Authors Guild, Inc. v. Hathitrust

Filing 151

AMICUS BRIEF, on behalf of Amicus Curiae American Council on Education, Association of American Universities, Association of Public and Land-Grant Universities, American Association of State Colleges and Universities, American Association of Community Colleges, The National Association of Independent Colleges and Universities and EDUCAUSE, FILED. Service date 06/04/2013 by CM/ECF. [955765] [12-4547]--[Edited 06/06/2013 by JW]

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

Second Circuit
THE AUTHORS GUILD, INC., et al.,
Plaintiffs-Appellants,
v.
HATHITRUST, et al.,
Defendants-Appellees,
NATIONAL FEDERATION OF THE BLIND, et al.,
Intervenor Defendants-Appellees.
(Full Caption and List of Amici Joining this Brief Provided on Inside Cover)
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

BRIEF OF AMICI CURIAE HIGHER EDUCATION ASSOCIATIONS IN
SUPPORT OF APPELLEES HATHITRUST, ET AL., AND AFFIRMANCE
Ada Meloy
General Counsel
American Council
on Education
One DuPont Circle, NW
Washington, DC 20036
[phone]
June 4, 2013

Bruce G. Joseph
Karyn K. Ablin
WILEY REIN LLP
1776 K St. NW
Washington, DC 20006
[phone]
Counsel for Amici Curiae

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,
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.

BRIEF OF AMICI CURIAE AMERICAN COUNCIL ON EDUCATION,
ASSOCIATION OF AMERICAN UNIVERSITIES, ASSOCIATION OF
PUBLIC AND LAND-GRANT UNIVERSITIES, AMERICAN
ASSOCIATION OF STATE COLLEGES AND UNIVERSITIES,
AMERICAN ASSOCIATION OF COMMUNITY COLLEGES, THE
NATIONAL ASSOCIATION OF INDEPENDENT COLLEGES AND
UNIVERSITIES, AND EDUCAUSE IN SUPPORT OF APPELLEES
HATHITRUST, ET AL., AND AFFIRMANCE

CORPORATE DISCLOSURE STATEMENT
Pursuant to Rules 26.1 and 29(c) of the Federal Rules of Appellate
Procedure, amici American Council on Education, Association of American
Universities, Association of Public and Land-Grant Universities, American
Association of State Colleges and Universities, American Association of
Community Colleges, the National Association of Independent Colleges and
Universities, and EDUCAUSE each states that it is a non-profit association, with
no parent corporation, and no publicly held corporation owns 10 percent or more
of its stock.

TABLE OF CONTENTS
Page
CORPORATE DISCLOSURE STATEMENT ......................................................... i 
TABLE OF AUTHORITIES ................................................................................... iv 
INTEREST OF AMICI.............................................................................................. 1 
SUMMARY OF ARGUMENT ................................................................................ 2 
ARGUMENT ............................................................................................................ 5 
I. 

FAIR USE IS INTEGRAL TO COPYRIGHT’S PUBLIC INTEREST
GOAL OF PROMOTING THE PROGRESS OF SCIENCE –
UNDERSTOOD TO MEAN LEARNING AND KNOWLEDGE –
AND THE FAIR USE FACTORS MUST BE ANALYZED IN
LIGHT OF THIS PURPOSE.......................................................................... 5 
A. 

B. 

Congress Implemented the Public Purpose of Copyright by
Creating Significantly Circumscribed Rights. ..................................... 8 

C. 

Fair Use Is an Integral Part of Copyright Law, Essential To
Fulfilling the Constitution’s Purpose of Promoting Learning. ............ 9 

D. 
II. 

The Constitution Authorizes Congress To Enact Copyright
Laws for the Public Purpose of Promoting Learning, Not for the
Private Benefit of Authors.................................................................... 6 

Fair Use Should Be Construed To Advance Copyright’s Public
Purposes.............................................................................................. 10 

THE PURPOSE OF THE CHALLENGED USES HEAVILY
FAVORS FAIR USE – EDUCATION, SCHOLARSHIP, AND
RESEARCH ARE CORE PUBLIC INTERESTS THAT ARE
SYNONYMOUS WITH THE PROMOTION OF KNOWLEDGE
AND LEARNING. ....................................................................................... 11 
A. 

The Copyright Act Expressly Favors the Challenged Uses. .............. 12 

B. 

The Public Has a Strong Interest in Fostering Higher Education,
and the Educational Uses Challenged in this Case Confer
- ii -

Fundamental Public Benefits Central to the Purpose of the
Copyright Clause and the First Amendment. ..................................... 13 
1. 

The Public’s Vital Interest in Higher Education Is an
American Article of Faith. ....................................................... 13 

2. 

The Right To Acquire Knowledge and Learning Is an
Essential Right Protected by the First Amendment and,
Therefore, by Fair Use. ............................................................ 19 

3. 

The Challenged Uses Are Instrumental in Fulfilling
These Core Public Values and Are Too Important To
Subject to Narrow, Limited Private Interests. ......................... 21 
a. 

b. 

The HDL Dramatically and Uniquely Expands
Educational Opportunities for the Print Disabled,
Promoting the Goals of the Copyright Clause and
the Public Policy of the United States. .......................... 23 

c. 

C. 

The HDL Dramatically Expands Opportunities for
Education, Research, and Scholarship by Enabling
Scholars To Conduct Full-Text Searches and Text
Analysis. ........................................................................ 21 

The HDL’s Preservation Function Ensures that its
Member Institutions Will Continue To Provide the
Benefits Described Above and Safeguards the
Future Progress of Science Against the
Deterioration or Destruction of Books. ......................... 26 

Plaintiffs’ Arguments Against Fair Use Are Misguided.................... 28 

CONCLUSION ....................................................................................................... 31 
CERTIFICATE OF COMPLIANCE ...................................................................... 32 
CERTIFICATE OF SERVICE ............................................................................... 33 

- iii -

TABLE OF AUTHORITIES
Page(s)
CASES
A.V. ex rel. Vanderhye v. iParadigms LLC,
562 F.3d 630 (4th Cir. 2009) .............................................................................. 30
American Geophysical Union v. Texaco, Inc.,
802 F. Supp. 1 (S.D.N.Y. 1992), aff’d, 60 F.3d 913 (2d Cir. 1994) .................. 29
American Geophysical Union v. Texaco Inc.,
60 F.3d 913 (2d Cir. 1994) ...........................................................................11, 29
Bill Graham Archives v. Dorling Kindersley Ltd.,
448 F.3d 605 (2d Cir. 2006) ............................................................................... 10
Blanch v. Koons,
467 F.3d 244 (2d Cir. 2006) ................................................................................. 5
Board of Education v. Pico,
457 U.S. 853 (1982) ......................................................................................15, 20
Brown v. Board of Education,
347 U.S. 483 (1954) ............................................................................................ 15
Campbell v. Acuff-Rose Music, Inc.,
510 U.S. 569 (1994) ..............................................................................5, 9, 13, 29
Cariou v. Prince,
__ F.3d __, No. 11–1197–cv, 2013 WL 1760521 (2d Cir. Apr. 25,
2013) ...............................................................................................................9, 10
Eldred v. Ashcroft,
537 U.S. 186 (2002) ............................................................................6, 12, 20, 21
Feist Publications, Inc. v. Rural Telephone Service Co.,
499 U.S. 340 (1991) .............................................................................................. 7
Fogerty v. Fantasy, Inc.,
510 U.S. 517 (1994) .............................................................................................. 7

