Authors Guild, Inc. v. Hathitrust

Filing 165

AMICUS BRIEF, Association on Higher Education and Disability, FILED. Service date 06/04/2013 by CM/ECF. [955902] [12-4547]--[Edited 06/10/2013 by AM]

12-4547-cv
_______________________________________

United States Court of Appeals for the Second Circuit
__________________________________

THE AUTHORS GUILD, INC., THE AUSTRALIAN SOCIETY OF AUTHORS
LIMITED, UNION DES ECRIVAINES ET DES ECRIVAINS QUEBECOIS,
(caption continued inside cover)
_______________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

_________________________________________________________________

Brief For Amici Curiae Association on Higher Education And
Disability, Marilyn J. Bartlett, Center For Applied Special
Technology, Center For Law and Education, Melissa Chafee,
Council of Parents Attorneys and Advocates, Disability Rights
Advocates, Everyone Reading, Inc., Everyone Reading Illinois, Eye
to Eye, Inc., International Dyslexia Association, and Society for
Disability Studies, In Support of Intervenor Defendants-Appellees
National Federation of the Blind, et al.
_________________________________________________________________
JO ANNE SIMON, P.C.
356 FULTON STREET
BROOKLYN, NEW YORK 11201
[phone]
[e-mail]
Attorneys for Amici Curiae
On the Brief
Jo Anne Simon
Mary J. Goodwin
Amy F. Robertson

______________________________________________________________

(caption continued)
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 VERSETTERFORENING, 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.

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES……………………………………………..….……..ii
INTERESTS OF THE AMICI CURIAE………………………………….………..1
PRELIMINARY STATEMENT………………………………………….………..7
STATEMENT OF FACTS……………………………………………………..…..9
SUMMARY OF ARGUMENT…………………………….……………………..18
ARGUMENTS…………………………………………..………………………..18
I.

Students with Disabilities are entitled to equal access to all aspects of
education, including library collections…………………….…………..18

II.

Copyright law and expanding federal disability rights protections
complement each other in the form of the Chafee Amendment and the
Fair Use Doctrine ……………………………………..……….……….23

CONCLUSION………………………………………………….………………. 25
CORPORATE DISCLOSURE STATEMENT…………………………...………26
CERTIFICATE OF COMPLIANCE………………………………...……………27
CERTIFICATE OF
SERVICE………………………………………………………………………….28

i

TABLE OF AUTHORITIES
CASES:

Page(s)

Argenyi v. Creighton University,
703 F.3d 441 (8th Cir. 2013)………………………………………………..19
Authors Guild, Inc. v. HathiTrust,
902 F. Supp. 2d 445 (S.D.N.Y. 2012)………………………7, 16, 17, 21, 24
Bartlett v. N.Y. S. Bd of Law Examiners,
970 F.Supp. 1094 (S.D.N.Y. 1997)………………………...………………11
STATUTES:
17 U.S.C. § 121…………………………………………………...…..………13, 23
17 U.S.C. § 121(a)………………………………………………...………………24
17 U.S.C. § 121(c)……………………………………………………….……15, 24
17 U.S.C. §121(d)(1)…………………………………………………..………….24
20 U.S.C. § 1400……………………………………………………….…………14
20 U.S.C. § 1400 (c)(1)……………………………………………….……………5
20 U.S.C. § 1412(23)………………………………………………...……………15
20 U.S.C. § 1413(a)(6)……………………………………………...…………….15
20 U.S.C. § 1414(d)(3)(B)(iii)…………………………………………………….15
20 U.S.C. § 1474(c)(1)….……………………………………...…………………15
20 U.S.C. § 1474(e)……………………...…………….………………………….15
ii

20 U.S.C. § 11401(b)(1)(A)…………………..……………...…………………….9
29 U.S.C. § 794…………………………………………….……..……………8, 19
42 U.S.C. § 12101………...………………………………..………………………8
42 U.S.C. § 12101(a)(3)…………………...………………...……………………19
42 U.S.C. § 12101(a)(8)……………………………………………………………8
42 U.S.C. § 12101(b)(1)…………………………………..………………………19
42 U.S.C. § 12117(b)……………………………………...………………………20
42 U.S.C. § 12132………………………………………...………………………19
42 U.S.C. § 12181(7)(J)…………………………………………...………………19

