supp. 2d 1106, 1118-19 (D. Nev. 2006) (finding Google's "caching" ofwebsites
transformative because the archival copy allowed users to access otherwise
inaccessible information, and thus served a different purpose than the artistic
function of the copyrighted works).
If an out-of-print, but in-copyright book deteriorates or is stolen, the
Libraries may invoke Section 108( c) to replace the book-a right they could not
exercise if the book had not been preserved digitally. Preservation also ensures that
books will exist when they enter the public domain, which may be long after the
books have gone out of print.

28

Appellants argue that, "[g]iven that one of the core functions of academic
libraries is to 'preserve' books 'not just for current students and faculty, but also
for future generations,' a library does not 'transform' a print book that was
acquired for preservation purposes by digitizing it for the exact same purpose."
(Appellants' Br. at 32 (citation omitted).) Appellants confuse the "purpose" that is
relevant. Authors do not write books to be preserved; they write books to be read.
Digitization for the purpose of preservation does not interfere with this purpose.
Appellants' reliance on Texaco, 60 F.3d 913, is misplaced. (Appellants' Br.
at 31-32.) Texaco circulated monthly journal issues and encouraged its employees
to photocopy and "archive" the articles, or even entire issues, for later reading.
Texaco defended making the reproduced articles available for reading under fair
use as a form of"preservation," but the real purpose of Texaco's copying was to
avoid buying additional copies ofthe works. Texaco, 60 F.3d at 919. Here, in
contrast, the Libraries' preservation efforts are not a pretext for providing users
with access to the text of works; when the Libraries want additional copies to be
read, they buy them. (See Dkt#110 ~~69-74.) Therefore, unlike Texaco's use,
preservation does not supersede any existing use of the books.

29

B.

Factor One Favors the Libraries, Even if Their Uses Are Not
Deemed Transformative.

Uses can be fair uses even without being transformative when they benefit
the public. In Sony Corp. ofAmerica v. Universal City Studios, Inc., 464 U.S. 417
(1984), the Supreme Court held that copying television broadcasts to view at a
later time (i.e., "time shifting") benefited society and, thus, was a protected fair use
even though the copyrighted works were being used for the identical purpose. !d. at
449, 454. Similarly, in Swatch Group Management Services Ltd. v. Bloomberg LP,
861 F. Supp. 2d 336 (S.D.N.Y. 2012), the court held that posting full versions of
earnings calls, while not transformative, was nonetheless a fair use because it
advanced the public interest in disseminating financial news. !d. at 340-41.
As Appellants admit, the HDL presents enormous public benefits.

12

First,

full-text searching can yield breakthrough research by allowing scholars to identify
works that they would not otherwise have discovered. (See Dkt# 102 ~~9, 11, 1417; Dkt#103

~~10-13.)

It also enables new methods of scholarship that can help

scholars better understand the connections between texts and the evolution of
literary language. (See Dkt# 104 ~~3 - 7, 25-29.)

12

In response to the Libraries' Statement of Undisputed Facts that "[t]he HDL
offers immense public benefit" (Dkt#133 ~60), Appellants admitted that the
statement was "uncontroverted" (id.).
30

Second, the HDL affords print-disabled scholars the freedom to perform the
types of research that non-disabled scholars have long taken for granted. Before the
HDL, print-disabled scholars often had no choice but to wait for books of possible
interest to be converted to accessible formats. (See Dkt#llO ~~101-02; Dkt#77-4
(Kleege Decl.) ~~5, 7; Dkt#77-5 (Seidlitz Decl.) ~~5-6; Dkt#79 ~~7, 10, 32-36.)
Now, as a result of the HDL, sources are readily and quickly available to those
scholars to an extent that at least approximates the ready access long enjoyed by
non-disabled scholars. (See Dkt#llO ~~105-6; see also Dkt#79 ~~16, 18, 26, 31 ,
33-34, 38, 40, 51.) Providing access to the blind offers a public benefit so
substantial that both Congress and the Supreme Court have endorsed a finding of
fair use for copying to provide access to the blind. See H.R. Rep. No. 94-1476, at
73 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5686 ("Another special instance
illustrating the application of the fair use doctrine pertains to the making of copies
or phonorecords of works in the special forms needed for the use of blind
persons."); see also Sony, 464 U.S. at 455 n.40 ("Making a copy of a copyrighted
work for the convenience of a blind person is expressly identified by the House
Committee Report as an example of fair use, with no suggestion that anything
more than a purpose to entertain or to inform need motivate the copying.").
Appellants downplay this legislative history as somehow limited to instances
where a print-disabled patron makes an individual request. (Appellants' Br. at 51.)
31

But Congress imposed no such limitation. Nor would such a limitation make any
sense, if the goal is to provide blind students with meaningful access. For example,
Michigan cannot predict whether a blind student will need a specific book on
literary theory or medieval history for a term paper due in one week-insufficient
time to convert it into an accessible format. (Dkt#110 ~102.) Offering works to the
print disabled in a comprehensive and timely fashion is a groundbreaking facet of
the HDL, one that clearly advances the "Progress of Science." For a scholar or
student with a print disability, immediate access to one book is a small step;
immediate access to a library is a giant leap.
Third, preservation is a public value expressly endorsed by Congress. See
H.R. Rep. No. 94-1476, at 73, reprinted in 1976 U.S.C.C.A.N. 5659, 5687 ("The
efforts of the Library of Congress, the American Film Institute, and other
organizations to rescue and preserve this irreplaceable contribution to our cultural
life are to be applauded, and the making of duplicate copies for purposes of
archival preservation certainly falls within the scope of 'fair use.' ") The Libraries'
efforts to preserve millions of imperiled books are an invaluable public benefit.
Finally, even beyond the public benefits of the HDL, the Libraries are
nonprofit organizations (Dkt#133

~5),

making non-commercial uses for the

purpose ofteaching, research, and scholarship (Dkt#110 ~55; Dkt#110-3 (Ex.B) at

32

1). The Libraries' uses are favored under Factor One and overwhelmingly support
a finding of fair use.

C.

The Nature of the Copyrighted Works Favors Fair Use.

As to Factor Two, the District Court correctly held that, "[b ]ecause the use is
transformative, intended to facilitate key-word searches or access for print-disabled
individuals, the second factor is not dispositive." (Op. 18 (citing Bill Graham

Archives, 448 F.3d at 612 ("[T]he second factor may be of limited usefulness
where the creative work of art is being used for a transformative purpose.")).) See

also Campbell, 510 U.S. at 586 (noting that this factor is unlikely to "separat[e] the
fair use sheep from the infringing goats ... "where the use is transformative ). In
any event, the nature of the works in the HDL favors fair use.
Factor Two recognizes that some works are more susceptible to fair use than
others. Copying nonfiction works is more likely to be fair use than copying
fictional works. Blanch, 467 F .3d at 256. Appellants have not disputed that the
large majority of works in the HDL are nonfiction. (See Dkt#110 ~67; Dkt#133
~45.)

Copying published works is more likely to be fair than copying unpublished

ones, Blanch, 467 F .3d at 256, and copying out-of-print works is more likely to be
fair use than copying in-print works, Maxtone-Graham, 803 F.2d at 1264 n.8. 13

13

See also S. Rep. No. 94-473, at 64 (1975), reprinted in 1975 WL 370213 (Nov.
20, 1975) ("A key, though not necessarily determinative, factor in fair use is
33

Appellants have not disputed that the large majority of works in the HDL are
published and out of print. (See Dkt#110 ~66; Dkt#133

~44.)

More broadly,

Appellants concede that "[a]pproximately 75% of the Books in United States
libraries are out of print and have ceased earning any income at all for their
Rightsholders." Memorandum of Law in Support of Plaintiffs' Motion for
Preliminary Settlement Approval at 27, Authors Guild, Inc. v. Google Inc., No. 05cv-8136 (S.D.N.Y. Oct. 28, 2008).
Many out-of-print works are no longer subject to copyright protection. (See
Dkt#110 ~,-r63-66.) Works published between 1923 and 1963 entered the public
domain unless they were renewed (id. ~63); the vast majority were not renewed. 14
Appellants contend that this factor cannot favor fair use because the
Libraries "indiscriminately scanned millions of books .... " (Appellants' Br. at 35.)
Yet if an entity relying on fair use needed to parse each collection to determine
whether it was nonfiction, out of print, or in the public domain before using it,
numerous other beneficial services, including search engines (Arriba Soft and

whether or not the work is available to the potential user. If the work is 'out of
print' and unavailable for purchase through normal channels, the user may have
more justification for reproducing it than in the ordinary case .... ").
14

A 1960 Copyright Office study found that only 7% of books were renewed. See
Staff of S. Comm. on the Judiciary (Barbara Ringer), 86th Cong., Renewal of
Copyright 31, at 220 (Comm. Print 1960).
34

Perfect 10) and plagiarism-detection services (iParadigms), would need be
shuttered as well.
But the heart of the fair use inquiry is not numbers. Copying by nonprofit
libraries of mostly out-of-print, nonfiction, published books to enable search,
preservation, and access to the print disabled is fairer and more in keeping with
copyright law's ultimate objective than making one copy of only one book for the
purpose of selling that copy. It is the difference between fair use and infringement.

D.

The Amount and Substantiality of the Use Favors Fair Use.

Factor Three asks whether the amount copied was reasonable in relation to
its purpose. See Sony, 464 U.S. at 449-50. The District Court rightly concluded that
"entire copies were necessary to fulfill [the Libraries' ] purposes of facilitation of
searches and access for print-disabled individuals." 15 (Op. at 19.)
As this Court has noted, "[t]here are no absolute rules as to how much of a
copyrighted work may be copied and still be considered a fair use." Maxtone-

Graham, 803 F.2d at1263. "[T]he extent of permissible copying varies with the
purpose and character ofthe use." Campbell, 510 U.S. at 586-87. The crux ofthe
inquiry is whether "no more was taken than necessary." !d. at 587 (emphasis
15

Appellants do not dispute that if the Libraries digitized only portions of their
collections they could not provide a comprehensive search tool, provide equal
access to students with print disabilities, or preserve imperiled works. (Dkt#133
~33.)

35

added). In some cases, it is "necessary" to copy and display entire works. See Bill

Graham Archives, 448 F.3d at 613; Arriba Soft, 336 F.3d at 821.
The Libraries have copied no more than is necessary for their fair uses.
Entire books must be digitized for preservation and to allow meaningful access for
the print disabled. Without digitizing entire books, HDL researchers could miss
vital pieces of information. See Arriba Soft, 336 F.3d at 821 ("If Arriba only
copied part of the image, it would be more difficult to identify it, thereby reducing
the usefulness of the visual search engine.").
Appellants argue that the Libraries' preservation efforts have gone too far by
"storing millions of books (including best-selling, commercially-available books)
that have no legitimate need to be 'preserved. '" (Appellants' Br. at 36.) Appellants
ignore that preservation is but one permissible objective among three. 16 If
preservation alone does not justify the digitization of all the books in the HDL, the
Libraries' efforts to make books discoverable by scholars and accessible to the
print disabled certainly do.
Similarly flawed is Appellants' argument that the Libraries' search-related
uses "unnecessarily retain[] complete image and text files comprising every page

16

Even widely available books have different editions with slightly different
content. Such differences may be of particular significance to scholars and should
be preserved.
36

of every book." (!d.) While the HDL's search functionality does not require image
files, the Libraries' preservation uses do. For example, many books include
pictures and illustrations, diagrams, charts, graphs, tables, and other visual material
and such material would be lost without an image file to complement the text file.

(See Dkt#144 ~~3, 5-6.)
Further, the Libraries' efforts to make their collections accessible to the print
disabled also require the retention of image files. Text-to-speech software is one
way to facilitate access by the print disabled, but for many such scholars the image
files enable a vastly superior form of access. This is because some legally blind
students can review image files if they can increase the size or alter the contrast of
the image. (Dkt#144 ~~7-8; see also Dkt#148 ~~16-17.) And disabled students who
have physical impairments may be incapable of turning pages or holding books.
For such students, access to the image files in the HDL is essential.
In sum, Appellants continue to miss what was clear to the District Court.
The Libraries' uses have been in support of three purposes: search, access for the
print disabled, and preservation. These purposes complement and reinforce one
another and justify the full extent of the uses here.

E.

The Markets for Appellants' Works Are Not Harmed.

Factor Four asks "whether the secondary use usurps the market of the
original work." NXIVMCorp., 364 F.3d at 482. The "markets" at issue are "only
37

those that creators of original works would in general develop or license others to
develop." Campbell, 510 U.S. at 592; Bill Graham Archives, 448 F.3d at 614
(noting that only "traditional, reasonable, or likely to be developed markets" are
relevant under the fourth factor). "[A] use that has no demonstrable effect upon the
potential market for, or the value of, the copyrighted work need not be prohibited
in order to protect the author's incentive to create." Sony, 464 U.S. at 450.
1.

There is No Harm to Any Existing Market.

The HDL' s search results do not reveal any contents of a searched-for work.
(Dkt#110 ~~16, 77-81; Dkt#133

~~50-51.)

Accordingly, the HDL cannot substitute

for access to the work and does not harm copyright holders' ability to sell or
license original works.
Appellants admitted below they were unable to identify "any specific,
quantifiable past harm, or any documents relating to any such past harm" resulting
from the Libraries' uses of their works. (See Dkt#111

~~2-21,

Exs.A-T (responses

to Interrogatory 5).) 17 Appellants more likely have it backwards: the text-search
functionality made possible in the HDL by digitization now allows students and
scholars to find Appellants' copyrighted works, many ofwhich have not been
17

Only afterwards did Appellants rely upon a colloquial statement of one author
that each digital copy equates to a lost sale. (See Dkt#116 ~~129, 136; Dkt#133
~40.) The District Court rightly observed that "purchase of an additional copy
would not have allowed either full-text searches or access for the print-disabled
individuals, two transformative uses that are central to the [HDL]." (Op. at 19.)
38

checked out of the library in decades. 18 (See, e.g., Dkt# 102 ~~9, 11, 14-17;
Dkt# 103 ~~10-13; Dkt# 11 0 ~73.)
Appellants' continued reliance on Texaco (involving a commercial, nontransformative, photocopying use by a for-profit entity) is again misplaced. In

Texaco, the court found harm to the plaintiffs' licensing opportunities where the
Copyright Clearance Center ("CCC"), a licensing agent, offered licenses for the
exact use made by Texaco. This Court found such evidence highly relevant
because "a particular unauthorized use should be considered 'more fair' when there
is no ready market or means to pay for the use" and, conversely, "'less fair' when
there is a ready market or means to pay for the use." Texaco, 60 F .3d at 931. Here,

(Dkt#138 ~9, Ex.H (Haber Tr. 13:23-24:23).)
2.

There is No Harm to Any Potential Market.

Appellants conjure " likely to be developed 'workable markets' for the

Libraries to obtain licenses to digitize, store and make various uses of the
copyrighted books in their collections." (Appellants' Br. at 41.) Yet their
18

Indeed, two Appellants deposed in this action- including the Secretary of the
The Authors Guild, Inc.-confessed to not even being aware of the Libraries' uses
of works within the HDL, a fact that evidences they have not been commercially
harmed by the operation of the HDL. (See Dkt#l 11 ~22, Ex.U (Cummings Tr.
19:3-9); id. ~23, Ex.V (~nning Tr. 52:8-14).)
39

arguments are based on self-serving speculation. Appellants did not produce in
discovery:
( 1)

any business plans for licensing the digitization of books;

(2)

any plans for the use of books for preservation and research purposes;

(3)

any analysis of their costs for licensing such markets or anticipated
revenues;

(4)

any communications with entities that might collectively license these
rights; or

(5)

any analysis of the substantial limitations that such an entity would
face in terms of the number of works it could foreseeably license.

