Authors Guild, Inc. v. Hathitrust

Filing 138

AMICUS BRIEF, American Association of People with Disabilites, FILED. Service date 06/04/2013 by CM/ECF. [955378] [12-4547]--[Edited 06/10/2013 by AM]

12-4547
United States Court of Appeals for the Second Circuit
Authors Guild, Inc., Australian Society Of Authors Limited,
Union Des Ecrivaines Et Des Ecrivains Quebecois, Angelo
Loukakis, Roxana Robinson, Andre Roy, James Shapiro,
(caption continued inside cover)
Appeal from the United States District Court for the
Southern District of New York (New York City)
Brief of Amici Curiae American Association of People with Disabilities,
American Council of the Blind, American Foundation for the Blind,
Association of Late-Deafened Adults, Judge David L. Bazelon Center for
Mental Health Law, Dr. Peter Blanck, Disability Rights Education &
Defense Fund (DREDF), Disability Rights Legal Center,
Gallaudet University, Hearing Loss Association of America, National
Association of the Deaf (NAD), National Disability Rights Network,
Telecommunications for the Deaf and Hard of Hearing, Inc. (TDI),
United Cerebral Palsy, and Dr. Gregg Vanderheiden
in Support of Intervenor Defendants–Appellees
National Federation of the Blind, et al.
Blake E. Reid
Brian Wolfman
Institute for Public Representation
Georgetown Law
600 New Jersey Avenue NW
Washington, DC 20003
202.661.6582
[e-mail]

(caption continued)
Daniele Simpson, T.J. Stiles, Fay Weldon, Authors League Fund,
Inc., Authors’ Licensing and Collecting Society, Sveriges
Forfattarforbund, Norsk Faglitteraer Forfattero OG
Oversetterforening, Writers’ Union of Canada, Pat Cummings,
Erik Grundstrom, Helge Ronning, Jack R. Salamanca,
Plaintiffs–Appellants,
v.
Hathitrust, Cornell University, Mary Sue Coleman, President,
University of Michigan, Mark G. Yudof, President, University of
California, Kevin Reilly, President, 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
Pursuant to Fed. R. App. P. 26.1, amici certify that they have no parent
corporations and that no corporations own 10% or more of any stock in
amici.
Respectfully submitted,
/s/Brian Wolfman
June 4, 2013

i

TABLE OF CONTENTS
Table of Authorities ................................................................................. iii

Interest of Amici Curiae .............................................................................. 1

Summary of Argument .............................................................................. 2

Argument .................................................................................................... 4

I.

People with disabilities have long worked toward equal
access to copyrighted works as a means of societal
participation. ................................................................................... 4

II.
  The federal government routinely requires the transformation
of copyrighted works to vindicate the rights of people with
disabilities........................................................................................ 7

A.
  The Pratt-Smoot Act and the Department of Health,
Education, and Welfare .......................................................... 7

B.
  Rehabilitation Act of 1973 ...................................................... 9

C.
  Individuals with Disabilities Education Act....................... 12

D.
  Americans with Disabilities Act .......................................... 12

E.
  Video programming statutes ............................................... 14

III.
  Making a copyrighted work accessible is a non-infringing fair
use. ................................................................................................. 16

A.
  Making a copyrighted work accessible has an
undeniably transformative purpose. ................................... 19

B.
  People with disabilities comprise a market historically
underserved by copyright holders. ..................................... 20

C.
  Copyright holders routinely disclaim any cognizable
interest in making their works accessible. .......................... 25

List of Amici Curiae................................................................................... 29

Certificate of Compliance ........................................................................ 32

Certificate of Service ................................................................................ 33

ii

TABLE OF AUTHORITIES
Cases

Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994) ............................................ 19
Greater LA Agency on Deafness v. CNN, 862 F. Supp. 2d 1021 (N.D. Cal.
2012) ....................................................................................................................... 27
MCA, Inc. v. Wilson, 677 F.2d 180 (2d Cir. 1981) .............................................. 20
Sega Enters. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992) ............................. 20
Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984)............. 17, 18, 19
Stewart v. Abend, 495 U.S. 207 (1990) ................................................................. 18
Constitutional Provisions

U.S. Const. art. I, § 8, cl. 8................................................................................ 2, 28
Statutes and Legislative Materials

17 U.S.C. § 107 ................................................................................................ 17, 18
17 U.S.C. § 121 ...................................................................................................... 17
2 U.S.C. § 135a-1 ..................................................................................................... 8
20 U.S.C. § 1474(c)................................................................................................ 12
Air Carrier Access Amendments Act, S. 556, 113th Cong. (2013)................. 14
Americans with Disabilities Act, Pub. L. No. 101-336, 104 Stat. 327 (1990)
(codified as amended at 42 U.S.C. §§ 12101 et seq. and scattered sections
of the Communications Act of 1934, 47 U.S.C.)............................................... 13
Captioning and Image Narration to Enhance Movie Accessibility Act
(“CINEMA Act”), S. 555, 113th Cong. (2013)................................................... 14
Education for All Handicapped Children Act, Pub. L. No. 94-142, 89 Stat.
773 (1975) (codified as amended at 20 U.S.C. §§ 1400 et seq. as the
Individuals with Disabilities Education Act) .................................................. 12
H.R. Rep. 94-1476 (1976) ............................................................................... 17, 18
Pratt-Smoot Act, Pub. L. No. 71-787, ch. 400, 46 Stat. 1487 (1931) (codified
as amended at 2 U.S.C. §§ 135a, 135a-1) ............................................................. 8
Pub. L. No. 76-118, ch. 191, 53 Stat. 812 (1939)................................................... 8
Pub. L. No. 85-905, 72 Stat. 1742 (1958)............................................................... 9
Rehabilitation Act Amendments of 1986, Pub. L. No. 99-506 § 603(a), 100
Stat. 1807 (codified as amended at Section 508 of the Rehabilitation Act of
1973, 29 U.S.C. § 794d)......................................................................................... 11

iii

Rehabilitation Act of 1973, Pub. L. No. 93-112 § 504, 87 Stat. 355 (codified
as amended at 29 U.S.C. § 794) ............................................................................ 9
Rehabilitation, Comprehensive Services, and Developmental Disabilities
Amendments of 1978, Pub. L. No. 95-602 § 119, 92 Stat. 2955 (1978) ............. 9
Telecommunications Act of 1996, Pub. L. No. 104-104 § 305, 110 Stat. 56
(codified as amended at Section 713 of the Communications Act of 1934,
47 U.S.C. § 613) ..................................................................................................... 15
Television Decoder Circuitry Act, Pub. L. No. 101-431, 104 Stat. 960
(codified as amended at scattered sections of the Communications Act of
1934, 47 U.S.C.) ..................................................................................................... 15
The ADA and Entertainment Technologies: Hearing Before the Committee on
Health, Education, Labor, and Pensions, 113th Cong. (2013) ............................. 22
Twenty-First Century Communications and Video Accessibility Act of
2010, Pub. L. No. 111-260 § 202(a)-(b), 124 Stat. 2751 (codified at Section
713 of the Communications Act of 1934, 47 U.S.C. § 613).............................. 16
Administrative and Executive Materials