- iv -

Golan v. Holder,
132 S. Ct. 873 (2012) ..................................................................................6, 8, 20
Grutter v. Bollinger,
539 U.S. 306 (2003) ......................................................................................14, 16
Kelly v. Arriba Soft Corp.,
336 F.3d 811 (9th Cir. 2003) .............................................................................. 30
Kleindienst v. Mandel,
408 U.S. 753 (1972) ............................................................................................ 20
Martin v. City of Struthers, Ohio,
319 U.S. 141 (1943) ............................................................................................ 19
Meyer v. Nebraska,
262 U.S. 390 (1923) ..................................................................................3, 14, 19
Mueller v. Allen,
463 U.S. 388 (1983) ............................................................................................ 15
NXIVM Corp. v. The Ross Institute,
364 F.3d 471 (2d Cir. 2004) ...........................................................................5, 13
Perfect 10, Inc. v. Amazon.com, Inc.,
508 F.3d 1146 (9th Cir. 2007) ............................................................................ 30
Plyler v. Doe,
457 U.S. 202 (1982) ................................................................................14, 15, 17
Sarl Louis Feraud International v. Viewfinder, Inc.,
489 F.3d 474 (2d Cir. 2007) ......................................................................... 20-21
Sega Enterprises Ltd. v. Accolade, Inc.,
977 F.2d 1510 (9th Cir. 1993) ............................................................................ 11
Sony Corp. v. Universal City Studios, Inc.,
464 U.S. 417 (1984) ....................................................................................7, 8, 30
Stanley v. Georgia,
394 U.S. 557 (1969) ............................................................................................ 20

-v-

Sundeman v. Seejay Society, Inc.,
142 F.3d 194 (4th Cir. 1998) .............................................................................. 11
Suntrust Bank v. Houghton Mifflin Co.,
268 F.3d 1257 (11th Cir. 2001) ........................................................................ 5, 6
Sweezy v. New Hampshire,
354 U.S. 234 (1957) ............................................................................................ 20
Twentieth Century Music Corp. v. Aiken,
422 U.S. 151 (1975) .......................................................................................... 7, 8
United States v. Paramount Pictures, Inc.,
334 U.S. 131 (1948) .......................................................................................... 2, 7
Wheaton v. Peters,
33 U.S. (8 Pet.) 591 (1834) ................................................................................... 8
Wright v. Warner Books, Inc.,
953 F.2d 731 (2d Cir. 1991) .........................................................................12, 13
CONSTITUTIONS
U.S. Const. art. 1, § 8, cl. 8 ................................................................................2, 5, 6
STATUTES
17 U.S.C. §§ 102, 107-122 ........................................................................................ 8
17 U.S.C. § 107 ..............................................................................................9, 12, 13
17 U.S.C. § 108 ........................................................................................................ 28
17 U.S.C. § 121 ........................................................................................................ 25
42 U.S.C. § 12101 .................................................................................................... 25
Act of May 31, 1790, ch. 15, § 1, 1 Stat. 124 ............................................................ 6
LEGISLATIVE MATERIALS
142 Cong. Rec. S 9061(daily ed. July 29, 1996) ..................................................... 26

- vi -

OTHER AUTHORITIES
4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright (2012)................ 12
Benjamin Franklin, Proposals Relating to the Education of Youth in
Pennsylvania (1749), available at
http://www.archives.upenn.edu/primdocs/1749proposals.html ......................... 16
Cultural incineration: 80 years since Nazi book burnings, available at
http://www.dw.de/cultural-incineration-80-years-since-nazi-bookburnings/a-16798958 .......................................................................................... 27
Jing Liao, A Historical Perspective: The Root Cause for the
Underdevelopment of User Services in Chinese Academic Libraries, 30 J.
Acad. Librianship 109 (Mar. 2004) .................................................................... 27
Orrin Hatch & Thomas Lee, “To Promote the Progress of Science”; The
Copyright Clause and Congress’s Power To Extend Copyrights, 16 Harv.
J.L. & Tech. 1 (2002) ............................................................................................ 6
Oxford Online Dictionary, available at
http://oxforddictionaries.com/us/definition/
american_english/scholarship?q=scholarship .................................................... 11
Pierre Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1990) ......... 10
President Barack Obama, State of the Union Address (Feb. 12, 2013),
available at http://www.whitehouse.gov/the-pressoffice/2013/02/12/remarks-president-state-union-address ................................. 18
President George H.W. Bush, State of the Union Address (Jan. 28, 1992),
available at http://www.presidency.ucsb.edu/ws/index.php?pid=20544 ........... 18
President George W. Bush, The Third Bush-Kerry Presidential Debate (Oct.
13, 2004), available at http://www.debates.org/index.php?page=october13-2004-debate-transcript ................................................................................... 18
Remarks by the President on College Affordability, Ann Arbor, Michigan,
University of Michigan (Jan. 27, 2012), available at
http://www.whitehouse.gov/the-press-office/2012/01/27/remarkspresident-college-affordability-ann-arbor-michigan ....................................17, 18

- vii -

Remarks by the President on Higher Education and the Economy at the
University of Texas at Austin (Aug. 9, 2010), available at
http://www.whitehouse.gov/the-press-office/2010/08/09/remarkspresident-higher-education-and-economy-university-texas-austin .................... 14
Remarks of U.S. Secretary of Education Arne Duncan at the TIME Higher
Education Summit (Oct. 18, 2012), available at
http://www.ed.gov/news/speeches/remarks-us-secretary-education-arneduncan-time-higher-education-summit............................................................... 15
Sandy Baum & Jennifer Ma, Education Pays: The Benefits of Higher
Education for Individuals and Society (2007), available at
http://www.collegeboard.com/prod_downloads/about/news_info/trends/e
d_pays_2007.pdf ...........................................................................................16, 17
The Library of Alexandria: Center of Learning in the Ancient World xi (Roy
McLeod ed. 2004) ............................................................................................... 27
The Writings of James Madison (Gaillard Hunt ed. 1900), available at
http://www.justice.gov/oip/foiapost/2008foiapost12.htm .................................. 15
Walter McMahon, Higher Learning, Greater Good: The Private Social
Benefits of Higher Education 217-23 (2009) ............................................... 16-17
Webster’s Third New International Dictionary (1981) ........................................... 11