They did not produce this evidence because it does not exist. Instead, they offer
only "conjecture." 19 (Op. at 20.)
Appellants argue that even if the CCC does not currently offer a license
specifically covering preservation, search, and access to the blind- it could eventually develop such licenses. However, -

-

· (Dkt#138 ~9, Ex.H (Haber Tr. 13:23-24:23).)
Indeed, given prohibitively expensive costs, no collective licensing entity

could possibly aggregate the rights to the millions of volumes within the HDL that
19

That the majority of works digitized by the Libraries are out of print (Dkt#llO
~66) also supports the absence of any adverse effect on Appellants' markets. See
Duffy v. Penguin Books USA Inc., 4 F. Supp. 2d 268, 275 (S.D.N.Y. 1998) (noting
that, because the plaintiffs book was out of print at the time of the alleged
infringement, there was no market harm).
40

are potentially still in copyright. Dr. Joel Waldfogel, the Frederick R. Kappel
Professor of Applied Economics at the University of Minnesota, conservatively
estimated that it would cost $569 million merely to identify all copyright holders
and seek a license from each to the works within the HDL. 20 (Dkt#108 ~24.)
Appellants argue that the Libraries' reliance on Dr. Waldfogel' s report is
akin to the notion "that it is permissible to steal the goods if it is too expensive to
buy them." (Appellants' Br. at 43.) But when the Libraries make fair uses under
Section 107, those uses are, by definition, "not an infringement." Factor Four turns
on whether a market is likely to form; and, because the uncontested evidence
demonstrates that there are enormous start-up costs precluding the formation of a
market for digitization for the Libraries' purposes (see Dkt#108

~~24,

44), it is

entirely appropriate for the Libraries to rely on Dr. Waldfogel's report to show no
harm to "likely to develop" markets.
Appellants invoke European licensing models for support but fail to mention
a key distinction: in those nations that have legislation addressing digitization of
library collections, the legislation was enacted for the purpose of authorizing

access to the text itself, not just for research, preservation and access by the print

20

Of course, this assumes that the rights holders can be found. Many of the books
in the HDL are out of print or orphan works for which a rights holder might never
be found. (See Dkt#llO ~66.)
41

disabled. (Dkt#136 ~~25-28.) The uncontroverted testimony of Bernt Hugenholtz,
Professor of Intellectual Property Law and Director of the Institute for Information
Law at the University of Amsterdam, was that the European licensing models
"well exceed the types of very limited uses made by the HDL of in-copyright
works (i.e., preservation, search-only and access to the visually impaired)." (!d.)
Finally, Appellants claim that the proposed settlement agreement in the
Google Books case would have represented "a ready market or means to pay for
the use" made by the Libraries. (Appellants' Br. at 43.) However, a proposed,
unperformed release and settlement agreement between litigating parties that was
rejected by the court evinces wishful thinking, not a relevant market.
At bottom, Appellants speculate that Congress will eventually step in and
form a market, for example, by creating a compulsory licensing system. (See
Dkt#4 ~6.) But as the Supreme Court noted in Sony, addressing the "new"
technology of videocassette recorders, "it is not [the court's] job to apply laws that
have not yet been written." Sony, 464 U.S. at 456. Any need for payment to rights
holders, through a compulsory license or otherwise, only becomes an issue if the
Libraries' activities are not a fair use, because fair uses require neither payment nor
permtsswn. 21

21

Even if Appellants' contentions regarding future markets were based on
something more than conjecture (they are not), it would still not be enough to tilt
42

F.

Balancing the Fair Use Factors, the Libraries' Uses Fall Safely
Within the Protection of Fair Use.

Appellants waited nearly seven years after the Libraries began this wellpublicized project, and after the Libraries made enormous investments in the HDL,
before voicing a single objection to the Libraries' conduct. They then abruptly
asked the District Court to shut down and impound the HDL. But the District Court
concluded that it "cannot imagine a definition of fair use that would not encompass
the transformative uses made by Defendants' [Mass Digitization Project] and
would require that [it] terminate this invaluable contribution to the progress of
science and cultivation of the arts that at the same time effectuates the ideals
espoused by the ADA [Americans with Disabilities Act]." (Op. at 22.)
As the District Court recognized, "[t]he totality of the fair-use factors
suggest that copyright law's 'goal of promoting the Progress of Science ... would be
better served by allowing the use than by preventing it." (Op. at 21 (ellipsis in
original) (quoting Bill Graham Archives, 448 F.3d at 608).) It correctly held that
the "Progress of Science" was better served by allowing "enhanced search
capabilities that reveal no in-copyright material, the protection of Defendants'

Factor Four in Appellants' favor. The Libraries' uses are transformative and thus
any harm arises, if at all, in a "transformative market" which copyright holders
should not be permitted to preempt. See Bill Graham Archives, 448 F.3d at 614
("Copyright owners may not prevent exploitation oftransformative markets.")
(internal quotation marks and citation omitted).
43

fragile books, and, perhaps most importantly, the unprecedented ability of printdisabled individuals to have an equal opportunity to compete with their sighted
peers in the ways imagined by the ADA." (!d.)

II.

CONGRESS DID NOT INTEND FOR SECTION 108 TO CURTAIL
FAIR USE.
Appellants argue that whether the Libraries complied with the requirements

of Section 108 holds some undefined relevance to the Libraries' fair use rights with
respect to the HDL. (Appellants' Br. at 18.) Appellants' position before this Court
is also a marked departure from their representations before the District Court.
Appellants argued below that the Libraries could not rely upon fair use at all
because Section 108 alone governed the Libraries' uses. (Op. at 12.) Appellants
now contend that "violations" 22 of Section 108 "should weigh heavily against a
finding of fair use." (Appellants' Br. at 30.) Appellants' new argument, like their
first, remains contradicted by Section 108(±)(4) (which provides that "[n]othing in
this section ... in any way affects the right of fair use as provided by section
107 .... "),legislative history, and the logical function of Sections 107 and 108. 23
22

Section 108 establishes rights for libraries that statutorily limit a copyright
holder's Section 106 rights. A library cannot "violate" its Section 108 rights any
more than a parodist could "violate" her right of fair use under Section 107 or a
person with a disability could "violate" his right to a reasonable accommodation
under the ADA.
23

Section 108, adopted in 1976, provides a safe harbor to libraries and archives
primarily for the then-relatively-new technology of photocopying. Although it was
44

A.

The Plain Language of Section 108 Leaves Application of Section
107 Unaffected.

"[C]ourts must presume that a legislature says in a statute what it means and
means in a statute what it says there." Conn. Nat '/ Bank v. Germain, 503 U.S. 249,
253-54 (1992). The only plausible interpretation of Section 108(f)( 4) is that it
means what it says, viz ., that "[n]othing in this section [108] .. . in any way affects

the right affair use as provided by section 107 .. ... " 17 U.S.C. § 108(f)(4)
(emphasis added). Because Section 108( f)( 4) is unambiguous on its face, "judicial
inquiry is complete." Germain, 503 U.S. at 254 (internal quotation marks and
citation omitted).

B.

The Legislative History of Section 108 Reinforces Its Plain
Meaning.

Although the Court need not consider legislative history because the
statutory text is unambiguous, the legislative history of the statute further
evidences Congress's clear intent to leave fair use unaffected by Section 108. In an
early draft of the legislation, the House Judiciary Committee stated:
It is the committee's intention that the fair use principle provide a
potential limitation on all of the copyright owner's exclusive rights,
whether they are subject to other, specific limitations or not. Thus,
while some of the exemptions in sections 108 through 116 may
overlap the fair use doctrine, they are not intended to supersede it.

amended in 1998 in an attempt to address the shift from analog to digital formats ,
it remains addressed to copying by Libraries for consumptive purposes, that is,
copying in contemplation of later review of the full text by library patrons.
45

H.R. Rep. No. 89-2237, at 65-66 (1966).
The 1969 Senate Report similarly confirmed that "[t]he rights given to the
libraries and archives by this provision of the bill are in addition to those granted
under the fair-use doctrine." S. Rep. No. 91-1219, at 6 (1970) (emphasis added).
The 1976 House Report again crystallized the meaning of Section 108(f)(4): "No
provision ofsection 108 is intended to take away any rights existing under the fair
use doctrine." H.R. Rep. No. 94-1476, at 74 (1976) (emphasis added), reprinted in
1976 U.S.C.C.A.N. 5659, 5687-88; see also id. at 78-79, 1976 U.S.C.C.A.N. at
5692 ("Nothing in section 108 impairs the applicability ofthe fair use doctrine to a
wide variety of situations involving photocopying or other reproduction by a
library of copyrighted material in its collections, where the user requests the
reproduction for legitimate scholarly or research purposes."). 24
C.

Section 108 Complements Section 107; It Does Not Undermine It.

Appellants cite the "specific governs the general" canon to support their
interpretation of Section 108(f)( 4). But the purpose of that canon is to avoid
"applying a general provision when doing so would undermine limitations created
24

See also 4 William F. Patry, Patry on Copyright§ 11:3 (2011) (noting that the
legislative history "indicates that if for one reason or another, certain copying by a
library does not qualify for the section 108 exemption ... , the library's
photocopying would be evaluated under the same criteria of section 107 as other
asserted fair uses. This interpretation not only gives meaning to both sections but is
fully in line with the earlier committee reports.").
46

by a more specific provision." Varity Corp. v. Howe, 516 U.S. 489, 511 (1996)
(emphasis added). Here, fair use, as codified in Section 107, does not undermine
Section 108; rather, the two sections are entirely complementary. See Eldred v.
Ashcroft, 537 U.S. 186, 220 (2002) (noting that Section 108(h) "supplements [the]

traditional First Amendment safeguards ... [,]" including fair use as codified in 17
U.S. C. § 107) (emphasis added)).
As the Ninth Circuit explained in rejecting an argument that the Section 117
limitation for copying computer programs preempted fair use:
[S]ections 107 and 117 serve entirely different functions. Section 117
defines a narrow category of copying that is lawful per se. Section
107, by contrast, establishes a defense to an otherwise valid claim of
copyright infringement .... The fact that Congress has not chosen to
provide a per se exemption to section 106 for disassembly [of
software code] does not mean that particular instances of disassembly
may not constitute fair use.
Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510, 1521 (9th Cir. 1993) (citations

omitted) (holding that Section 117, which permits the owner of a computer
program to make certain copies, had no effect on the defendant's additional right to
make other copies under fair use, noting that plaintiffs argument to the contrary
"verges on the frivolous"). Here too, Section 108 and Section 107 serve entirely
different functions, complementing rather than restricting the other.
Appellants attempt to create ambiguity by selectively quoting from a 1983
Report from the Register of Copyrights. (Appellants' Br. at 30.) But the Register's
47

comments were made in contemplation of further copying of books for
consumptive purposes above and beyond the copying that libraries had already
made under Section 108.Z 5 The Register in 1983 was not contemplating the types
of non-consumptive uses now made possible by digitization. In any case, Section
108(f)(4) unambiguously provides that "[n]othing in this section [108] ... in any

way affects the right of fair use as provided by section 107 ... " (emphasis added),
and therefore trumps possibly contrary interpretations of Section 108, Mary Jo C.

v. N.Y. State & Local Ret. Sys., 707 F.3d 144, 171-72 (2d Cir. 2013),petitionfor
cert.filed, No. 12-9996 (U.S. Apr. 26, 2013).

III.

THE LIBRARIES' USES FOR THE PRINT DISABLED ARE
PERMITTED UNDER SECTION 121.
Section 121 of the Copyright Act, the Chafee Amendment, provides in

relevant part, "Notwithstanding the provisions of section 106, it is not an
infringement of copyright for an authorized entity to reproduce or to distribute
copies ... of a previously published, nondramatic literary work if such copies ... are
reproduced or distributed in specialized formats exclusively for use by blind or
other persons with disabilities[.]" 17 U.S.C. § 121(a). Section 121(d)(1) states that
for purposes of that section," 'authorized entity' means a nonprofit organization or
a governmental agency that has a primary mission to provide specialized services
25

The District Court did not determine whether the Libraries' uses were permitted
under Section 108. (Op. at 22 n.32.)
48

relating to training, education, or adaptive reading or information access needs of
blind or other persons with disabilities." 17 U.S.C. § 121(d)(l).
The District Court held that Michigan has a" 'primary mission' to provide
access for print-disabled individuals, and it is consequently an authorized entity."
(Op. at 23 ("The provision of access to previously published non-dramatic literary
works within the HDL fits squarely within the Chafee Amendment, although
Defendants may certainly rely on fair use, as explained above, to justify copies
made outside of these categories or in the event that they are not authorized
entities.").)
The Libraries adopt in full the arguments set out in the Intervenors' brief
concerning Section 121. We emphasize that the District Court's finding that
Michigan has "a primary mission" to provide access to print-disabled individuals
and is an "authorized entity" under Section 121 was based on undisputed facts
applied to clear statutory language.
Appellants admitted as much. In their Statement of Material Facts in Support
of Their Motion for Summary Judgment, the Libraries-citing the June 28, 2012
Declaration of John Wilkin (Dkt#110 ,-r,-r68, 100, 105)-stated that "[o]ne of the
primary goals ofHathiTrust has always been to enable people who have print
disabilities to access the wealth of information within library collections,"
(Dkt#113 ,-r61) and that "[t]he HDL was designed specifically to enable libraries to
49

make their collections accessible in digital format to print-disabled readers," (id.
~58).

In their Counter-Statement in Response to the Libraries' Statement of

Material Facts, the Appellants responded that these facts were
"[u]ncontroverted .... " (Dkt#133

IV.

~~58,

61.)

THE U.S. ASSOCIATIONS LACK STANDING TO CHALLENGE
ANY ALLEGED ACTS OF INFRINGEMENT.
Section 501 (b) of the Copyright Act states that a "legal or beneficial owner

of an exclusive right under a copyright is entitled . .. to institute an action for any
infringement of that particular right .... " 17 U.S.C. § 501(b). This language is clear
and unambiguous; Congress expressly limited the category of plaintiffs who can
"institute an action" to legal and beneficial copyright holders. This Court should
"assume that in drafting this legislation, Congress said what it meant." United

States v. LaBonte, 520 U.S. 751, 757 (1997). The U.S. associations are
indisputably neither the legal nor beneficial holders of their members' copyrights
and, as a result, they lack standing under the Copyright Act.
This Circuit's case law supports the Act's plain meaning. The Second
Circuit repeatedly has made clear that "the Copyright Act does not permit
copyright holders to choose third parties to bring suits on their behalf." ABKCO

Music, Inc. v. Harrisongs Music, Ltd., 944 F.2d 971, 980 (2d Cir. 1991); accord
Eden Toys, Inc. v. Florelee Undergarment Co., 697 F.2d 27, 32 n.3 (2d Cir. 1982).
50

Other circuit and district courts have drawn the same conclusion. See Righthaven
LLC v. Hoehn, Nos. 11-16751, 11-16776, 2013 WL 1908876, at *2-5 (9th Cir.

May 9, 2013) (concluding that the Plaintiff lacked standing to sue for infringement
because it did not hold any of the exclusive rights in the news articles at issue, even
where there was privity between the association and its member); see also Silvers
v. Sony Pictures Entm 't, Inc., 402 F.3d 881, 885 (9th Cir. 2005) (en bane)

("Congress' explicit listing of who may sue for copyright infringement should be
understood as an exclusion of others from suing for infringement.") (emphasis
added); Mullen v. Soc'y of Stage Directors & Choreographers, No. 06 C 6818,
2007 WL 2892654, at *4 (N.D. Ill. Sept. 30, 2007) (noting that United Scenic
Artists, a professional association of designers and scenic artists, "would surely fail
for lack of standing because it is [not] an 'owner' nor is it a 'beneficial owner' (e.g.
a licensee) of any copyright at issue under the Copyright Act") (citation omitted);
Ocasek v. Hegglund, 116 F.R.D. 154, 157 (D. Wyo. 1987) ("ASCAP's Achilles'

heel, if it has one, is that it lacks standing to sue for infringement of its members'
copyrights."); 6 William F. Patry, Patry on Copyright§ 21:28 (2011)
("[A]ssociational standing is not permitted under the Copyright Act, which
expressly limits standing to legal or beneficial owners of exclusive rights.")
Had Congress wanted to expand the class of those entitled to sue for
copyright infringement to include associations, it has shown it knows how to do so.
51

In the Satellite Home Viewers Act, for example, Congress expanded the right of
action created by § 501 (b) to include television network stations with a license to
transmit copyrighted works. See 17 U.S.C. § 501(e) (stating that network stations
should be treated as legal or beneficial copyright holders); see also CBS, Inc. v.

PrimeTime 24 Joint Venture, 76 F. Supp. 2d 1333, 1336 (S.D. Fla. 1998)
(explaining this expansion). The U.S. associations, however, have not similarly
been deemed legal or beneficial copyright holders under the Copyright Act. 26
Appellants' reliance on the Hunt test is unpersuasive. (Appellants' Br. at 444 7.) First, any argument that § 501 (b) is satisfied by meeting the first element of

Hunt is waived, as it was not raised below. 27 See Bogle-Assegai v. Connecticut,
4 70 F .3d 498, 504 (2d Cir. 2006) ("[I]t is a well-established general rule that an
appellate court will not consider an issue raised for the first time on appeal.")
(alteration in original). Second, the first prong of Hunt deals with constitutional
standing, United Food & Commercial Workers Union Local 751 v. Brown Group,

Inc., 517 U.S. 544, 554-55 (1996). The issue here is statutory standing, which is
entirely different, Steel Co. v. Citizens for Better Env't, 523 U.S. 83, 97 (1998)
26

It was for this reason that the District Court could not rule on the foreign
associations because some foreign laws potentially might treat certain associations
as legal or beneficial copyright holders. (Op. at 9-10.)
27

As the District Court rightly observed, the Appellants "repeatedly sidestepped or
obfuscated" whether Section 501(b) precluded associational standing. (Op. at 5
n.7.)
52

(explaining that "statutory standing ... has nothing to do with whether there is case
or controversy under Article III."). "[C]laimants must have both standing under the
statute or statutes governing their claims and standing under Article III of the
Constitution as required for any action brought in federal court." United States v.
Cambia Exacta, S.A., 166 F .3d 522, 526 (2d Cir. 1999).
Congress undeniably has the power to limit federal jurisdiction to specific
rights of action and to certain parties. Owen Equip. & Erection Co. v. Kroger, 437
U.S. 365,374 (1978) ("The limits upon federal jurisdiction, whether imposed by
the Constitution or by Congress, must be neither disregarded nor evaded."); see
also Krim v. PCOrder.com, Inc., 402 F.3d 489, 500 (5th Cir. 2005) ("While Article
III sets the minimum requirements for standing, Congress is entitled to impose
more exacting standing requirements for the vindication of federal statutory rights
if it wishes."); 13A Charles Alan Wright et al., Federal Practice and Procedure §
3531.9.5 (3d ed. 2011) (noting that where a statute "bars an action by
representation, an organization should not be able to borrow a member's
standing"). Congress chose here to do just that, refusing to expand the statutory
standing under § 501 (b) to encompass associations that are not the legal or
beneficial holders of the copyrights at issue.
The cases on which Appellants rely (Appellants' Br. at 46) are inapposite. In
CBS Broadcasting Inc. v. EchoStar Communications Corp. , 450 F.3d 505, 518
53

n.25 (11th Cir. 2006), the Eleventh Circuit brushed aside the standing argument in
a footnote, agreeing with the district court that the associations "meet the
requirements for representational standing under Hunt." 450 F.3d at 518 n.25. The
issue of an association's statutory standing in that case does not appear to have
been argued. See CBS Broad., Inc. v. EchoStar Commc'ns Corp., No. 98-2651CIV, at 12 (S.D. Fla. Mar. 31, 2003) (order denying motions for summary
judgment) (ECF No. 739) (noting that defendants argued "that the Affiliate
Associations have failed to prove that their members have standing"-a
requirement directed to constitutional standing inquiry under Hunt, rather than
statutory standing under the Copyright Act). 28
Appellants' reliance on Southern Illinois Carpenters Welfare Fund v.

