Authors Guild, Inc. v. Hathitrust

Filing 145

AMICUS BRIEF, Disbility Law Professors, FILED. Service date 06/04/2013 by CM/ECF. [955600] [12-4547]--[Edited 06/04/2013 by DH]

12-4547-cv
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, 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.
Appeal from the United States District Court for the
Southern District of New York (New York City)
Brief of Amici Curiae Disability Law Professors
in Support of Intervenor National Federation of the Blind

Michael Waterstone

Robert Dinerstein

Loyola Law School*
919 Albany St.

American University Washington
College of Law*

Los Angeles, CA 90015

4801 Massachusetts Avenue, NW

213-736-2243

Washington, DC 20016

[e-mail]

202-274-4141
[e-mail]

Christopher H. Knauf
Knauf Associates

Michael Stein

2001 Wilshire Blvd, Suite 510

Harvard Law School*

Santa Monica, CA 90403

1563 Massachusetts Avenue

[phone]

Cambridge, MA 02138

[e-mail]

617-495-1726
[e-mail]

Counsel for Disability Law Professors
*Institutions provided for identification purposes only

CORPORATE DISCLOSURE STATEMENT
Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, amici
curiae state that they do not have any parent corporation and no publiclyheld corporation has an ownership stake of 10% or more in amici curiae.

Dated: June 4, 2013

By: /s/ Christopher Knauf

TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................................................................... ii
STATEMENT OF INTEREST ................................................................................1
ARGUMENT ............................................................................................................1
I. The Americans with Disabilities Act and Section 504 of the
Rehabilitation Act Were Major Federal Initiatives to Bring
People with Disabilities Into the Mainstream of Society. ........................ 2
II. Courts Are Routinely Asked To Reconcile Laws and Policies of
General Applicability With the Needs of People with
Disabilities. ...................................................................................................... 5
III. The District Court Properly Harmonized the Policies Behind
Federal Disability Laws and the Copyright Act...................................... 10
APPENDIX A (LIST OF AMICI CURIAE) .........................................................14

i

TABLE OF AUTHORITIES
Cases
Board of Trustees of the University of Alabama v. Garrett,
531 U.S. 356 (2001)................................................................................................5
Buck v. United States Department of Transportation Proceedings,
56 F.3d 1406 (D.C. Cir. 1995)...............................................................................8
Crowder v. Kitigawa, 81 F.3d 1480 (9th Cir. 1995) .................................................7
Franco-Gonzales v. Holder, 767 F.Supp.2d 1034 (C.D. Cal. 2010) ...................7, 8
Hargrave v. Vermont, 340 F.2d 27 (2nd Cir. 2003)..............................................6, 7
Henrietta D. v. Bloomberg, 331 F.3d 261 (2nd Cir. 2003) ......................................7
Kort v. Diversified Collection Services Inc., 270 F. Supp. 2d 1017 (N.D. Ill.
2003), aff’d in part, 349 F.3d 530 (7th Cir. 2005)................................................9
Mary Jo C. v. New York State and Local Retirement System,
707 F.3d 144 (2nd Cir. 2013) .................................................................................6
Morton v. Mancari, 417 U.S. 535 (1974) .................................................................9
Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984)..........................11
Ward v. Skinner, 943 F.2d 157 (1st Cir. 1991) .........................................................9
Washington v. Indiana High School Athletic Association,
181 F.3d 840 (7th Cir. 1999) ..................................................................................7
Statutes
17 U.S.C. § 106 et seq. .............................................................................................10
17 U.S.C. § 121........................................................................................................11
20 U.S.C. § 1400 et seq. ...................................................................................... 4, 10
42 U.S.C. § 12101(A)(2) ...........................................................................................2
42 U.S.C. § 12111 et seq. ...........................................................................................2
42 U.S.C. § 12131 et seq. ...........................................................................................2
42 U.S.C. § 12181 et seq. ...........................................................................................2
42 U.S.C. § 1973ee et seq ........................................................................................10
42 U.S.C. §12101(A)(7). ...........................................................................................2

ii

Other Authorities
2B Sutherland Statutory Construction § 51:2, § 59:8 (7th ed.) ...........................9
H. R. Rep. No. 101-485, pt. 2, at 108 (1990), reprinted in 1990
U.S.C.C.A.N. 303, 391, House Committee on Education and Labor .......... 11
Regulations
Nondiscrimination on the Basis of Disability: Accessibility of Web
Information and Services of State and Local Government Entities
and Public Accommodations, 75 Fed. Reg. 43460 (proposed
July 26, 2010) ....................................................................................................... 11
Constitutional Provisions
U.S. Const., Art. I, Section 8, Clause 8 ................................................................10

iii

STATEMENT OF INTEREST
Amici curiae are law professors, identified in the attached Appendix A,
who teach and write about disability law at law schools, colleges, and
universities throughout the United States. We have no personal stake in
the outcome of this case;1 our interest is in seeing proper consideration
given to the policies set forth in federal disability law, including the
Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. and Section 504 of
the Rehabilitation Act of 1973, 29 U.S.C. § 794 .2