- viii -

INTEREST OF AMICI
The American Council on Education, Association of American Universities,
Association of Public and Land-Grant Universities, American Association of
Community Colleges, American Association of State Colleges and Universities,
National Association of Independent Colleges and Universities, and EDUCAUSE
submit this brief as amici curiae in support of appellees.1 Amici are seven nonprofit associations whose members include the great majority of U.S.-based public
and private colleges and universities. The associations represent all sectors of
higher education – public and private, large and small. They regularly submit
amicus briefs in cases raising legal issues important to higher education and seek to
foster high standards in higher education, believing that a strong higher education
system is the cornerstone of a democratic society.2
The copyright fair use issues presented here profoundly affect the publicinterest mission of amici and their members, a mission that the Supreme Court has
described as one of “supreme importance.” The effort of the Authors Guild and its
amici to distort the copyright fair use right into a narrow exception that does not
encompass the hugely beneficial non-profit educational activities of HathiTrust and
1

No party’s counsel authored this brief in whole or in part. No party or its counsel
or anyone other than amici, their members, and their counsel contributed money
intended to fund preparation or submission of this brief.
2

EDUCAUSE is a nonprofit association and the foremost community of
information technology leaders and professionals committed to advancing higher
education.

the university defendants would greatly impede teaching, learning, research, and
scholarship – the very “Progress of Science” that the Constitution commands
copyright law to promote. Amici have a fundamental interest in protecting the
higher education system against this result.
Amici offer this brief to present fair use in its proper context, as an integral
tool for achieving the Constitution’s goal in granting Congress the power to enact
copyright laws, and to amplify the defendants’ showing that the challenged uses
are fair uses. All parties have consented to the filing of this brief.
SUMMARY OF ARGUMENT
The Constitution grants Congress the power to enact copyright laws for a
specific purpose – “to promote the Progress of Science.” U.S. Const. art 1, § 8, cl.
8. The term “the Progress of Science” is understood to refer broadly to the
creation and spread of knowledge and learning.
It is well-settled that the rights granted by Congress to accomplish this
purpose are granted to serve the public interest, not the copyright owner’s private
gain. “The copyright law, like the patent statutes, makes reward to the owner a
secondary consideration.” United States v. Paramount Pictures, Inc., 334 U.S.
131, 158 (1948). Thus, copyright rights are carefully limited, and those limitations
are a structural part of the statutory balance necessary to accomplish copyright’s
constitutional purpose. Fair use is one of the most important limitations on

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copyright rights, long recognized as an essential means of: (i) ensuring that
copyright law does not stifle the very learning that it is designed to promote; (ii)
promoting the public interest; and (iii) securing important First Amendment goals.
Given its importance, fair use is not properly viewed as a narrow exception
to exclusive property rights; rather, it is an integral part of copyright law and one
means by which that law accomplishes its goals of serving the public interest and
promoting the spread of learning. Fair use must be construed in light of those
goals.
Educational uses, particularly non-profit educational, scholarship, and
research uses expressly referenced in section 107 of the Copyright Act, are
strongly favored in fair use analysis. Indeed, the public interest in higher education
is undeniable – “[t]he American people have always regarded education and
acquisition of knowledge as matters of supreme importance which should be
diligently promoted.” See, e.g., Meyer v. Nebraska, 262 U.S. 390, 400 (1923).
Education is the foundation of citizenship and democracy and the source of
enormous benefits for society, the economy, and the individual. Moreover, the
right to obtain knowledge and information is an essential First Amendment right,
and fair use is a primary means by which copyright law protects First Amendment
interests.

-3-

The HathiTrust Digital Library (“HDL”) facilitates education in numerous
ways. First, it fosters traditional modes of education, research, and scholarship by
enabling researchers quickly to identify relevant works. More fundamentally, it
transforms scholarship, research, and education by enabling scholars to seek,
identify, and analyze broad trends in art, literature, and science across time,
continents, and disciplines.
The HDL also enormously expands educational opportunities for the print
disabled, eliminating for the first time the severe disadvantage that they have
historically faced in research, scholarship, and learning. Finally, the HDL
preserves humanity’s accumulated learning for future generations of scholars. The
HDL offers these enormous public benefits entirely because of the contribution of
the university defendants and their technology partners, without adversely
affecting any traditional or reasonably exploitable market for the works that are
digitized.
In the words of Judge Baer, “I cannot imagine a definition of fair use that
would not encompass the transformative uses made by Defendants’ MDP [Mass
Digitization Project] and would require that I terminate this invaluable contribution
to the progress of science and cultivation of the arts that at the same time
effectuates the ideals espoused by the ADA.” Op. and Order, ECF No. 156, at 22

-4-

(S.D.N.Y. Oct. 10, 2012) (“Op.”). Judge Baer was right. This Court should affirm
his judgment.
ARGUMENT
I.

FAIR USE IS INTEGRAL TO COPYRIGHT’S PUBLIC INTEREST
GOAL OF PROMOTING THE PROGRESS OF SCIENCE –
UNDERSTOOD TO MEAN LEARNING AND KNOWLEDGE – AND
THE FAIR USE FACTORS MUST BE ANALYZED IN LIGHT OF
THIS PURPOSE.
As the Supreme Court and this Court have repeatedly recognized, fair use

must be analyzed “in light of the purposes of copyright.” Campbell v. Acuff-Rose
Music, Inc., 510 U.S. 569, 578 (1994); see, e.g., Blanch v. Koons, 467 F.3d 244,
251 (2d Cir. 2006); NXIVM Corp. v. The Ross Institute, 364 F.3d 471, 482 (2d Cir.
2004); accord Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1260 (11th
Cir. 2001) (courts must apply fair use factors in light of the history and purpose of
the Constitution’s Copyright Clause).
Copyright’s core purpose is defined by the Constitution, which empowers
Congress to grant copyright rights to foster the creation and spread of knowledge
and learning. See U.S. Const. art. 1, § 8, cl. 8. Copyright exists to promote the
public interest, not the private interests of authors. Judged in the context of those
purposes, each of the uses challenged in this case is fair use.

-5-

A.

The Constitution Authorizes Congress To Enact Copyright Laws
for the Public Purpose of Promoting Learning, Not for the Private
Benefit of Authors.

