Authors Guild, Inc. v. Hathitrust

Filing 164

AMICUS BRIEF, <EDIT by Clerk's Office>, FILED. Service date 06/04/2013 by CM/ECF. [955898] [12-4547]

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.
v.
NATIONAL FEDERATION OF THE BLIND, et al.
Intervenor Defendants-Appellees
On Appeal From The United States District Court
For The Southern District of New York

AMICUS BRIEF FOR EMORY VACCINE CENTER,
A UNIT OF EMORY UNIVERSITY

Stephen M. Schaetzel
MEUNIER CARLIN & CURFMAN, LLC
817 W. Peachtree Street, Suite 500
Atlanta, Georgia 30308
Tel: [phone]
Attorneys for Amicus Emory Vaccine
Center

CORPORATE DISCLOSURE STATEMENT
Pursuant to Local Rule 26.1, Emory Vaccine Center states that it is a unit of
Emory University and certifies that there is no parent company or any publicly
held corporation that owns 10% or more of Emory University’s stock.

C-1

TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT .......................................... C-1
TABLE OF CONTENTS ................................................................................. i
TABLE OF CITATIONS ............................................................................... ii
INTEREST OF AMICI.................................................................................... 1
SUMMARY OF ARGUMENT ...................................................................... 3
ARGUMENT . ................................................................................................ 4
I. HDL is Uniquely Valuable As An Historical Resource For
Current Vaccine Research, Serving The Public Good .................... 4
A. Searchable Databases Have Been Found Transformative .............. 4
B. The HDL Searchable Database Is Uniquely Beneficial
To The EVC ............................................................................... 6
II. Full-Text Searching in HDL Enables and Promotes Research ............ 8
CONCLUSION ............................................................................................. 11
CERTIFICATE OF COMPLIANCE ............................................................ 12
CERTIFICATE OF SERVICE ..................................................................... 13

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TABLE OF CITATIONS
CASES

Page(s)

A.V. ex rel. Vanderhye v. iParadigms,
562 F.3d 630 (4th Cir. 2009) .................................................................... 4
Bill Graham Archives v. Dorling Kindersley, Ltd.,
448 F.3d 605 (2nd Cir. 2006) .................................................................... 5
Harper & Row,
471 U.S. 539, 545, 105 S. Ct. 2218, 2223 (1985).................................... 10
Kelly v. Arriba Soft Corp.,
336 F.3d 811 (9th Cir. 2003) .................................................................... 5
Perfect 10, Inc. v. Amazon.com, Inc.,
508 F.3d 1146 (9th Cir. 2007) .............................................................. 4, 5

CONSTITUTIONS
U.S. CONST. art. I., §8, cl.8 ........................................................................... 10
STATUTES
17 U.S.C. § 107 ............................................................................................. 10

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INTEREST OF AMICUS
Amicus Emory Vaccine Center (EVC) is a unit of Emory University.1
EVC’s mission is to improve human health by conducting fundamental and clinical
research that leads to the development of effective vaccines against infectious and
chronic diseases of global importance. The EVC faculty and members conduct
research in immunology, microbiology, and virology with a major emphasis on
HIV/AIDS research. Additional areas of basic science benchwork research are
devoted both to understanding the disease and identifying the treatment and/or cure
for malaria, tuberculosis, herpes, hepatitis, dengue fever, West Nile Virus,
influenza, yellow fever, and other emerging infectious diseases. This research work
broadly covers any infectious disease, both emerging and historical.
Vaccine development for HIV/AIDS is progressing, although thirty-plus
years of concentrated research has not yet produced a proven vaccine, therapeutic
or preventative, which can be distributed to the public. The EVC is the first
academic vaccine center to have an HIV/AIDS vaccine in clinical trials testing, and
this vaccine is presently one of three vaccines in Phase IIb testing. The HIV

In compliance with Fed. R. App. P. 29(c)(5), Amicus Emory Vaccine Center, a
unit of Emory University hereby states that none of the parties to this case or their
counsel authored this brief in whole or part; that no party or party’s counsel
contributed money intended to fund preparing or submitting this brief; and that no
one else other than Amicus Emory University or its counsel contributed money
that was intended to fund preparing or submitting this brief. All parties have
consented to the filing of this brief.

