Authors Guild, Inc. v. Hathitrust

Filing 139

AMICUS BRIEF, The Leland Stanford Junior University--[Edited 06/10/2013 by AM], FILED. Service date 06/04/2013 by CM/ECF. [955409] [12-4547]

12-4547-cv
IN THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
____________________________

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

On Appeal from the United States District Court
for the Southern District of New York
____________________________

BRIEF OF AMICUS CURIAE THE LELAND STANFORD JUNIOR
UNIVERSITY IN SUPPORT OF AFFIRMANCE
____________________________

FREDERICK A. BRODIE
PILLSBURY WINTHROP SHAW PITTMAN LLP
1540 BROADWAY
NEW YORK, NY 10036
[phone]
[e-mail]
June 4, 2013

Counsel for Amicus Curiae The Leland
Stanford Junior University

v.
HATHITRUST, CORNELL UNIVERSITY, MARY SUE COLEMAN, President,
University of Michigan, MARK G. YUDOF, President, The University of
California, KEVIN REILLY, President, The University of Wisconsin System,
MICHAEL MCROBBIE, President, Indiana University,
Defendants-Appellees,
NATIONAL FEDERATION OF THE BLIND, GEORGINA KLEEGE,
BLAIR SEIDLITZ, COURTNEY WHEELER,
Intervenor Defendants-Appellees.

CORPORATE DISCLOSURE STATEMENT
The Board of Trustees of the Leland Stanford Junior University is a nonprofit trust with corporate powers created by an amendment to the California
Constitution. It does not have any parent corporation, and there is no public
company that has a ten percent or greater ownership interest in it.

704299645v2

i

TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT ......................................................... I 
IDENTITY AND INTEREST OF AMICUS CURIAE .............................................. 1 
SUMMARY OF ARGUMENT ................................................................................. 3 
ARGUMENT ............................................................................................................. 5 
SECTION 108 OF THE COPYRIGHT ACT DOES NOT
OVERCOME THE CRITICAL INTEREST OF A UNIVERSITY
LIBRARY IN PRESERVING ITS COLLECTION, AN
ACTIVITY PROTECTED UNDER SECTION 107 ........................................... 5 
A.  Section 108 Does Not Force Libraries to “Wait for the Flood” ......................8 
B.  Preservation of Collections Promotes the Public Interest and is a
Transformative Fair Use under Section 107 ..................................................12 
1.  Collections Preservation is Transformative .............................................14 
2.  The Absence of Effect on the Market Favors Fair Use ............................16 
3.  Good Faith Weighs In Favor Of Fair Use In These Circumstances ........17 
CONCLUSION ........................................................................................................ 20 

ii

TABLE OF AUTHORITIES
Cases 
American Geophysical Union v. Texaco Inc.,
60 F.3d 913 (2d Cir., 1994) .......................................................................... 12, 15
Bill Graham Archives v. Dorling Kindersley Ltd.,
448 F.3d 605 (2d Cir. 2006).......................................................................... 15, 18
Bill Graham Archives, LLC v. Dorling Kindersley Ltd.,
386 F.Supp.2d 324 (S.D.N.Y. 2005)....................................................................18
Blanch v. Koons,
467 F.3d 244 (2d Cir., 1996)......................................................................... 12, 14
Field v. Google,
412 F.Supp.2d 1106 (D. Nevada 2006) ...............................................................18
Fisher v. Dees,
794 F.2d at 436 (9th Cir. 1986) .............................................................................18
Kane v. Comedy Partners,
2003 U.S. Dist. LEXIS 18513 (S.D.N.Y. Oct. 15, 2003) ....................................18
Kelly v. Arriba Soft Corp.,
336 F.3d 811 (9th Cir. 2003)................................................................................18
MCA, Inc. v. Wilson,
677 F.2d 180 (2d Cir. N.Y. 1981) ........................................................................18
Perfect 10 v. Amazon.com, Inc.,
508 F.3d 1146 (9th Cir. 2007)...............................................................................15
Constitution 
United States Constitution Article I, Section 8 ..........................................................3