Carpenters Welfare Fund ofIllinois, 326 F.3d 919 (7th Cir. 2003), is similarly
misplaced. That case involved ERISA, which features a very different enforcement
scheme and was enacted for very different purposes. Whatever Congress's intent in
ERISA, it clearly gave the right to sue for copyright infringement only to legal or
beneficial copyright holders.

28

The district court decision in Olan Mills, Inc. v. Linn Photo Co., 795 F. Supp.
1423 (N.D. Iowa 1991), rev'd on other grounds, 23 F.3d 1345 (8th Cir. 1994), also
cited by Appellants, while purporting to distinguish Eden Toys, similarly failed to
provide any substantive discussion or legal authority for its holding that the Hunt
test governed the copyright infringement claims. !d. at 1427-28.
54

V.

APPELLANTS' OWP CLAIMS ARE NOT JUSTICIABLE BECAUSE
NO WORKS WERE MADE AVAILABLE THROUGH THE
PROJECT AND THERE ARE NO CURRENT PLANS TO
REINITIATE IT.
It is undisputed that not a single work has ever been made available through

the OWP (Dkt#110 ~~114, 116; Dkt#133

~~84,

86), and the individual in charge of

the project testified that Michigan does not "know whether or how the OWP will
continue," (Dkt#110 ~116; see also Dkt#125-2 (Ex.6) (Courant Tr. 158:23-25,
161 :9-18) (Q: "Do you have any specific timetable for [listing additional candidate
orphan works]?" A: "No.")). Based on such undisputed evidence, the District
Court properly found that Appellants' claims based on distribution and display of
works through the OWP are not ripe for adjudication.

A.

Appellants' Abstract and Premature OWP Claims Are Not Ripe.

Ripeness has constitutional and prudential components. NY Civil Liberties
Union v. Grandeau, 528 F.3d 122, 130 (2d Cir. 2008); Simmonds v. INS, 326 F.3d
351, 356-59 (2d Cir. 2003). Appellants' speculative OWP claims fail under both.
"Article III of the Constitution limits the jurisdiction of federal courts to
cases or controversies 'of sufficient immediacy and reality,' ... and not
'hypothetical or abstract disputes.'" Hayes v. Carlin Am., Inc. 168 F. Supp. 2d
154, 159 (S.D.N.Y. 2001) (citations omitted) (noting that "[t]his [jurisdictional]
limitation applies equally to declaratory judgment actions"). In this action,
55

Appellants seek a declaration of infringement about unknown uses, of unspecified
works, through an undefined process.
Appellants would have the court decide whether "any iteration" of the OWP
that makes available any copyrighted works in any manner will violate the
Copyright Act. (Appellants' Br. at 13-14.) But courts do not decide purely
hypothetical legal questions unmoored from record facts. Marchi v. Bd. of Coop.

Educ. Servs. ofAlbany, 173 F.3d 469, 478 (2d Cir. 1999) ("A hypothetical or
abstract dispute does not present a case or controversy .... "). It is uncertain whether
there will ever be a concrete dispute related to distribution of a specific work
through the OWP (Dkt#110 ~116), and even ifthere is, it cannot be known when,
who the rights holder(s) would be, what work(s) would be at issue, or the details of
their selection or use. Any decision on such a hypothetical and abstract dispute
without crucial facts would be "advisory only." Hayes, 168 F. Supp. 2d at 160.
Prudential ripeness, the other component, involves two factors: "(1) whether
an issue is fit for judicial decision and (2) whether and to what extent the parties
will endure hardship if decision is withheld." Simmonds, 326 F.3d at 359 (citing

Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967)). Appellants' OWP claims
fail this standard as well.
Appellants' OWP claims are unfit for judicial decision because no works
were ever displayed to patrons (Dkt#110 ~~114, 116; Dkt#133
56

~~84,

86), and the

details of any future implementation of the project are purely speculative and
hypothetical (see Dkt#110

~116).

See Simmonds, 326 F.3d at 359 (observing that

the "fitness" analysis is "concerned with whether the issues sought to be
adjudicated are contingent on future events or may never occur"); see also

Grandeau, 528 F.3d at 133 (rejecting challenge as unfit for judicial review because
it was "in many ways contingent on future events" and any judicial disposition
would "certainly benefit from additional factual development"); Isaacs v. Bowen,
865 F.2d 468, 477 (2d Cir. 1989) (deeming challenge to proposed policy change
unripe because it was "directed at possibilities and proposals only, not at a concrete
plan which has been formally promulgated and brought into operation").
Appellants argue that their OWP claims present "pure legal" questions
(Appellants' Br. at 13-14), but a determination of whether any resumed OWP is
fair use or permitted by Section 108 would tum on specific facts. For example,
both Sections 108( e) and (h) require a "reasonable investigation" of whether a
copy of the work can be obtained "at a fair price," 17 U.S.C. § 108(e), or "at a
reasonable price," 17 U.S.C. § 108(h). The District Court cannot make this
determination when the process for identifying possible orphan works has not even
been established. (See Dkt# 110 ~~114-16.) The court also lacks facts required to
resolve fair use issues. Certainly a project involving limited distribution of out-ofprint 1940s botany works would have a starkly different fair use analysis than more
57

wide-scale distribution of fictional works from the 1970s. But without facts
concerning, among other things, the nature of the works and their current and
potential market, fair use cannot possibly be evaluated.

B.

Appellants Suffer No Hardship from Awaiting Development of
Necessary Facts.

Delaying adjudication of these claims creates no cognizable hardship. None
of the Appellants' copyrighted works has been made available through the OWP
(Dkt#110 ~~114, 116; Dkt#133
will be (see Dkt#110

~116;

~~84,

86), and there is no imminent threat that they

see also Dkt#125-2 (Ex.6) (Courant Tr. 158:23-25,

161 :9-18)).
Appellants claim to be currently harmed by the OWP by arguing that
"[g]iven the expense of litigation and the sovereign immunity of the Libraries,
there is nothing to stop the Libraries from reinstituting the OWP and then, if
owners of the listed works come forward, suspending it again." (Appellants' Br. at
16.) Appellants refer to this as a game of"Whac-A-Mole." (!d.)
But this is not an apt comparison. The Libraries have not engaged in a
pattern of distributing purported orphan works only to cease distribution in
response to lawsuits. They have not distributed or displayed a single orphan work
and have no plans to do so in the future. (Dkt#110 ~~114, 116; Dkt#133
Dkt#125-2 (Ex.6) (Courant Tr. 158:23-25, 161:9-18).)
58

~~84,

86;

What Appellants are really saying is that the Libraries may in the future take
some action that Appellants allege will cause "[a]uthors and other copyright
owners" future harm. (Appellants' Br. at 16.) It is clear, however, that "[t]he mere
possibility offuture injury, unless it is the cause of some present detriment, does

not constitute hardship" that would justify adjudication of an otherwise unfit claim.
Simmonds v. INS, 326 F.3d at 360 (emphasis added).

Appellants' arguments against mootness (an issue which is not even
addressed in the District Court's opinion) are even further afield. Appellants argue
that cessation of illegal activity "does not necessarily make a case moot."
(Appellants' Br. at 16.) Appellants ignore that to date, the OWP has consisted only
of the indisputably lawful and non-infringing activities of research and
investigation to identify potential orphan works. (See Dkt# 110 ~~114, 116;
Dkt#133

~~84,

86.) Allegedly infringing activity has not "ceased" for the simple

reason that it never began.
C.

Appellants Also Lack Standing to Assert the OWP Claims.

As discussed above, because no works were made available through the
OWP (Dkt#110 ~~114, 116; Dkt#133

~~84,

86), no potential candidate works have

been identified (and thus none of Appellants' works have been identified), and
because it is uncertain whether the OWP will proceed at all (Dkt#110 ~116),
Appellants have not been injured by the OWP and there is no imminent threat that
59

they will be. Appellants therefore lack standing to assert their OWP claims,
providing another basis for affirming the District Court's dismissal. See Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (stating that the constitutional
minimum of standing requires an "injury in fact" that is "actual or imminent, not
conjectural or hypothetical") (internal quotation marks and citation omitted); see

also Grandeau, 528 F.3d at 130 n.8 ("Standing and ripeness are closely related
doctrines that overlap most notably in the shared requirement that the plaintiffs
injury be imminent rather than conjectural or hypothetical.")
Appellants claim an "imminent injury" to authors and copyright holders
generally and assert that this is sufficient to establish Appellants' standing. (See
Appellants' Br. at 16-17, n.4.) However, the Copyright Act requires that the
"imminent" injury be to the holder of an exclusive right under copyright. See 17
U.S.C. § 501(b). 29 If the OWP were restarted at some point, it is pure speculation
that it would involve any works in which Appellants hold copyright. A speculative
injury will not support a finding of standing; the injury must be "sufficiently real
and immediate .... " Miller v. Silbermann, 951 F. Supp. 485,489 (S.D.N.Y. 1997)
(citation omitted); see also Clapper v. Amnesty Int'l USA, 133 S. Ct. 1138, 1147

29

At best, two Appellants allege copyright in two works that were previously
identified as candidates for the OWP but never were, and never will be, made
available through the project.
60

(2013) ("[W]e have repeatedly reiterated that 'threatened injury must be certainly
impending to constitute injury in fact,' and that ' [a]llegations of possible future

injury' are not sufficient.") (citations omitted). Appellants thus fail to meet both
the constitutional and statutory standing requirements for their OWP claims.
CONCLUSION
For the foregoing reasons, the Libraries respectfully request that the District
Court's Judgment be affirmed.

KlLPA~~ONLLP
Joseph Petersen
Robert Potter
1114 Avenue ofthe Americas
New York, New York 10036
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Joseph Beck
Andrew Pequignot
Allison Scott Roach
1100 Peachtree Street, Suite 2800
Atlanta, Georgia 30309-4530
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorneys for Defendants-Appellees

61

RULE 32(a)(7)(C) CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because based on the word count of the word-processing system used
to prepare the brief (Microsoft Word), this brief contains 13,904 words, excluding
the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this
brief has been prepared in a proportionally spaced typeface using Microsoft Word
in 14-point Times New Roman.
Dated: May 28, 2013

62

STATUTORY ADDENDUM
PURSUANT TO
FED R. APP. P. 28(f)

63

TITLE 17—COPYRIGHTS
This title was enacted by act July 30, 1947, ch. 391, 61 Stat. 652, and was revised in its entirety by
Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat. 2541

Chap.

1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.

Sec.

Subject Matter and Scope of Copyright ....................................................
Copyright Ownership and Transfer
Duration of Copyright .......................
Copyright Notice, Deposit, and
Registration ......................................
Copyright Infringement and Remedies ....................................................
Importation and Exportation ..........
Copyright Office ..................................
Proceedings by Copyright Royalty
Judges ................................................
Protection of Semiconductor Chip
Products .............................................
Digital Audio Recording Devices
and Media ..........................................
Sound Recordings and Music Videos ........................................................
Copyright Protection and Management Systems ....................................
Protection of Original Designs ........

101
201
301
401
501
601
701
801
901
1001
1101
1201
1301

AMENDMENTS
2010—Pub. L. 111–295, § 4(b)(1)(B), Dec. 9, 2010, 124 Stat.
3180, substituted ‘‘Importation and Exportation’’ for
‘‘Manufacturing Requirements, Importation, and Exportation’’ in item relating to chapter 6.
2008—Pub. L. 110–403, title I, § 105(c)(3), Oct. 13, 2008,
122 Stat. 4260, substituted ‘‘Manufacturing Requirements, Importation, and Exportation’’ for ‘‘Manufacturing Requirements and Importation’’ in item relating
to chapter 6.
2004—Pub. L. 108–419, § 3(b), Nov. 30, 2004, 118 Stat.
2361, substituted ‘‘Proceedings by Copyright Royalty
Judges’’ for ‘‘Copyright Arbitration Royalty Panels’’ in
item relating to chapter 8.
1998—Pub. L. 105–304, title I, § 103(b), title V, § 503(a),
Oct. 28, 1998, 112 Stat. 2876, 2916, added items relating to
chapters 12 and 13.
1997—Pub. L. 105–80, § 12(a)(1), Nov. 13, 1997, 111 Stat.
1534, substituted ‘‘Requirements’’ for ‘‘Requirement’’ in
item relating to chapter 6, ‘‘Arbitration Royalty Panels’’ for ‘‘Royalty Tribunal’’ in item relating to chapter
8, and ‘‘Semiconductor Chip Products’’ for ‘‘semiconductor chip products’’ in item relating to chapter 9,
and added item relating to chapter 10.
1994—Pub. L. 103–465, title V, § 512(b), Dec. 8, 1994, 108
Stat. 4974, added item relating to chapter 11.
1984—Pub. L. 98–620, title III, § 303, Nov. 8, 1984, 98
Stat. 3356, added item relating to chapter 9.
TABLE I
This Table lists the sections of former Title 17, Copyrights, and indicates the sections of Title 17, as enacted in 1947, which covered similar and related subject matter.
Title 17
Former Sections
1 ..............................................

Page 1

Title 17
1947 Revision Sections
1

TABLE I—CONTINUED
Title 17
Former Sections
2 ..............................................
3 ..............................................
4 ..............................................
5 ..............................................
6 ..............................................
7 ..............................................
8 ..............................................
9 ..............................................
10 ............................................
11 ............................................
12 ............................................
13 ............................................
14 ............................................
15 ............................................
16 ............................................
17 ............................................
18 ............................................
19 ............................................
20 ............................................
21 ............................................
22 ............................................
23 ............................................
24 ............................................
25 ............................................
26 ............................................
27 ............................................
28 ............................................
29 ............................................
30 ............................................
31 ............................................
32 ............................................
33 ............................................
34 ............................................
35 ............................................
36 ............................................
37 ............................................
38 ............................................
39 ............................................
40 ............................................
41 ............................................
42 ............................................
43 ............................................
44 ............................................
45 ............................................
46 ............................................
47 ............................................
48 ............................................
49 ............................................
50 ............................................
51 ............................................
52 ............................................
53 ............................................
54 ............................................
55 ............................................
56 ............................................
57 ............................................
58 ............................................
59 ............................................
60 ............................................
61 ............................................
62 ............................................
63 ............................................
64 ............................................
65 ............................................

Title 17
1947 Revision Sections
2
3
4
5
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
Rep.
101
102
103
104
105
106
107
108
109
110
111
112
113
114
115
116
27
28
29
30
31
32
201
202
203
204
205
206
207
208
209
210
211
212
213
214
215
26
6
6
25

TABLE II
This Table lists the sections of former Title 17, Copyrights, and indicates the sections of Title 17, as revised in 1976, which cover similar and related subject
matter.
Title 17
1947 Revision Sections
1 ..............................................
2 ..............................................

Title 17
New Sections
106, 116
301

TITLE 17—COPYRIGHTS
TABLE II—CONTINUED
Title 17
1947 Revision Sections
3 ..............................................
4 ..............................................
5 ..............................................
6 ..............................................
7 ..............................................
8 ..............................................
9 ..............................................
10 ............................................
11 ............................................
12 ............................................
13 ............................................
14 ............................................
15 ............................................
16 ............................................
17 ............................................
18 ............................................
19 ............................................
20 ............................................
21 ............................................
22 ............................................
23 ............................................
24 ............................................
25 ............................................
26 ............................................
27 ............................................
28 ............................................
29 ............................................
30 ............................................
31 ............................................
32 ............................................
101 ...........................................
102 ...........................................
103 ...........................................
104 ...........................................
105 ...........................................
106 ...........................................
107 ...........................................
108 ...........................................
109 ...........................................
110 ...........................................
111 ...........................................
112 ...........................................
113 ...........................................
114 ...........................................
115 ...........................................
116 ...........................................
201 ...........................................
202 ...........................................
203 ...........................................
204 ...........................................
205 ...........................................
206 ...........................................
207 ...........................................
208 ...........................................
209 ...........................................
210 ...........................................
211 ...........................................
212 ...........................................
213 ...........................................
214 ...........................................
215 ...........................................
216 ...........................................