REGULATIONS:
28 C.F.R. § 35.104…………………………………………………………...……20
28 C.F.R. § 35.130(b)(1)(iii)…………………………………………...…………20
28 C.F.R. § 35.160(a)(1)………………………………………………..…………19
28 C.F.R. § 35.160(b)(1)……………………………………….…………………20
28 C.F.R. § 35.160(b)(2)…………………………………….……………………20
28 C.F.R. § 36.303…………………………………...……………………………20
34 C.F.R. § 104……………………………………………………………………19
34 C.F.R. § 104.4(b)(1)(iii)……………..………………………………...………20
34 C.F.R. § 104.43(a)………………..…...………….……………………………16
iii

34 C.F.R. § 300.172(b)(3)………………………………...………………………15
34 C.F.R. § 300.210(b)(3)………………………………...………………………15
OTHER AUTHORITIES:
142 Cong. Rec. S9763, S9764 (daily ed. Sept. 3, 1996)……………...…………..23
71 Fed. Reg. 46540 (Aug. 14, 2006)…………………………...…………………15
AHEAD Position Statement on Issues of Textbook Access (Dec. 2006),
http://ahead.org/resources/e-text/position-statement.....................................16
Bradley University,
OCR Docket # 0510-2043 (Region V, 2010)………………………………14
California State University, Fullerton,
OCR Docket # 09-03-2166 (Region IX, 2003)…………….………………14
Florida Atlantic University,
OCR Docket # No. 04-06-2127 (Region IV, 2006)……………..…………13
“Frequently Asked Questions about the June 29, 2010 Dear Colleague Letter,”
U.S. Department of Education (May 26, 2011),
http://www2.ed.gov/about/offices/list/ocr/docs/
dcl-ebook-faq-201105.pdf.........................................................................8, 22
Higher education and disability: Education needs a coordinated approach to
improve its assistance to schools in supporting students.
(No. GAO-10-33), http://www.gao.gov/products/GAO-10-33.....................10
“Higher Education's Obligations Under Section 504 and Title II
of the ADA,” U.S. Department of Education,
http://www2.ed.gov/about/offices/list/ocr/docs/auxaids.html.......................20
H.R. Rep. No. 94-1476 at 73 (1976)………………….……………….………….25
H.R. Rep. 101–485(II), at 108 (1990)…………………………….………………21
iv

Joint "Dear Colleague" Letter: Electronic Book Readers,
U.S. Department of Education & U.S. Department of Justice
(June 29, 2010), http://www2.ed.gov/about/offices/list/ocr/
letters/colleague-20100629.html…………………………………...………21
Mott Community College,
OCR Docket # 15-11-2074 (Region IX, 2011)…………….………………14
Overview of the Office for Civil Rights, U.S. Department of Education,
http://www2.ed.gov/about/offices/list/ocr/aboutocr.html.............................20
Report of the Advisory Commission on Accessible Instructional Materials
in Postsecondary Education for Students with Disabilities
(December 6, 2011), http://www2.ed.gov/about/bdscomm/list/
aim/publications.html...................................................9, 10, 11, 12,13, 14, 17
Report of the ARL Joint Task Force on Services to Patrons with Print Disabilities,
(Nov. 2012), http://www.arl.org/focus-areas/copyright-ip/2342report-of-the-arl-joint-task-force-on-services-to-patrons-with-printdisabilities-nov-2-2012…………………………………..…………………16
Report of the Wounded Warrior Project,
http://www.woundedwarriorproject.org/programs/
policy-government-affairs/key-policy-priorities/objective-2-economicempowerment/initiative-2.aspx……………………….……………………11
Returning Veterans on Campus with War Related Injuries and the Long Road
Back Home, Journal of Postsecondary Education and Disability (2009)…..11
The Post-High School Outcomes of Young Adults With Disabilities up to 8
Years After High School. A Report From the National Longitudinal
Transition Study-2 (NLTS2) (NCSER 2011-3005). Menlo Park, CA:
SRI International, www.nlts2.org/reports.....................................................11

v

INTERESTS OF AMICI CURIAE1
The Association on Higher Education And Disability (“AHEAD”) is a
not-for-profit organization committed to full participation and equal access for
persons with disabilities in higher education. Its membership includes faculty,
staff and administrators at approximately 2,000 colleges and universities, not-forprofit service providers and professionals, and college and graduate students
planning to enter the field of disability practice. AHEAD members strive to
ensure that institutions of higher education comply with applicable disability rights
protections and provide reasonable accommodations to both students and
employees, including the conversion of instructional and other related scholarly
materials to accessible formats. Through its participation in national coalitions
such as the Reading Rights Coalition, and its leadership on the issue of access to
textbooks by people with disabilities, AHEAD has become a nationally-recognized
voice advocating for accessible instructional materials. The outcome of this case is
of significant importance to AHEAD members and the students they serve.