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Vaccine Trials Network (HVTN) oversees the testing of the vaccine candidates
which are approved to enter and are making their way through the clinical trials
testing program. The Hope Clinic of the EVC is a member of the HVTN and works
with human volunteers in the testing of HVTN vaccines, including the DNA/MVA
(J57/MVA62B) vaccine developed by Harriet Robinson at Emory University.
The work of the EVC contributes to the historical understanding of vaccines
and the development of vaccine policy. Studies in the continuing efficacy of the
smallpox vaccine were carried out at the EVC and concluded that some residual
protection against this disease is present forty plus years after vaccination. The
EVC is a signatory of and serves as the host for the Scientific Declaration on Polio
Eradication. The vaccine to prevent polio was developed by Jonas Salk and made
available in 1955. Yet, this disease still exists in areas of Asia and Africa. There is
the distinct possibility that eradication of this disease is possible in the near future
and that polio will join the ranks of smallpox as a disease that no longer circulates
globally. Additional research at the EVC examines existing vaccines and the
changing nature of the diseases they prevent. Preventable childhood diseases such
as measles and pertussis are reappearing due to public conceptions/misconceptions
of the relationship of childhood immunizations to the occurrence of autism and
related to the changes in the vaccine contents.

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While the basic benchwork science is critical to the continuing research,
researchers need to read, review, and write the literature specific to their subject
areas. EVC researchers are on the cutting edge as authors of current journal
articles, which are based on research results and background literature. Multiple
pieces of valuable research in progress are published in conference proceedings
and cited in peer-reviewed journals. A major component of a grant submission is
the literature review. The loss of access to the HathiTrust Digital Library (HDL) as
requested by the Appellants would, in EVC’s view, have a deleterious effect on
access to and dissemination of information relevant to vaccine research.
SUMMARY OF ARGUMENT
Background knowledge of what has been attempted is vital in forming the
questions for current research projects. Re-examination of prior published
materials in the light of current research permits researchers to unearth and bring to
light bits of information discovered as relevant to one discipline, but now holding
new relevance to current projects.
The access to resources provided through HDL searches allows EVC
researchers to discover much more about each specialized research project in a
much shorter search time. These searches allow access to material in unexpected
places and increase the amount of material accessible. The powerful HDL search
tool creates opportunities to uncover details that have been hidden within published
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materials but not searchable from other databases. This enhances the breadth and
depth of material which is accessible to the multiple areas of vaccine research
being pursued by EVC researchers. This ease of access to multiple expected and
unexpected sources expands the base of scientific knowledge. The full text
capabilities of HDL searches leads researchers to additional search terms and
enhanced information not easily attainable through subject searching of other
databases. This brings an entirely new dynamic to research as information can be
drawn from multiple current and historical sources.
ARGUMENT
I.

HDL IS UNIQUELY VALUABLE AS AN HISTORICAL
RESOURCE FOR CURRENT VACCINE RESEARCH, SERVING
THE PUBLIC GOOD
A. Searchable Databases Have Been Found Transformative
Courts have repeatedly found the use of searchable databases to be a

valuable and protected fair use because, inter alia, searchable database uses are
transformative, providing “an entirely new use for the original work.” Perfect 10,
Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007) (“thumbnails” of
copyrighted images from various websites “highly transformative” because Google
transformed image into a “pointer directing a user to a source of information”);
A.V. ex rel. Vanderhye v. iParadigms, 562 F. 3d 630 (4th Cir. 2009) ( copying and
archiving student papers was transformative because it served the distinct purpose
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of making an initial determination regarding possible plagiarism); Bill Graham
Archives v. Dorling Kindersley, Ltd, 448 F. 3d 605 (2d Cir. 2006) (finding that the
use of seven copies of entire concert posters in a “coffee table” book on the
Grateful Dead was fair use); Kelly v. Arriba Soft Corp., 336 F. 3d 811(9th Cir.
2003) (copying for purposes of search is a transformative use) (cited with approval
in Bill Graham, 448 F.3d at 611). Each of these courts has based its finding of
transformativeness on the social interests inherent in users of searchable databases
and other collections in being able to locate materials of interest, such as websites,
concert posters or plagiarized materials. For example, the Ninth Circuit found that
“a search engine provides social benefit by incorporating an original work into a
new work, namely an electronic reference tool.” Perfect 10, 508 F.3d at 1165.
As shown below, the full text searching capabilities of the HDL, as
employed by the EVC, is an important and valuable tool for locating biomedical
research items of interest and reflects the transformative use provided by
searchable databases. Moreover, the HDL database presents a stronger
transformative use than those in the above cited cases as the HDL database does
not display or distribute any portion of an underlying work still protected by
copyright.

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B.