Title 17
New Sections
102, 103
102
102
102
103
104, 105, 303
104
401
410
408
407, 411
407
407
601
407
407, 506
401
401, 402
405
601
601
203, 301 et seq.
301 et seq.
101
109, 202
201, 204
204
205
205
201
412, 501–504
Rep. See T. 28 § 1338
Rep. See F.R. Civ. Proc.
110, 506
506
602
602
603
603
Rep. See T. 28 § 1338
Rep. See T. 28 § 1400
502
502
502
507
505
701(a)
701(a)
708(c)
Rep.
701(c)
701(b)
702
705
407, 410
707
707
705
704
704
708(a), (b)
703

PRIOR PROVISIONS
Title 17, as enacted by act July 30, 1947, ch. 391, 61
Stat. 652, consisting of sections 1 to 32, 101 to 116, and
201 to 216, as amended through 1976, and section 203, as
amended by Pub. L. 95–94, title IV, § 406(a), Aug. 5, 1977,
91 Stat. 682, terminated Jan. 1, 1978.
EFFECTIVE DATE
Section 102 of Pub. L. 94–553, Oct. 19, 1976, 90 Stat.
2598, provided that: ‘‘This Act [enacting this title and
section 170 of Title 2, The Congress, amending section
131 of Title 2, section 290e of Title 15, Commerce and
Trade, section 2318 of Title 18, Crimes and Criminal
Procedure, section 543 of Title 26, Internal Revenue
Code, section 1498 of Title 28, Judiciary and Judicial
Procedure, sections 3203 and 3206 of Title 39, Postal
Service, and sections 505 and 2117 of Title 44, Public
Printing and Documents, and enacting provisions set
out as notes below and under sections 104, 115, 304, 401,
407, 410, and 501 of this title] becomes effective on January 1, 1978, except as otherwise expressly provided by
this Act, including provisions of the first section of this
Act. The provisions of sections 118, 304(b), and chapter
8 of title 17, as amended by the first section of this Act,
take effect upon enactment of this Act [Oct. 19, 1976].’’
SEPARABILITY
Section 115 of Pub. L. 94–553, Oct. 19, 1976, 90 Stat.
2602, provided that: ‘‘If any provision of title 17 [this

Page 2

title], as amended by the first section of this Act, is declared unconstitutional, the validity of the remainder
of this title is not affected.’’
AUTHORIZATION OF APPROPRIATIONS
Section 114 of Pub. L. 94–553, Oct. 19, 1976, 90 Stat.
2602, provided that: ‘‘There are hereby authorized to be
appropriated such funds as may be necessary to carry
out the purposes of this Act [this title].’’
LOST AND EXPIRED COPYRIGHTS; RECORDING RIGHTS
Section 103 of Pub. L. 94–553, Oct. 19, 1976, 90 Stat.
2599, provided that: ‘‘This Act [enacting this title] does
not provide copyright protection for any work that
goes into the public domain before January 1, 1978. The
exclusive rights, as provided by section 106 of title 17 as
amended by the first section of this Act, to reproduce
a work in phonorecords and to distribute phonorecords
of the work, do not extend to any nondramatic musical
work copyrighted before July 1, 1909.’’

CHAPTER 1—SUBJECT MATTER AND SCOPE
OF COPYRIGHT
Sec.

101.
102.
103.
104.
104A.
105.
106.
106A.
107.
108.
109.
110.
111.

112.
113.
114.
115.

116.

[116A.
117.
118.

119.

120.
121.

122.

Definitions.
Subject matter of copyright: In general.
Subject matter of copyright: Compilations
and derivative works.
Subject matter of copyright: National origin.
Copyright in restored works.
Subject matter of copyright: United States
Government works.
Exclusive rights in copyrighted works.
Rights of certain authors to attribution and
integrity.
Limitations on exclusive rights: Fair use.
Limitations on exclusive rights: Reproduction by libraries and archives.
Limitations on exclusive rights: Effect of
transfer of particular copy or phonorecord.
Limitations on exclusive rights: Exemption
of certain performances and displays.
Limitations on exclusive rights: Secondary
transmissions of broadcast programming by
cable.
Limitations on exclusive rights: Ephemeral
recordings.
Scope of exclusive rights in pictorial, graphic,
and sculptural works.
Scope of exclusive rights in sound recordings.
Scope of exclusive rights in nondramatic musical works: Compulsory license for making
and distributing phonorecords.
Negotiated licenses for public performances
by means of coin-operated phonorecord
players.
Renumbered.]
Limitations on exclusive rights: Computer
programs.
Scope of exclusive rights: Use of certain
works in connection with noncommercial
broadcasting.
Limitations on exclusive rights: Secondary
transmissions of distant television programming by satellite.
Scope of exclusive rights in architectural
works.
Limitations on exclusive rights: Reproduction for blind or other people with disabilities.
Limitations on exclusive rights: Secondary
transmissions of local television programming by satellite.
AMENDMENTS

2010—Pub. L. 111–175, title I, §§ 102(a)(2), 103(a)(2),
104(a)(2), May 27, 2010, 124 Stat. 1219, 1227, 1231, added
items 111, 119, and 122 and struck out former items 111

Page 21

TITLE 17—COPYRIGHTS

its obligation to secure permission in order to publish
a copyrighted work; and (2) publication or other use by
the Government of a private work would not affect its
copyright protection in any way. The question of use of
copyrighted material in documents published by the
Congress and its Committees is discussed below in connection with section 107.
Works of the United States Postal Service. The intent
of section 105 [this section] is to restrict the prohibition against Government copyright to works written
by employees of the United States Government within
the scope of their official duties. In accordance with
the objectives of the Postal Reorganization Act of 1970
[Pub. L. 91–375, which enacted title 39, Postal Service],
this section does not apply to works created by employees of the United States Postal Service. In addition to
enforcing the criminal statutes proscribing the forgery
or counterfeiting of postage stamps, the Postal Service
could, if it chooses, use the copyright law to prevent
the reproduction of postage stamp designs for private
or commercial non-postal services (for example, in philatelic publications and catalogs, in general advertising,
in art reproductions, in textile designs, and so forth).
However, any copyright claimed by the Postal Service
in its works, including postage stamp designs, would be
subject to the same conditions, formalities, and time
limits as other copyrightable works.

§ 106. Exclusive rights in copyrighted works
Subject to sections 107 through 122, the owner
of copyright under this title has the exclusive
rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in
copies or phonorecords;
(2) to prepare derivative works based upon
the copyrighted work;
(3) to distribute copies or phonorecords of
the copyrighted work to the public by sale or
other transfer of ownership, or by rental,
lease, or lending;
(4) in the case of literary, musical, dramatic,
and choreographic works, pantomimes, and
motion pictures and other audiovisual works,
to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic,
and choreographic works, pantomimes, and
pictorial, graphic, or sculptural works, including the individual images of a motion picture
or other audiovisual work, to display the
copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means
of a digital audio transmission.
(Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat.
2546; Pub. L. 101–318, § 3(d), July 3, 1990, 104 Stat.
288; Pub. L. 101–650, title VII, § 704(b)(2), Dec. 1,
1990, 104 Stat. 5134; Pub. L. 104–39, § 2, Nov. 1,
1995, 109 Stat. 336; Pub. L. 106–44, § 1(g)(2), Aug. 5,
1999, 113 Stat. 222; Pub. L. 107–273, div. C, title
III, § 13210(4)(A), Nov. 2, 2002, 116 Stat. 1909.)
HISTORICAL AND REVISION NOTES
HOUSE REPORT NO. 94–1476

General Scope of Copyright. The five fundamental
rights that the bill gives to copyright owners—the exclusive rights of reproduction, adaptation, publication,
performance, and display—are stated generally in section 106. These exclusive rights, which comprise the socalled ‘‘bundle of rights’’ that is a copyright, are cumulative and may overlap in some cases. Each of the five
enumerated rights may be subdivided indefinitely and,
as discussed below in connection with section 201, each
subdivision of an exclusive right may be owned and enforced separately.

§ 106

The approach of the bill is to set forth the copyright
owner’s exclusive rights in broad terms in section 106,
and then to provide various limitations, qualifications,
or exemptions in the 12 sections that follow. Thus, everything in section 106 is made ‘‘subject to sections 107
through 118’’, and must be read in conjunction with
those provisions.
The exclusive rights accorded to a copyright owner
under section 106 are ‘‘to do and to authorize’’ any of
the activities specified in the five numbered clauses.
Use of the phrase ‘‘to authorize’’ is intended to avoid
any questions as to the liability of contributory infringers. For example, a person who lawfully acquires
an authorized copy of a motion picture would be an infringer if he or she engages in the business of renting
it to others for purposes of unauthorized public performance.
Rights of Reproduction, Adaptation, and Publication.
The first three clauses of section 106, which cover all
rights under a copyright except those of performance
and display, extend to every kind of copyrighted work.
The exclusive rights encompassed by these clauses,
though closely related, are independent; they can generally be characterized as rights of copying, recording,
adaptation, and publishing. A single act of infringement may violate all of these rights at once, as where
a publisher reproduces, adapts, and sells copies of a person’s copyrighted work as part of a publishing venture.
Infringement takes place when any one of the rights is
violated: where, for example, a printer reproduces copies without selling them or a retailer sells copies without having anything to do with their reproduction. The
references to ‘‘copies or phonorecords,’’ although in the
plural, are intended here and throughout the bill to include the singular (1 U.S.C. § 1).
Reproduction.—Read together with the relevant definitions in section 101, the right ‘‘to reproduce the copyrighted work in copies or phonorecords’’ means the
right to produce a material object in which the work is
duplicated, transcribed, imitated, or simulated in a
fixed form from which it can be ‘‘perceived, reproduced,
or otherwise communicated, either directly or with the
aid of a machine or device.’’ As under the present law,
a copyrighted work would be infringed by reproducing
it in whole or in any substantial part, and by duplicating it exactly or by imitation or simulation. Wide departures or variations from the copyrighted work
would still be an infringement as long as the author’s
‘‘expression’’ rather than merely the author’s ‘‘ideas’’
are taken. An exception to this general principle, applicable to the reproduction of copyrighted sound recordings, is specified in section 114.
‘‘Reproduction’’ under clause (1) of section 106 is to be
distinguished from ‘‘display’’ under clause (5). For a
work to be ‘‘reproduced,’’ its fixation in tangible form
must be ‘‘sufficiently permanent or stable to permit it
to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.’’
Thus, the showing of images on a screen or tube would
not be a violation of clause (1), although it might come
within the scope of clause (5).
Preparation of Derivative Works.—The exclusive right
to prepare derivative works, specified separately in
clause (2) of section 106, overlaps the exclusive right of
reproduction to some extent. It is broader than that
right, however, in the sense that reproduction requires
fixation in copies or phonorecords, whereas the preparation of a derivative work, such as a ballet, pantomime, or improvised performance, may be an infringement even though nothing is ever fixed in tangible
form.
To be an infringement the ‘‘derivative work’’ must be
‘‘based upon the copyrighted work,’’ and the definition
in section 101 refers to ‘‘a translation, musical arrangement, dramatization, fictionalization, motion picture
version, sound recording, art reproduction, abridgment,
condensation, or any other form in which a work may
be recast, transformed, or adapted.’’ Thus, to constitute a violation of section 106(2), the infringing work
must incorporate a portion of the copyrighted work in

§ 106

TITLE 17—COPYRIGHTS

some form; for example, a detailed commentary on a
work or a programmatic musical composition inspired
by a novel would not normally constitute infringements under this clause.
Use in Information Storage and Retrieval Systems.—As
section 117 declares explicitly, the bill is not intended
to alter the present law with respect to the use of copyrighted works in computer systems.
Public Distribution.—Clause (3) of section 106 establishes the exclusive right of publication: The right ‘‘to
distribute copies or phonorecords of the copyrighted
work to the public by sale or other transfer of ownership, or by rental, lease, or lending.’’ Under this provision the copyright owner would have the right to control the first public distribution of an authorized copy
or phonorecord of his work, whether by sale, gift, loan,
or some rental or lease arrangement. Likewise, any unauthorized public distribution of copies or phonorecords that were unlawfully made would be an infringement. As section 109 makes clear, however, the
copyright owner’s rights under section 106(3) cease with
respect to a particular copy or phonorecord once he has
parted with ownership of it.
Rights of Public Performance and Display. Performing
Rights and the ‘‘For Profit’’ Limitation.—The right of
public performance under section 106(4) extends to ‘‘literary, musical, dramatic, and choreographic works,
pantomimes, and motion pictures and other audiovisual works and sound recordings’’ and, unlike the
equivalent provisions now in effect, is not limited by
any ‘‘for profit’’ requirement. The approach of the bill,
as in many foreign laws, is first to state the public performance right in broad terms, and then to provide specific exemptions for educational and other nonprofit
uses.
This approach is more reasonable than the outright
exemption of the 1909 statute. The line between commercial and ‘‘nonprofit’’ organizations is increasingly
difficult to draw. Many ‘‘non-profit’’ organizations are
highly subsidized and capable of paying royalties, and
the widespread public exploitation of copyrighted
works by public broadcasters and other noncommercial
organizations is likely to grow. In addition to these
trends, it is worth noting that performances and displays are continuing to supplant markets for printed
copies and that in the future a broad ‘‘not for profit’’
exemption could not only hurt authors but could dry up
their incentive to write.
The exclusive right of public performance is expanded
to include not only motion pictures, including works
recorded on film, video tape, and video disks, but also
audiovisual works such as filmstrips and sets of slides.
This provision of section 106(4), which is consistent
with the assimilation of motion pictures to audiovisual
works throughout the bill, is also related to amendments of the definitions of ‘‘display’’ and ‘‘perform’’
discussed below. The important issue of performing
rights in sound recordings is discussed in connection
with section 114.
Right of Public Display.—Clause (5) of section 106 represents the first explicit statutory recognition in
American copyright law of an exclusive right to show
a copyrighted work, or an image of it, to the public.
The existence or extent of this right under the present
statute is uncertain and subject to challenge. The bill
would give the owners of copyright in ‘‘literary, musical, dramatic, and choreographic works, pantomimes,
and pictorial, graphic, or sculptural works’’, including
the individual images of a motion picture or other
audiovisual work, the exclusive right ‘‘to display the
copyrighted work publicly.’’
Definitions. Under the definitions of ‘‘perform,’’ ‘‘display,’’ ‘‘publicly,’’ and ‘‘transmit’’ in section 101, the
concepts of public performance and public display cover
not only the initial rendition or showing, but also any
further act by which that rendition or showing is transmitted or communicated to the public. Thus, for example: a singer is performing when he or she sings a song;
a broadcasting network is performing when it transmits his or her performance (whether simultaneously

Page 22

or from records); a local broadcaster is performing
when it transmits the network broadcast; a cable television system is performing when it retransmits the
broadcast to its subscribers; and any individual is performing whenever he or she plays a phonorecord embodying the performance or communicates the performance by turning on a receiving set. Although any
act by which the initial performance or display is
transmitted, repeated, or made to recur would itself be
a ‘‘performance’’ or ‘‘display’’ under the bill, it would
not be actionable as an infringement unless it were
done ‘‘publicly,’’ as defined in section 101. Certain other
performances and displays, in addition to those that
are ‘‘private,’’ are exempted or given qualified copyright control under sections 107 through 118.
To ‘‘perform’’ a work, under the definition in section
101, includes reading a literary work aloud, singing or
playing music, dancing a ballet or other choreographic
work, and acting out a dramatic work or pantomime. A
performance may be accomplished ‘‘either directly or
by means of any device or process,’’ including all kinds
of equipment for reproducing or amplifying sounds or
visual images, any sort of transmitting apparatus, any
type of electronic retrieval system, and any other techniques and systems not yet in use or even invented.
The definition of ‘‘perform’’ in relation to ‘‘a motion
picture or other audiovisual work’’ is ‘‘to show its images in any sequence or to make the sounds accompanying it audible.’’ The showing of portions of a motion picture, filmstrip, or slide set must therefore be
sequential to constitute a ‘‘performance’’ rather than a
‘‘display’’, but no particular order need be maintained.
The purely aural performance of a motion picture
sound track, or of the sound portions of an audiovisual
work, would constitute a performance of the ‘‘motion
picture or other audiovisual work’’; but, where some of
the sounds have been reproduced separately on phonorecords, a performance from the phonorecord would not
constitute performance of the motion picture or audiovisual work.
The corresponding definition of ‘‘display’’ covers any
showing of a ‘‘copy’’ of the work, ‘‘either directly or by
means of a film, slide, television image, or any other
device or process.’’ Since ‘‘copies’’ are defined as including the material object ‘‘in which the work is first
fixed,’’ the right of public display applies to original
works of art as well as to reproductions of them. With
respect to motion pictures and other audiovisual
works, it is a ‘‘display’’ (rather than a ‘‘performance’’)
to show their ‘‘individual images nonsequentially.’’ In
addition to the direct showings of a copy of a work,
‘‘display’’ would include the projection of an image on
a screen or other surface by any method, the transmission of an image by electronic or other means, and
the showing of an image on a cathode ray tube, or similar viewing apparatus connected with any sort of information storage and retrieval system.
Under clause (1) of the definition of ‘‘publicly’’ in section 101, a performance or display is ‘‘public’’ if it takes
place ‘‘at a place open to the public or at any place
where a substantial number of persons outside of a normal circle of a family and its social acquaintances is
gathered.’’ One of the principal purposes of the definition was to make clear that, contrary to the decision
in Metro-Goldwyn-Mayer Distributing Corp. v. Wyatt, 21
C.O.Bull. 203 (D.Md.1932), performances in ‘‘semipublic’’
places such as clubs, lodges, factories, summer camps,
and schools are ‘‘public performances’’ subject to copyright control. The term ‘‘a family’’ in this context
would include an individual living alone, so that a
gathering confined to the individual’s social acquaintances would normally be regarded as private. Routine
meetings of businesses and governmental personnel
would be excluded because they do not represent the
gathering of a ‘‘substantial number of persons.’’
Clause (2) of the definition of ‘‘publicly’’ in section
101 makes clear that the concepts of public performance and public display include not only performances
and displays that occur initially in a public place, but
also acts that transmit or otherwise communicate a