22 C.F.R. § 142.4(e) ............................................................................................... 11
22 C.F.R. § 144.103................................................................................................ 11
22 C.F.R. § 144.160(a)(1) ...................................................................................... 11
28 C.F.R. § 35.104(1)-(2) ....................................................................................... 13
28 C.F.R. § 36.303(a)-(b)....................................................................................... 13
28 C.F.R. § 39.103.................................................................................................. 11
28 C.F.R. § 39.160(a)(1) ........................................................................................ 11
28 C.F.R. § 42.503(f).............................................................................................. 11
28 C.F.R. pt. 39 ...................................................................................................... 10
28 C.F.R. pt. 41 ...................................................................................................... 10
29 C.F.R. § 32.4(b)(7)(i)-(ii) .................................................................................. 11
29 C.F.R. § 33.11(a)(1) .......................................................................................... 11
29 C.F.R. § 33.3...................................................................................................... 11
34 C.F.R. § 104.44(d)(1)-(2).................................................................................. 10
34 C.F.R. § 300.321................................................................................................ 12
34 C.F.R. § 300.324(a)(2)(iii) ................................................................................ 12
36 C.F.R. § 1194.21(d)........................................................................................... 11
36 C.F.R. § 1194.22(b)........................................................................................... 11
36 C.F.R. § 1194.24(c) ........................................................................................... 11

iv

36 C.F.R. §§ 1194.21-1194.26 ............................................................................... 11
45 C.F.R. § 84.52(d)............................................................................................... 11
45 C.F.R. § 85.3...................................................................................................... 11
45 C.F.R. § 85.51(a)(1) .......................................................................................... 11
47 C.F.R. § 79.1...................................................................................................... 16
47 C.F.R. § 79.3...................................................................................................... 16
47 C.F.R. § 79.4...................................................................................................... 16
Amendment of Subpart E, Part 73, of the Commission’s Rules and Regulations
to Reserve Line 21 of the Vertical Blanking Interval of the Television Broadcast
Signal for Captioning for the Deaf, FCC Docket No. 20693, 63 F.C.C.2d 378
(1976)...................................................................................................................... 15
Closed Captioning of Internet Protocol-Delivered Video Programming, Notice of
Proposed Rulemaking, FCC Docket No. 11-154, 26 FCC Rcd. 13,734 (2011) .. 24
Comments of the Motion Picture Association of America, Closed Captioning
and Video Description, FCC Docket No. 95-176 (Mar. 15, 1996)...................... 25
Comments of the Motion Picture Association of America, Closed Captioning
and Video Description, FCC Docket No. 95-176, (Feb. 28, 1997)...................... 26
Comments of the Motion Picture Association of America, Closed Captioning of
Internet Protocol-Delivered Video Programming, FCC Docket No. 11-154
(Oct. 18, 2011) ....................................................................................................... 26
Comments of the National Association of Broadcasters, Video Description, FCC
Docket No. 11-43 (Apr. 28, 2011) ....................................................................... 27
Department of Justice, Information and Technical Assistance on the
Americans with Disabilities Act, Proposed Regulations ....................................... 14
Exec. Order No. 12,250, 45 Fed. Reg. 72,995 (Nov. 2, 1980) ........................... 10
Exemption to Prohibition on Circumvention of Copyright Protection Systems
for Access Control Technologies, 75 Fed. Reg. 43,825, 43,838-39 (July 27,
2010) ....................................................................................................................... 23
Exemption to Prohibition on Circumvention of Copyright Protection Systems
for Access Control Technologies, 77 Fed. Reg. 65,260, 65,262-63 (Oct. 26,
2012) (codified at 37 C.F.R. § 201.40(b)(1)) ....................................................... 23
Implementation of Section 504, 42 Fed. Reg. 22,676 (May 4, 1977) ................... 10
Implementation of Video Description of Video Programming, 15 FCC Rcd.
15,230 (2000).......................................................................................................... 24
Nondiscrimination on the Basis of Disability; Accessibility of Web Information
and Services of State and Local Government Entities and Public
Accommodations, 75 Fed. Reg. 43,460 (July 26, 2010) ....................................... 13

v

Nondiscrimination on the Basis of Disability; Movie Captioning and Video
Description, 75 Fed. Reg. 43,467 (July 26, 2010) ................................................ 14
Petition of the Entertainment Software Association, Advanced Communication
Provisions of the CVAA, FCC Docket. No. 10-213 (Mar. 22, 2012).................. 27
The Use of Telecasts to Inform and Alert Viewers with Impaired Hearing, 26
F.C.C.2d 917 (1970) .............................................................................................. 14
Other Materials

American Council of the Blind, The Audio Description Project: DVDs and
Blu-ray Discs. ......................................................................................................... 24
American Foundation for the Blind, Helen Keller Biography ............................ 4
Frances A. Koestler, The Unseen Minority: A Social History of Blindness in
the United States (2004)........................................................................................... 6
Harry G. Lang & Bonnie Meath-Lang, Deaf Persons in the Arts and
Sciences: A Biographical Dictionary (1995) ............................................................ 6
Helen Keller & Annie Sullivan, The Story of My Life (1924 ed.) ....................... 4
Helen Keller, Speech Honoring Louis Braille at the Sorbonne, Paris (June
21, 1952). .................................................................................................................. 5
Joanne Karger, Timeline and Overview of “An Act to provide books for the
adult blind” (or “Pratt-Smoot Act”) (June 12, 2012) ............................................. 8
Karen Peltz Strauss, A New Civil Right: Telecommunications Equality for
Deaf and Hard of Hearing Americans (2006) .................................................... 7, 23
Robert McG. Thomas Jr., Gregory T. Frazier, 58; Helped Blind See Movies
with Their Ears, NY Times, July 17, 1996 ............................................................. 7
The AbleGamers Foundation and 7-128 Software, Gaming on a Collision
Course: Averting Significant Revenue Loss By Making Games Accessible to
Older Americans (2010) ......................................................................................... 24
United States Library of Congress, NLS: That All May Read............................ 8
United States Library of Congress, The History of the Edison Cylinder
Phonograph............................................................................................................... 5
Wendy Chisholm & Matt May, Universal Design for Web Applications
(2009)...................................................................................................................... 24
World Blind Union, WIPO Negotations: Treaty for Blind People (Apr. 20,
2013) ....................................................................................................................... 22

vi

INTEREST OF AMICI CURIAE1
Amici are organizations and individuals concerned with equal access
to knowledge and information for the more than fifty million Americans
with sensory, print, and intellectual disabilities. Amici seek to vindicate the
civil rights of people with disabilities to access on equal terms the cultural,
educational, and economic opportunities afforded by modern copyrighted
works, including books, movies, television programming, software,
educational materials, video games, and web content. Amici advocate for
strong disability rights protections that require places of public
accommodation, governmental institutions, and other entities that create
and distribute copyrighted works to make them accessible, particularly
where copyright holders do not do so. These policies promote
a) The transformation of textual works to accessible formats, such as
Braille, large-print, and audio versions of books;
b) The addition of transformative accessible features such as closed
captions and audio descriptions to audiovisual works; and
c) Other transformations of works that facilitate access by people with
sensory, print, or intellectual disabilities.