iii

Statutes and Codes 
United States Code
Title 17, Section 107 .................................................................................... passim
Title 17, Section 107(2)(3) ...................................................................................17
Title 17, Section 108 .................................................................................... passim
Title 17, Section 108(c) ........................................................................................11
Title 17, Section 108(c) (1) ..................................................................................11
Title 17, Section 108(f)(4) .....................................................................................6
Title 17, Section 121 ..............................................................................................4
Rules and Regulations 
Rules of Appellate Procedure
Rule 29 ...................................................................................................................1
Other Authorities 
Andrew Prescott, ‘Their Present Miserable State of Cremation’: the
Restoration of the Cotton Library, in Sir Robert Cotton as Collector:
Essays on an Early Stuart Courtier and His Legacy, (C. J. Wright,
London: British Library Publ’ns, 1997)...............................................................14
Gina Kolata, “In Archimedes’ Puzzle, a New Eureka Moment” The New
York Times, Dec. 12, 2003 ...................................................................................13
Keith V. Erickson, “The Lost Rhetorics of Aristotle”, Communication
Monographs, Volume 43, August 1976 ...............................................................13
Lisa Trei, Stanford Report, April 15, 1998, “ Update on flood damage to
books: 4/5/98 Warm and Dry: Damaged books trickling back.”.....................8, 9
Michael A. Keller, “The February Flood of 1998: Causes, Revoery &
Recurrence Prevention”, Stanford University Libraries,
http://www-sul.stanford.edu/staff/flood/flood.html ...............................................9
Nigel Lewis, Paperchase: Mozart, Beethoven, Bach: The search for their
lost music (1981). .................................................................................................13

iv

Our Dramatic Heritage: The Golden Age, edited by Philip George Hill,
(1985). ..................................................................................................................13
Stuart Kelly, The Book of Lost Books: An Incomplete History of All the
Great Books You Will Never Read, (2005). ........................................................13
The Cambridge Companion to Ernest Hemingway,
edited by Scott Donaldson, (1996).......................................................................13
The National Digital Information Infrastructure and Preservation Program of
2010 Report ..........................................................................................................14
William Shakespeare: The Complete Works edited by Stanley Wells, Gary
Taylor, (2005). .....................................................................................................13
Yang Huanyin, “Confucius (K’ung Tzu), UNESCO: International Bureau of
Education, 1999....................................................................................................13

v

Pursuant to Rule 29 of the Rules of Appellate Procedure, The Leland
Stanford Junior University respectfully submits this brief as amicus curiae in
support of affirmance.1
IDENTITY AND INTEREST OF AMICUS CURIAE
The Leland Stanford Junior University (“Stanford”) is a leading academic
research institution. Stanford University Libraries (“SUL”), the main library for
Stanford, is comprised of 16 branch libraries, the largest of which is Green Library,
the central campus library. Stanford also has five auxiliary libraries, including the
Lane Medical Library, the Robert Crown Law Library and the Hoover Institution
Library and Archive. Stanford libraries have amassed collections of books,
journals, scores and printed reference works numbering more than 8.5 million
physical volumes. The libraries also hold 1.5 million e-books, nearly 1.5 million
audiovisual materials, more than 75,000 serials, thousands of other digital
resources and nearly 6 million microform holdings.

1

Stanford has obtained consent to file this brief from counsel for both the
Plaintiffs and the Defendants. No counsel for a party authored this brief in whole
or in part, and no such counsel or party made a monetary contribution intended to
fund the preparation or submission of this brief. Only Stanford has made a
monetary contribution to the preparation and submission of this brief.