1

The parties in this case have verbally consented to the filing of the amici’s brief.
Pursuant to Fed. R. App. Proc. § 29(c)(5), amici state that no counsel for any party
has authored this brief in whole or in part, and no person or entity other than amici,
their members, or their counsel contributed monetarily to the preparation or
submission of this brief.
1

Marilyn J. Bartlett, Ph.D, J.D. is an adult with dyslexia who experiences
significant difficulties with processing the written word fluently and accurately.
Throughout her life, however, she has been able to learn and comprehend with
significant ease when text is presented verbally. While researching and writing her
Ph.D. dissertation in the late 1970’s, she hired a reader to assist her but was
hindered by the limited availability of such human assistance. Access of the sort
provided through the HathiTrust Digital Library would have given her equal access
to the research opportunities available to her peers. As a tenured professor of
Education, she has limited independent access to research because of the limited
resources available in digital form; thus her interest in the outcome of this matter is
substantial.
The Center for Applied Special Technology (CAST) is a not-for-profit
educational organization whose mission is to expand educational opportunities for
all students, especially those with disabilities, through Universal Design for
Learning. Universal Design for Learning is a framework for teaching, learning, and
the development, selection, and use of curriculum materials that takes into
consideration individual learning differences. Through its work supporting the
National Instructional Materials Accessibility Standard (NIMAS), national
technical assistance related to Accessible Instructional Materials (AIM) and The
Advisory Commission on Accessible Instructional Materials in Postsecondary
2

Education for Students with Disabilities, CAST has sustained a strong commitment
to ensuring equitable access to instructional materials for all students with print
disabilities.
The Center for Law and Education (CLE) is a national advocacy
organization that works with parents, advocates and educators to improve the
quality of education for all students, and in particular, students from low-income
families and communities. Throughout its history, CLE has been a recognized
leader in advancing the rights of students with disabilities – from federal policy
through state and local implementation. Firmly rooted in both disability rights and
school reform, CLE has focused increasingly on bringing the two together – to
help ensure, for example, that specialized instruction and/or support services
provided through individualized education programs (IEPs) or Section 504 plans,
assessment policies and practices, including accommodations, and placement
decisions are aimed at overcoming the barriers for all students with disabilities to
meet high standards, rather than being vehicles for lowered expectations.
Melissa Chafee is the mother of two dyslexic sons, each of whom are
consumers of alternative text and whose studies have been limited by the dearth of
books available for their course work and research needs. Those needs will only
become greater and their options more limited in pursuit of graduate education.
Mrs. Chafee desires that her sons and individuals like them have access to printed
3

resources that are equally effective and equally as easy to access as students
without these disabilities, which has thus far been elusive. Mrs. Chafee is an
Orton-Gillingham trained learning specialist and the former president of the Rhode
Island Branch of the International Dyslexia Association. She joins the amici as an
advocate for all people with dyslexia, and in honor of her father-in-law, the late
Sen. John Chafee, whose goal for this signature legislation–full and meaningful
access to print–would be given new life through the HathiTrust Digital Library.
Thus, Amicus Melissa Chafee has a significant interest in the outcome of this
matter.
The Council of Parent Attorneys and Advocates (COPAA) is a not-forprofit organization for parents of children with disabilities, their attorneys and
advocates. COPAA does not undertake individual representation for children with
disabilities, but provides training and resources for advocates and attorneys to help
each child obtain the free appropriate public education (“FAPE”) and special
education services and supports guaranteed by the Individuals with Disabilities
Education Act (“IDEA”), 20 U.S.C § 1400 et seq., and other statutes. The primary
goal of COPAA is to secure appropriate educational services for children with
disabilities, echoing a Congressional finding that “[i]mproving educational results
for children with disabilities is an essential element of our national policy of
ensuring equality of opportunity, full participation, independent living, and
4