Page 23

TITLE 17—COPYRIGHTS

performance or display of the work to the public by
means of any device or process. The definition of
‘‘transmit’’—to communicate a performance or display
‘‘by any device or process whereby images or sound are
received beyond the place from which they are sent’’—
is broad enough to include all conceivable forms and
combinations of wired or wireless communications
media, including but by no means limited to radio and
television broadcasting as we know them. Each and
every method by which the images or sounds comprising a performance or display are picked up and conveyed is a ‘‘transmission,’’ and if the transmission
reaches the public in my [any] form, the case comes
within the scope of clauses (4) or (5) of section 106.
Under the bill, as under the present law, a performance made available by transmission to the public at
large is ‘‘public’’ even though the recipients are not
gathered in a single place, and even if there is no proof
that any of the potential recipients was operating his
receiving apparatus at the time of the transmission.
The same principles apply whenever the potential recipients of the transmission represent a limited segment of the public, such as the occupants of hotel
rooms or the subscribers of a cable television service.
Clause (2) of the definition of ‘‘publicly’’ is applicable
‘‘whether the members of the public capable of receiving the performance or display receive it in the same
place or in separate places and at the same time or at
different times.’’
AMENDMENTS
2002—Pub. L. 107–273 substituted ‘‘122’’ for ‘‘121’’ in introductory provisions.
1999—Pub. L. 106–44 substituted ‘‘121’’ for ‘‘120’’ in introductory provisions.
1995—Par. (6). Pub. L. 104–39 added par. (6).
1990—Pub. L. 101–650 substituted ‘‘120’’ for ‘‘119’’ in introductory provisions.
Pub. L. 101–318 substituted ‘‘119’’ for ‘‘118’’ in introductory provisions.
EFFECTIVE DATE OF 1995 AMENDMENT
Amendment by Pub. L. 104–39 effective 3 months after
Nov. 1, 1995, see section 6 of Pub. L. 104–39, set out as
a note under section 101 of this title.
EFFECTIVE DATE OF 1990 AMENDMENTS
Amendment by Pub. L. 101–650 applicable to any architectural work created on or after Dec. 1, 1990, and
any architectural work, that, on Dec. 1, 1990, is unconstructed and embodied in unpublished plans or drawings, except that protection for such architectural
work under this title terminates on Dec. 31, 2002, unless
the work is constructed by that date, see section 706 of
Pub. L. 101–650, set out as a note under section 101 of
this title.
Section 3(e)(3) of Pub. L. 101–318 provided that: ‘‘The
amendment made by subsection (d) [amending this section] shall be effective as of November 16, 1988.’’

§ 106A. Rights of certain authors to attribution
and integrity
(a) RIGHTS OF ATTRIBUTION AND INTEGRITY.—
Subject to section 107 and independent of the exclusive rights provided in section 106, the author
of a work of visual art—
(1) shall have the right—
(A) to claim authorship of that work, and
(B) to prevent the use of his or her name
as the author of any work of visual art
which he or she did not create;
(2) shall have the right to prevent the use of
his or her name as the author of the work of
visual art in the event of a distortion, mutilation, or other modification of the work which
would be prejudicial to his or her honor or reputation; and

§ 106A

(3) subject to the limitations set forth in
section 113(d), shall have the right—
(A) to prevent any intentional distortion,
mutilation, or other modification of that
work which would be prejudicial to his or
her honor or reputation, and any intentional
distortion, mutilation, or modification of
that work is a violation of that right, and
(B) to prevent any destruction of a work of
recognized stature, and any intentional or
grossly negligent destruction of that work is
a violation of that right.
(b) SCOPE AND EXERCISE OF RIGHTS.—Only the
author of a work of visual art has the rights
conferred by subsection (a) in that work, whether or not the author is the copyright owner. The
authors of a joint work of visual art are coowners of the rights conferred by subsection (a) in
that work.
(c) EXCEPTIONS.—(1) The modification of a
work of visual art which is a result of the passage of time or the inherent nature of the materials is not a distortion, mutilation, or other
modification described in subsection (a)(3)(A).
(2) The modification of a work of visual art
which is the result of conservation, or of the
public presentation, including lighting and
placement, of the work is not a destruction, distortion, mutilation, or other modification described in subsection (a)(3) unless the modification is caused by gross negligence.
(3) The rights described in paragraphs (1) and
(2) of subsection (a) shall not apply to any reproduction, depiction, portrayal, or other use of a
work in, upon, or in any connection with any
item described in subparagraph (A) or (B) of the
definition of ‘‘work of visual art’’ in section 101,
and any such reproduction, depiction, portrayal,
or other use of a work is not a destruction, distortion, mutilation, or other modification described in paragraph (3) of subsection (a).
(d) DURATION OF RIGHTS.—(1) With respect to
works of visual art created on or after the effective date set forth in section 610(a) of the Visual
Artists Rights Act of 1990, the rights conferred
by subsection (a) shall endure for a term consisting of the life of the author.
(2) With respect to works of visual art created
before the effective date set forth in section
610(a) of the Visual Artists Rights Act of 1990,
but title to which has not, as of such effective
date, been transferred from the author, the
rights conferred by subsection (a) shall be coextensive with, and shall expire at the same time
as, the rights conferred by section 106.
(3) In the case of a joint work prepared by two
or more authors, the rights conferred by subsection (a) shall endure for a term consisting of
the life of the last surviving author.
(4) All terms of the rights conferred by subsection (a) run to the end of the calendar year in
which they would otherwise expire.
(e) TRANSFER AND WAIVER.—(1) The rights conferred by subsection (a) may not be transferred,
but those rights may be waived if the author expressly agrees to such waiver in a written instrument signed by the author. Such instrument
shall specifically identify the work, and uses of
that work, to which the waiver applies, and the
waiver shall apply only to the work and uses so
identified. In the case of a joint work prepared

TITLE 17—COPYRIGHTS

§ 107

by two or more authors, a waiver of rights under
this paragraph made by one such author waives
such rights for all such authors.
(2) Ownership of the rights conferred by subsection (a) with respect to a work of visual art
is distinct from ownership of any copy of that
work, or of a copyright or any exclusive right
under a copyright in that work. Transfer of ownership of any copy of a work of visual art, or of
a copyright or any exclusive right under a copyright, shall not constitute a waiver of the rights
conferred by subsection (a). Except as may
otherwise be agreed by the author in a written
instrument signed by the author, a waiver of the
rights conferred by subsection (a) with respect
to a work of visual art shall not constitute a
transfer of ownership of any copy of that work,
or of ownership of a copyright or of any exclusive right under a copyright in that work.
(Added Pub. L. 101–650, title VI, § 603(a), Dec. 1,
1990, 104 Stat. 5128.)
REFERENCES IN TEXT
Section 610(a) of the Visual Artists Rights Act of 1990
[Pub. L. 101–650], referred to in subsec. (d), is set out as
an Effective Date note below.
EFFECTIVE DATE
Section 610 of title VI of Pub. L. 101–650 provided
that:
‘‘(a) IN GENERAL.—Subject to subsection (b) and except as provided in subsection (c), this title [enacting
this section, amending sections 101, 107, 113, 301, 411,
412, 501, and 506 of this title, and enacting provisions set
out as notes under this section and section 101 of this
title] and the amendments made by this title take effect 6 months after the date of the enactment of this
Act [Dec. 1, 1990].
‘‘(b) APPLICABILITY.—The rights created by section
106A of title 17, United States Code, shall apply to—
‘‘(1) works created before the effective date set
forth in subsection (a) but title to which has not, as
of such effective date, been transferred from the author, and
‘‘(2) works created on or after such effective date,
but shall not apply to any destruction, distortion,
mutilation, or other modification (as described in
section 106A(a)(3) of such title) of any work which occurred before such effective date.
‘‘(c) SECTION 608.—Section 608 [set out below] takes
effect on the date of the enactment of this Act.’’
STUDIES BY COPYRIGHT OFFICE
Section 608 of Pub. L. 101–650 provided that:
‘‘(a) STUDY ON WAIVER OF RIGHTS PROVISION.—
‘‘(1) STUDY.—The Register of Copyrights shall conduct a study on the extent to which rights conferred
by subsection (a) of section 106A of title 17, United
States Code, have been waived under subsection (e)(1)
of such section.
‘‘(2) REPORT TO CONGRESS.—Not later than 2 years
after the date of the enactment of this Act [Dec. 1,
1990], the Register of Copyrights shall submit to the
Congress a report on the progress of the study conducted under paragraph (1). Not later than 5 years
after such date of enactment, the Register of Copyrights shall submit to the Congress a final report on
the results of the study conducted under paragraph
(1), and any recommendations that the Register may
have as a result of the study.
‘‘(b) STUDY ON RESALE ROYALTIES.—
‘‘(1) NATURE OF STUDY.—The Register of Copyrights,
in consultation with the Chair of the National Endowment for the Arts, shall conduct a study on the
feasibility of implementing—
‘‘(A) a requirement that, after the first sale of a
work of art, a royalty on any resale of the work,

Page 24

consisting of a percentage of the price, be paid to
the author of the work; and
‘‘(B) other possible requirements that would
achieve the objective of allowing an author of a
work of art to share monetarily in the enhanced
value of that work.
‘‘(2) GROUPS TO BE CONSULTED.—The study under
paragraph (1) shall be conducted in consultation with
other appropriate departments and agencies of the
United States, foreign governments, and groups involved in the creation, exhibition, dissemination, and
preservation of works of art, including artists, art
dealers, collectors of fine art, and curators of art museums.
‘‘(3) REPORT TO CONGRESS.—Not later than 18
months after the date of the enactment of this Act
[Dec. 1, 1990], the Register of Copyrights shall submit
to the Congress a report containing the results of the
study conducted under this subsection.’’

§ 107. Limitations on exclusive rights: Fair use
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.
(Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat.
2546; Pub. L. 101–650, title VI, § 607, Dec. 1, 1990,
104 Stat. 5132; Pub. L. 102–492, Oct. 24, 1992, 106
Stat. 3145.)
HISTORICAL AND REVISION NOTES
HOUSE REPORT NO. 94–1476

General Background of the Problem. The judicial doctrine of fair use, one of the most important and wellestablished limitations on the exclusive right of copyright owners, would be given express statutory recognition for the first time in section 107. The claim that a
defendant’s acts constituted a fair use rather than an
infringement has been raised as a defense in innumerable copyright actions over the years, and there is
ample case law recognizing the existence of the doctrine and applying it. The examples enumerated at
page 24 of the Register’s 1961 Report, while by no means
exhaustive, give some idea of the sort of activities the
courts might regard as fair use under the circumstances: ‘‘quotation of excerpts in a review or criticism
for purposes of illustration or comment; quotation of
short passages in a scholarly or technical work, for illustration or clarification of the author’s observations;
use in a parody of some of the content of the work parodied; summary of an address or article, with brief
quotations, in a news report; reproduction by a library
of a portion of a work to replace part of a damaged

Page 25

TITLE 17—COPYRIGHTS

copy; reproduction by a teacher or student of a small
part of a work to illustrate a lesson; reproduction of a
work in legislative or judicial proceedings or reports;
incidental and fortuitous reproduction, in a newsreel or
broadcast, of a work located in the scene of an event
being reported.’’
Although the courts have considered and ruled upon
the fair use doctrine over and over again, no real definition of the concept has ever emerged. Indeed, since the
doctrine is an equitable rule of reason, no generally applicable definition is possible, and each case raising the
question must be decided on its own facts. On the other
hand, the courts have evolved a set of criteria which,
though in no case definitive or determinative, provide
some gauge for balancing the equities. These criteria
have been stated in various ways, but essentially they
can all be reduced to the four standards which have
been adopted in section 107: ‘‘(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.’’
These criteria are relevant in determining whether
the basic doctrine of fair use, as stated in the first sentence of section 107, applies in a particular case: ‘‘Notwithstanding the provisions of section 106, 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.’’
The specific wording of section 107 as it now stands is
the result of a process of accretion, resulting from the
long controversy over the related problems of fair use
and the reproduction (mostly by photocopying) of copyrighted material for educational and scholarly purposes. For example, the reference to fair use ‘‘by reproduction in copies or phonorecords or by any other
means’’ is mainly intended to make clear that the doctrine has as much application to photocopying and taping as to older forms of use; it is not intended to give
these kinds of reproduction any special status under
the fair use provision or to sanction any reproduction
beyond the normal and reasonable limits of fair use.
Similarly, the newly-added reference to ‘‘multiple copies for classroom use’’ is a recognition that, under the
proper circumstances of fairness, the doctrine can be
applied to reproductions of multiple copies for the
members of a class.
The Committee has amended the first of the criteria
to be considered—‘‘the purpose and character of the
use’’—to state explicitly that this factor includes a
consideration of ‘‘whether such use is of a commercial
nature or is for non-profit educational purposes.’’ This
amendment is not intended to be interpreted as any
sort of not-for-profit limitation on educational uses of
copyrighted works. It is an express recognition that, as
under the present law, the commercial or non-profit
character of an activity, while not conclusive with respect to fair use, can and should be weighed along with
other factors in fair use decisions.
General Intention Behind the Provision. The statement of the fair use doctrine in section 107 offers some
guidance to users in determining when the principles of
the doctrine apply. However, the endless variety of situations and combinations of circumstances that can
rise in particular cases precludes the formulation of
exact rules in the statute. The bill endorses the purpose
and general scope of the judicial doctrine of fair use,
but there is no disposition to freeze the doctrine in the
statute, especially during a period of rapid technological change. Beyond a very broad statutory explanation of what fair use is and some of the criteria applicable to it, the courts must be free to adapt the doctrine to particular situations on a case-by-case basis.
Section 107 is intended to restate the present judicial

§ 107

doctrine of fair use, not to change, narrow, or enlarge
it in any way.
Intention as to Classroom Reproduction. Although
the works and uses to which the doctrine of fair use is
applicable are as broad as the copyright law itself,
most of the discussion of section 107 has centered
around questions of classroom reproduction, particularly photocopying. The arguments on the question are
summarized at pp. 30–31 of this Committee’s 1967 report
(H.R. Rep. No. 83, 90th Cong., 1st Sess.), and have not
changed materially in the intervening years.
The Committee also adheres to its earlier conclusion,
that ‘‘a specific exemption freeing certain reproductions of copyrighted works for educational and scholarly purposes from copyright control is not justified.’’
At the same time the Committee recognizes, as it did
in 1967, that there is a ‘‘need for greater certainty and
protection for teachers.’’ In an effort to meet this need
the Committee has not only adopted further amendments to section 107, but has also amended section
504(c) to provide innocent teachers and other non-profit
users of copyrighted material with broad insulation
against unwarranted liability for infringement. The
latter amendments are discussed below in connection
with Chapter 5 of the bill [§ 501 et seq. of this title].
In 1967 the Committee also sought to approach this
problem by including, in its report, a very thorough
discussion of ‘‘the considerations lying behind the four
criteria listed in the amended section 107, in the context of typical classroom situations arising today.’’
This discussion appeared on pp. 32–35 of the 1967 report,
and with some changes has been retained in the Senate
report on S. 22 (S. Rep. No. 94–473, pp. 63–65). The Committee has reviewed this discussion, and considers that
it still has value as an analysis of various aspects of
the problem.
At the Judiciary Subcommittee hearings in June
1975, Chairman Kastenmeier and other members urged
the parties to meet together independently in an effort
to achieve a meeting of the minds as to permissible
educational uses of copyrighted material. The response
to these suggestions was positive, and a number of
meetings of three groups, dealing respectively with
classroom reproduction of printed material, music, and
audio-visual material, were held beginning in September 1975.
In a joint letter to Chairman Kastenmeier, dated
March 19, 1976, the representatives of the Ad Hoc Committee of Educational Institutions and Organizations
on Copyright Law Revision, and of the Authors League
of America, Inc., and the Association of American Publishers, Inc., stated:
You may remember that in our letter of March 8,
1976 we told you that the negotiating teams representing authors and publishers and the Ad Hoc
Group had reached tentative agreement on guidelines
to insert in the Committee Report covering educational copying from books and periodicals under
Section 107 of H.R. 2223 and S. 22 [this section], and
that as part of that tentative agreement each side
would accept the amendments to Sections 107 and 504
[this section and section 504 of this title] which were
adopted by your Subcommittee on March 3, 1976.
We are now happy to tell you that the agreement
has been approved by the principals and we enclose a
copy herewith. We had originally intended to translate the agreement into language suitable for inclusion in the legislative report dealing with Section 107
[this section], but we have since been advised by committee staff that this will not be necessary.
As stated above, the agreement refers only to copying from books and periodicals, and it is not intended
to apply to musical or audiovisual works.
The full text of the agreement is as follows:
AGREEMENT ON GUIDELINES FOR CLASSROOM COPYING
IN NOT-FOR-PROFIT EDUCATIONAL INSTITUTIONS
WITH RESPECT TO BOOKS AND PERIODICALS