1

SUL’s holdings contain much more than books. The following types of
materials are all interwoven into SUL’s holdings: printed and electronic books,
newspapers and journals; microfiche; government papers; personal papers; musical
scores; photographs; ephemera; film, television and video recordings; sound
recordings such as musical compositions and radio broadcasts; software; multimedia materials; websites; email; and information preserved in nearly obsolete
data formats.
SUL is a non-contributing participant of HathiTrust Digital Library
(“HDL”), meaning that Stanford has access to use the HDL in ways permitted
under HDL’s guidelines. At this time, Stanford does not contribute works to be
included in HDL. Independent from HDL, Stanford has an agreement with Google
to digitize SUL’s holdings.
Stanford has an interest in ensuring the preservation of books and materials
in its care, in the advancement of research, and in providing access to materials for
all members of its community, including print-disabled individuals. The curation,
collection and preservation of works are crucial to the research and teaching
mission of a major research university. Scholars are rarely drawn to study at an
institution based on the availability of a single work; rather, scholars are drawn to
institutions based on the strength and depth of the collective library holdings in the

2

scholar’s field of expertise. The mission of SUL’s librarians is not to collect
individual works per se, but to build a robust whole made up of many individual
works. This collected whole is an individual unit; it is a “Collection,” which
academic librarians understand to mean a curated set of individual works that
collectively make up a library’s holdings.
Digital technology enables the faithful reproduction and preservation of the
Collection to ensure that works are protected against catastrophe and decay over
time, so that they are made available to future generations of scholars. Section 107
of the Copyright Act, 17 U.S.C. § 107, supports the transformative use of
technology to ensure the preservation of the Collection in order “[t]o promote the
Progress of Science and useful Arts.” U.S. Const. art. I, § 8.
SUMMARY OF ARGUMENT
In Stanford’s view, the crux of this case is about the preservation of
information for future generations and Stanford argues here that Section 107 of the
Copyright Act permits the faithful digitization of a library’s Collection.
Stanford agrees with the District Court’s Opinion & Order (“Op.”) and
Defendants-Appellees that the activities of the HDL in collecting digitized books
from leading university libraries for the limited purposes presented here -- making
works text-searchable, making works available to individuals with print disabilities

3

under Section 121 of the Copyright Act, and preserving library Collections -constitute fair use under Section 107 of the Copyright Act.
Independently, however, a library must also be permitted to create a digital
archive of its Collection for solely preservation purposes: a “dark archive” – a
repository of information that is not available to a library’s current users, but is
held in trust for future generations. Stanford wishes to underscore the
consequences of being unable to preserve works digitally and offer its own
relevant experiences for the Court’s consideration.
Therefore, while Stanford agrees that all of the HDL’s activities constitute
fair use, in this brief Stanford will highlight two points: (1) Section 108 of the
Copyright Act does not preclude reliance on Section 107 for library digitization;
and (2) Collection preservation is a fair use.
Section 108 of the Copyright Act permits libraries to reproduce and allow
patron uses of copies of works in certain specified circumstances. When certain
library conduct is not covered within the provisions of Section 108, however, fair
use under Section 107 of the Copyright Act must be considered. Section 108 does
not bar a fair use analysis; rather, the two provisions are complementary.
Nor should Section 108 be read to require libraries to wait until after disaster
strikes, or materials are damaged or lost, before such materials can be copied for

4

preservation. The various types of materials contained in a library Collection are
fragile and are easily put at risk. Once a work has been severely damaged or
destroyed, it is too late for a preservation copy to be made. Such a reading of
Section 108 would thus be contrary to the important social policy of protecting
copyrighted works that is embodied in that section.
The preservation of library Collections is a fair use under Section 107.
Libraries uniquely serve the public interest in preserving knowledge for future
generations. Preservation of a Collection is also a transformative use because
preservation serves a completely different purpose than that which applied when
the original works were created. Creating archival copies of works for
preservation purposes does not negatively affect the market for or the value of such
works. Finally, the Court should consider the good faith inherent in the libraries’
actions and uphold the preservation and the other activities of the HDL as fair use.
ARGUMENT
SECTION 108 OF THE COPYRIGHT ACT DOES NOT OVERCOME THE
CRITICAL INTEREST OF A UNIVERSITY LIBRARY IN PRESERVING
ITS COLLECTION, AN ACTIVITY PROTECTED UNDER SECTION 107
This case has significant implications for the use of digital technology for
the long-term preservation of library Collections. Plaintiffs have argued that
Section 108 is a bar to Collection preservation under section 107 and that fair use