economic self-sufficiency for individuals with disabilities.” 20 U.S.C. § 1400(c)(1)
(2008).
Disability Rights Advocates (“DRA”) is a not-for-profit legal center
founded twenty years ago to enforce the rights of people with disabilities, in
particular under. A major focus of DRA’s work for the last decade has involved
class action litigation on behalf of students and others who are blind or have other
print disabilities. An additional focus of DRA’s work has been access to
technology for men and women with print disabilities. Accordingly, the district
court’s decision is of great importance to DRA and the constituency it represents.
Everyone Reading, Inc. (formerly known as the New York Branch of the
International Dyslexia Association) is a not-for-profit organization that provides
public information, referrals, training and support to professionals, families and
affected individuals regarding the impacts to and treatment of people with dyslexia
and related learning disorders. Its members believe in targeted educational
interventions and the provision of accommodations for students with dyslexia at all
levels of education, including access to printed text through electronic means. It is
a member of the Reading Rights Coalition.
Everyone Reading Illinois (“ERI”), formerly known as the Illinois Branch
of the International Dyslexia Association, is a not-for-profit organization that is
dedicated to improving the lives of individuals with dyslexia and related learning
5

disabilities through support for such individuals and their families, professional
development for teachers, and increased public awareness. ERI strives to eliminate
educational inequities and create excellent learning opportunities for all affected
students, including the use of technology and accessing printed text through
electronic resources. As a result, this Court’s decision is of tremendous import to
ERI and the individuals and families it supports.
Eye to Eye, Inc., a non-profit 501(c)3 organization, pairs school-aged
children (mentees) diagnosed with learning disabilities (LD) and AttentionDeficit/Hyperactivity Disorder (ADHD) with similarly labeled high school and
college students (mentors) for after-school mentoring programs across twenty
states. Many of Eye to Eye’s mentors and mentees are users of adaptive software
technology and as such have a significant interest in the outcome of this case.
The International Dyslexia Association (IDA) is a 501(c)(3) non-profit,
scientific and educational organization dedicated to the study and treatment of
dyslexia, and related language-based learning disabilities. IDA is the oldest such
organization in the U.S. with approximately 8,500 members individuals with
dyslexia, their families, and professionals in the field. IDA has 43 branches
throughout the U.S. and Canada, and has 21 Global Partners in 18 countries. Many
of its members and the individuals they serve regularly use and need greater access
to electronic text and will be affected by the outcome of this case.
6

The Society for Disability Studies (SDS) is a not-for-profit scholarly
organization dedicated to the cause of promoting disability studies as an academic
discipline. According to its Mission Statement, the Society for Disability Studies
seeks through research, artistic production, teaching and activism to augment
understanding of disability in all cultures and historical periods, to promote greater
awareness of the experiences of disabled people, and to advocate for social change.

PRELIMINARY STATEMENT
Comprehensive digitization of the type undertaken by the HathiTrust Digital
Library (“HDL”) would provide desperately needed access to printed materials in
the collections of college and university libraries, collections that remain for the
most part inaccessible to students and scholars with print disabilities. Thus, amici
urge the Court to affirm the district court’s ruling2 in full.
The individual Intervenor Defendants have each testified that their course of
study in postsecondary education has been significantly shaped, if not controlled,
by a lack of access to their educational institution’s libraries. Expert George
Kerscher testified that he was forced to abandon the course of study of his dreams,

2

Authors Guild, Inc. v. HathiTrust, 902 F. Supp. 2d 445 (S.D.N.Y. 2012)
(hereinafter “HathiTrust”).
7

computer science, by the utter lack of access to the texts and research materials
necessary to pursue that degree.
Their stories are far too familiar to the amici herein. Amici are individuals
and parents of individuals with print disabilities,3 and organizations who provide
expertise, advocacy, and representation of individuals with print disabilities, all
potential users of the access created by the HDL.
The Americans with Disabilities Act4 and Section 504 of the Rehabilitation
Act of 19735 express a national commitment to ensure that persons with disabilities
can pursue on an equal basis “those opportunities for which our free society is
justifiably famous,”6 and no longer be consigned to second class citizenship. The
HDL makes those opportunities real for students and scholars with print
disabilities. In contrast, Plaintiffs-Appellants Authors Guild, Inc. et al.
(collectively “the Guild”) seek to shut down those opportunities by enjoining the
HDL, foreclosing those with print disabilities from the equal enjoyment of the