The purpose of the following guidelines is to state
the minimum and not the maximum standards of

TITLE 17—COPYRIGHTS

§ 107

educational fair use under Section 107 of H.R. 2223
[this section]. The parties agree that the conditions
determining the extent of permissible copying for
educational purposes may change in the future; that
certain types of copying permitted under these guidelines may not be permissible in the future; and conversely that in the future other types of copying not
permitted under these guidelines may be permissible
under revised guidelines.
Moreover, the following statement of guidelines is
not intended to limit the types of copying permitted
under the standards of fair use under judicial decision
and which are stated in Section 107 of the Copyright
Revision Bill [this section]. There may be instances
in which copying which does not fall within the
guidelines stated below may nonetheless be permitted under the criteria of fair use.
GUIDELINES

I. Single Copying for Teachers
A single copy may be made of any of the following
by or for a teacher at his or her individual request for
his or her scholarly research or use in teaching or
preparation to teach a class:
A. A chapter from a book;
B. An article from a periodical or newspaper;
C. A short story, short essay or short poem, whether or not from a collective work;
D. A chart, graph, diagram, drawing, cartoon or picture from a book, periodical, or newspaper;
II. Multiple Copies for Classroom Use
Multiple copies (not to exceed in any event more
than one copy per pupil in a course) may be made by
or for the teacher giving the course for classroom use
or discussion; provided that:
A. The copying meets the tests of brevity and spontaneity as defined below; and,
B. Meets the cumulative effect test as defined
below; and
C. Each copy includes a notice of copyright.
Definitions
Brevity
(i) Poetry: (a) A complete poem if less than 250
words and if printed on not more than two pages or,
(b) from a longer poem, an excerpt of not more than
250 words.
(ii) Prose: (a) Either a complete article, story or
essay of less than 2,500 words, or (b) an excerpt from
any prose work of not more than 1,000 words or 10%
of the work, whichever is less, but in any event a
minimum of 500 words.
[Each of the numerical limits stated in ‘‘i’’ and ‘‘ii’’
above may be expanded to permit the completion of
an unfinished line of a poem or of an unfinished prose
paragraph.]
(iii) Illustration: One chart, graph, diagram, drawing, cartoon or picture per book or per periodical
issue.
(iv) ‘‘Special’’ works: Certain works in poetry, prose
or in ‘‘poetic prose’’ which often combine language
with illustrations and which are intended sometimes
for children and at other times for a more general audience fall short of 2,500 words in their entirety.
Paragraph ‘‘ii’’ above notwithstanding such ‘‘special
works’’ may not be reproduced in their entirety; however, an excerpt comprising not more than two of the
published pages of such special work and containing
not more than 10% of the words found in the text
thereof, may be reproduced.
Spontaneity
(i) The copying is at the instance and inspiration of
the individual teacher, and
(ii) The inspiration and decision to use the work
and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for
permission.
Cumulative Effect

Page 26

(i) The copying of the material is for only one
course in the school in which the copies are made.
(ii) Not more than one short poem, article, story,
essay or two excerpts may be copied from the same
author, nor more than three from the same collective
work or periodical volume during one class term.
(iii) There shall not be more than nine instances of
such multiple copying for one course during one class
term.
[The limitations stated in ‘‘ii’’ and ‘‘iii’’ above shall
not apply to current news periodicals and newspapers
and current news sections of other periodicals.]
III. Prohibitions as to I and II Above
Notwithstanding any of the above, the following
shall be prohibited:
(A) Copying shall not be used to create or to replace
or substitute for anthologies, compilations or collective works. Such replacement or substitution may
occur whether copies of various works or excerpts
therefrom are accumulated or reproduced and used
separately.
(B) There shall be no copying of or from works intended to be ‘‘consumable’’ in the course of study or
of teaching. These include workbooks, exercises,
standardized tests and test booklets and answer
sheets and like consumable material.
(C) Copying shall not:
(a) substitute for the purchase of books, publishers’ reprints or periodicals;
(b) be directed by higher authority;
(c) be repeated with respect to the same item by
the same teacher from term to term.
(D) No charge shall be made to the student beyond
the actual cost of the photocopying.
Agreed March 19, 1976.
Ad Hoc Committee on Copyright Law Revision:
By SHELDON ELLIOTT STEINBACH.
Author-Publisher Group:
Authors League of America:
By IRWIN KARP, Counsel.
Association of American Publishers, Inc.:
By ALEXANDER C. HOFFMAN.
Chairman, Copyright Committee.
In a joint letter dated April 30, 1976, representatives
of the Music Publishers’ Association of the United
States, Inc., the National Music Publishers’ Association, Inc., the Music Teachers National Association,
the Music Educators National Conference, the National
Association of Schools of Music, and the Ad Hoc Committee on Copyright Law Revision, wrote to Chairman
Kastenmeier as follows:
During the hearings on H.R. 2223 in June 1975, you
and several of your subcommittee members suggested
that concerned groups should work together in developing guidelines which would be helpful to clarify
Section 107 of the bill [this section].
Representatives of music educators and music publishers delayed their meetings until guidelines had
been developed relative to books and periodicals.
Shortly after that work was completed and those
guidelines were forwarded to your subcommittee, representatives of the undersigned music organizations
met together with representatives of the Ad Hoc
Committee on Copyright Law Revision to draft guidelines relative to music.
We are very pleased to inform you that the discussions thus have been fruitful on the guidelines which
have been developed. Since private music teachers
are an important factor in music education, due consideration has been given to the concerns of that
group.
We trust that this will be helpful in the report on
the bill to clarify Fair Use as it applies to music.
The text of the guidelines accompanying this letter is
as follows:
GUIDELINES FOR EDUCATIONAL USES OF MUSIC

The purpose of the following guidelines is to state
the minimum and not the maximum standards of

Page 27

TITLE 17—COPYRIGHTS

educational fair use under Section 107 of H.R. 2223
[this section]. The parties agree that the conditions
determining the extent of permissible copying for
educational purposes may change in the future; that
certain types of copying permitted under these guidelines may not be permissible in the future, and conversely that in the future other types of copying not
permitted under these guidelines may be permissible
under revised guidelines.
Moreover, the following statement of guidelines is
not intended to limit the types of copying permitted
under the standards of fair use under judicial decision
and which are stated in Section 107 of the Copyright
Revision Bill [this section]. There may be instances
in which copying which does not fall within the
guidelines stated below may nonetheless be permitted under the criteria of fair use.
A. Permissible Uses
1. Emergency copying to replace purchased copies
which for any reason are not available for an imminent performance provided purchased replacement
copies shall be substituted in due course.
2. (a) For academic purposes other than performance, multiple copies of excerpts of works may be
made, provided that the excerpts do not comprise a
part of the whole which would constitute a performable unit such as a section, movement or aria, but in
no case more than 10% of the whole work. The number of copies shall not exceed one copy per pupil.
(b) For academic purposes other than performance,
a single copy of an entire performable unit (section,
movement, aria, etc.) that is, (1) confirmed by the
copyright proprietor to be out of print or (2) unavailable except in a larger work, may be made by or for
a teacher solely for the purpose of his or her scholarly research or in preparation to teach a class.
3. Printed copies which have been purchased may be
edited or simplified provided that the fundamental
character of the work is not distorted or the lyrics,
if any, altered or lyrics added if none exist.
4. A single copy of recordings of performances by
students may be made for evaluation or rehearsal
purposes and may be retained by the educational institution or individual teacher.
5. A single copy of a sound recording (such as a
tape, disc or cassette) of copyrighted music may be
made from sound recordings owned by an educational
institution or an individual teacher for the purpose of
constructing aural exercises or examinations and
may be retained by the educational institution or individual teacher. (This pertains only to the copyright
of the music itself and not to any copyright which
may exist in the sound recording.)
B. Prohibitions
1. Copying to create or replace or substitute for anthologies, compilations or collective works.
2. Copying of or from works intended to be
‘‘consumable’’ in the course of study or of teaching
such as workbooks, exercises, standardized tests and
answer sheets and like material.
3. Copying for the purpose of performance, except as
in A(1) above.
4. Copying for the purpose of substituting for the
purchase of music, except as in A(1) and A(2) above.
5. Copying without inclusion of the copyright notice which appears on the printed copy.
The problem of off-the-air taping for nonprofit classroom use of copyrighted audiovisual works incorporated in radio and television broadcasts has proved
to be difficult to resolve. The Committee believes that
the fair use doctrine has some limited application in
this area, but it appears that the development of detailed guidelines will require a more thorough exploration than has so far been possible of the needs and
problems of a number of different interests affected,
and of the various legal problems presented. Nothing in
section 107 or elsewhere in the bill is intended to
change or prejudge the law on the point. On the other

§ 107

hand, the Committee is sensitive to the importance of
the problem, and urges the representatives of the various interests, if possible under the leadership of the
Register of Copyrights, to continue their discussions
actively and in a constructive spirit. If it would be
helpful to a solution, the Committee is receptive to
undertaking further consideration of the problem in a
future Congress.
The Committee appreciates and commends the efforts
and the cooperative and reasonable spirit of the parties
who achieved the agreed guidelines on books and periodicals and on music. Representatives of the American
Association of University Professors and of the Association of American Law Schools have written to the
Committee strongly criticizing the guidelines, particularly with respect to multiple copying, as being too restrictive with respect to classroom situations at the
university and graduate level. However, the Committee
notes that the Ad Hoc group did include representatives of higher education, that the stated ‘‘purpose of
the * * * guidelines is to state the minimum and not
the maximum standards of educational fair use’’ and
that the agreement acknowledges ‘‘there may be instances in which copying which does not fall within the
guidelines * * * may nonetheless be permitted under
the criteria of fair use.’’
The Committee believes the guidelines are a reasonable interpretation of the minimum standards of fair
use. Teachers will know that copying within the guidelines is fair use. Thus, the guidelines serve the purpose
of fulfilling the need for greater certainty and protection for teachers. The Committee expresses the hope
that if there are areas where standards other than
these guidelines may be appropriate, the parties will
continue their efforts to provide additional specific
guidelines in the same spirit of good will and give and
take that has marked the discussion of this subject in
recent months.
Reproduction and Uses for Other Purposes. The concentrated attention given the fair use provision in the
context of classroom teaching activities should not obscure its application in other areas. It must be emphasized again that the same general standards of fair use
are applicable to all kinds of uses of copyrighted material, although the relative weight to be given them will
differ from case to case.
The fair use doctrine would be relevant to the use of
excerpts from copyrighted works in educational broadcasting activities not exempted under section 110(2) or
112, and not covered by the licensing provisions of section 118. In these cases the factors to be weighed in applying the criteria of this section would include whether the performers, producers, directors, and others responsible for the broadcast were paid, the size and nature of the audience, the size and number of excerpts
taken and, in the case of recordings made for broadcast, the number of copies reproduced and the extent of
their reuse or exchange. The availability of the fair use
doctrine to educational broadcasters would be narrowly
circumscribed in the case of motion pictures and other
audiovisual works, but under appropriate circumstances it could apply to the nonsequential showing of
an individual still or slide, or to the performance of a
short excerpt from a motion picture for criticism or
comment.
Another special instance illustrating the application
of the fair use doctrine pertains to the making of copies
or phonorecords of works in the special forms needed
for the use of blind persons. These special forms, such
as copies in Braille and phonorecords of oral readings
(talking books), are not usually made by the publishers
for commercial distribution. For the most part, such
copies and phonorecords are made by the Library of
Congress’ Division for the Blind and Physically Handicapped with permission obtained from the copyright
owners, and are circulated to blind persons through regional libraries covering the nation. In addition, such
copies and phonorecords are made locally by individual
volunteers for the use of blind persons in their communities, and the Library of Congress conducts a program

§ 108

TITLE 17—COPYRIGHTS

for training such volunteers. While the making of multiple copies or phonorecords of a work for general circulation requires the permission of the copyright
owner, a problem addressed in section 710 of the bill,
the making of a single copy or phonorecord by an individual as a free service for blind persons would properly
be considered a fair use under section 107.
A problem of particular urgency is that of preserving
for posterity prints of motion pictures made before
1942. Aside from the deplorable fact that in a great
many cases the only existing copy of a film has been
deliberately destroyed, those that remain are in immediate danger of disintegration; they were printed on
film stock with a nitrate base that will inevitably decompose in time. The efforts of the Library of Congress, the American Film Institute, and other organizations to rescue and preserve this irreplaceable contribution to our cultural life are to be applauded, and
the making of duplicate copies for purposes of archival
preservation certainly falls within the scope of ‘‘fair
use.’’
When a copyrighted work contains unfair, inaccurate,
or derogatory information concerning an individual or
institution, the individual or institution may copy and
reproduce such parts of the work as are necessary to
permit understandable comment on the statements
made in the work.
The Committee has considered the question of publication, in Congressional hearings and documents, of
copyrighted material. Where the length of the work or
excerpt published and the number of copies authorized
are reasonable under the circumstances, and the work
itself is directly relevant to a matter of legitimate legislative concern, the Committee believes that the publication would constitute fair use.
During the consideration of the revision bill in the
94th Congress it was proposed that independent newsletters, as distinguished from house organs and publicity or advertising publications, be given separate treatment. It is argued that newsletters are particularly
vulnerable to mass photocopying, and that most newsletters have fairly modest circulations. Whether the
copying of portions of a newsletter is an act of infringement or a fair use will necessarily turn on the facts of
the individual case. However, as a general principle, it
seems clear that the scope of the fair use doctrine
should be considerably narrower in the case of newsletters than in that of either mass-circulation periodicals or scientific journals. The commercial nature of
the user is a significant factor in such cases: Copying
by a profit-making user of even a small portion of a
newsletter may have a significant impact on the commercial market for the work.
The Committee has examined the use of excerpts
from copyrighted works in the art work of calligraphers. The committee believes that a single copy reproduction of an excerpt from a copyrighted work by a calligrapher for a single client does not represent an infringement of copyright. Likewise, a single reproduction of excerpts from a copyrighted work by a student
calligrapher or teacher in a learning situation would be
a fair use of the copyrighted work.
The Register of Copyrights has recommended that
the committee report describe the relationship between
this section and the provisions of section 108 relating to
reproduction by libraries and archives. The doctrine of
fair use applies to library photocopying, and nothing
contained in section 108 ‘‘in any way affects the right
of fair use.’’ No provision of section 108 is intended to
take away any rights existing under the fair use doctrine. To the contrary, section 108 authorizes certain
photocopying practices which may not qualify as a fair
use.
The criteria of fair use are necessarily set forth in
general terms. In the application of the criteria of fair
use to specific photocopying practices of libraries, it is
the intent of this legislation to provide an appropriate
balancing of the rights of creators, and the needs of
users.

Page 28
AMENDMENTS

1992—Pub. L. 102–492 inserted at end ‘‘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.’’
1990—Pub. L. 101–650 substituted ‘‘sections 106 and
106A’’ for ‘‘section 106’’ in introductory provisions.
EFFECTIVE DATE OF 1990 AMENDMENT
Amendment by Pub. L. 101–650 effective 6 months
after Dec. 1, 1990, see section 610 of Pub. L. 101–650, set
out as an Effective Date note under section 106A of this
title.