5

is thus not available to libraries. Opening Brief of Plaintiffs-Appellants
(“Appellants’ Br.”) at 18-28. Plaintiffs proffer the incorrect proposition that the
libraries have “violated” Section 108 and, therefore, are precluded from making
fair uses under Section 107. Appellants’ Br. at 25. Section 108 prohibits nothing;
through Section 108, Congress has authorized specific rights and uses especially
for libraries. Section 108 does not limit libraries in any way; rather, Section 108 is
explicitly codified to limit copyright holders. As if anticipating Plaintiffs’
proposition, Congress included Section 108(f)(4), which specifically establishes
that Section 108 does not affect the rights in Section 107 in any way. 17 U.S.C.
§ 108(f)(4). Sections 107 and 108 of the Copyright Act are designed to work
together and to complement each other, not to be mutually exclusive. As
Defendants-Appellees point out, this is apparent from the clear language of Section
108(f)(4) as well as from the relevant legislative history. Appellees’ Br. at 44-48.
Nor is there any authority to the contrary with respect to these two provisions.
The unambiguous language of Section 108(f)(4) clearly states that
“[n]othing in this section [108]…in any way affects the right of fair use as
provided by section 107.” 17 U.S.C. § 108(f)(4). This statement, in plain English,
could not be more clear on its face. The legislative history of Section 108 also
supports this view. Appellees’ Br. at 45-46.

6

Moreover, Section 108 speaks to the consumptive uses that may be made of
individual works; Section 108 does not expressly address the digitization of
Collections solely for preservation purposes in a dark archive. If certain library
activity is not covered under Section 108, then the question becomes whether such
activity is nevertheless a fair use under Section 107. In such circumstances, a fair
use analysis is performed, just as it would be for any other copyrighted work.
A fair use analysis supports the conclusion that preserving a Collection
against destruction, loss, theft, and decay is lawful. A Collection that exists only in
physical media is threatened by even careful use and normal environmental factors.
Even with only careful use, hard-copy books that are read are subject to routine
harms from oils on hands of readers, being picked up or held incorrectly, and the
residue of self-sticking memos.2 Even if never read, books are subject to
degradation from environmental factors like light, heat, dampness, aridness, pests,
and exposure to many kinds of plastics.3 To preserve a Collection against the
destruction that comes to it when the individual items in it eventually degrade is a

2

“Caring for Your Treasures,” Am. Inst. for Conservation of Historic and
Artistic Works, available at http://www.conservationus.org/_data/n_0001/resources/ live/books.pdf (last visited June 3, 2013).
3

Id.

7

transformative use of the individual works that benefits society through the
preservation of knowledge for future generations. If a library does not preserve its
Collection, society risks losing forever the work that is the Collection.
A.

Section 108 Does Not Force Libraries to “Wait for the Flood”
Catherine Tierney smiles as she touches a few dozen
books on a table in her Green Library Office. Survivors
of the Flood of ’98, the books are water-stained but not
warped or moldy. “They’re dry, it’s wonderful,” says
Tierney, assistant university librarian for technical
services. She leafs through pages of Euripides,
Tragodien, volumes V and VI, and a book title Simeon
Polotskii printed in Cyrillic. The books, from the
literature and reference sections, are part of the
university’s general collection. Although not rare, many
would be difficult to replace if lost.”4

In the overnight hours of February 2-3, 1998, in heavy rains brought during
an El Niño season, four of Stanford’s libraries, covering an area of 12 acres,
flooded: Green Library, Meyer Library, Braun Music Library and Cubberley
Education Library.5 The rains that damaged Stanford’s Collection were not
cataclysmic in the way that most imagine the loss of library books: there was no

4

Lisa Trei, Update on flood damage to books: 4/5/98 Warm and Dry: Damaged
books trickling back, Stanford Report (April 15, 1998), available at http://news.
stanford.edu/news/1998/april15/books415.html (emphasis added).
5

Id.