The term “individuals with print disabilities” is used herein to refer to those who
cannot effectively read print because of a visual, physical, perceptual,
developmental, cognitive or learning disability. See, Kerscher Declaration, Dkt_79,
(¶6). The U.S. Departments of Justice and Education have referred to print
disabilities as those disabilities that “make it difficult for students to get
information from printed sources.” See, fn. 51, infra.
4
42 U.S.C. § 12101, et seq.
5
29 U.S.C. § 794.
6
42 U.S.C. § 12101(a)(8).
8
3

libraries of HDL participants and thus their equal participation in the life’s blood of
the academy.
Amici, all of whom have long histories of advocacy on behalf of individuals
with print disabilities seeking access to copyrighted materials, submit this brief in
support of Intervenor Defendants-Appellees National Federation of the Blind, et al.
(collectively “NFB”), urging that this Court affirm the district court’s ruling and
preserve and promote equal educational and research opportunities for students and
scholars with print disabilities.
STATEMENT OF FACTS
The need for accessible text is great and becoming greater. Each year,
hundreds, if not thousands, of students with print disabilities are denied access to
the materials they need to have an equal opportunity to pursue the educations for
which they are qualified because those materials are not available in accessible
format. In recognition of this persistent problem, when it passed the Higher
Education Opportunity Act of 2008, Congress called for the creation of the
Advisory Commission on Accessible Instructional Materials in Postsecondary
Education for Students with Disabilities (the “AIM Commission”).7
In its report, the AIM Commission stated

7

20 U.S.C. § 11401(b)(1)(A). The AIM Report issued December 6, 2011, is
available at http://www2.ed.gov/about/bdscomm/list/aim/publications.html
9

[B]arriers that would deny students with disabilities their
rights to full and complete access to their educational
experience are unacceptable in a society that values
achievement through education. . . . Among the[] barriers
are instructional materials, technologies and operating
systems. . . [C]hallenges . . . to making these necessary
items accessible are more significant due to the limited
resources of campus disability resource/service (DR/S)
offices, the increasing complexity and modalities of
emerging instructional materials and the delivery systems
employed to utilize these materials. It is critical that
these and other obstacles be removed.8
The U.S. Government Accountability Office reported in 2009 that of the
approximately 19.2 million postsecondary students in the U.S., approximately
10.8% or 2.1 million had disabilities that had been disclosed and documented to
their institutions.9 In addition, military veterans of the wars in Iraq and
Afghanistan are seeking postsecondary degrees in increasing numbers and with
signature injuries including Traumatic Brain Injuries, Post-Traumatic Stress
Disorder as well as sensory impairments, their needs for accessible text cannot be

8

AIM Report at 11.
AIM Report at 15, citing, United States Government Accountability Office.
(2009). Higher education and disability: Education needs a coordinated approach
to improve its assistance to schools in supporting students. (No. GAO-10-33).
Washington, D.C.: US Government Accountability Office. Available at
http://www.gao.gov/products/GAO-10-33.
10
9

ignored.10 Because of the acquired nature of these disorders, traditional skills such
as Braille familiarity are lacking; the burden on technology is therefore greater.11
In our nation’s colleges and universities, the largest number of individuals
who use electronic means to access print are those with dyslexia12 and related
learning disabilities.13 Within the 10.8% of students referenced in the AIM Report,
roughly 30% have dyslexia and related learning disabilities, 20% have attention
disorders (often co-morbid with learning disorders), 15% have psychological
disorders, 6.5% have mobility impairments, 2.5% have traumatic brain injuries and
approximately 2.75% are blind or visually impaired.14 Retention rates for students
with disabilities are troublingly low, roughly 34.8 % at four year institutions, as
compared with 51.2% for the general student population.15

10

See, for example, Report of the Wounded Warrior Project,
http://www.woundedwarriorproject.org/programs/policy-government-affairs/keypolicy-priorities/objective-2-economic-empowerment/initiative-2.aspx (Last
visited May 31, 2012).
11
Returning Veterans on Campus with War Related Injuries and the Long Road
Back Home, Journal of Postsecondary Education and Disability (2009), 22(2), at
45.
12
In Bartlett v. N.Y. S. Bd of Law Examiners, the district court (Sotomayor, J.)
rather poetically captured the nature of the impacts of dyslexia: “For those of us for
whom words sing, sentences paint pictures, and paragraphs create panoramic views
of the world, the inability to identify and process words with ease would be
crippling.” 970 F.Supp. 1094, 1099 (S.D.N.Y. 1997).
13
AIM Report at 15-16.
14
Id.
15
Id., citing, Newman, L., Wagner, M., Knokey, A.-M., Marder, C., Nagle, K.,
Shaver, D., Wei, X., with Cameto, R., Contreras, E., Ferguson, K., Greene, S., &
Schwarting, M. (2011). The Post-High School Outcomes of Young Adults With
11