§ 108. Limitations on exclusive rights: Reproduction by libraries and archives
(a) Except as otherwise provided in this title
and notwithstanding the provisions of section
106, it is not an infringement of copyright for a
library or archives, or any of its employees acting within the scope of their employment, to reproduce no more than one copy or phonorecord
of a work, except as provided in subsections (b)
and (c), or to distribute such copy or phonorecord, under the conditions specified by this
section, if—
(1) the reproduction or distribution is made
without any purpose of direct or indirect commercial advantage;
(2) the collections of the library or archives
are (i) open to the public, or (ii) available not
only to researchers affiliated with the library
or archives or with the institution of which it
is a part, but also to other persons doing research in a specialized field; and
(3) the reproduction or distribution of the
work includes a notice of copyright that appears on the copy or phonorecord that is reproduced under the provisions of this section,
or includes a legend stating that the work
may be protected by copyright if no such notice can be found on the copy or phonorecord
that is reproduced under the provisions of this
section.
(b) The rights of reproduction and distribution
under this section apply to three copies or
phonorecords of an unpublished work duplicated
solely for purposes of preservation and security
or for deposit for research use in another library
or archives of the type described by clause (2) of
subsection (a), if—
(1) the copy or phonorecord reproduced is
currently in the collections of the library or
archives; and
(2) any such copy or phonorecord that is reproduced in digital format is not otherwise
distributed in that format and is not made
available to the public in that format outside
the premises of the library or archives.
(c) The right of reproduction under this section applies to three copies or phonorecords of a
published work duplicated solely for the purpose
of replacement of a copy or phonorecord that is
damaged, deteriorating, lost, or stolen, or if the
existing format in which the work is stored has
become obsolete, if—
(1) the library or archives has, after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price;
and
(2) any such copy or phonorecord that is reproduced in digital format is not made avail-

Page 29

TITLE 17—COPYRIGHTS

able to the public in that format outside the
premises of the library or archives in lawful
possession of such copy.
For purposes of this subsection, a format shall
be considered obsolete if the machine or device
necessary to render perceptible a work stored in
that format is no longer manufactured or is no
longer reasonably available in the commercial
marketplace.
(d) The rights of reproduction and distribution
under this section apply to a copy, made from
the collection of a library or archives where the
user makes his or her request or from that of another library or archives, of no more than one
article or other contribution to a copyrighted
collection or periodical issue, or to a copy or
phonorecord of a small part of any other copyrighted work, if—
(1) the copy or phonorecord becomes the
property of the user, and the library or archives has had no notice that the copy or
phonorecord would be used for any purpose
other than private study, scholarship, or research; and
(2) the library or archives displays prominently, at the place where orders are accepted,
and includes on its order form, a warning of
copyright in accordance with requirements
that the Register of Copyrights shall prescribe
by regulation.
(e) The rights of reproduction and distribution
under this section apply to the entire work, or
to a substantial part of it, made from the collection of a library or archives where the user
makes his or her request or from that of another
library or archives, if the library or archives has
first determined, on the basis of a reasonable investigation, that a copy or phonorecord of the
copyrighted work cannot be obtained at a fair
price, if—
(1) the copy or phonorecord becomes the
property of the user, and the library or archives has had no notice that the copy or
phonorecord would be used for any purpose
other than private study, scholarship, or research; and
(2) the library or archives displays prominently, at the place where orders are accepted,
and includes on its order form, a warning of
copyright in accordance with requirements
that the Register of Copyrights shall prescribe
by regulation.
(f) Nothing in this section—
(1) shall be construed to impose liability for
copyright infringement upon a library or archives or its employees for the unsupervised
use of reproducing equipment located on its
premises: Provided, That such equipment displays a notice that the making of a copy may
be subject to the copyright law;
(2) excuses a person who uses such reproducing equipment or who requests a copy or
phonorecord under subsection (d) from liability for copyright infringement for any such
act, or for any later use of such copy or phonorecord, if it exceeds fair use as provided by
section 107;
(3) shall be construed to limit the reproduction and distribution by lending of a limited
number of copies and excerpts by a library or

§ 108

archives of an audiovisual news program, subject to clauses (1), (2), and (3) of subsection (a);
or
(4) in any way affects the right of fair use as
provided by section 107, or any contractual obligations assumed at any time by the library
or archives when it obtained a copy or phonorecord of a work in its collections.
(g) The rights of reproduction and distribution
under this section extend to the isolated and unrelated reproduction or distribution of a single
copy or phonorecord of the same material on
separate occasions, but do not extend to cases
where the library or archives, or its employee—
(1) is aware or has substantial reason to believe that it is engaging in the related or concerted reproduction or distribution of multiple
copies or phonorecords of the same material,
whether made on one occasion or over a period
of time, and whether intended for aggregate
use by one or more individuals or for separate
use by the individual members of a group; or
(2) engages in the systematic reproduction
or distribution of single or multiple copies or
phonorecords of material described in subsection (d): Provided, That nothing in this
clause prevents a library or archives from participating in interlibrary arrangements that
do not have, as their purpose or effect, that
the library or archives receiving such copies
or phonorecords for distribution does so in
such aggregate quantities as to substitute for
a subscription to or purchase of such work.
(h)(1) For purposes of this section, during the
last 20 years of any term of copyright of a published work, a library or archives, including a
nonprofit educational institution that functions
as such, may reproduce, distribute, display, or
perform in facsimile or digital form a copy or
phonorecord of such work, or portions thereof,
for purposes of preservation, scholarship, or research, if such library or archives has first determined, on the basis of a reasonable investigation, that none of the conditions set forth in
subparagraphs (A), (B), and (C) of paragraph (2)
apply.
(2) No reproduction, distribution, display, or
performance is authorized under this subsection
if—
(A) the work is subject to normal commercial exploitation;
(B) a copy or phonorecord of the work can be
obtained at a reasonable price; or
(C) the copyright owner or its agent provides
notice pursuant to regulations promulgated by
the Register of Copyrights that either of the
conditions set forth in subparagraphs (A) and
(B) applies.
(3) The exemption provided in this subsection
does not apply to any subsequent uses by users
other than such library or archives.
(i) The rights of reproduction and distribution
under this section do not apply to a musical
work, a pictorial, graphic or sculptural work, or
a motion picture or other audiovisual work
other than an audiovisual work dealing with
news, except that no such limitation shall apply
with respect to rights granted by subsections
(b), (c), and (h), or with respect to pictorial or
graphic works published as illustrations, dia-

TITLE 17—COPYRIGHTS

§ 108

grams, or similar adjuncts to works of which
copies are reproduced or distributed in accordance with subsections (d) and (e).
(Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat.
2546; Pub. L. 102–307, title III, § 301, June 26, 1992,
106 Stat. 272; Pub. L. 105–80, § 12(a)(4), Nov. 13,
1997, 111 Stat. 1534; Pub. L. 105–298, title I, § 104,
Oct. 27, 1998, 112 Stat. 2829; Pub. L. 105–304, title
IV, § 404, Oct. 28, 1998, 112 Stat. 2889; Pub. L.
109–9, title IV, § 402, Apr. 27, 2005, 119 Stat. 227.)
HISTORICAL AND REVISION NOTES
HOUSE REPORT NO. 94–1476

Notwithstanding the exclusive rights of the owners of
copyright, section 108 provides that under certain conditions it is not an infringement of copyright for a library or archives, or any of its employees acting within
the scope of their employment, to reproduce or distribute not more than one copy or phonorecord of a work,
provided (1) the reproduction or distribution is made
without any purpose of direct or indirect commercial
advantage and (2) the collections of the library or archives are open to the public or available not only to
researchers affiliated with the library or archives, but
also to other persons doing research in a specialized
field, and (3) the reproduction or distribution of the
work includes a notice of copyright.
Under this provision, a purely commercial enterprise
could not establish a collection of copyrighted works,
call itself a library or archive, and engage in for-profit
reproduction and distribution of photocopies. Similarly, it would not be possible for a non-profit institution, by means of contractual arrangements with a
commercial copying enterprise, to authorize the enterprise to carry out copying and distribution functions
that would be exempt if conducted by the non-profit institution itself.
The reference to ‘‘indirect commercial advantage’’
has raised questions as to the status of photocopying
done by or for libraries or archival collections within
industrial, profit-making, or proprietary institutions
(such as the research and development departments of
chemical, pharmaceutical, automobile, and oil corporations, the library of a proprietary hospital, the collections owned by a law or medical partnership, etc.).
There is a direct interrelationship between this problem and the prohibitions against ‘‘multiple’’ and ‘‘systematic’’ photocopying in section 108(g)(1) and (2).
Under section 108, a library in a profitmaking organization would not be authorized to:
(a) use a single subscription or copy to supply its
employees with multiple copies of material relevant
to their work; or
(b) use a single subscription or copy to supply its
employees, on request, with single copies of material
relevant to their work, where the arrangement is
‘’systematic’’ in the sense of deliberately substituting photocopying for subscription or purchase; or
(c) use ‘‘interlibrary loan’’ arrangements for obtaining photocopies in such aggregate quantities as
to substitute for subscriptions or purchase of material needed by employees in their work.
Moreover, a library in a profit-making organization
could not evade these obligations by installing reproducing equipment on its premises for unsupervised use
by the organization’s staff.
Isolated, spontaneous making of single photocopies
by a library in a for-profit organization, without any
systematic effort to substitute photocopying for subscriptions or purchases, would be covered by section
108, even though the copies are furnished to the employees of the organization for use in their work. Similarly, for-profit libraries could participate in interlibrary arrangements for exchange of photocopies, as
long as the reproduction or distribution was not ‘‘systematic.’’ These activities, by themselves, would ordinarily not be considered ‘‘for direct or indirect com-

Page 30

mercial advantage,’’ since the ‘‘advantage’’ referred to
in this clause must attach to the immediate commercial motivation behind the reproduction or distribution
itself, rather than to the ultimate profit-making motivation behind the enterprise in which the library is located. On the other hand, section 108 would not excuse
reproduction or distribution if there were a commercial
motive behind the actual making or distributing of the
copies, if multiple copies were made or distributed, or
if the photocopying activities were ‘‘systematic’’ in the
sense that their aim was to substitute for subscriptions
or purchases.
The rights of reproduction and distribution under
section 108 apply in the following circumstances:
Archival Reproduction. Subsection (b) authorizes the
reproduction and distribution of a copy or phonorecord
of an unpublished work duplicated in facsimile form
solely for purposes of preservation and security, or for
deposit for research use in another library or archives,
if the copy or phonorecord reproduced is currently in
the collections of the first library or archives. Only unpublished works could be reproduced under this exemption, but the right would extend to any type of work,
including photographs, motion pictures and sound recordings. Under this exemption, for example, a repository could make photocopies of manuscripts by microfilm or electrostatic process, but could not reproduce
the work in ‘‘machine-readable’’ language for storage
in an information system.
Replacement of Damaged Copy. Subsection (c)
authorizes the reproduction of a published work duplicated in facsimile form solely for the purpose of replacement of a copy or phonorecord that is damaged,
deteriorating, lost or stolen, if the library or archives
has, after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price.
The scope and nature of a reasonable investigation to
determine that an unused replacement cannot be obtained will vary according to the circumstances of a
particular situation. It will always require recourse to
commonly-known trade sources in the United States,
and in the normal situation also to the publisher or
other copyright owner (if such owner can be located at
the address listed in the copyright registration), or an
authorized reproducing service.
Articles and Small Excerpts. Subsection (d) authorizes
the reproduction and distribution of a copy of not more
than one article or other contribution to a copyrighted
collection or periodical issue, or of a copy or phonorecord of a small part of any other copyrighted work.
The copy or phonorecord may be made by the library
where the user makes his request or by another library
pursuant to an interlibrary loan. It is further required
that the copy become the property of the user, that the
library or archives have no notice that the copy would
be used for any purposes other than private study,
scholarship or research, and that the library or archives display prominently at the place where reproduction requests are accepted, and includes in its order
form, a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation.
Out-of-Print Works. Subsection (e) authorizes the reproduction and distribution of a copy or phonorecord of
an entire work under certain circumstances, if it has
been established that a copy cannot be obtained at a
fair price. The copy may be made by the library where
the user makes his request or by another library pursuant to an interlibrary loan. The scope and nature of a
reasonable investigation to determine that an unused
copy cannot be obtained will vary according to the circumstances of a particular situation. It will always require recourse to commonly-known trade sources in the
United States, and in the normal situation also to the
publisher or other copyright owner (if the owner can be
located at the address listed in the copyright registration), or an authorized reproducing service. It is further
required that the copy become the property of the user,
that the library or archives have no notice that the
copy would be used for any purpose other than private

Page 31

TITLE 17—COPYRIGHTS

study, scholarship, or research, and that the library or
archives display prominently at the place where reproduction requests are accepted, and include on its order
form, a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation.
General Exemptions. Clause (1) of subsection (f) specifically exempts a library or archives or its employees
from liability for the unsupervised use of reproducing
equipment located on its premises, provided that the
reproducing equipment displays a notice that the making of a copy may be subject to the copyright law.
Clause (2) of subsection (f) makes clear that this exemption of the library or archives does not extend to
the person using such equipment or requesting such
copy if the use exceeds fair use. Insofar as such person
is concerned the copy or phonorecord made is not considered ‘‘lawfully’’ made for purposes of sections 109,
110 or other provisions of the title.
Clause (3) provides that nothing in section 108 is intended to limit the reproduction and distribution by
lending of a limited number of copies and excerpts of
an audiovisual news program. This exemption is intended to apply to the daily newscasts of the national
television networks, which report the major events of
the day. It does not apply to documentary (except documentary programs involving news reporting as that
term is used in section 107), magazine-format or other
public affairs broadcasts dealing with subjects of general interest to the viewing public.
The clause was first added to the revision bill in 1974
by the adoption of an amendment proposed by Senator
Baker. It is intended to permit libraries and archives,
subject to the general conditions of this section, to
make off-the-air videotape recordings of daily network
news casts for limited distribution to scholars and researchers for use in research purposes. As such, it is an
adjunct to the American Television and Radio Archive
established in Section 113 of the Act [2 U.S.C. 170]
which will be the principal repository for television
broadcast material, including news broadcasts, the inclusion of language indicating that such material may
only be distributed by lending by the library or archive
is intended to preclude performance, copying, or sale,
whether or not for profit, by the recipient of a copy of
a television broadcast taped off-the-air pursuant to this
clause.
Clause (4), in addition to asserting that nothing contained in section 108 ‘‘affects the right of fair use as
provided by section 107’’, also provides that the right of
reproduction granted by this section does not override
any contractual arrangements assumed by a library or
archives when it obtained a work for its collections:
For example, if there is an express contractual prohibition against reproduction for any purpose, this legislation shall not be construed as justifying a violation of
the contract. This clause is intended to encompass the
situation where an individual makes papers, manuscripts or other works available to a library with the
understanding that they will not be reproduced.
It is the intent of this legislation that a subsequent
unlawful use by a user of a copy or phonorecord of a
work lawfully made by a library, shall not make the library liable for such improper use.
Multiple Copies and Systematic Reproduction. Subsection (g) provides that the rights granted by this section extend only to the ‘‘isolated and unrelated reproduction of a single copy or phonorecord of the same
material on separate occasions.’’ However, this section
does not authorize the related or concerted reproduction of multiple copies or phonorecords of the same material, whether made on one occasion or over a period
of time, and whether intended for aggregate use by one
individual or for separate use by the individual members of a group.
With respect to material described in subsection (d)—
articles or other contributions to periodicals or collections, and small parts of other copyrighted works—subsection (g)(2) provides that the exemptions of section
108 do not apply if the library or archive engages in

§ 108

‘‘systematic reproduction or distribution of single or
multiple copies or phonorecords.’’ This provision in S.
22 provoked a storm of controversy, centering around
the extent to which the restrictions on ‘‘systematic’’
activities would prevent the continuation and development of interlibrary networks and other arrangements
involving the exchange of photocopies. After thorough
consideration, the Committee amended section 108(g)(2)
to add the following proviso:
Provided, that nothing in this clause prevents a library or archives from participating in interlibrary
arrangements that do not have, as their purpose or
effect, that the library or archives receiving such
copies or phonorecords for distribution does so in
such aggregate quantities as to substitute for a subscription to or purchase of such work.
In addition, the Committee added a new subsection
(i) to section 108 [this section], requiring the Register
of Copyrights, five years from the effective date of the
new Act and at five-year intervals thereafter, to report
to Congress upon ‘‘the extent to which this section has
achieved the intended statutory balancing of the rights
of creators, and the needs of users,’’ and to make appropriate legislative or other recommendations. As noted
in connection with section 107, the Committee also
amended section 504(c) in a way that would insulate librarians from unwarranted liability for copyright infringement; this amendment is discussed below.
The key phrases in the Committee’s amendment of
section 108(g)(2) are ‘‘aggregate quantities’’ and ‘‘substitute for a subscription to or purchase of’’ a work. To
be implemented effectively in practice, these provisions will require the development and implementation
of more-or-less specific guidelines establishing criteria
to govern various situations.
The National Commission on New Technological Uses
of Copyrighted Works (CONTU) offered to provide good
offices in helping to develop these guidelines. This offer
was accepted and, although the final text of guidelines
has not yet been achieved, the Committee has reason to
hope that, within the next month, some agreement can
be reached on an initial set of guidelines covering practices under section 108(g)(2).
Works Excluded. Subsection (h) provides that the
rights of reproduction and distribution under this section do not apply to a musical work, a pictorial, graphic or sculptural work, or a motion picture or other
audiovisual work other than ‘‘an audiovisual work
dealing with news.’’ The latter term is intended as the
equivalent in meaning of the phrase ‘‘audiovisual news
program’’ in section 108(f)(3). The exclusions under subsection (h) do not apply to archival reproduction under
subsection (b), to replacement of damaged or lost copies or phonorecords under subsection (c), or to ‘‘pictorial or graphic works published as illustrations, diagrams, or similar adjuncts to works of which copies are
reproduced or distributed in accordance with subsections (d) and (e).’’
Although subsection (h) generally removes musical,
graphic, and audiovisual works from the specific exemptions of section 108, it is important to recognize
that the doctrine of fair use under section 107 remains
fully applicable to the photocopying or other reproduction of such works. In the case of music, for example,
it would be fair use for a scholar doing musicological
research to have a library supply a copy of a portion of
a score or to reproduce portions of a phonorecord of a
work. Nothing in section 108 impairs the applicability
of the fair use doctrine to a wide variety of situations
involving photocopying or other reproduction by a library of copyrighted material in its collections, where
the user requests the reproduction for legitimate scholarly or research purposes.
AMENDMENTS
2005—Subsec. (i). Pub. L. 109–9 substituted ‘‘(b), (c),
and (h)’’ for ‘‘(b) and (c)’’.
1998—Subsec. (a). Pub. L. 105–304, § 404(1)(A), (B), in introductory provisions, substituted ‘‘Except as other-