ARGUMENT
Amici submit this brief with a single, narrow goal in mind: to urge the
Court to interpret the Copyright Act consistently with the important goals
Congress established in the Americans with Disabilities Act and related
laws.

Pursuant to Local Rule 29.1 of the United States Court of Appeals for the
Second Circuit, amici hereby certify that no party’s counsel authored this
brief in whole or in part; no party or party’s counsel contributed money
intended to fund preparing or submitting the brief; and no person other
than amici contributed money intended to fund preparing or submitting the
brief.
2 Pursuant to Federal Rule of Appellate Procedure 29, we note that all
parties have consented to the filing of this brief.
1

1

I.

The Americans with Disabilities Act and Section 504 of the
Rehabilitation Act Were Major Federal Initiatives to Bring People
with Disabilities Into the Mainstream of Society
With the Americans with Disabilities Act (ADA), passed in 1990,

Congress expressly intended to fundamentally transform the role of people
with disabilities in society. Finding that “historically, society has tended to
isolate and segregate individuals with disabilities,” 42 U.S.C. § 12101(A)(2),
Congress decreed the Nation’s goals for people with disabilities as assuring
“equality of opportunity, full participation, independent living, and
economic self sufficiency.” Id. at §12101(A)(7). The ADA sought to ensure
that the federal government played a strong role in eliminating
discrimination in the public and private spheres. See, 42 U.S.C. § 12111 et
seq. (employment), 42 U.S.C. § 12131 et seq. (state and local government
services), and 42 U.S.C. § 12181 et seq. (public accommodations). The ADA
Amendments Act of 2008 reaffirmed and strengthened this commitment.
Title II of the ADA focuses on how people with disabilities interact
with state and local governments. People with disabilities, like all citizens,
use and rely on public authorities in many ways, including voting,
licensing of various kinds, public insurance and medical programs, public
2

universities, access to courts, prisons, and encounters with police, as well
as countless others. Title II sought to ensure that in these interactions
discrimination was eliminated and the needs of people with disabilities
were met. In so doing, Congress sought to extend many principles already
established by Section 504 of the Rehabilitation Act of 1973, which
prohibited disability discrimination by the federal government and other
public entities that received federal funds. Title III of the ADA prohibits
discrimination by privately-owned places of public accommodation,
including restaurants, movie theaters, and private libraries and
universities. The interest of people with disabilities in this case to access
digital books involves potentially the interaction of all of these areas of law.
As discussed below, the federal government’s copyright protections must
be consistent with Section 504 of the Rehabilitation Act. Similarly, public
and private universities have obligations under Titles II and III of the ADA,
respectively.
Access to technology, particularly in the context of higher education, is
crucial to Congress achieving its goal of a more inclusive society.
Especially in a world where students with disabilities have only known life
with computers, the internet, and the Individuals with Disabilities
3

Education Act, 20 U.S.C. § 1400 et seq., more students with disabilities than
ever are enrolling in college. This should be celebrated. But to
dramatically limit these students’ access to library materials, as appellants
urge, fundamentally transforms their college experience into something
worse, and markedly different from their educational experience to date.
This is not the society Congress envisioned when it passed the ADA.
The district court’s decision recognized the important policies behind
the ADA and related laws. Throughout its opinion, the court referenced
the necessity of allowing people with print disabilities to access visual
works in a manner commensurate with others. See Op. & Order at 15
(noting that the HathiTrust Digital Library (HDL) program “provides
print-disabled individuals with access to the wealth of information within
library collections”) (internal citations omitted); see also id. at 21 (noting
how the HDL provides “the unprecedented ability of print-disabled
individuals to have an equal opportunity to compete with their sighted
peers in the ways imagined by the ADA”). And the court’s analysis
reflected this approach: first, by reasoning that the needs of people with
disabilities bolstered Defendants’ right to fair use, and, second, by holding
that the Chafee Amendment, permitting reproduced and distributed copies
4

for use by persons with disabilities, allowed Plaintiffs to comply with their
obligations under the Americans with Disabilities Act.
II.