It is not sufficient simply to provide human readers or audio recordings of
print materials. Putting aside the fact that such accommodations would be
impossible on the scale required for scholarly research, books that are accessible as
narrated recordings are unsuitable for academic and research use because students
cannot navigate their way through the book, but must listen to a slow, linear
reading. This is a consistent problem identified by students and higher education
disability service providers alike.
In contrast, print-disabled students and scholars can read digital books using
screen-access software with a text-to-speech program or a refreshable Braille
display. Unfortunately, far too few digital books exist and even fewer may be
purchased in accessible formats out of the box. Only about 200,000 digital books
are available for loan through specialized libraries, and none of these services
comes close to meeting the needs of students with print disabilities. Only a small
fraction of the books produced each year are created in an accessible format;16 the
vast majority of digital books are the result of ad hoc scanning and converting of
print texts by disability services personnel at colleges and universities, a
cumbersome, labor intensive, unnecessarily expensive, and often inaccurate

Disabilities up to 8 Years After High School. A Report From the National
Longitudinal Transition Study-2 (NLTS2) (NCSER 2011-3005). Menlo Park, CA:
SRI International. Available at www.nlts2.org/reports.
16
AIM Report at 18.
12

process necessitated only because the publishing industry refuses to provide easy
access to instructional materials, such as is provided to library materials through
the HDL.17
Universities have been largely unsuccessful in addressing this problem.18
The AIM Commission heard testimony from more than 50 witnesses about the
persistent needs of students and faculty with disabilities for accessible instructional
materials and those who provide support to them at the postsecondary level. The
Commission identified barriers to success including the lack of accessible
materials, delays inherent in converting print materials to electronic files that are
accessible to and usable by students with disabilities, difficulties relying on
publishers, limited capacities of disability services offices to keep pace with the
volume of requests, and disagreements over publisher-asserted copyright issues,
including whether the institution is an “authorized entity” under the Chafee
Amendment,17 U.S.C. § 121.19 The AIM Report points out that the increasing
presence of inaccessible technologies on campuses “create[s] unintended and
nearly impenetrable barriers while the availability of products and services that can

17

Id.
Florida Atlantic University, OCR Docket # No. 04-06-2127 (Region IV, 2006 ).
(“The University's response to OCR was that it processes the complainant's
request as quickly as possible, but the complainant must submit the textbook
requests well in advance of the semester in which the textbooks are required.”)
19
AIM Report at 23-25.
13
18

be accessed by all students, including those with disabilities, can open doors.”20
As a result, universities struggle to provide accessible assigned texts on a timely
basis, jeopardizing their ability to meet their obligations21 under the ADA and
section 504.22 Most cannot even begin to make the full resources of their libraries
accessible to print-disabled scholars and students.
The need for electronic access to instructional and research materials begins
in the elementary and secondary years. Children with disabilities who are
protected by the Individuals with Disabilities Education Act (“IDEA”)23 are
increasingly exposed to electronic means of print access, and their reliance on
these mechanisms will increase pressure on the postsecondary community to

20

AIM Report at 21.
See, Mott Community College, OCR Docket # 15-11-2074 (Region IX, 2011)
(College was required to develop and implement procedures to ensure that
students who require text to be converted to an alternative format will be provided
alternative media materials that are equal in quality and are received at the same
time as educational materials provided to students without disabilities).
22
See, Bradley University, OCR Docket # 0510-2043 (Region V, 2010) (The
University discriminated against the Complainant based on disability when it
failed to provide him with the following agreed upon auxiliary aids, including
textbooks on CD; screen reader software in the University's computer lab, and
assistance with accessing library resources and test scanning.); California State
University, Fullerton, OCR Docket # 09-03-2166 (Region IX, 2003).(Delay in
provision of texts and materials in alternative format denied student equal
opportunity as required under the ADA and Section 504).
23
20 U.S.C. § 1400, et seq.
14
21