All parties have consented to the filing of this brief. No counsel for a party
authored this brief in whole or in part. No party, counsel to any party, or
any person other than amici curiae contributed money to fund preparation
or submission of this brief. A full list and brief descriptions of the amici are
included in the addendum. Counsel thank Georgetown Law student
Ashley Nash for her help in preparing this brief.
1

1

SUMMARY OF ARGUMENT
Amici urge this Court to affirm the district court’s order granting the
motions for summary judgment by defendant–appellees Hathitrust, et al.
(the “HathiTrust Digital Library” or “HDL”) and intervenor defendant–
appellees National Federation of the Blind, et al. (“NFB”) and denying the
motions for summary judgment by plaintiff–appellants The Authors Guild,
Inc., et al. (the “Guild”). In particular, we urge the Court to affirm the
district court’s conclusion that the HDL’s digitization of library books to
facilitate equal access for people with print disabilities is consistent with
federal disability rights protections and constitutes a non-infringing fair
use. See Op. & Order at 14-23.
For more than a century, Americans with disabilities have sought to
break down societal barriers and eliminate discrimination by achieving
equal access to copyrighted works. Congress has long supported the efforts
of the disability community by enacting legislation to require places of
public accommodation, governmental entities, and even copyright holders
and their licensees to transform copyrighted works so that they are
accessible to people with disabilities. Good-faith efforts to make
copyrighted works accessible to people with disabilities are consistent with
the letter and the spirit of federal accessibility law and further the goal of
affording all Americans access to the fruits of the progress of science
expressed in the Progress Clause of the Constitution. See U.S. Const. art. I, §
8, cl. 8.

2

Accordingly, this Court should conclude that making a copyrighted
work accessible constitutes a non-infringing fair use—a proposition
supported by a straightforward application of statutory fair use factors. In
particular, making a copyrighted work accessible involves modifying or
adding to the work so that a person with a disability who could not
otherwise perceive the work can do so—a literally transformative use with
an undeniable public benefit.
Moreover, federal accessibility initiatives are undertaken almost
exclusively in response to the decision of copyright holders not to make
their works accessible on a voluntary basis. The government’s repeated
recognition of this market failure is often confirmed by copyright holders
themselves, who publicly disclaim an interest in adding accessibility
features to their works on the ground that doing so is too expensive or too
time consuming.
The transformative use of copyrighted works to serve a historically
neglected market in which copyright holders have no interest is at the core
of fair use. Upholding the district court’s determination that HDL’s
digitization constitutes non-infringing fair use will ensure that accessibility
efforts can proceed in harmony with federal disability rights statutes,
copyright law, and the goals of the Progress Clause.

3

ARGUMENT
I.

People with disabilities have long worked toward equal access to
copyrighted works as a means of societal participation.
American history is replete with examples of efforts by people with

disabilities to achieve equal access to the economic, social, and cultural
benefits of copyrighted works—including luminaries of the disability
community, themselves content creators, copyright holders, and inventors.
For example, more than a century ago, the noted deaf-blind author, activist,
and lecturer Helen Keller wrote about the profound importance of access to
books to people who are blind or visually impaired:
In a word, literature is my Utopia. Here I am not
disenfranchised. No barrier of the senses shuts me out
from the sweet, gracious discourse of my book-friends.
They talk to me without embarrassment or
awkwardness.
Helen Keller & Annie Sullivan, The Story of My Life 117-18 (1924 ed.).2
The advocacy of Keller and others led to the widespread adoption of
Braille, which transforms written text into raised dots readable by people
who are blind or visually impaired.3 In 1952, Keller spoke of the critical role
that access to Braille versions of books and other written works had played

The Story of My Life is freely available online, courtesy of the libraries of
the University of Michigan, at http://books.google.com/
books?id=qDAmAAAAMAAJ (last visited June 3, 2013).
3 See generally American Foundation for the Blind, Helen Keller Biography,
http://www.afb.org/section.aspx?FolderID=1&SectionID=1&TopicID=129
&DocumentID=1351 (last visited June 3, 2013).
2

4

in affording people with disabilities access to the societal benefits of the
copyright system:
[T]hese raised letters are, under our fingers, precious
seeds from which has grown our intellectual harvest.
Without the [B]raille dot system, how incomplete and
chaotic our education would be! The dismal doors of
frustration would shut us out from the untold treasures
of literature, philosophy and science. But, like a magic
wand, the six dots of Louis Braille have resulted in
schools where embossed books, like vessels, can
transport us to ports of education, libraries and all the
means of expression that assure our independence.
Helen Keller, Speech Honoring Louis Braille at the Sorbonne, Paris (June
21, 1952).4
Efforts to adopt Braille ran in parallel with the development of other
transformative accessibility technologies for books. For example, Thomas
Edison suggested in 1878 that the newly developed phonograph player
would lead to the use of “[p]honographic books, which will speak to blind
people.” United States Library of Congress, The History of the Edison
Cylinder Phonograph.5 Blind inventor Robert Irwin helped adapt the
phonograph to operate at slower speeds and offer longer play times.
Frances A. Koestler, The Unseen Minority: A Social History of Blindness in the

Available at http://www.afb.org/section.aspx?SectionID=86&
DocumentID=4620 (last visited June 3, 2013).
5 Available at http://memory.loc.gov/ammem/edhtml/edcyldr.html (last
visited June 3, 2013)
4