Courts Are Routinely Asked To Reconcile Laws and Policies of
General Applicability With the Needs of People with Disabilities
Under both Title II of the ADA and the Rehabilitation Act, courts have

regularly been asked to reconcile laws of general applicability with the
unique needs of people with disabilities. Before the ADA, public entities
that did not receive federal financial assistance, private employers, and
operators of privately-owned places of public accommodation were not
required to consider the needs of people with disabilities. The results were
often programs, services, or activities that intentionally or unintentionally
excluded them. See Board of Trustees of the University of Alabama v. Garrett,
531 U.S. 356, 391 (2001) (Appendix C to opinion of Breyer J. dissenting,
documenting evidence of unequal treatment of persons with disabilities by
public programs and services). In the post-ADA period, in the public
services context, courts have consistently confronted tensions between
agency operations that sought to accomplish some public purpose and the
needs of people with disabilities that might not be met under existing

5

regimes. In addition to agency operations, it is clear that Title II and
Section 504 of the Rehabilitation Act apply to federal and state statutory
schemes. See, e.g., Mary Jo C. v. New York State and Local Retirement System,
707 F.3d 144, 157 (2nd Cir. 2013) (rejecting argument that the rules, policies,
and practices subject to reasonable modification under Title II do not
include state statutes).
Courts have sought to harmonize these potential conflicts by making
adjustments or reasonable modifications to laws, policies, and procedures
of public entities. Put differently, courts look to interpret these laws in
ways that make them consistent with the requirements of the ADA and
Rehabilitation Act. For example, in Mary Jo C., supra, the plaintiff’s mental
illness interfered with her ability to comply with New York State law’s
strictly-enforced filing deadline for disability retirement benefits. Rather
than deferring to the entity’s interpretation of which rules were sacrosanct,
this court held that a waiver of the deadline for the plaintiff was a proper
reasonable modification request. Id. at 161. Similarly, in Hargrave v.
Vermont, 340 F.2d 27 (2nd Cir. 2003), part of Vermont’s durable power of
attorney statute allowed medical professionals to petition courts to
invalidate durable powers of attorney executed by people with mental
6

illness. As a reasonable modification to make the overall statutory scheme
nondiscriminatory, this court enjoined that portion of the statute. Id. at 38.
And in Henrietta D. v. Bloomberg, 331 F.3d 261, 280 (2nd Cir. 2003), this court
found that the creation of New York City’s Division of AIDS Services and
Income Support (“DASIS”) was itself a reasonable accommodation to New
York’s general public assistance and benefits services for individuals with
AIDS and other HIV-related diseases.
Outside of the Second Circuit, there are numerous examples of courts
attempting to harmonize state statutes and public agencies’ actions with
the goals of disability laws through making reasonable modifications or
accommodations. See, e.g., Washington v. Indiana High School Athletic
Association, 181 F.3d 840 (7th Cir. 1999) (holding that high school athletic
age-eligibility rule could be waived if a particular athlete caused no
competitive disadvantage or safety threat); Crowder v. Kitigawa, 81 F.3d
1480 (9th Cir. 1995) (quarantine requirement needed to be modified to
accommodate individuals with visual impairments).
Similar principles apply to federal statutory and regulatory regimes.
In Franco-Gonzales v. Holder, 767 F.Supp.2d 1034 (C.D. Cal. 2010), the
plaintiffs were undocumented immigrants with severe mental illnesses.
7

They brought claims against the Department of Justice under Section 504 of
the Rehabilitation Act, arguing that they were not adequately
accommodated in proceedings initiated by the Department of Homeland
Security and Immigration and Customs Enforcement. Recognizing the
Rehabilitation Act’s goals of combating discrimination in public programs
and making sure that people with disabilities have the “tools necessary to
… make informed choices and decisions,” id. at 1061, the court, citing 29
U.S.C. § 701(a)(5), held that existing safeguards were inadequate to satisfy
the requirements of Section 504. See Franco-Gonzales, 767 F.Supp.2d at 1052.
Even in cases where courts deny the specific accommodation or
modification a plaintiff has requested from a federal law or program,
courts have acknowledged the desirability of federal statutory schemes and
administration incorporating the goals of laws such as the ADA and
Rehabilitation Act. See, e.g., Buck v. United States Department of
Transportation Proceedings, 56 F.3d 1406 (D.C. Cir. 1995) (“Unless the agency
could reasonably conclude that all limb-handicapped drivers are incapable
of a certain task necessary to the safe operation of a vehicle, it would no
doubt be improper for it to refuse such an individual, solely upon the basis
of his handicap, the opportunity to demonstrate his proficiency at the
8