8

Category 5 Hurricane as there was at Tulane University in 2005,6 nor was there an
attacking army bent on destruction as was the case at the Catholic University of
Leuven, Belgium in 1914.7 Instead of a dramatic natural disaster, Stanford’s
flooding was caused as a result of over-saturated grounds and storm-drains that
could not absorb the run-off of another rainy day during an unusually rainy
season.8
In the middle of the night, after the flooding was discovered, hundreds of
students and staff volunteered to form “bucket brigades” to move wet books up
from the saturated basement areas to dry ground.9 In total, about 70,000 books
were damaged in the flood.10 Within 15 hours, these books were relocated to a

6

See Andy Corrigan, Hurricane Katrina and the Library’s Collections, Tulane
Univ. Howard-Tilton Mem’l Library, http://library.tulane.edu/collections/katrina_\
recovery (last visited June 1, 2013).
7

Sarah Prescott, Libraries Burning: A Discussion to Be Shared, 26 Progressive
Librarian 40, 43, Winter 2005/06) (“According to an eyewitness, the fire burned
for days, consuming over 230,000 books, among them priceless editions of some
of the westʼs earliest books and manuscripts”).
8

Michael A. Keller, The February Flood of 1998: Causes, Recovery &
Recurrence Prevention, Stanford Univ. Libraries,
http://www-sul.stanford.edu/staff/flood/flood.html (last visited June 3, 2013).
9

Trei, supra note 3

10

Id.

9

cold storage facility to arrest the damage and to prevent mildew from setting in.11
From cold storage, the books were transferred in batches to undergo a drying and
restoration process.12 Some books came through the process nearly unscathed.
Others needed minor repair such as page repair, page cleaning, and un-sticking of
pages.13 The most damaged books needed to be re-bound.14 In all, Stanford was
lucky. Of the 70,000 affected works only about 3,500 were a total loss.15 Had the
flooding not been discovered during the night or the large number of volunteers not
been available, the losses would have been much greater.
The loss of any work at all within a Collection can fundamentally alter it.
For over 75 years, the field of library science has examined how to select and
deselect works for a Collection, evaluating the Collection apart from the
independent value of the sum of its individual works.16 The 1998 flood caused
Stanford to re-evaluate its preservation practices and put SUL on a path toward the
11

Id.

12

Id.

13

Id.

14

Id.

15

Id.

16

See, e.g., Charles B. Osburn, Collection Management in the Library Quarterly,
76 Library Quarterly, Quarterly 36 (Jan 2006).

10

use of digital technology to safeguard against the destruction or alteration of its
Collection. In addition to the invaluable research and scholarship that becomes
available through full-text searching and the extraordinary unparalleled access it
provides to individuals with print disabilities, digitization meets Stanford’s need to
protect its Collection.
Section 108 should not be construed to require a library to “wait for the
flood” before it can take steps to preserve its Collection. Indeed, Section 108(c)
cannot be effectuated when no preservation copy exists to access. Section 108(c)
provides that a library, after establishing that an “unused replacement cannot be
obtained at a fair price,” may replace a work that is “damaged, deteriorating, lost or
stolen, or if the existing format in which the work is stored becomes obsolete”
17 U.S.C § 108(c). When a work has been destroyed and an unused replacement
cannot be obtained at a fair price, the work might never be replaced, access to the
work will be lost, and the library Collection becomes altered forever.
Digital technology allows our library Collections to avoid the fate of the
Library of Alexandria; it would be devastating to the future of scholarship if laws
prevent our society from preserving its cultural and intellectual output.