The HDL Searchable Database Is Uniquely Beneficial To The EVC

Diseases that affect people today have been present historically for hundreds
of years. The terms used to describe them have evolved and the treatments for
them have changed. The ability to search within the full text of older published
materials provides a unique value for researchers seeking clues to these diseases as
they continue to search or refine the treatments for them. The importance of what
has occurred in vaccine research takes on a new significance as new interpretations
of historical results are contemplated.
Attitudes toward childhood preventable diseases have challenged health care
providers and vaccine policy advisory committees. Researchers need to understand
the historical background and the connections of natural remedies along with the
safe and effective vaccines presently in use. They also need to examine the
recurrence of diseases and to understand the causes of the recurrence. An example
of the effect of a change in the makeup of the pertussis vaccine (Tdap) is being
seen in present day adolescents, as a booster shot known as DtaP is necessary to
continue the vaccine efficacy.
Small pox has been eradicated and polio can follow suit. Malaria and
tuberculosis still need the development of a vaccine. Leprosy, known in modern
terms as Hansen’s disease, does not carry the sentence of isolation it used to carry,
but the disease is becoming more prevalent as climate and environmental changes
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encourage the transmission of the bacteria which is treatable through a multi-drug
combination. The bacteria that cause leprosy and tuberculosis are related so
vaccine development for one benefits the other. Searches carried out through HDL
produce a combination of results beneficial to studies of all three of these diseases.
The accumulated amount of published data is vast and requires sophisticated
search tools. Researchers need to have access to both cutting edge information and
to historical studies impacting new research areas. Emory Libraries offers access to
more than thirty science and technology related databases. Among the search tools
used by researchers, some are paid subscriptions, such as Web of Science, and
others are freely available, such as PubMed. HDL offers a complement of serial
and monograph publications. The search results found using HDL partially overlap
with those of Web of Science and PubMed, but procure results from different
sources. This range of sources available through HDL provides access to unmined
resources.
The access to information continues to be a major research tool. Much
research is individual experiments, but a great deal is collaborative. Often research
in one area is parallel to research in another area. The methods are similar, but the
goals are different -- and sharing of information benefits both researchers. The
ability to search materials over multiple formats allows for more collaboration and
sharing of results, all of which expands knowledge for all researchers. HDL as a
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search tool leads to unexpected results in unexpected locations, creating
opportunities for serendipity.
II.

FULL-TEXT SEARCHING IN HDL ENABLES AND PROMOTES
RESEARCH
The information found in HDL searches provides a perspective not

accessible through commonly used search tools for scientific discussions, such as
PubMed and Web of Science. This is due to the ability of HDL to locate words and
terms in the body of the text as opposed to the keyword indexing terms used by
other database search tools. HDL offers a superior location capability which
enhances access to the information and allows the researcher to locate more, and
sometimes unanticipated, sources.
The ability to locate specific terms within a text is a powerful tool in
locating information. Researchers may not always want or need this capability,
especially in light of the large number of results often generated by simple search
terms. HDL is not expected to displace customary search tools for most EVC
researchers. The HDL database nevertheless provides an extremely valuable
complement to the existing databases commonly used in vaccine research, a
complement that is not, to our knowledge, available through other means. The
HDL search results are so valuable in part because the search terms used are
continually evolving as vocabularies change and as new aspects are discovered.
Terms used in nineteenth century indexing are unknown to today’s researchers.
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The vocabulary of today’s scientists did not exist to earlier researchers, even
though some of the concepts did. The powerful search tool provided by HDL
allows researchers to access items in full text searching. The words, small pox and
malaria, entered the English language in 1562 and 1572, although ‘pocks’ and ‘bad
air’ were known in the mid-twelfth century. Tuberculosis appeared as a term in
1860, although the ‘wasting disease’ was known in the eleventh century. The
phrases, ‘innate immunity’, ‘acquired immunity’ and ‘programmed death’ are
relatively new search terms.
Searching the term ‘bird flu’ locates 4,237 HDL results and 3,141 PubMed
results. Revising the search term to ‘avian influenza’ produces 8,346 HDL items
and 8,619 PubMed items, mostly 1990 or newer publications. Usage of the term
‘bird flu’ began in 1908, even though the disease existed prior to this terminology
designation, as can be seen when the search term ‘fowl pest’ is used to locate 7,084
HDL results and 34 PubMed results. Similarly the term ‘Newcastle disease’
produces 37,412 HDL results and 11,959 PubMed results. Newcastle disease is an
influenza-like poultry disease which is transmissable to humans. It made its first
appearance in England in 1926 and is now controlled by a vaccine. Recent studies
find that the Newcastle virus is showing promising results as an anticancer agent.
A researcher seeking a complete picture of current H7N9 bird flu outbreaks in