5

United States (2004).6 The efforts of Irwin and others led to the adoption of
accessible “Talking Book” recordings of printed books and magazines in
the 1930s and later gave rise to the long-play record. Id. The Talking Book
also foreshadowed the rise of the audiobook and modern text-to-speech
and screen reader technologies, which now facilitate access to textual
works for people with visual, print, and intellectual disabilities.
The need for access to copyrighted audiovisual works has also been a
long-standing priority for people with disabilities. When “talkies” hit
American theaters in the late 1920s, deaf and hard of hearing people who
had previously enjoyed subtitled silent movies lost one of their primary
sources of entertainment and information. Harry G. Lang & Bonnie MeathLang, Deaf Persons in the Arts and Sciences: A Biographical Dictionary 302-303
(1995). However, the arrival of the talkies led the deaf Hollywood actor
Emerson Romero, cousin of Hollywood star Cesar Romero, to splice
subtitles into the frames of feature films, documentaries, and short subjects
for use by schools and clubs for deaf and hard of hearing people. Id.
The efforts of Romero and others gave rise to the modern captioning
movement, which has resulted in the captioning or subtitling of a
significant proportion of television and Internet-delivered video
programming and motion pictures. See generally Karen Peltz Strauss, A New

Available at http://www.afb.org/unseen/book.asp?ch=Koe-10 (last
visited June 3, 2013).
6

6

Civil Right: Telecommunications Equality for Deaf and Hard of Hearing
Americans 205-273 (2006). Romero’s work foreshadowed the efforts of
Gregory T. Frazier, a publisher and writer who conceived the idea of
narrating visual elements of video programming during natural pauses in
dialogue to facilitate access to movies for blind and visually impaired
people, a process that became known as “audio description” or “video
description.” See Robert McG. Thomas Jr., Gregory T. Frazier, 58; Helped
Blind See Movies with Their Ears, NY Times, July 17, 1996.7
II.

The federal government routinely requires the transformation of
copyrighted works to vindicate the rights of people with disabilities.
The federal government has undertaken increasingly comprehensive

efforts over the past century to ensure that people with disabilities have
equal access to society. Congress and federal agencies have repeatedly
emphasized the right of people with disabilities to access knowledge and
information—including copyrighted works—on equal terms and routinely
require governmental and private entities to transform copyrighted works
to accessible formats and include accessibility features.
A.

The Pratt-Smoot Act and the Department of Health, Education,
and Welfare

One of the federal government’s early efforts toward accessibility took
place in 1897, when Librarian of Congress John Russell Young established a

Available at http://www.nytimes.com/1996/07/17/us/gregory-t-frazier58-helped-blind-see-movies-with-their-ears.html (last visited May 28,
2013).
7

7

reading room for people who are blind or visually impaired, including 500
Braille books and music items. United States Library of Congress, NLS:
That All May Read.8 In 1931, Congress formalized and expanded Young’s
efforts by enacting the Pratt-Smoot Act, which ordered the Librarian to
“provide books for the use of the adult blind residents of the United States”
and arrange for “libraries . . . to serve as local or regional centers for the
circulation of such books.” Pub. L. No. 71-787, ch. 400, 46 Stat. 1487 (1931)
(codified as amended at 2 U.S.C. §§ 135a, 135a-1).9
In 1958, Congress expanded its accessibility efforts to films by
requiring the Department of Health, Education, and Welfare (“HEW”) to
“establish a loan service of captioned films” for people who are deaf or

Available at http://www.loc.gov/nls/about_history.html (last visited
June 3, 2013).
9
 See generally Joanne Karger, Timeline and Overview of “An Act to provide
books for the adult blind” (or “Pratt-Smoot Act”) (June 12, 2012),
http://aim.cast.org/learn/policy/federal/pratt-smoot_timeline
(providing a detailed account of the lengthy subsequent history of the
Pratt-Smoot Act). Congress’s 1939 amendment to the Pratt-Smoot Act, Pub.
L. No. 76-118, ch. 191, 53 Stat. 812, instructed the Library of Congress to
contract with non-profit entities to create accessible adaptations of works in
an attempt to avoid assertions of copyright infringement by book
publishers. See Karger, supra, at heading “CS 1939: Amendment Granting
Preference to Nonprofit Organizations ‘Primarily Concerned with the
Blind’ to Serve as Producers of Books in Raised Characters and Talking
Books.” Subsequent amendments also ordered the Librarian of Congress to
maintain an accessible library of “musical scores, instructional texts, and
other specialized materials.” See 2 U.S.C. § 135a-1.

8

8

hard of hearing. Pub. L. No. 85-905, 72 Stat. 1742.10 By making available
captioned films, Congress sought “to bring to deaf persons understanding
and appreciation of those films which play such an important part in the
general and cultural advancement of hearing persons,” “to provide . . .
enriched educational and cultural experiences . . . ,” and “to provide a
wholesome and rewarding experience which deaf persons may share
together.” Id.11
B.

Rehabilitation Act of 1973

Congress later required all governmental entities, educational
institutions, and private organizations receiving federal funding to make
their programs and activities accessible to people with disabilities under
Section 504 of the Rehabilitation Act of 1973, Pub. L. No. 93-112 § 504, 87
Stat. 355 (codified as amended at 29 U.S.C. § 794) (“Rehabilitation Act”).12
Various implementing regulations contemplate that entities receiving
federal funding will make copyrighted works accessible through

HEW’s responsibilities are now divided between the Department of
Education and the Department of Health and Human Services.
11 Although the law contemplated that HEW could “[a]cquire films (or
rights thereto) by purchase, lease, or gift,” it also permitted HEW to “make
use . . . of films” deposited with the Library of Congress pursuant to the
registration requirements of the 1909 Copyright Act. Pub. L. No. 85-905 §
3(b)(1), (4).
12 Section 504 was amended in 1978 to require executive agencies to make
their own programs and activities accessible. Rehabilitation,
Comprehensive Services, and Developmental Disabilities Amendments of
1978, Pub. L. No. 95-602 § 119, 92 Stat. 2955.
10

9

transformative means.13 For example, the Department of Education’s
regulations require federally funded post-secondary educational
institutions to provide “taped texts, interpreters or other effective methods
of making orally delivered materials available to students with hearing
impairments, [and] readers in libraries for students with visual
impairments.” 34 C.F.R. § 104.44(d)(1)-(2). The Department of Health and
Human Services (“HHS”), the Department of Labor (“DOL”), the
Department of State (“DOS”), the Department of Justice (“DOJ”), and other
agencies also require federally funded entities and the agencies’ own
programs and services to
a) Facilitate access to visual material for people who are blind or
visually impaired by providing “auxiliary aids” such as Braille and
audio versions of material and readers; and

The first Section 504 regulations were promulgated by HEW. See
Implementation of Section 504, 42 Fed. Reg. 22,676 (May 4, 1977). Oversight
responsibility now rests with the Department of Justice (“DOJ”). See Exec.
Order No. 12,250, 45 Fed. Reg. 72,995, at 1-201(c) (Nov. 2, 1980). All
executive agencies must promulgate Section 504 regulations for their own
grantees (“federally assisted” regulations) and their own operations
(“federally conducted” regulations), which must be consistent with DOJ’s
coordinating regulations—28 C.F.R. pt. 41 and 28 C.F.R. pt. 39, respectively.
13