Article I, section 8, clause 8 of the Constitution grants Congress the power
“[t]o promote the Progress of Science and useful Arts, by securing for limited
Times to Authors and Inventors the exclusive Right to their respective Writings
and Discoveries.” Id. (emphasis added). Thus, the power to enact copyright laws
exists for a specific purpose – “to promote the Progress of Science.”3
The “‘Progress of Science’ ... refers broadly to ‘the creation and spread of
knowledge and learning.’” Golan, 132 S. Ct. 873, 888 (2012); accord Eldred v.
Ashcroft, 537 U.S. 186, 245 (2002) (Breyer, J., dissenting) (describing “the basic
Clause objective” as “‘promot[ing] the Progress of Science,’ i.e., knowledge and
learning”); Orrin Hatch & Thomas Lee, “To Promote the Progress of Science”;
The Copyright Clause and Congress’s Power To Extend Copyrights, 16 Harv. J.L.
& Tech. 1, 7 (2002) (“Everyone agrees that the notion of ‘science’ in the founding
era referred generally to all forms of knowledge and learning.”).4

3

“Perhaps counterintuitively for the contemporary reader, Congress’ copyright
authority is tied to the progress of science; its patent authority, to the progress of
the useful arts.” Golan v. Holder, 132 S. Ct. 873, 888 (2012). This is clear from
the clause’s parallel structure.
4

The English Statute of Anne, which “[t]he Framers of the U.S. Constitution relied
on ... when drafting the Copyright Clause of our Constitution,” was “introduced as
‘[a]n act for the encouragement of learning.’” Suntrust, 268 F.3d at 1260 & n.4.
The first U.S. Copyright Act was similarly entitled “[a]n Act for the
encouragement of learning.” Act of May 31, 1790, ch. 15, § 1, 1 Stat. 124.
-6-

The Supreme Court consistently has emphasized that the ultimate goal of
copyright is to serve the public interest, not the author’s private interest:
The monopoly privileges that Congress may authorize are neither
unlimited nor primarily designed to provide a special private benefit.
Rather, the limited grant is a means by which an important public
purpose may be achieved.
Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984); accord
Fogerty v. Fantasy, Inc., 510 U.S. 517, 526 (1994) (“[T]he monopoly privileges
that Congress has authorized ... must ultimately serve the public good.”). Indeed,
“[t]he copyright law, like the patent statutes, makes reward to the owner a
secondary consideration.” Paramount Pictures, 334 U.S. at 158; accord Feist
Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349 (1991) (observing that
“[t]he primary objective of copyright is not to reward the labors of authors”).
Copyright rights are granted to authors to induce them to create and to
disseminate their creations. See, e.g., Paramount Pictures, 334 U.S. at 158
(“[R]eward to the author or artist serves to induce release to the public of the
products of his creative genius.”); Fogerty, 510 U.S. at 526 (copyright is “intended
to motivate the creative activity of authors”). “But the ultimate aim is, by this
incentive, to stimulate artistic creativity for the general public good.” Twentieth
Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975). Moreover, “[e]vidence
from the founding ... suggests that inducing dissemination – as opposed to creation

-7-

– was viewed as an appropriate means to promote science.” Golan, 132 S. Ct. at
888.
B.

Congress Implemented the Public Purpose of Copyright by
Creating Significantly Circumscribed Rights.

Congress has exercised its constitutional power to promote knowledge and
learning by creating carefully circumscribed copyright rights. Plaintiffs attempt to
paint the HDL as a “taking [of] their property.” Br. for Pls.-Appellants, ECF No.
54, at 1 (Feb. 25, 2013) (“Appellants’ Br.”). They are wrong. Copyright rights are
not absolute property rights but statutory creations subject to important limitations
that further the constitutional goal. E.g., 17 U.S.C. §§ 102(b), 107-122. “The
limited scope of the copyright holder’s statutory monopoly ... reflects a balance of
competing claims upon the public interest: Creative work is to be encouraged and
rewarded, but private motivation must ultimately serve the cause of promoting
broad public availability of literature.” Aiken, 422 U.S. at 156.
From the beginning, the Supreme Court consistently has held that copyright
is not grounded in any theory of the author’s natural right. It is solely a creature of
statute, and the scope of the right is strictly limited by the statutory grant. Wheaton
v. Peters, 33 U.S. (8 Pet.) 591, 659-64, 667-68 (1834); Sony Corp., 464 U.S. at 429
n.10 (observing that copyright law “is not based upon any natural right” of the
author and describing the balance between the public benefit from “stimulat[ing]
the producer” and the public detriment from “the evils of the temporary
-8-

monopoly.” (quoting H.R. Rep. No. 2222, 60th Cong., 2d Sess. 7 (1909)). This
Court has agreed, observing that “copyright is not an inevitable, divine, or natural
right that confers on authors absolute ownership of their creations. It is designed
rather to stimulate activity and progress in the arts for the intellectual enrichment
of the public.” Cariou v. Prince, __ F.3d __, No. 11–1197–cv, 2013 WL 1760521
at *4 (2d Cir. Apr. 25, 2013) (quoting Pierre Leval, Toward a Fair Use Standard,
103 Harv. L. Rev. 1105, 1107 (1990)).
In other words, the limitations in the Copyright Act do not contravene any
natural order or property right. Rather they are a structural part of the balanced
means by which Congress fulfills its constitutional mandate to promote knowledge
and learning. They should be construed on equal footing with, and as broadly as,
the underlying rights.
C.

Fair Use Is an Integral Part of Copyright Law, Essential To
Fulfilling the Constitution’s Purpose of Promoting Learning.

One of the most important limitations in copyright law is the fair use right,
on which this case turns. 17 U.S.C. § 107. “From the infancy of copyright
protection, some opportunity for fair use of copyrighted materials has been thought
necessary to fulfill copyright’s very purpose … .” Campbell, 510 U.S. at 575.
According to Judge Leval, “Fair use should be perceived not as a disorderly basket
of exceptions to the rules of copyright, nor as a departure from the principles
governing that body of law, but rather as a rational, integral part of copyright,
-9-

whose observance is necessary to achieve the objectives of that law.” Pierre Leval,
Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1107 (1990). In response to
the rhetorical question “why allow fair use,” Judge Leval explains:
First, all intellectual creative activity is in part derivative. There is no
such thing as a wholly original thought or invention. Each advance
stands on the building blocks fashioned by prior thinkers. Second,
important areas of intellectual activity are explicitly referential.
Philosophy, criticism, history, and even the natural sciences require
continuous reexamination of yesterday’s theses.
Monopoly protection of intellectual property that impeded referential
analysis and the development of new ideas out of old would strangle
the creative process.
Id. at 1109.
D.

Fair Use Should Be Construed To Advance Copyright’s Public
Purposes.

It follows from the foregoing that fair use should be analyzed, and the four
statutory fair use factors applied, specifically to foster learning and the general
public interest. “The ultimate test of fair use . . . is whether the copyright law’s
goal of ‘promoting the Progress of Science and useful Arts’ would be better served
by allowing the use than by preventing it.” Cariou, 2013 WL 1760521 at *4
(quoting Castle Rock Entm’t , Inc. v. Carol Publ’g Group, 150 F.3d 132, 141 (2d
Cir. 1998)); Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 608
(2d Cir. 2006).
More generally, courts recognize that the public interest in a challenged use
deserves strong consideration in fair use analysis. “[C]ourts are more willing to
- 10 -

find a secondary use fair when it produces a value that benefits the broader public
interest.” American Geophysical Union v. Texaco Inc., 60 F.3d 913, 922 (2d Cir.
1994); accord Sundeman v. Seejay Soc’y, Inc., 142 F.3d 194, 203-04 (4th Cir.
1998) (considering public benefit from the challenged use in connection with “the
development of art, science and industry”); Sega Enters. Ltd. v. Accolade, Inc., 977
F.2d 1510, 1523 (9th Cir. 1993) (reasoning that “we are free to consider the public
benefit resulting from a particular use” and that “[p]ublic benefit need not be direct
or tangible, but may arise because the challenged use serves a public interest”).
Simply put, the challenged uses should be evaluated under the fair use
doctrine in light of their inherent public benefit and the constitutional goal of
promoting learning. In that light, they are fair use.
II.