11

B.

Preservation of Collections Promotes the Public Interest and is a
Transformative Fair Use under Section 107
Much is at stake if we do not act now. The nation’s
educational system, economic security, energy
infrastructure, and the continuing creativity and
innovation that assure the people’s well-being all depend
on a secure knowledge base. What is at stake is no less
than the ability to show our children and grandchildren
where we have come from, to help them understand how
our democracy grows, and to empower them with the
knowledge and wisdom to make the difficult choices that
the Founders well understood would confront us as a free
people.

Nat’l Digital Info. Infrastructure and Pres. Program Report of 2010, The Library of
Congress, Preserving Our Digital Heritage 7 (Jan. 2011).
The public interest in preserving Collections weighs strongly in favor of
finding that preservation efforts are a fair use. “Courts are more willing” to find a
fair use when the purpose “produces a value that benefits the broader public
interest.” See, e.g., Blanch v. Koons, 467 F.3d 244, 253 (2d Cir. 2006) (“courts are
more willing to find a secondary use fair when it produces a value that benefits the
broader public interest”) (quoting Am. Geophysical Union v. Texaco Inc., 60 F.3d
913, 922 (2d Cir. 1994)).

12

Historically, countless great works of literature and intellectual output have
been lost to the ages. Works by Archimedes;17 Aristotle;18 Confucius;19
Shakespeare;20 Moliere;21 Bach, Mozart and Beethoven;22 Hemingway;23 and
Plath;24 to name but a tiny few,25 have been lost or destroyed. The only copy of
Beowulf, one of the earliest existing poems in Old English dating from the 11th
17

See Gina Kolata, “In Archimedes’ Puzzle, a New Eureka Moment” The New
York Times, Dec. 12, 2003 (discussing the lost treatise the Stomachian).

18

See Keith V. Erickson, “The Lost Rhetorics of Aristotle”, Communication
Monographs, Volume 43, August 1976.

19

Yang Huanyin, “Confucius (K’ung Tzu), UNESCO: International Bureau of
Education, 1999 originally published in Prospects: the quarter review of
comparative education January 1993 (noting that Confucius’ The Book of Music
has been lost).
20

William Shakespeare: The Complete Works edited by Stanley Wells, Gary
Taylor, (2005), p. 337 (discussing evidence that Shakespeare wrote Love Labour’s
Won prior to 1598).
21

Our Dramatic Heritage: The Golden Age, edited by Philip George Hill, p. 564
(1985) (noting that some of Moliere’s earlier plays, “written while Moliere’s
company was touring the provinces, are now lost.”)
22

See generally, Nigel Lewis, Paperchase: Mozart, Beethoven, Bach: The search
for their lost music (1981).
23

The Cambridge Companion to Ernest Hemingway, edited by Scott Donaldson,
pp. 39 -41 (1996) (discussing the lost or stolen valise containing a draft of
Juvenilia).
24

Stuart Kelly, The Book of Lost Books: An Incomplete History of All the Great
Books You Will Never Read pp. 330-31 (2005).
25

See generally id.

13

Century, nearly burned in a fire in 1731.26 Although saved, the manuscript was left
to deteriorate for another 100 years and some text was lost to decay before
restoration efforts were undertaken in 1845.27 Although preservation technology
has improved vastly since 1845, we still face the loss of massive amounts of
information. The National Digital Information Infrastructure and Preservation
Program of 2010 Report (“NDIIP Report”) noted that of over 1,600 federallyfunded social science research projects that took place in 2008, by 2010 “at least
25% of the data had been lost and was not available to researchers.” 28
The crisis of information loss is not behind us; it continues today and looms
over the future. It remains even more incumbent upon libraries to preserve our
intellectual and cultural output for current and future generations.
1.