10

b) Facilitate access to audio recordings and aural material for people
who are deaf or hard of hearing by providing aids such as written
versions of material, interpreters, and note takers.14
In Section 508 of the Rehabilitation Act, Congress required that all
federally procured, maintained, or used electronic and information
technology be accessible. Rehabilitation Act Amendments of 1986, Pub. L.
No. 99-506 § 603(a), 100 Stat. 1807 (codified as amended at Section 508 of
the Rehabilitation Act of 1973, 29 U.S.C. § 794d). The United States Access
Board’s regulations under Section 508 now require the federal government
to ensure that the copyrighted software applications, operating systems,
web-based intranet and Internet information and applications, and video
and multimedia products it uses are accessible. See generally 29 U.S.C. §
794d(a)(2); 36 C.F.R. §§ 1194.21-1194.26. For example, the regulations
require the provision of text equivalents for non-text elements of
applications, 36 C.F.R. § 1194.21(d), the creation of synchronized
alternatives to multimedia presentations, 36 C.F.R. § 1194.22(b), and
captioning and audio description for training and informational videos, 36
C.F.R. § 1194.24(c).

See, e.g., 45 C.F.R. §§ 84.52(d), 85.3, 85.51(a)(1) (HHS); 29 C.F.R. §§
32.4(b)(7)(i)-(ii), 33.3, 33.11(a)(1) (DOL); 22 C.F.R. §§ 142.4(e), 144.103,
144.160(a)(1) (DOS); 28 C.F.R. §§ 39.103, 39.160(a)(1), 42.503(f) (DOJ).
14

11

C.

Individuals with Disabilities Education Act

In 1975, Congress passed requirements for access to copyrighted
educational materials in what later became known as the Individuals with
Disabilities Education Act (“IDEA”), enacted to ensure that children with
disabilities are afforded a free, individualized public education. See
generally Education for All Handicapped Children Act, Pub. L. No. 94-142,
89 Stat. 773 (codified as amended at 20 U.S.C. §§ 1400 et seq.) IDEA requires
the Secretary of Education to support the provision and distribution of
captions and audio description of television programs, videos, and “other
materials, including programs and materials associated with new and
emerging technologies, such as CDs, DVDs, video streaming, and other
forms of multimedia” where the producers and distributors of the
materials do not already provide captions or description. 20 U.S.C. §
1474(c). Department of Education regulations under IDEA also require
parents, teachers, and school representatives responsible for implementing
the education program for a child who is blind or visually impaired to
provide for Braille instruction, including Braille versions of reading and
writing media. See 34 C.F.R. §§ 300.321, 300.324(a)(2)(iii).
D. Americans with Disabilities Act
In 1990, Congress enacted the landmark Americans with Disabilities
Act, broadly prohibiting discrimination against people with disabilities
including by mandating access to a wide variety of materials distributed by
governmental and private entities. Pub. L. No. 101-336, 104 Stat. 327

12

(codified as amended at 42 U.S.C. §§ 12101 et seq. and scattered sections of
the Communications Act of 1934, 47 U.S.C.) (“ADA”). DOJ’s implementing
regulations contemplate the accessible transformation of copyrighted
works through “auxiliary aids and services,” which include interpreters
and readers, note takers, written versions of materials, taped, audible, large
print, and Braille versions of materials, captioning, and “other effective
methods of making aurally delivered information available to individuals
who are deaf or hard of hearing” and “visually delivered materials
available to individuals who are blind or have low vision.” 28 C.F.R. §§
35.104(1)-(2), 36.303(a)-(b).
DOJ and Congress have continued to build on the ADA’s foundation
by proposing additional regulations and legislation to facilitate equal
access to copyrighted works for people with disabilities. In 2010, DOJ
proposed ADA regulations that would require captions and audio
description for copyrighted motion pictures shown in movie theaters and
accessible transformations of copyrighted web information and services.
Nondiscrimination on the Basis of Disability; Accessibility of Web Information
and Services of State and Local Government Entities and Public Accommodations,
75 Fed. Reg. 43,460 (July 26, 2010); Nondiscrimination on the Basis of
Disability; Movie Captioning and Video Description, 75 Fed. Reg. 43,467 (July

13

26, 2010).15 In 2013, Senator Tom Harkin followed suit by introducing
complementary bills that would require captions and audio description for
copyrighted motion pictures shown in theaters and captioning for in-flight
entertainment, including copyrighted motion pictures and television
programming shown on airplanes. Captioning and Image Narration to
Enhance Movie Accessibility Act (“CINEMA Act”), S. 555, 113th Cong.
(2013); Air Carrier Access Amendments Act, S. 556, 113th Cong. (2013).
E.

Video programming statutes

Finally, the federal government has undertaken substantial efforts to
ensure that copyrighted broadcast, satellite, cable, and Internet-delivered
video programming is accessible to people with disabilities through the
provision of closed captions and audio description. In 1970, the Federal
Communications Commission (“FCC”) encouraged broadcasters to begin
including visual material along with news, information, and entertainment
telecasts to facilitate access for deaf and hard of hearing viewers. See
generally The Use of Telecasts to Inform and Alert Viewers with Impaired
Hearing, 26 F.C.C.2d 917. In 1976, the FCC amended its rules to permit
television broadcasters to begin distributing closed captions with
programming. Amendment of Subpart E, Part 73, of the Commission’s Rules

DOJ solicited and received comments, and the regulations remain
pending. See also Department of Justice, Information and Technical Assistance
on the Americans with Disabilities Act, Proposed Regulations,
http://www.ada.gov/newproposed_regs.htm (last visited June 3, 2013).
15

14

and Regulations to Reserve Line 21 of the Vertical Blanking Interval of the
Television Broadcast Signal for Captioning for the Deaf, FCC Docket No. 20693,
63 F.C.C.2d 378, 389, ¶ 28.
In 1990, Congress enacted the Television Decoder Circuitry Act, Pub.
L. No. 101-431, 104 Stat. 960 (codified as amended at scattered sections of
the Communications Act of 1934, 47 U.S.C.) (“TDCA”), requiring television
manufacturers to include built-in decoder circuitry to display closed
captions distributed with broadcast and cable programming. In the TDCA,
Congress declared that “to the fullest extent made possible by technology,
deaf and hearing-impaired people should have equal access to the
television medium,” that “closed-captioned television transmissions have
made it possible for thousands of deaf and hearing-impaired people to gain
access to the television medium, thus significantly improving the quality of
their lives,” and that “closed-captioned television will provide access to
information, entertainment, and a greater understanding of our Nation and
the world to . . . people in the United States who are deaf or hearingimpaired.” TDCA § 2(1)-(3).
Following the TDCA, Congress required closed captioning of
copyrighted video programming in the Telecommunications Act of 1996,
Pub. L. No. 104-104 § 305, 110 Stat. 56 (codified as amended at Section 713
of the Communications Act of 1934, 47 U.S.C. § 613). The FCC’s
implementing regulations require video programming distributors, such as