THE PURPOSE OF THE CHALLENGED USES HEAVILY FAVORS
FAIR USE – EDUCATION, SCHOLARSHIP, AND RESEARCH ARE
CORE PUBLIC INTERESTS THAT ARE SYNONYMOUS WITH
THE PROMOTION OF KNOWLEDGE AND LEARNING.
Education, scholarship, and research are, of course, primary means by which

society promotes learning and knowledge. See, e.g., Webster’s Third New
International Dictionary 723 (1981) (defining “educate” as, inter alia, “to develop
... by fostering to varying degrees the growth or expansion of knowledge”); Oxford
Online Dictionary, available at http://oxforddictionaries.com/us/definition/
american_english/scholarship?q=scholarship (defining “scholarship” as “academic
study or achievement; learning of a high level”). Thus, the link between education,
- 11 -

scholarship, and research and the ‘Progress of Science” cannot be denied. Nor can
the overarching public benefit of education.
Given this context, it is unsurprising that education, scholarship, and
research are primary objectives of the fair use doctrine, which “affords
considerable ‘latitude for scholarship and comment.’” Eldred, 537 U.S. at 220; see
also Wright v. Warner Books, Inc., 953 F.2d 731, 736 (2d Cir. 1991) (holding that
scholarly biography’s use of letters was fair where it “fits comfortably within
several of the statutory categories of uses that Congress has indicated may be fair –
criticism, scholarship, and research” (quotation marks and citation omitted)).
A.

The Copyright Act Expressly Favors the Challenged Uses.

Section 107 itself establishes the importance of educational uses in the fair
use calculus. The section’s preamble identifies three educational activities as
prototypical favored uses – “teaching (including multiple copies for classroom
use), scholarship, [and] research.” 17 U.S.C. § 107; see 4 Melville B. Nimmer &
David Nimmer, Nimmer on Copyright § 13.05[A][1], at 13-160 (2012)
(acknowledging that “‘nonprofit educational’” uses “will tend to render a given use
‘fair’” and that “the preamble to Section 107 does enumerate certain purposes that
are most appropriate for a finding of fair use: ‘criticism, comment, news reporting,
teaching (including multiple copies for classroom use), scholarship or research’”).

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Moreover, in the first of the four factors that courts must consider in
assessing whether a use of a copyrighted work is fair – “the purpose and character
of the use” – the only use that Congress mandated that courts consider favorably is
“whether such use is ... for nonprofit educational purposes.” 17 U.S.C. § 107(1).
Congress’ explicit inclusion of multiple educational uses in the preamble
and in factor one is a strong indication that factor one favors the challenged uses.
See Campbell, 510 U.S. at 579 (“The [factor one] enquiry here may be guided by
the examples given in the preamble to § 107.”). Moreover, “‘there is a strong
presumption that factor one favors the defendant if the allegedly infringing work
fits the description of uses described in section 107.’” NXIVM, 364 F.3d at 477
(quoting Wright, 953 F.2d at 736). “[I]f a book falls into one of these categories
[i.e., criticism, scholarship or research], assessment of the first fair use factor
should be at an end … .” Wright, 953 F.2d at 736 (alterations in original; citation
omitted)).
B.

The Public Has a Strong Interest in Fostering Higher Education,
and the Educational Uses Challenged in this Case Confer
Fundamental Public Benefits Central to the Purpose of the
Copyright Clause and the First Amendment.
1.

The Public’s Vital Interest in Higher Education Is an
American Article of Faith.

The importance of education to society and to the individual is so selfevident as to be a truism. As the Supreme Court observed, “[t]he American people

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have always regarded education and acquisition of knowledge as matters of
supreme importance which should be diligently promoted.” See, e.g., Meyer, 262
U.S. at 400; accord Plyler v. Doe, 457 U.S. 202, 221 (1982).
The importance of higher education in particular is similarly wellestablished. The Supreme Court has “long recognized that, given the important
purpose of public education and the expansive freedoms of speech and thought
associated with the university environment, universities occupy a special niche in
our constitutional tradition.” Grutter v. Bollinger, 539 U.S. 306, 329 (2003).
Higher education is so important that the Supreme Court has found that it should
be universally available. See id. at 331 (observing that “the diffusion of knowledge
and opportunity through public institutions of higher education must be accessible
to all individuals”).
The President agrees, stressing the duty of society to ensure that a good
education is accessible to all: “[t]he single most important thing we can do is to
make sure we’ve got a world-class education system for everybody… . It is an
obligation that we have for the next generation.” Remarks by the President on
Higher Education and the Economy (Aug. 9, 2010), available at
http://www.whitehouse.gov/the-press-office/2010/08/09/remarks-president-highereducation-and-economy-university-texas-austin. Indeed, “[p]olls show that three
out of four Americans believe ‘in order to get ahead in life these days, it is

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necessary to get a college education.’” Remarks of U.S. Secretary of Education
Arne Duncan (Oct. 18, 2012), available at
http://www.ed.gov/news/speeches/remarks-us-secretary-education-arne-duncantime-higher-education-summit.
An educated public provides innumerable societal benefits. Perhaps most
fundamentally, an educated citizenry is the predicate of a thriving democracy.
Mueller v. Allen, 463 U.S. 388, 395 (1983) (observing that “[a]n educated populace
is essential to the political and economic health of any community”). “Indeed, the
Constitution presupposes the existence of an informed citizenry prepared to
participate in governmental affairs ... .” Bd. of Educ. v. Pico, 457 U.S. 853, 876
(1982) (Blackmun, J., concurring). As James Madison observed, “[k]nowledge
will forever govern ignorance: And a people who mean to be their own Governors
must arm themselves with the power which knowledge gives.” Letter from James
Madison to W.T. Barry (Aug. 4, 1822), in The Writings of James Madison
(Gaillard Hunt ed. 1900), available at
http://www.justice.gov/oip/foiapost/2008foiapost12.htm.
Education “is the very foundation of good citizenship.” Brown v. Bd. of
Educ., 347 U.S. 483, 493 (1954); accord Plyler, 457 U.S. at 223. “‘[E]ducation
prepares individuals to be self-reliant and self-sufficient participants in society.’”
Id. at 222. Inculcating not only “an ability” but also “an inclination” “to serve