Collections Preservation is Transformative

“Courts are more willing” to find a fair use when the purpose “produces a
value that benefits the broader public interest.” Blanch, 467 F.3d at 253.
26

Andrew Prescott, ‘Their Present Miserable State of Cremation’: the
Restoration of the Cotton Library, in Sir Robert Cotton as Collector: Essays on an
Early Stuart Courtier and His Legacy, 391-454 (C. J. Wright, London: British
Library Publ’ns, 1997).
27

Id.

28

Preserving Our Digital Heritage”, supra, at 5.

14

The preservation of a Collection is a transformative use, which supports a
finding of fair use. See Perfect 10 v. Amazon.com, Inc., 508 F.3d 1146, 1166-67
(9th Cir. 2007 (finding that transformative use weighs in favor of finding a fair use
under the first prong of the test). Stanford therefore respectfully disagrees with the
District Court’s statement that “[t]he argument that preservation on its own is a
transformative use is not strong.” Op. at 15 n. 19 (citing Texaco, 60 F.3d at 924).
Authors may send individual works into the marketplace to be read (consumed)
immediately. Libraries, in contrast, curate, collect, and preserve massive numbers
of works into a single Collection; this Collection is then preserved as a whole
against destruction for future generations of scholars to access. A preserved work
is not available to be read (or viewed or heard or otherwise consumed) until a
future event occurs making it proper to do so. Preservation (denying consumptive
access, but protecting a work from destruction) is a highly transformative use of a
work that was otherwise placed into the marketplace for immediate consumption.
See Perfect 10, 508 F.3d at 1165 (“making an exact copy of a work may be
transformative so long as the copy serves a different function than the original
work.”); see also Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605,
609 (2d Cir. 2006) (finding a transformative use in the use of thumbnail concert

15

posters where the transformative use was to document the occurrence of the
concerts, rather than the original purposes of “artistic expression and promotion.”).
Achieving preservation through other means, such as purchasing multiple
copies of a work, is not a viable solution. Each copy of a work is susceptible to the
same problems: decay over time and sudden destruction from catastrophe. Even if
it were feasible to build a physical plant to store back-up physical media copies,
those copies would still be subject to the same risks, such as floods, hurricanes,
earthquakes, or tornadoes. Additionally, library Collections are made up of much
more than just commercially available printed works; libraries need to have the
functionality to preserve materials created in all varieties of media in multiple
formats to ensure that the information is safe.
2.

The Absence of Effect on the Market Favors Fair Use

Retaining a preservation copy for non-consumptive purposes does not affect
the market. As the District Court noted, there is no marketplace for the
preservation of works. Op. at 19-20. Moreover, no industry other than libraries
has an incentive to create and preserve collections combining works from a
multitude of authors, publishers, and subject matters. While a single publisher may
make efforts to preserve works issued by that publisher, broader collection
practices are necessary to best ensure the preservation of knowledge.

16

To demonstrate marketplace harm, Appellants speculate broadly about the
security risks allegedly inherent in the HDL. They conjecture that if the security
for the HDL is not sound, then unlawful access to the works might cause
Appellants to suffer financial harm. The District Court correctly concluded that
“Plaintiffs’ unsupported argument fails to demonstrate a meaningful likelihood of
future harm.” Op. at 20. That result is correct; only when a plaintiff can establish
that an actual breach has occurred or is likely to occur would this final factor favor
a copyright owner’s interests. No such showing was made here; accordingly, the
record affords no basis for a finding of marketplace harm. There simply is no
market for what HDL is doing, although the need is uncontroverted.
3.