§ 109

TITLE 17—COPYRIGHTS

wise provided in this title and notwithstanding’’ for
‘‘Notwithstanding’’ and inserted ‘‘, except as provided
in subsections (b) and (c)’’ after ‘‘of a work’’.
Subsec. (a)(3). Pub. L. 105–304, § 404(1)(C), inserted before period at end ‘‘that appears on the copy or phonorecord that is reproduced under the provisions of this
section, or includes a legend stating that the work may
be protected by copyright if no such notice can be
found on the copy or phonorecord that is reproduced
under the provisions of this section’’.
Subsec. (b). Pub. L. 105–304, § 404(2), substituted ‘‘three
copies or phonorecords’’ for ‘‘a copy or phonorecord’’,
struck out ‘‘in facsimile form’’ after ‘‘duplicated’’, and
substituted ‘‘if—
‘‘(1) the copy or phonorecord reproduced is currently in the collections of the library or archives;
and
‘‘(2) any such copy or phonorecord that is reproduced in digital format is not otherwise distributed
in that format and is not made available to the public
in that format outside the premises of the library or
archives.’’
for ‘‘if the copy or phonorecord reproduced is currently
in the collections of the library or archives.’’
Subsec. (c). Pub. L. 105–304, § 404(3), substituted ‘‘three
copies or phonorecords’’ for ‘‘a copy or phonorecord’’,
struck out ‘‘in facsimile form’’ after ‘‘duplicated’’, inserted ‘‘or if the existing format in which the work is
stored has become obsolete,’’ after ‘‘stolen,’’, substituted ‘‘if—
‘‘(1) the library or archives has, after a reasonable
effort, determined that an unused replacement cannot be obtained at a fair price; and
‘‘(2) any such copy or phonorecord that is reproduced in digital format is not made available to the
public in that format outside the premises of the library or archives in lawful possession of such copy.’’
for ‘‘if the library or archives has, after a reasonable effort, determined that an unused replacement cannot be
obtained at a fair price.’’, and inserted concluding provisions.
Subsecs. (h), (i). Pub. L. 105–298 added subsec. (h) and
redesignated former subsec. (h) as (i).
1997—Subsec. (e). Pub. L. 105–80 substituted ‘‘fair
price’’ for ‘‘pair price’’ in introductory provisions.
1992—Subsec. (i). Pub. L. 102–307 struck out subsec.
(i), which read as follows: ‘‘Five years from the effective date of this Act, and at five-year intervals thereafter, the Register of Copyrights, after consulting with
representatives of authors, book and periodical publishers, and other owners of copyrighted materials, and
with representatives of library users and librarians,
shall submit to the Congress a report setting forth the
extent to which this section has achieved the intended
statutory balancing of the rights of creators, and the
needs of users. The report should also describe any
problems that may have arisen, and present legislative
or other recommendations, if warranted.’’
EFFECTIVE DATE OF 1998 AMENDMENTS
Pub. L. 105–304, title IV, § 407, Oct. 28, 1998, 112 Stat.
2905, provided that: ‘‘Except as otherwise provided in
this title [enacting section 4001 of Title 28, Judiciary
and Judicial Procedure, amending this section, sections
112, 114, 701, and 801 to 803 of this title, section 5314 of
Title 5, Government Organization and Employees, and
section 3 of Title 35, Patents, and enacting provisions
set out as notes under sections 112 and 114 of this title],
this title and the amendments made by this title shall
take effect on the date of the enactment of this Act
[Oct. 28, 1998].’’
Pub. L. 105–298, title I, § 106, Oct. 27, 1998, 112 Stat.
2829, provided that: ‘‘This title [amending this section
and sections 203 and 301 to 304 of this title, enacting
provisions set out as a note under section 101 of this
title, and amending provisions set out as notes under
sections 101 and 304 of this title] and the amendments
made by this title shall take effect on the date of the
enactment of this Act [Oct. 27, 1998].’’

Page 32

§ 109. Limitations on exclusive rights: Effect of
transfer of particular copy or phonorecord
(a) Notwithstanding the provisions of section
106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any
person authorized by such owner, is entitled,
without the authority of the copyright owner, to
sell or otherwise dispose of the possession of
that copy or phonorecord. Notwithstanding the
preceding sentence, copies or phonorecords of
works subject to restored copyright under section 104A that are manufactured before the date
of restoration of copyright or, with respect to
reliance parties, before publication or service of
notice under section 104A(e), may be sold or
otherwise disposed of without the authorization
of the owner of the restored copyright for purposes of direct or indirect commercial advantage only during the 12-month period beginning
on—
(1) the date of the publication in the Federal
Register of the notice of intent filed with the
Copyright Office under section 104A(d)(2)(A),
or
(2) the date of the receipt of actual notice
served under section 104A(d)(2)(B),
whichever occurs first.
(b)(1)(A) Notwithstanding the provisions of
subsection (a), unless authorized by the owners
of copyright in the sound recording or the owner
of copyright in a computer program (including
any tape, disk, or other medium embodying such
program), and in the case of a sound recording
in the musical works embodied therein, neither
the owner of a particular phonorecord nor any
person in possession of a particular copy of a
computer program (including any tape, disk, or
other medium embodying such program), may,
for the purposes of direct or indirect commercial
advantage, dispose of, or authorize the disposal
of, the possession of that phonorecord or computer program (including any tape, disk, or
other medium embodying such program) by
rental, lease, or lending, or by any other act or
practice in the nature of rental, lease, or lending. Nothing in the preceding sentence shall
apply to the rental, lease, or lending of a phonorecord for nonprofit purposes by a nonprofit library or nonprofit educational institution. The
transfer of possession of a lawfully made copy of
a computer program by a nonprofit educational
institution to another nonprofit educational institution or to faculty, staff, and students does
not constitute rental, lease, or lending for direct
or indirect commercial purposes under this subsection.
(B) This subsection does not apply to—
(i) a computer program which is embodied in
a machine or product and which cannot be
copied during the ordinary operation or use of
the machine or product; or
(ii) a computer program embodied in or used
in conjunction with a limited purpose computer that is designed for playing video games
and may be designed for other purposes.
(C) Nothing in this subsection affects any provision of chapter 9 of this title.
(2)(A) Nothing in this subsection shall apply to
the lending of a computer program for nonprofit
purposes by a nonprofit library, if each copy of

Page 103

TITLE 17—COPYRIGHTS

‘‘(a) IN GENERAL.—Except as provided in subsections
(b) and (c), the amendments made by this Act [amending this section, sections 101, 104A, 108 to 110, 114 to 116,
303, 304, 405, 407, 411, 504, 509, 601, 708, 801 to 803, 909, 910,
1006, and 1007 of this title, and section 2319 of Title 18,
Crimes and Criminal Procedure, and amending provisions set out as a note under section 914 of this title]
shall take effect on the date of the enactment of this
Act [Nov. 13, 1997].
‘‘(b) SATELLITE HOME VIEWER ACT.—The amendments
made by section 1 [amending this section] shall be effective as if enacted as part of the Satellite Home
Viewer Act of 1994 (Public Law 103–369).
‘‘(c) TECHNICAL AMENDMENT.—The amendment made
by section 12(b)(1) [amending provisions set out as a
note under section 914 of this title] shall be effective as
if enacted on November 9, 1987.’’
EFFECTIVE DATE OF 1995 AMENDMENT
Amendment by Pub. L. 104–39 effective 3 months after
Nov. 1, 1995, see section 6 of Pub. L. 104–39, set out as
a note under section 101 of this title.
EFFECTIVE AND TERMINATION DATES OF 1994
AMENDMENT
Pub. L. 103–369, § 6, Oct. 18, 1994, 108 Stat. 3481, provided that:
‘‘(a) IN GENERAL.—Except as provided in subsections
(b) and (d), this Act [amending this section and section
111 of this title, enacting provisions set out as notes
under this section and section 101 of this title, and repealing provisions set out as a note under this section]
and the amendments made by this Act take effect on
the date of the enactment of this Act [Oct. 18, 1994].
‘‘(b) BURDEN OF PROOF PROVISIONS.—The provisions of
section 119(a)(5)(D) [now section 119(a)(6)(D)] of title 17,
United States Code (as added by section 2(2) of this Act)
relating to the burden of proof of satellite carriers,
shall take effect on January 1, 1997, with respect to
civil actions relating to the eligibility of subscribers
who subscribed to service as an unserved household before the date of the enactment of this Act.
‘‘(c) TRANSITIONAL SIGNAL INTENSITY MEASUREMENT
PROCEDURES.—The provisions of [former] section
119(a)(8) of title 17, United States Code (as added by section 2(5) of this Act), relating to transitional signal intensity measurements, shall cease to be effective on
December 31, 1996.
‘‘(d) LOCAL SERVICE AREA OF A PRIMARY TRANSMITTER.—The amendment made by section 3(b) [amending
section 111 of this title], relating to the definition of
the local service area of a primary transmitter, shall
take effect on July 1, 1994.’’
EFFECTIVE DATE
Section 206 of title II of Pub. L. 100–667 provided that:
‘‘This title and the amendments made by this title [enacting this section and sections 612 and 613 of Title 47,
Telegraphs, Telephones, and Radiotelegraphs, amending sections 111, 501, 801, and 804 of this title and section 605 of Title 47, and enacting provisions set out as
notes under this section and section 101 of this title]
take effect on January 1, 1989, except that the authority of the Register of Copyrights to issue regulations
pursuant to section 119(b)(1) of title 17, United States
Code, as added by section 202 of this Act, takes effect
on the date of the enactment of this Act [Nov. 16,
1988].’’
Section 207 of title II of Pub. L. 100–667 provided that
this title and the amendments made by this title (other
than the amendments made by section 205 [amending
section 605 of Title 47]) cease to be effective on Dec. 31,
1994, prior to repeal by Pub. L. 103–369, § 4(b), Oct. 18,
1994, 108 Stat. 3481.
TERMINATION OF SECTION
Pub. L. 111–175, title I, § 107(a), May 27, 2010, 124 Stat.
1245, provided that: ‘‘Section 119 of title 17, United
States Code, as amended by this Act, shall cease to be
effective on December 31, 2014.’’

§ 121

Pub. L. 111–118, div. B, § 1003(a)(2)(A), Dec. 19, 2009, 123
Stat. 3469, as amended by Pub. L. 111–144, § 10(a)(2), Mar.
2, 2010, 124 Stat. 47; Pub. L. 111–151, § 2(a)(2), Mar. 26,
2010, 124 Stat. 1027; Pub. L. 111–157, § 9(a)(2), Apr. 15, 2010,
124 Stat. 1119, which provided that this section would
cease to be effective on May 31, 2010, was repealed by
Pub. L. 111–175, title I, § 107(b), May 27, 2010, 124 Stat.
1245.
Pub. L. 103–369, § 4(a), Oct. 18, 1994, 108 Stat. 3481, as
amended by Pub. L. 106–113, div. B, § 1000(a)(9) [title I,
§ 1003], Nov. 29, 1999, 113 Stat. 1536, 1501A–527; Pub. L.
108–447, div. J, title IX [title I, § 101(a)], Dec. 8, 2004, 118
Stat. 3394, which provided that this section would cease
to be effective on Dec. 31, 2009, was repealed by Pub. L.
111–118, div. B, § 1003(a)(2)(B), Dec. 19, 2009, 123 Stat. 3469.
REMOVAL OF INCONSISTENT PROVISIONS
Pub. L. 109–303, § 4(g), Oct. 6, 2006, 120 Stat. 1483, provided that: ‘‘The amendments contained in subsection
(h) of section 5 of the Copyright Royalty and Distribution Reform Act of 2004 [Pub. L. 108–419, amending this
section] shall be deemed never to have been enacted.’’
EFFECT ON CERTAIN PROCEEDINGS
Pub. L. 108–447, div. J, title IX [title I, § 106], Dec. 8,
2004, 118 Stat. 3406, provided that: ‘‘Nothing in this title
[see Short Title of 2004 Amendment note set out under
section 101 of this title] shall modify any remedy imposed on a party that is required by the judgment of a
court in any action that was brought before May 1,
2004, against that party for a violation of section 119 of
title 17, United States Code.’’
APPLICABILITY OF 1994 AMENDMENT
Section 5 of Pub. L. 103–369 provided that: ‘‘The
amendments made by this section apply only to section
119 of title 17, United States Code.’’

§ 120. Scope of exclusive rights in architectural
works
(a) PICTORIAL REPRESENTATIONS PERMITTED.—
The copyright in an architectural work that has
been constructed does not include the right to
prevent the making, distributing, or public display of pictures, paintings, photographs, or
other pictorial representations of the work, if
the building in which the work is embodied is located in or ordinarily visible from a public
place.
(b) ALTERATIONS TO AND DESTRUCTION OF
BUILDINGS.—Notwithstanding the provisions of
section 106(2), the owners of a building embodying an architectural work may, without the consent of the author or copyright owner of the architectural work, make or authorize the making
of alterations to such building, and destroy or
authorize the destruction of such building.
(Added Pub. L. 101–650, title VII, § 704(a), Dec. 1,
1990, 104 Stat. 5133.)
EFFECTIVE DATE
Section applicable to any architectural work created
on or after Dec. 1, 1990, and any architectural work,
that, on Dec. 1, 1990, is unconstructed and embodied in
unpublished plans or drawings, except that protection
for such architectural work under this title terminates
on Dec. 31, 2002, unless the work is constructed by that
date, see section 706 of Pub. L. 101–650, set out as an Effective Date of 1990 Amendment note under section 101
of this title.

§ 121. Limitations on exclusive rights: Reproduction for blind or other people with disabilities
(a) Notwithstanding the provisions of section
106, it is not an infringement of copyright for an

§ 122

TITLE 17—COPYRIGHTS

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

Page 104

(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.
(Added Pub. L. 104–197, title III, § 316(a), Sept. 16,
1996, 110 Stat. 2416; amended Pub. L. 106–379,
§ 3(b), Oct. 27, 2000, 114 Stat. 1445; Pub. L. 107–273,
div. C, title III, § 13210(3)(A), Nov. 2, 2002, 116
Stat. 1909; Pub. L. 108–446, title III, § 306, Dec. 3,
2004, 118 Stat. 2807.)
REFERENCES IN TEXT
Sections 612, 613, and 674 of the Individuals with Disabilities Education Act, referred to in subsecs. (c) and
(d)(3), are classified to sections 1412, 1413, and 1474, respectively, of Title 20, Education.
The Act approved March 3, 1931, referred to in subsec.
(d)(2), is act Mar. 3, 1931, ch. 400, 46 Stat. 1487, as amended, which is classified generally to sections 135a and
135b of Title 2, The Congress. For complete classification of this Act to the Code, see Tables.
AMENDMENTS
2004—Subsec. (c). Pub. L. 108–446, § 306(2), added subsec. (c). Former subsec. (c) redesignated (d).
Subsec. (d). Pub. L. 108–446, § 306(1), redesignated subsec. (c) as (d).
Subsec. (d)(3), (4). Pub. L. 108–446, § 306(3), added pars.
(3) and (4) and struck out former par. (3) which read as
follows: ‘‘ ‘specialized formats’ means braille, audio, or
digital text which is exclusively for use by blind or
other persons with disabilities.’’
2002—Pub. L. 107–273 substituted ‘‘Reproduction’’ for
‘‘reproduction’’ in section catchline.
2000—Subsec. (a). Pub. L. 106–379 substituted ‘‘section
106’’ for ‘‘sections 106 and 710’’.

§ 122. Limitations on exclusive rights: Secondary
transmissions of local television programming by satellite
(a) SECONDARY TRANSMISSIONS INTO LOCAL
MARKETS.—
(1) SECONDARY TRANSMISSIONS OF TELEVISION
BROADCAST STATIONS WITHIN A LOCAL MARKET.—
A secondary transmission of a performance or
display of a work embodied in a primary
transmission of a television broadcast station
into the station’s local market shall be subject to statutory licensing under this section
if—
(A) the secondary transmission is made by
a satellite carrier to the public;
(B) with regard to secondary transmissions, the satellite carrier is in compliance with the rules, regulations, or authorizations of the Federal Communications
Commission governing the carriage of television broadcast station signals; and
(C) the satellite carrier makes a direct or
indirect charge for the secondary transmission to—
(i) each subscriber receiving the secondary transmission; or
(ii) a distributor that has contracted
with the satellite carrier for direct or indirect delivery of the secondary transmission to the public.
(2) SIGNIFICANTLY VIEWED STATIONS.—
(A) IN GENERAL.—A secondary transmission of a performance or display of a
work embodied in a primary transmission of

CERTIFICATE OF SERVICE
I hereby certify that on this, the 28th day of May, 2013, a true and correct
copy of the foregoing Redacted Page Proof Brief For Defendants-Appellees was
served by electronic means via ECP transmission upon the following counsel of
record:
Jeremy Seth Goldman
jgoldman@Hd<s.com

Edward Rosenthal
erosenthal@Hd<s.com

Attorneys for PIaintwfv~AppelZants
Mr. Robert J. Bernstein
Daniel Frank Goldstein
[e-mail]
Ms. Jessica Paulie Weber
[e-mail]

Attorneys for Defendants-Intervenors

This 28th day of May, 2013
_. . » »

"2
»

/

/

\..-;;

""

<11 :> '

Alberto Garcia

V