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mankind, one’s country, friends and family” is “the great Aim and End of all
learning.” Benjamin Franklin, Proposals Relating to the Education of Youth in
Pennsylvania (1749), available at
http://www.archives.upenn.edu/primdocs/1749proposals.html. The Supreme Court
has:
repeatedly acknowledged the overriding importance of preparing
students for work and citizenship, describing education as pivotal to
“sustaining our political and cultural heritage” with a fundamental
role in maintaining the fabric of society.
Grutter, 539 U.S. at 331 (quoting Plyler, 457 U.S. at 221).
Government statistics confirm the positive influence of an education on a
person’s sense of civic duty. “Higher levels of education are correlated with
higher levels of civic participations, including volunteer work, voting, and blood
donation, as well as with greater levels of openness to the opinions of others.”
Sandy Baum & Jennifer Ma, Education Pays: The Benefits of Higher Education
for Individuals and Society, 2, 25-28 (2007) (based on data from the Bureau of
Labor Statistics, National Center for Health Statistics, the U.S. Census Bureau, and
the National Opinion Research Center), available at
http://www.collegeboard.com/prod_downloads/about/news_info/trends/ed_pays_2
007.pdf. Education also contributes to lower crime rates, air and water pollution
rates, and health and prison costs. See Walter McMahon, Higher Learning,

- 16 -

Greater Good: The Private Social Benefits of Higher Education 217-23, 232-35,
238-39 (2009).
In addition to the obvious civic benefits fostered by an education, higher
education contributes to tangible economic benefits in the form of higher earnings,
lower unemployment, and higher tax revenues to the public fisc:
Higher levels of education correspond to lower unemployment and
poverty rates. So, in addition to contributing more to tax revenues
than others do, adults with higher levels of education are less likely to
depend on social safety-net programs, generating decreased demand
on public budgets.
Baum & Ma, supra at 2, 18-19 (based on U.S. Census Bureau data); see also id.
(“There is a positive correlation between higher levels of education and higher
earnings for all racial/ethnic groups and for both men and women.”). In short,
“education provides the basic tools by which individuals might lead economically
productive lives to the benefit of us all.” Plyler, 457 U.S. at 221.
President Obama has repeatedly recognized the economic benefits of an
educated populace, emphasizing that “in this economy, there is no greater predictor
of individual success than a good education.” Remarks by the President on
College Affordability, Ann Arbor, Michigan, University of Michigan (Jan. 27,
2012), available at http://www.whitehouse.gov/the-pressoffice/2012/01/27/remarks-president-college-affordability-ann-arbor-michigan. He
observed that:

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Today, the unemployment rate for Americans with a college degree or
more is about half the national average. Their incomes are twice as
high as those who don’t have a high school diploma. College is the
single most important investment you can make in your future.
Id. He further asserted in his most recent State of the Union address that “[i]t’s a
simple fact the more education you’ve got, the more likely you are to have a good
job and work your way into the middle class.” President Barack Obama, State of
the Union Address (Feb. 12, 2013), available at http://www.whitehouse.gov/thepress-office/2013/02/12/remarks-president-state-union-address.
Other Presidents similarly have recognized the strong public interest in
education. See, e.g., President George H.W. Bush, State of the Union Address
(Jan. 28, 1992), available at
http://www.presidency.ucsb.edu/ws/index.php?pid=20544 (“The workplace of the
future will demand more highly skilled workers than ever, more people who are
computer-literate, highly educated. We must be the world’s leader in education.”);
President George W. Bush, The Third Bush-Kerry Presidential Debate (Oct. 13,
2004), available at http://www.debates.org/index.php?page=october-13-2004debate-transcript (“But perhaps the best way to keep jobs here in America and to
keep this economy growing is to make sure our education system works. ...
Education is how to make sure we’ve got a workforce that’s productive and
competitive.”).

- 18 -

2.

The Right To Acquire Knowledge and Learning Is an
Essential Right Protected by the First Amendment and,
Therefore, by Fair Use.

The benefits of a vigorous educational system are not merely abstract goals
to be pursued when convenient; the right to acquire knowledge and learning is an
essential constitutional right protected by the First Amendment. It therefore
deserves special consideration as fair use.
In a long line of cases dating back nearly a century, the Supreme Court has
recognized the constitutional right of every citizen to have access to knowledge
and learning. In 1923, for example, the Court found that the Constitution protects
“the right of the individual ... to acquire useful knowledge.” Meyer, 262 U.S. at
399. Twenty years later, the Court reiterated the importance of the right to
disseminate and receive knowledge, observing that “[t]he right of freedom of
speech and the press has broad scope” and that “[t]his freedom embraces the right
to distribute literature and necessarily protects the right to receive it.” Martin v.
City of Struthers, Ohio, 319 U.S. 141, 143 (1943) (citation omitted). It emphasized
that “[f]reedom to distribute information to every citizen wherever he desires to
receive it is so clearly vital to the preservation of a free society that, putting aside
reasonable police and health regulations of time and manner of distribution, it must
be fully preserved.” Id. at 146-47. By 1969, the Supreme Court recognized that
“[i]t is now well established that the Constitution protects the right to receive

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information and ideas,” observing that this right “is fundamental to our free
society.” Stanley v. Georgia, 394 U.S. 557, 564 (1969).
This right to receive such knowledge “follows ineluctably from the sender’s
First Amendment right” and “is a necessary predicate to the recipient’s meaningful
exercise of his own rights of speech, press, and political freedom.” Pico, 457 U.S.
at 867. For that reason, it is settled law that “‘the State may not, consistently with
the spirit of the First Amendment, contract the spectrum of available knowledge.’”
Id. at 866 (citation omitted).
The Supreme Court has emphasized that “this right [to receive knowledge
and ideas] is ‘nowhere more vital’ than in our schools and universities.”
Kleindienst v. Mandel, 408 U.S. 753, 763 (1972) (quoting Shelton v. Tucker, 364
U.S. 479, 487 (1960)). “Teachers and students must always remain free to inquire,
to study and to evaluate, to gain new maturity and understanding; otherwise our
civilization will stagnate and die.” Sweezy v. New Hampshire, 354 U.S. 234, 250
(1957).
Fair use is the means by which First Amendment rights are protected against
overreaching claims of copyright infringement. As the Supreme Court has stated,
fair use serves as a “built-in First Amendment accommodation[]” and “affords
considerable latitude for scholarship and comment.” Golan, 132 S. Ct. at 890;
accord Eldred, 537 U.S. at 219-20; see also Sarl Louis Feraud Int’l v. Viewfinder,

- 20 -

Inc., 489 F.3d 474, 482 (2d Cir. 2007) (“[T]he fair use doctrine balances the
competing interests of the copyright laws and the First Amendment ... .”). Thus,
fair use should be applied in a manner that safeguards this essential right. See
Eldred, 537 U.S. at 221 n.24 (“[I]t is appropriate to construe copyright’s internal
safeguards to accommodate First Amendment concerns.”).
3.

The Challenged Uses Are Instrumental in Fulfilling These
Core Public Values and Are Too Important To Subject to
Narrow, Limited Private Interests.