Good Faith Weighs In Favor Of Fair Use In These
Circumstances

The four factors specifically listed in Section 107 are not exclusive; rather,
those factors “shall [be] include[d]” in consideration, but courts may also consider
other factors.29

29

For the purposes of brevity and to avoid repeating the points ably put
forward by Defendants-Appellants, Stanford does not focus on the second (nature
of the copyrighted work) and third (amount of work used) factors of a fair use
analysis. 17 U.S.C. § 107(2)(3). Under the nature of the copyrighted work factor,
case law instructs that “copying factual works is more likely fair use than copyright

17

One additional factor that may be considered as part of a fair use analysis is
whether an alleged copyright infringer acted in good faith. See, e.g., MCA, Inc. v.
Wilson, 677 F.2d 180, 183 (2d Cir. 1981); Bill Graham Archives, LLC v. Dorling
Kindersley Ltd., 386 F.Supp.2d 324, 333 (S.D.N.Y. 2005) (good faith is a positive
factor in fair use analysis); Kane v. Comedy Partners, 2003 WL 22383387, *7
(S.D.N.Y. Oct. 15, 2003); Field v. Google Inc., 412 F.Supp.2d 1106, 1122 (D.
Nev. 2006) (citing Fisher v. Dees, 794 F.2d 432, 436-37 (9th Cir. 1986)).
In this case, the libraries seek to preserve their Collections, to help scholars
identify potentially relevant works, and to provide access to people with print
disabilities. The SUL and other libraries have no commercial or improper reasons
for participating in the HathiTrust Digital Library. The libraries have acted in

creative works.” Op. at 18 citing Blanch, 467 F.3d at 256. Collection preservation
captures both creative and factual works. Where the use is highly transformative,
however, courts have held that the second factor is of “limited usefulness.” Bill
Graham Archives, 448 F.3d at 612. With regard to the third factor focusing on the
amount of work used, a work cannot be faithfully preserved digitally without
copying the whole. Accordingly, preservation requires the use of an entire work.
Courts have recognized that it is permissible to copy the whole work when that is
the amount necessary to accomplish the underlying lawful purpose. See, e.g., Bill
Graham Archives, 448 F.3d at 613; Kelly v. Arriba Soft Corp., 336 F.3d 811, 821
(9th Cir. 2003).

18

good faith, and this factor provides additional support for the District Court’s fair
use determination.

19

CONCLUSION
For the foregoing reasons, Stanford as amicus curiae respectfully submits
that the District Court’s judgment should be affirmed.
Dated: New York, New York
June 4, 2013
Respectfully submitted,
/s/ Frederick A. Brodie
FREDERICK A. BRODIE
PILLSBURY WINTHROP SHAW PITTMAN LLP
1540 BROADWAY
NEW YORK, NY 10036
[phone]
[e-mail]
Of Counsel:
CYDNEY A. TUNE (application pending)
PILLSBURY WINTHROP SHAW PITTMAN LLP
FOUR EMBARCADERO CENTER
SAN FRANCISCO, CA 94111
[phone]
LAUREN SCHOENTHALER (application pending)
CHRISTINE BOEHM (application pending)
OFFICE OF THE GENERAL COUNSEL
STANFORD UNIVERSITY
STANFORD, CA 94035
[phone]
[phone]
Counsel for Amicus Curiae The Leland Stanford Junior University

20

CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. P. 32(a)(7), the undersigned certifies that this brief
complies with the type-volume limitations of Fed. R. App. P. 29(d) and Fed. R.
App. P. 32(a)(7)(B).
1.

Exclusive of the exempted portions in Fed. R. App. P. 32(a)(7)(B)(iii),

this brief contains 4,023 words.
2.

This brief has been prepared in proportionally spaced 14-point font

typeface using Microsoft Office Word 2010 in Times New Roman typeface.

/s/ Frederick A. Brodie
Frederick A. Brodie
June 4, 2013

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CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this 4th day of June, 2013, the Brief
of Amicus Curiae the Leland Stanford Junior University in Support of Affirmance
was electronically filed with the Clerk of the Court for the United States Court of
Appeals for the Second Circuit using the CM/ECF system, which will
automatically send e-mail notification of such filing to all attorneys of record.

/s/ Frederick A. Brodie
Frederick A. Brodie

22