15

broadcasters and cable and satellite companies, to provide the
programming they deliver with closed captions. 47 C.F.R. § 79.1.
Most recently, Congress enacted the Twenty-First Century
Communications and Video Accessibility Act of 2010, Pub. L. No. 111-260 §
202(a)-(b), 124 Stat. 2751 (codified at Section 713 of the Communications
Act of 1934, 47 U.S.C. § 613) (“CVAA”), which required the FCC to expand
the accessibility of copyrighted video programming beyond the
requirements of its existing regulations. The FCC’s implementing
regulations now require copyright holders and video distributors to
provide certain Internet Protocol (“IP”)-delivered programming with
closed captions, 47 C.F.R. § 79.4, and video distributors to add audio
descriptions to some broadcast and cable programming, 47 C.F.R. § 79.3.
III. Making a copyrighted work accessible is a non-infringing fair use.
In championing equal access for people with disabilities for more than
a century, Congress has repeatedly required various entities, including
government agencies, to transform copyrighted works so that they are
accessible. See discussion supra, Part II. Against this backdrop, it would be
unreasonable to conclude, as the Guild suggests, that Congress intended to
meet the transformative efforts required to comply with federal
accessibility law with punishment under copyright law. See Guild Br. at 5051; see also Br. of Association of American Publishers at 20-21 (“AAP Br.”)
(same). Fortunately, Congress has harmonized copyright and accessibility

16

law by recognizing that making copyrighted works accessible for people
with disabilities is a non-infringing fair use. See 17 U.S.C. § 107.16
The Supreme Court explained in Sony Corp. v. Universal City Studios,
Inc. that “[m]aking a copy of a copyrighted work for the convenience of a
blind person is expressly identified by the House Committee Report [on
the Copyright Act] as an example of fair use.” 464 U.S. 417, 455 n.40 (1984).
Indeed, the House Committee Report noted that a “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.” H.R. Rep. 94-1476, at 73 (1976). Amici agree with HDL and
NFB that the House Committee Report—and its recognition by the
Supreme Court in Sony—indicates that the efforts undertaken by HDL to
make books accessible to people with disabilities are non-infringing. HDL
Br. at 31; NFB Br. at 36. Moreover, the principles underpinning the House
Committee Report are equally applicable to other efforts to make a
copyrighted work accessible, consistent with the goals of federal disability
rights law. See discussion supra, Part II.

As the HDL and NFB explain, Congress also enacted Section 121 of the
Copyright Act, 17 U.S.C. § 121, to clarify that efforts to make books
accessible to patrons with disabilities are non-infringing. HDL Br. at 48-50;
NFB Br. at 25-34; see also Br. of Disability Law Professors at Part II
(explaining the courts’ obligation to harmonize accessibility laws with laws
of general applicability, including copyright law).
16

17

Sony and the House Committee Report articulated two key principles
that reinforce the general fairness of accessibility efforts. First, Sony
indicated that transforming a copyrighted work for the “convenience” of a
person with a disability requires nothing more than a “purpose to entertain
or to inform” to render the transformation fair. See 464 U.S. at 455 n.40.
Second, the House Committee Report indicated that accessible
transformations are fair because accessible versions of works, “such as
copies in Braille and phonorecords of oral readings (talking books), are not
usually made by . . . publishers for commercial distribution.” H.R. Rep. 941476, at 73.17
The principles articulated in Sony and the House Committee Report
map cleanly onto the Copyright Act’s fair-use provision, Section 107, under
which the fairness of a use hinges primarily on two factors:
(1) the purpose and character of the use, including
whether such use is of a commercial nature or is for
nonprofit educational purposes; . . . [and]
(4) the effect of the use upon the potential market for or
value of the copyrighted work.
See 17 U.S.C. § 107.18

See also discussion infra, Part III.B (discussing the failure of the market to
serve people with disabilities).
18 The second fair-use factor—the nature of the copyrighted work—
generally depends on whether a copyrighted work is factual or creative.
Stewart v. Abend, 495 U.S. 207, 237 (1990). We agree with NFB that the
second factor weighs in favor of fair use in this case because the majority of
works in university libraries are more factual than creative. NFB Br. at 50(continued . . .)
17

18

As Sony and the House Committee Report make clear, efforts to make
copyrighted works accessible generally weigh both factors in favor of fair
use.
A.

Making a copyrighted work accessible has an undeniably
transformative purpose.

Sony indicates that the first factor—the purpose and character of the
use—weighs in favor of fair use where a copyrighted work is being
transformed for the purpose of facilitating access for a person with a
disability. See 464 U.S. at 455 n.40. Indeed, the first factor will weigh in
favor of fair use where a use “adds something new, with a further purpose
or different character,” and is therefore “transformative.” Campbell v. AcuffRose Music, 510 U.S. 569, 579 (1994) (citations omitted). It is difficult to
imagine a use more “transformative” than adapting a copyrighted work,
partially or fully imperceptible in its original form to a person as a result of
a sensory, print, or intellectual disability, to a form that permits the person
to perceive and enjoy the creativity and expression embodied in the work.

51. In general, however, accessibility efforts may transform both factual
and creative works without regard to their nature, meaning that the second
factor is unlikely to prove dispositive.
Moreover, although adapting a book to an accessible format requires
the use of the entire book, an accessible adaptation of an audiovisual work
generally requires only the use of one component of the work, such as the
use of a video’s audible elements for the creation of closed captions or the
use of a video’s visual elements for the creation of audio description, often
weighing the third factor—the amount and substantiality of the portion
used in relation to the copyrighted work as a whole—in favor of fairness.

19

Moreover, courts should “consider the public benefit resulting from a
particular use” when determining whether the use is transformative. Sega
Enters. v. Accolade, Inc., 977 F.2d 1510, 1523 (9th Cir. 1992); see also MCA, Inc.
v. Wilson, 677 F.2d 180, 182-83 (2d Cir. 1981). The extent of the public
benefit that accrues from ensuring that people with disabilities can access
the vast array of copyrighted works on equal terms is so substantial that
Congress has explicitly and consistently recognized it in scores of sweeping
legislative initiatives for more than a century. See discussion, supra, Part II.
In fact, the public benefit of ensuring the accessibility of copyrighted works
is so obvious that even the Guild concedes in this case that it “do[es] not
object to the use of the [HDL] by the blind.” Guild Br. at 12.
B.