Each of the three challenged uses – providing library access to the print
disabled, enabling full-text searches, and preservation – promotes the public
interest in higher education, learning, research, and scholarship that is central to the
Copyright Clause’s purpose. Indeed, Plaintiffs concede “that the MDP has
scholarship and research purposes.” Appellants’ Br. 25. The challenged uses are
quintessentially fair use.
a.

The HDL Dramatically Expands Opportunities for
Education, Research, and Scholarship by Enabling
Scholars To Conduct Full-Text Searches and Text
Analysis.

The HDL’s full-text search capability transforms the ability to conduct
academic research and opens the door to entirely new modes of scholarly thought
and analysis. The search function thus powerfully furthers the Copyright Clause’s
goal of promoting knowledge and learning, and it does so without ever disclosing
any of the expressive content of any copyrighted works. As the university

- 21 -

defendants in this case observe, “[f]ull-text searching is the most significant
advance in library search technology in the last five decades.” Br. for Defs.Appellees, ECF No. 107, at 10 (May 28, 2013) (“Library Appellees’ Br.”).
Before the HDL offered its text-searchable database of millions of digitized
books, scholars were forced to search card catalogs and physical copies of books to
identify potentially relevant material. They were then forced to review those
works page by page, aided at most by a table of contents and an index, in search of
relevant content. With the HDL, however, scholars now can perform in seconds
what used to take days, months, or even years – if it was possible at all – namely,
searching millions of works for relevance to a particular research endeavor based
on the presence and frequency of user-specified words or phrases.
Moreover, the HDL permits textual analysis of an entire library. Such
analysis has resulted in striking new research findings, including:
 Fish oil supplementation ameliorates “Raynaud Syndrome,” and
magnesium supplementation alleviates migraines (Library Appellees’
Br. 13);
 Identification of a molecule associated with Huntington’s Disease
(id.);
 The characteristics of “Harriet Beecher Stowe’s fiction are closer “to
the work of male authors of her generation than to the femaleauthored works” with which her works traditionally have been
categorized (Br. of Digital Humanities & Law Scholars as Amici
Curiae, No. 1:11-cv-6351, ECF No. 123, at 8 (S.D.N.Y. July 7, 2012);

- 22 -

 Nineteenth-century Irish works referred to American slavery far more
frequently than contemporaneous British works, perhaps reflecting
greater concern about the institution (id. at 9); and
 The noun “United States” was used mostly with plural verbs until the
late nineteenth century, suggesting a collection of states rather than a
single nation (id. at 7).
The above examples barely scratch the surface of the numerous, powerful
research avenues that now may be explored with the HDL to fulfill the Copyright
Clause’s purpose of advancing knowledge and learning. It is no overstatement that
the HDL rivals in importance such milestones as Gutenberg’s invention of the
printing press, the Rosetta Stone’s discovery, Martin Luther’s translation of the
Bible into German, the creation of the Library of Congress, and the development of
the American public library system in promoting the spread of knowledge. This
core educational purpose of the HDL and its revolutionary effect on the ability to
conduct scholarly research that contributes to the public corpus of knowledge and
learning strongly supports a finding that it constitutes fair use.
b.

The HDL Dramatically and Uniquely Expands
Educational Opportunities for the Print Disabled,
Promoting the Goals of the Copyright Clause and the
Public Policy of the United States.

The HDL opens educational opportunities for the print disabled in a way
never before possible and thus directly advances the Copyright Clause’s goal of
promoting knowledge and learning. See Br. for Intervenor Defs.-Appellees 10-12
(May 28, 2013) (“NFB Br.”); see also Library Appellees’ Br. 14-15.

- 23 -

Before the HDL, print-disabled scholars were severely disadvantaged vis-àvis sighted ones in their ability to access the full body of written knowledge and
efficiently conduct research using that knowledge. Although a student without
print disabilities at the University of Michigan “has access to some eleven million
print volumes,” only a tiny fraction of that number, about 200,000 books, were
available in accessible formats to the print disabled before the HDL. NFB Br. 1112. Moreover, many of those formats were difficult to navigate and use for
research and study. Id. at 11.
The HDL, however, radically transformed and accelerated the way in which
print-disabled scholars may receive an education and contribute to the body of
knowledge through their own research and writing. Because of the HDL, the print
disabled now are able:
to join in research endeavors: to use a comprehensive library to locate
accumulated knowledge on specific points, to trace the development
of ideas from age to age and from scholar to scholar, and to synthesize
seemingly unrelated data into startling new results. The HDL
transports blind students and scholars from a world of delayed access
to individual titles on a limited, ad hoc basis to a world where they
have immediate and equal access to a new universe of knowledge.
Id. at 12-13. In the words of the NFB, “the HDL stands alone in its ability to
provide blind students and scholars an equal opportunity to pursue knowledge.”
Id. at 15. By making its collection of books available to the print disabled in

- 24 -

digital form for education, research, and scholarship, the HDL fulfills the core
purpose of copyright and promotes the Progress of Science.
The HDL promotes the public interest in other ways as well. Congress has
repeatedly declared that the public policy of the United States is to ensure that the
disabled, including the print disabled, fully participate in the benefits of modern
society. In the 1990 Americans with Disabilities Act (“ADA”), Congress found
that “the Nation’s proper goals regarding individuals with disabilities are to assure
equality of opportunity, full participation, independent living, and economic selfsufficiency for such individuals.” 42 U.S.C. § 12101(a)(5), (7). To this end,
Congress enacted the ADA “to provide a clear and comprehensive national
mandate for the elimination of discrimination against individuals with disabilities.”
Id. § 12101(b)(1).
Congress amplified this public policy in 17 U.S.C. § 121, which confirms
that copyright rights should not be allowed to interfere with providing the print
disabled full access to materials available to individuals without print disabilities.
That section grants an infringement safe harbor to defined entities that make copies
of published nondramatic works for distribution to the blind in specialized formats.
In testimony regarding this provision, then-Register of Copyrights, Marybeth
Peters, stated that “[b]lind and physically handicapped readers have a legitimate
need for prompt and timely access as soon as possible after works become

- 25 -

available to the general reading public.” 142 Cong. Rec S 9061, 9066 (daily ed.
July 29, 1996).
In short, the HDL directly advances these strong public interests and the
Copyright Clause’s goal of promoting knowledge by greatly expanding the
educational opportunities available to the print disabled.
c.

The HDL’s Preservation Function Ensures that its
Member Institutions Will Continue To Provide the
Benefits Described Above and Safeguards the Future
Progress of Science Against the Deterioration or
Destruction of Books.