required task.”); Ward v. Skinner, 943 F.2d 157, 161 (1st Cir. 1991) (noting
that in administering a driving certification program, the Department of
Transportation “did individualize its inquiry to some extent. It did not
simply rely upon its absolute anti-epilepsy rule”) (internal citations
omitted).
The harmonization evident between disability laws and other laws is
not unique. Where two statutes could conflict but could also be interpreted
as consistent to accomplish both of their statutory objectives, courts
routinely attempt to harmonize. See 2B Sutherland Statutory Construction
§ 51:2 (7th ed.) (“Courts try to construe apparently conflicting statutes on
the same subject harmoniously, and, if possible, give effect to every
provision in both.”); id. at § 59:8 (“Generally, when interpreting two
statutory sections, courts attempt to harmonize them to give effect to their
purposes and, if possible, reconcile them so as to uphold the validity of
both.”).3

See also Morton v. Mancari, 417 U.S. 535, 551 (1974) (“[W]hen two statutes
are capable of co-existence, it is the duty of the courts, absent a clearly
expressed congressional intention to the contrary, to regard each as
effective.”); Kort v. Diversified Collection Services Inc., 270 F. Supp. 2d 1017,
1023 (N.D. Ill. 2003), aff’d in part, 349 F.3d 530 (7th Cir. 2005) (“When two
federal statutes appear to conflict, absent a clearly expressed Congressional
3

9

III.

The District Court Properly Harmonized the Policies Behind
Federal Disability Laws and the Copyright Act
The tension at play in the cases above – between a law of general

applicability that may serve important public purposes and the needs of
people with disabilities – exists in this case. The Copyright Act provides a
limited monopoly for authors to encourage creativity. The federal
government has a longstanding dedication to protecting copyrights, a
commitment that has both constitutional and statutory dimensions.4 At the
same time, so as not to be left behind in the information age, people with
print disabilities want and need to be able to access a wide range of printed
materials. Congress has a long history of legislating to protect people with
disabilities, particularly in the areas of access to public programs and
services.5

intention to the contrary, it is the duty of the courts to harmonize them
where possible”).
4 See U.S. Const., Art. I, Section 8, Clause 8; see also 17 U.S.C. § 106 et seq.
5 Laws that predate the Americans with Disabilities Act include the
Education for All Handicapped Children Act, 20 U.S.C. § 1400 et seq. (later
renamed “Individuals with Disabilities Education Act.”) and the Voting
Accessibility for the Elderly and Handicapped Act of 1964, 42 U.S.C. §
1973ee et seq.
10

The text and legislative history of the ADA make clear that its vision of
accommodation and equal access should retain vitality as new technologies
emerge.6 When Congress passed the Chafee Amendment, 17 U.S.C. § 121,
in 1996 (six years after the passage of the Americans with Disabilities Act),
it demonstrated a commitment to ensuring that people with disabilities
could have access to information in ways that still provided authors with
needed protections. Courts should presume that Congress intended the
Chafee amendment to help fulfill the goals it had expressly identified in the
ADA and other disability rights laws. This view is consistent with
Supreme Court reasoning regarding the intersection of disability access
and copyright protection, which has recognized Congress’s attempt to
protect both values. See Sony Corp. v. Universal City Studios, Inc., 464 U.S.
417, 455, n.40 (1984) (“[m]aking a copy of a copyrighted work for the

H. R. Rep. No. 101-485, pt. 2, at 108 (1990), reprinted in 1990 U.S.C.C.A.N.
303, 391 , House Committee on Education and Labor (“the Committee
intends that the types of accommodation and services provided to
individuals with disabilities, under all titles of this bill, should keep pace
with the rapidly changing technology of the times.”). The Department of
Justice, empowered with enforcing Titles II and III of the ADA, also takes
the position that the ADA requires consideration of new technology. See
Nondiscrimination on the Basis of Disability: Accessibility of Web
Information and Services of State and Local Government Entities and
Public Accommodations, 75 Fed. Reg. 43460 (proposed July 26, 2010).
6