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China and prior results on bird flu studies would need to examine the alternate
search terms and the breadth of historical material found through HDL results.
A simple HDL search for ‘Rafi Ahmed Emory Vaccine Center’ brought up
2,335 results. The first item on this list shows eleven instances of this matching
term, which indicates a high probability of useful material in this publication. The
content of this publication is available for searching; it is not available in full text.
While the publication is not in the collections of Emory libraries, it is available in
other collections and could be obtained through interlibrary loan. The publication
is accessible for further study, and the relevance of this publication can be more
easily determined because HDL includes the number of instances the search term
appears in the publication.
Thus, the HDL searchable database makes a different and beneficial use of
the original works, providing a “pointer” that aids researchers and thereby allows
the public to benefit from their efforts. Consistent with the Constitutional
framework, the HDL full search capability advances the “Progress of Science and
the useful Arts. . . .” U.S. Const. Art. I., §8, cl. 8, and fulfills copyright’s intended
purpose “to increase . . . . the harvest of knowledge,” Harper & Row, 471 U.S.
539, 545, 105 S. Ct. 2218, 2223 (1985). Consistent with the statutory framework,
EVC’s research uses fall squarely within the preferred fair uses of “research,”
“scholarship” and “teaching.” 17 U.S.C. §107, preamble.
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CONCLUSION
Libraries have been in the forefront of preservation of printed materials.
HDL has the objective of contributing to the common good by collecting,
organizing and making accessible the shared record of human knowledge. Part of
this objective is in the preservation of the printed materials. Part of it is in making
the content of these items searchable and accessible. The location feature of HDL
is capable of procuring unique search results and of expanding the collection of
search terms connected with a subject. The ability to locate the search terms in the
original context offers the opportunity of locating additional terms as well as the
serendipity of discovering what is hiding in the plain sight of older research
materials. While there is no substitute for the original printed volumes, the
digitized formats offer an opportunity for more researchers to access the
information and to explore the data collected.

Dated: June 4, 2013

/s/Stephen M. Schaetzel
Stephen M. Schaetzel
[e-mail]
Georgia Bar No. 628653
MEUNIER CARLIN & CURFMAN, LLC
817 W. Peachtree Street, N.W., Suite 500
Atlanta, Georgia 30308
Telephone: [phone]
Facsimile: [phone]
Attorneys for Amicus Emory Vaccine Center
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CERTIFICATE OF COMPLIANCE
This brief complies with the typface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this
brief has been prepared in a proporationally spaced typeface using Microsoft Word
2010 in Times New Roman 14-point font.

Date: June 4, 2013

/s/Stephen M. Schaetzel
Stephen M. Schaetzel
[e-mail]
Georgia Bar No. 628653
MEUNIER CARLIN & CURFMAN, LLC
817 W. Peachtree Street, N.W., Suite 500
Atlanta, Georgia 30308
Telephone: [phone]
Facsimile: [phone]

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CERTIFICATE OF SERVICE
The undersigned hereby certifies that, on this 4th day of June 2013, I have
electronically filed the foregoing Amicus Brief with the Clerk of 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.
Joseph M. Beck, Esq.
W. Andrew Pequignot, Esq.
Kilpatrick Townsend & Stockton LLP
Suite 2800
1100 Peachtree Street, NE
Atlanta, GA 30309

Robert J. Bernstein, Esq.
Law Office of Robert J. Bernstein
17th Floor
380 Lexington Avenue
New York, NY 10168

Edward Rosenthal, Esq.
Jeremy Seth Goldman, Esq.
Frankfurt Kurnit Klein & Selz, P.C.
10th Floor
488 Madison Avenue
New York, NY 10022

Daniel Frank Goldstein, Attorney
Jessica Paulie Weber, Esq.
Brown, Goldstein & Levy LLP
Suite 1700
120 East Baltimore Street
Baltimore, MD 21202

Joseph E. Petersen, Esq.
Robert Nathan Potter, Esq.
Allison M. Scott Roach, Esq.
Kilpatrick Townsend & Stockton LLP
The Grace Building
1114 Avenue of the Americas
New York, NY 10036

Elizabeth Anne McNamara
Davis Wright Tremaine LLP
1633 Broadway
New York, NY 10019

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David L. Leichtman
Hillel Ira Parness
Shane St. Hill, Esq.
Robins, Kaplan, Miller & Ciresi L.L.P.
Suite 3400
601 Lexington Avenue
New York, NY 10022

Mary Eleanor Rasenberger, Esq.
Cowan, DeBaets, Abrahams & Sheppard LLP
34th Floor
41 Madison Avenue
New York, NY 10010 

Steven Bernard Fabrizio, Esq.
Jenner & Block LLP
1099 New York Avenue, NW
Washington, DC 20001 

/s/Stephen M. Schaetzel
Stephen M. Schaetzel
[e-mail]
Georgia Bar No. 628653
MEUNIER CARLIN & CURFMAN, LLC
817 W. Peachtree Street, N.W., Suite 500
Atlanta, Georgia 30308
Telephone: [phone]
Facsimile: [phone]

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