People with disabilities comprise a market historically
underserved by copyright holders.

As the district court correctly explained, “[a] copyright holder cannot
preempt a transformative market.” Op. & Order at 20 (citing Bill Graham
Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 614 (2d Cir. 2009)). Because
affording people with disabilities equal access to a copyrighted work is
transformative, in-depth consideration of the fourth fair-use factor—the
effect of the use on the potential market for or value of the copyrighted
work—is unnecessary. See id; NFB Br. at 52-53. Nevertheless, consideration
of the impact of accessibility efforts on the market for copyrighted works
reinforces the fairness of those efforts.

20

Historically, copyright holders have expressed little more than
hypothetical interest in fully serving the market of people with disabilities,
and equal access to collections of copyrighted works for people with
disabilities has rarely materialized absent specific government action to
compel or enable it. Here, amici agree with NFB that the market for a digital
database of library collections accessible to blind students neither currently
exists nor is likely to exist in the future. NFB Br. at 53-54.
More broadly, the failure of the market to generate accessible versions
of library collections of copyrighted books is just one representative
example of a systemic pattern of market failures that have denied people
with disabilities equal access to copyrighted works. In particular, this
pattern shows that the market often fails to provide either accessible
substitutes for copyrighted works, such as Braille books, or supplemental
accessibility features such as closed captions and audio descriptions.
Despite the well-known goal of millions of Americans with disabilities to
access copyrighted works on equal terms, copyright holders have often
chosen not to serve the market for accessible formats or accessible features,
leaving the federal government with no choice but to facilitate accessibility
through legislation. A senior FCC official recently explained this pattern
before the U.S. Senate:
Although the number of people with disabilities in the
United States is said to hover around 50 million, each
individual disability group—i.e., individuals who are
deaf, blind, mobility disabled, etc.—typically has not
21

been large or strong enough to exert the market
pressures needed to incentivize industry to include
accessibility features in their products and services. . . .
Often, when market forces have failed in the past, the
government has stepped in with regulatory measures to
ensure that people with disabilities have the access that
they need.
The ADA and Entertainment Technologies: Hearing Before the Committee on
Health, Education, Labor, and Pensions, 113th Cong. (2013) (statement of
Karen Peltz Strauss, Deputy Bureau Chief, FCC).19
The failure of the market to facilitate equal access for people with
disabilities has long proved to be the rule rather than the exception. For
example:
•

Only 7% of published books are ever made available in accessible
formats in the world’s wealthiest countries (with fewer than 1%
made accessible in the poorest countries), leading to a worldwide
“book famine” for people with visual and print disabilities. World
Blind Union, WIPO Negotations: Treaty for Blind People (Apr. 20,
2013).20

•

As the Librarian of Congress has recognized, most ebooks are
encumbered with technological protection measures (“TPMs”) that
prevent people with visual and print disabilities from using read-

Available at http://www.help.senate.gov/imo/media/doc/Strauss.pdf
(last visited June 3, 2013).
20 Available at http://www.worldblindunion.org/English/news/Pages/
Press-Release-WIPO-Negotiations-Treaty-for-Blind-people.aspx (last
visited May 28, 2013).
19

22

aloud or screen reader functionality to access them. Exemption to
Prohibition on Circumvention of Copyright Protection Systems for Access
Control Technologies, 77 Fed. Reg. 65,260, 65,262-63 (Oct. 26, 2012)
(codified at 37 C.F.R. § 201.40(b)(1)) (exempting the circumvention
of ebook TPMs for certain accessibility purposes from the anticircumvention measures of the Digital Millennium Copyright Act,
17 U.S.C. § 1201 (“DMCA”), following the recommendation of the
Register of Copyrights and the Assistant Secretary for
Communications and Information of the Department of
Commerce).21
•

Before the FCC’s enactment of television closed captioning
regulations, only a small proportion of broadcast and cable
programming was provided with captions. Strauss, A New Civil
Right, supra, at 226.

•

Before the FCC’s enactment of IP captioning rules, “much IPdelivered programming remain[ed] inaccessible to individuals who
were hard of hearing.” Closed Captioning of Internet Protocol-Delivered

In exempting circumvention of ebook TPMs during the previous review
of the DMCA’s anti-circumvention measures, the Librarian noted the
“broad benefits to society in making works accessible to the visually
impaired.” Exemption to Prohibition on Circumvention of Copyright Protection
Systems for Access Control Technologies, 75 Fed. Reg. 43,825, 43,838-39 (July
27, 2010).
21

23

Video Programming, Notice of Proposed Rulemaking, FCC Docket No.
11-154, 26 FCC Rcd. 13,734, 13,739, ¶ 8 (2011).
•

Before the FCC’s enactment of audio description rules, only a “very
small fraction” of television programming was described.
Implementation of Video Description of Video Programming, 15 FCC
Rcd. 15,230, 15,231, ¶ 2 (2000), overturned on unrelated grounds,
MPAA v. FCC, 309 F.3d 796 (D.C. Cir. 2002) (other subsequent
history omitted).

•

Out of the hundreds of thousands of movies available on DVD and
Blu-ray discs, only about 280 have ever been released with audio
description. American Council of the Blind, The Audio Description
Project: DVDs and Blu-ray Discs.22

•

As of 2009, only about 7% of web images include alternate text tags
to facilitate access by people who are blind or visually impaired.
Wendy Chisholm & Matt May, Universal Design for Web Applications
24 (2009) (citing BBC, ‘Most websites’ failing disabled (Dec. 5, 2006)).

•

Most mainstream video games are wholly or partially inaccessible to
people with disabilities. See The AbleGamers Foundation and 7-128
Software, Gaming on a Collision Course: Averting Significant Revenue
Loss By Making Games Accessible to Older Americans, at 10 (2010).23

http://www.acb.org/adp/dvds.html (last visited June 3, 2013).
Available at http://www.ablegamers.org/publications/
Gaming_on_a_Collision_Course-AGF-7128.pdf (last visited May 28, 2013).
22
23

24

C.

Copyright holders routinely disclaim any cognizable interest in
making their works accessible.

Strong empirical evidence that people with disabilities are
systemically unserved or underserved by copyright holders is sufficient to
confirm that there is rarely, if ever, any market for substitute accessible
versions or accessibility features for copyrighted works that third-party
accessibility efforts such as HDL’s could possibly undermine. Moreover,
some copyright holders acknowledge that they do not want to serve these
markets by opposing government initiatives that would require them to do
so. In particular, some copyright holders insist that adding accessibility
features to their works will prove too expensive or too difficult—or even
violate the First Amendment.
For example, when Congress ordered the FCC to promulgate video
accessibility regulations in light of the limited availability of accessible
copyrighted video programming, amicus the Motion Picture Association of
America (“MPAA”) urged the FCC not to adopt comprehensive audio
description or closed captioning requirements. See Comments of MPAA,
Closed Captioning and Video Description, FCC Docket No. 95-176, at iii (Mar.
15, 1996).24 When the FCC proposed television closed captioning
requirements, MPAA urged compliance windows of a decade or more and
complained that it would be untenable to require video programmers to
caption even a majority of their “library” programming, citing the “sheer

24

Available at http://apps.fcc.gov/ecfs/document/view?id=1564860001.