11

convenience of a blind person is expressly identified by the House
Committee Report [on the Copyright Act] as an example of fair use”).
Over time, in both its copyright and disability lawmaking, Congress has
consistently required the adaptation and transformation of copyrighted
works to facilitate equal access for people with disabilities. See Brief of
Amici Curiae American Association of People with Disabilities, et al., at
IIA-E.
The court below was therefore correct in considering the needs of
people with disabilities in the analysis of the right to fair use, and by
interpreting the Chafee Amendment to provide that the University of
Michigan is an authorized entity that can distribute digital copies of books
in its print collection to persons with print disabilities in the United States.
As the court noted, an important element of the fair use analysis is whether
the digitization of printed works is transformative. The court correctly
concluded that digitization was a transformative use in that it permits
search methods that, among other things, make the works usable by people
with print disabilities. For this group, the transformative use applies in
another, more profound sense: it permits them to have access to, and make
use of, printed material in a manner commensurate with that of sighted
12

readers, thereby transforming the way in which they live and function in
the wider world. Harmonizing both areas of law ensures that Congress’s
intent is met in each. Until we achieve a world where concepts like
universal design are the norm, to meet Congress’s goals of inclusion for
people with disabilities, accessibility is achieved through modification and
accommodation of existing structures, programs, services, and activities.
The court’s decision did just that. Accordingly, we urge this Court to
affirm the district court’s judgment below.

Date: June 4, 2013

Respectfully submitted,
Michael Waterstone
Christopher Knauf
Robert Dinerstein
Michael Stein

13

APPENDIX A
LIST OF AMICI CURIAE DISABILITY LAW PROFESSORS
Institutional affiliations are provided for identification purposes only.
Bradley Areheart
Professor of Law
University of Tennessee College of Law
Yael Cannon
Assistant Professor of Law
The University of New Mexico School of Law
Ruth Colker
Distinguished University Professor and Heck-Faust Memorial Chair in
Constitutional Law
Moritz College of Law
The Ohio State University
Jeannette Cox
Professor of Law
University of Dayton
Elizabeth F. Emens
Professor of Law
Columbia Law School
Leslie P. Francis
Associate Dean for Faculty Research & Development
S.J. Quinney College of Law
Alfred C. Emery Distinguished Professor of Law and
Distinguished Professor of Philosophy
University of Utah

14

Paul Grossman
Adjunct Professor of Disability Law
Hastings College of Law, University of California
Jasmine E. Harris
Practitioner-in-Residence
Disability Rights Law Clinic
American University, Washington College of Law
Arlene Kanter
Bond, Schoeneck & King Distinguished Professor
Laura J. and L. Douglas Meredith Professor for Teaching Excellence
College of Law, Syracuse University
Lisa Lukasik
Assistant Professor of Law
Campbell University School of Law
Michael Perlin
Professor of Law
Director, Mental Disability Law Program
Director, International Mental Disability
New York Law School
Nicole Buonocore Porter
Professor of Law
University of Toledo College of Law
Stephen A. Rosenbaum
John & Elizabeth Boalt Lecturer
University of California at Berkeley School of Law
Laura Rothstein
Professor of Law and Distinguished University Scholar
University of Louisville Louis D. Brandeis School of Law

15

Louis S. Rulli
Practice Professor of Law, and
Director of Clinical Programs
University of Pennsylvania Law School
Len Sandler
Clinical Professor of Law
University of Iowa College of Law
Ani B. Satz
Associate Professor
Emory University School of Law
Michael A. Schwartz
Associate Professor of Law
Supervising Attorney, Disability Rights Clinic
Syracuse University College of Law
Paul Secunda
Associate Professor of Law
Marquette University School of Law
Anita Silvers
Professor and Chair
Philosophy Department
San Francisco State University
Michelle Travis
Professor of Law
University of San Francisco School of Law
Julie Waterstone
Clinical Professor of Law and
Director of the Children's Rights Clinic
Southwestern Law School

16

CERTIFICATE OF COMPLIANCE
PURSUANT TO FED. R. APP. P. 32(a)

I certify that this brief complies with the type-volume limitations of
the Federal Rule of Appellate Procedure 32(a)(7)(B) because it contains
2,596 words, excluding the parts of the brief exempted by Federal Rule of
Appellate Procedure 32(a)(7)(B)(iii).
I certify that this brief complies with the typeface and type style
requirements of Federal Rule of Appellate Procedure 32(a)(5) and (6)
because it has been prepared in proportionally spaced typeface using
Microsoft Word 2010 in 14-point font of Book Antiqua type style.

Dated: June 4, 2013

By: /s/ Christopher Knauf

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on June 4, 2013, a true and correct copy of
the foregoing was served on all counsel of record in this appeal via
CM/ECF pursuant to Local Rule 25.1(h).

Dated: June 4, 2013

By: /s/ Christopher Knauf