The HDL’s making and retention of copies to ensure that its digital works
are preserved for the future directly promotes the Progress of Science. First, such
preservation ensures that the core fair uses described above will continue to be
provided.
Second, preservation of the HDL ensures that the available body of
knowledge is not reduced through the intentional or inadvertent destruction of
physical copies of books. Not only can physical books be lost through natural
disasters and deterioration (Library Appellees’ Br. 6-8), but history is filled with
tragic examples of the large-scale destruction of accumulated knowledge by fire,
invasion, and zealotry. Perhaps the most notorious such example is the destruction
of the wisdom of antiquity accumulated “by generations of resident scholars and
philosophers” in the great library of Alexandria. The destruction began “[w]hen

- 26 -

Julius Caesar captured Alexandria in 47 BC” and continued episodically, until
some 500 years later “[m]ore destruction ... removed from scholarship a priceless
inheritance of Greek, Hebrew, and probably Mesopotamian literature, and much of
what was then known of ancient Egypt.” See The Library of Alexandria: Center of
Learning in the Ancient World xi (Roy McLeod ed. 2004).
Chinese history includes numerous instances of massive book destructions,
including the 213 BC “‘Incidence of Burning Books and Executing Intellectuals’
ordered by Qin Shihuang,” during which “countless precious books were burned.”
See Jing Liao, A Historical Perspective: The Root Cause for the
Underdevelopment of User Services in Chinese Academic Libraries, 30 J. Acad.
Librarianship 109, 112 (Mar. 2004). More recently, “libraries in China lost 1
billion items” during World War II. Id.
And, of course, the Nazis recognized the power of destroying knowledge.
During the “holocaust of books,” on May 10, 1933, “some of Germany’s most
valuable creative works went up in flames.” Cultural incineration: 80 years since
Nazi book burnings, available at http://www.dw.de/cultural-incineration-80-yearssince-nazi-book-burnings/a-16798958.
The creation of multiple, geographically separated digital copies of works is
a powerful safeguard against the destruction of humanity’s collective knowledge.

- 27 -

If physical copies are destroyed, digital copies can ensure that knowledge is not
irretrievably lost.
C.

Plaintiffs’ Arguments Against Fair Use Are Misguided.

Plaintiffs’ primary argument that the challenged uses are not fair is that
library uses are subject to an “express limitation” set forth in section 108, the
“violation” of which weighs against fair use. Appellants’ Br. 29-30. But this
argument directly contradicts the unambiguous statutory text. Section 108 could
not be more explicit: “Nothing in this section . . . in any way affects the right of
fair use as provided by section 107.” 17 U.S.C. § 108(f)(4). This explicit statutory
mandate controls.5
When Plaintiffs do attempt to apply this Court’s fair use jurisprudence, they
incorrectly limit their analysis of the first factor to whether the challenged use is
“transformative.” Appellants’ Br. 30-35. First, as the Library Appellees
demonstrate, the challenged uses are transformative. Library Appellees’ Br. 22-29,
see Op. at 16, 18 (district court holding digital search and access for the printdisabled to be transformative).

5

Nor does the district court’s application of fair use “render Section 108
meaningless.” Appellants’ Br. 30. Section 108 provides safe harbors that relate to
reproduction and the general making available to the public of copies. The digital
copies made by HDL are not made available generally to the public. Moreover,
safe harbors, such as section 108, have a significantly different function in
copyright law than the case-specific fair use doctrine. They provide a floor under
fair use, not a ceiling above it. Here, the court analyzed the fair use factors and
properly found that the HDL’s uses comfortably fit.
- 28 -

Moreover, Plaintiffs’ suggestion that only transformative uses can be fair is
simply wrong. Where, as here, noncommercial educational uses are at issue, the
use need not be transformative to be fair, as the Supreme Court made clear in the
very case in which it first discussed the relevance of the transformative use inquiry:
“The obvious statutory exception to this focus on transformative uses is the straight
reproduction of multiple copies for classroom distribution.” Campbell, 510 U.S. at
579 n.11. Similarly, Judge Leval has observed that “[s]econdary users have
succeeded in winning the first factor by reason of either (1) transformative (or
productive) nonsuperseding use of the original, or (2) noncommercial use,
generally for a socially beneficial or widely accepted purpose.” Am. Geophysical
Union v. Texaco, Inc., 802 F. Supp. 1, 12 (S.D.N.Y. 1992) (emphasis added), aff’d,
60 F.3d 913 (2d Cir. 1994).6 The challenged uses undeniably are socially
beneficial.
Finally, Plaintiffs’ argument that the number of books digitized for HDL
weighs against fair use is misguided. Appellants’ Br. 36; see also Br. of Ass’n of
Am. Publ’rs as Amicus Curiae 4 (Mar. 4, 2013) (incorrectly decrying the district
court’s careful application of fair use as creation of a “blanket exception” and

6

This Court deemed Judge Leval’s discussion “insightful.” Texaco, 60 F.3d at
921.
- 29 -

“judicial legislation”).7 There is no statutory limit to the number of works that may
fairly be used. Indeed, courts have regularly approved as fair use the copying of
enormous quantities of works when the purposes of the use justify the copying.
See, e.g., Sony, 464 U.S. at 422, 447-56 (holding that copying by “millions of
Betamax video tape recorders” was fair use); Kelly v. Arriba Soft Corp., 336 F.3d
811, 815, 817-22 (9th Cir. 2003) (holding that copying by a search engine that
crawled the World Wide Web looking for images to copy and index was fair use);
Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1163-68 (9th Cir. 2007)
(holding that Google’s indexing and copying “millions of ... images” from the
Internet was fair use); A.V. ex rel. Vanderhye v. iParadigms LLC, 562 F.3d 630,
637-45 (4th Cir. 2009) (holding a plagiarism detection database that today contains
more than 24 billion web pages, 300 million student papers, and millions of articles
to be fair use).8 The relevant issue is not the number of works, but the hugely
beneficial educational and transformative purposes that the HDL undeniably
serves.

7

The MPAA’s plea to “[l]eave mass digitization to the marketplace,” Br. of
Motion Picture Ass’n of Am., Inc. as Amicus Curiae 14 (Mar. 8, 2013), is
effectively a plea to subject the enormous public benefits of the HDL to the
economic self-interest of commercial enterprises, precisely what the fair use
doctrine is designed to avoid.
8

Database size from http://turnitin.com/en_us/products/originalitycheck, May 30,
2013.
- 30 -

CONCLUSION
The district court’s judgment should be affirmed.

Respectfully submitted,

Ada Meloy
American Council
on Education
One Dupont Circle, NW
Washington, DC 20036
202-939-9300
[e-mail]

/s/ Bruce Joseph
Bruce Joseph
Karyn Ablin
WILEY REIN LLP
1776 K St. NW
Washington, DC 20006
202-719-7000
[e-mail]
[e-mail]
Counsel for Amici Curiae

June 4, 2013

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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 6,949 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/ Bruce G. Joseph

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 Amici Curiae American Council on Education, Association of American
Universities, Association of Public and Land-Grant Universities, American
Association of State Colleges and Universities, American Association of
Community Colleges, the National Association of Independent Colleges and
Universities, and EDUCAUSE in Support of Appellees HathiTrust, et al., and
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/ Bruce G. Joseph

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