25

volume” of video and the “practical, technical and economic impediments
to captioning” faced by copyright holders. Comments of MPAA, Closed
Captioning and Video Description, FCC Docket No. 95-176, at iii (Feb. 28,
1997).25 When the FCC adopted IP captioning rules, MPAA even indicated
that requiring copyright holders to caption their video programming
would violate the First Amendment. Comments of MPAA, Closed Captioning
of Internet Protocol-Delivered Video Programming, FCC Docket No. 11-154, at
3, 12, 13 (Oct. 18, 2011).26
MPAA is not alone among copyright holders in objecting to
requirements that would require action to make their works accessible.
Though a complete survey of these objections is beyond the scope of this
brief, several recent examples illustrate this phenomenon:
•

The National Association of Broadcasters (“NAB”), which
represents television stations and broadcast networks that produce
copyrighted content, urged the FCC to adopt five categorical
exemptions to audio description requirements for television
programming and to consider case-by-case exemptions on the basis
of “economi[c] burden,” complaining of the “substantial costs” and
logistical difficulties involved in creating audio descriptions. See

25
26

Available at http://apps.fcc.gov/ecfs/comment/view?id=178735.
Available at http://apps.fcc.gov/ecfs/document/view?id=7021715152.

26

Comments of NAB, Video Description, FCC Docket No. 11-43, at ii
(Apr. 28, 2011).27
•

The Entertainment Software Association (“ESA”), which represents
video game copyright holders, petitioned the FCC to exempt
copyrighted video game software from federal accessibility
requirements for advanced communications services on the grounds
that requiring accessibility would “discourag[e] . . . innovation.” See
Petition of ESA, Advanced Communication Provisions of the CVAA, FCC
Docket. No. 10-213, at 2 (Mar. 22, 2012).28

•

Cable News Network, Inc. (“CNN”) argued in a pending federal
lawsuit that its decision not to caption its copyrighted IP-delivered
video programming was not only deliberate, but was in furtherance
of its editorial discretion and free-speech rights and therefore was
protected by the First Amendment. Greater LA Agency on Deafness v.
CNN, 862 F. Supp. 2d 1021, 1025-26 (N.D. Cal. 2012).

These examples illustrate that copyright holders commonly see
accessibility features as a cost that they would prefer to minimize or avoid
rather than a potential market they want to serve. Viewed in light of the
historic lack of equal access to copyrighted works for people with
disabilities, copyright holders’ objections to accessibility mandates

27
28

Available at http://apps.fcc.gov/ecfs/document/view?id=7021341439.
Available at http://apps.fcc.gov/ecfs/comment/view?id=6017026251.

27

effectively disclaim any market interest in accessibility features that
conceivably could be undermined by the good-faith efforts of third parties
to make copyrighted works accessible.
*

*

*

Because making copyrighted works accessible to people with
disabilities is transformative and does not impact any meaningful market
interest of copyright holders, this Court should follow the guidance of Sony
and the House Committee Report and confirm that accessibility efforts
constitute a non-infringing fair use. Doing so will honor the century-long
efforts of people with disabilities to seek equal access to copyrighted works
and sensibly harmonize well-established federal accessibility policy with
copyright law and the Constitution’s requirement that copyright “promote
the Progress of Science and useful Arts.” See U.S. Const. art I., § 8, cl. 8.
Accordingly, we urge the Court to affirm.
Respectfully submitted,
/s/Brian Wolfman
Brian Wolfman
Blake E. Reid
Institute for Public Representation
Georgetown Law
June 4, 2013

28

LIST OF AMICI CURIAE
•

The American Association of People with Disabilities, the nation’s
largest non-profit disability rights organization

•

The American Council of the Blind, a non-profit organization
pursuing independence and equal opportunities for all blind and
visually-impaired people

•

The American Foundation for the Blind, a non-profit organization
expanding possibilities for the more than twenty-five million
Americans living with vision loss

•

The Association of Late-Deafened Adults, a non-profit organization
providing resources for people who lose their hearing after
childhood

•

The Judge David L. Bazelon Center for Mental Health Law, a nonprofit legal advocacy organization advancing the rights of adults
and children with mental disabilities

•

Dr. Peter Blanck, professor, attorney, disability law scholar and
disability rights advocate

•

The Disability Rights Education & Defense Fund (DREDF), a
nonprofit law and policy center dedicated to protecting and
advancing the civil rights of people with disabilities, nationally
recognized for its disability rights law expertise

29

•

Disability Rights Legal Center, a non-profit organization committed
to championing the rights of people with disabilities through
education, advocacy, and litigation

•

Gallaudet University, the world’s only university with programs
and services specifically designed for deaf and hard of hearing
students

•

Hearing Loss Association of America, the nation’s leading nonprofit organization representing people with hearing loss

•

The National Association of the Deaf (NAD), the nation’s premier
non-profit civil rights organization of, by, and for Americans who
are deaf and hard of hearing

•

National Disability Rights Network, a non-profit organization,
representing the interests of the P&A/CAP network, the United
States’ largest provider of advocacy services to people with
disabilities

•

Telecommunications for the Deaf and Hard of Hearing, Inc. (TDI), a
non-profit organization focusing on equal, barrier-free access to
telecommunications, media, and information technology for people
who are deaf or hard of hearing

•

United Cerebral Palsy, an affiliation of nonprofit organizations
providing services and supports to more than 176,000 children and
adults with a spectrum of disabilities

30

•

Dr. Gregg Vanderheiden, a researcher in the field of augmentive
communication and accessibility technology

31

CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limitation of Fed. R. App. P.
29(d) and 32(a)(7)(B) because it contains 6564 words, excluding the parts of
the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief also
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 it has been
prepared in a proportionally spaced typeface, 14-point Book Antiqua,
using Microsoft Word 2008.
Respectfully submitted,
/s/Brian Wolfman
June 4, 2013

32

CERTIFICATE OF SERVICE
I hereby certify that on June 4, 2013, a copy of the foregoing was filed
electronically with the Clerk of the Court for the United States Court of
Appeals for the Second Circuit by using the appellate CM/ECF system. I
certify that all participants in the case are registered CM/ECF users and
that service will be accomplished by the appellate CM/ECF system.
Respectfully submitted,
/s/Brian Wolfman
June 4, 2013

33