provide greater access as well. For its part, Congress has continually supported
expanding access to electronic text.24 Braille instruction and adaptations for a
child’s reading and writing skills must be considered under IDEA.25 In 2004, new
provisions were added to IDEA to improve the quality and delivery of accessible
instructional materials to students with disabilities who need such materials.26 The
IDEA regulations further underscore the responsibility of states and districts to
ensure that students with disabilities who need instructional materials in accessible
formats receive these materials in a timely manner.27 The U.S. Department of
Education has stated that timely access to appropriate and accessible instructional
materials is an inherent component of the obligation to provide a free, appropriate
public education and ensure participation in the general education curriculum.28
Congress also amended the Chafee Amendment to promote increased access to
accessible instructional materials in the context of elementary and secondary
education.29

24

See, 20 U.S.C § 1474(c)(1) which provides federal funding for educational
media activities designed provide educational value “in the classroom setting to
children with disabilities;” including “video description . . . and “providing free
educational materials, including textbooks, in accessible media for visually
impaired and print disabled students in elementary schools and secondary schools,
postsecondary schools, and graduate schools.”
25
20 U.S.C. § 1414(d)(3)(B)(iii).
26
See 20 U.S.C. §§ 1412(23), 1413(a)(6), 1474(e).
27
34 C.F.R. § 300.172(b)(3); 34 C.F.R. § 300.210(b)(3).
28
71 Fed. Reg. 46540, 46618 (Aug. 14, 2006).
29
17 U.S.C. § 121(c).
15

Although there is much promise in the future for “born accessible”
materials–those created to be accessible from their inception30–existing print
library collections are simply not accessible to students and scholars with print
disabilities.
The HDL includes over 10 million digital texts,31 including digital copies of
the print library collections of several universities,32 permitting students and
scholars with print disabilities to read and perform research in a manner as
effective as that of nondisabled scholars. The college library is the central
repository of and engine for the continuation of academic thought and
investigation. Access to the library collection is a fundamental component of the
benefits offered by a higher education academic program. This is an important
aspect of equal educational opportunity and comparable aids, benefits, and services
under Section 504 and ADA.33 The quality of and access to postsecondary library

30

See, Position Statement on Issues of Textbook Access,
http://ahead.org/resources/e-text/position-statement, last visited May 31, 2013.
Accessibility of text requires that content, platforms and devices all be accessible.
A barrier in any one of the three will cause a fatal disruption to access. Report of
the ARL Joint Task Force on Services to Patrons with Print Disabilities, Nov 2012.
http://www.arl.org/focus-areas/copyright-ip/2342-report-of-the-arl-joint-taskforce-on-services-to-patrons-with-print-disabilities-nov-2-2012. Last visited May
31, 2013.
31
HathiTrust, 902 F. Supp. 2d. at 448.
32
Id.
33
34 CFR § 104.43(a) (forbidding discrimination in “any academic, research…or
any other postsecondary educational aid, benefit or service[s]…”
16

facilities are key elements considered by accreditation agencies. The barrier of
print has shut out students and scholars with print disabilities from an equal
opportunity to access this key element of a higher education. Without digitized
materials, the ability of scholars with print disabilities to achieve outcomes
commensurate with their interests and their peers is severely limited, and in many
cases, foreclosed.
The HDL permits equal access for students and scholars with print
disabilities without harm to the copyright holders. As the district court found,
“[s]ince the digital texts in the HDL became available, print-disabled students have
had full access to the materials through a secure system intended solely for
students with certified disabilities.” 34 Moreover, there is no question that no viable
market exists for accessible library collections.35 Thus, there is no market to harm.
The publishing industry has continually and actively worked to frustrate the
creation of such a market, failing repeatedly to make new products accessible,
when the technology not only exists, but is well-known to them.36
In sum, the HDL permits the universities involved to make their print
resources available to all scholars and students equally, regardless of print-

34

HathiTrust, 902 F. Supp. 2d at 449.(internal citations omitted).
Id. at 464.
36
See, generally, AIM Report.
17
35

disability, and therefore to satisfy their legal obligations under federal antidiscrimination laws.
SUMMARY OF ARGUMENT
Students and scholars with print disabilities are entitled, under federal antidiscrimination law, to equal access to university programs and activities, including
library resources. Titles II and III of the ADA and section 504 prohibit disability
discrimination and require covered entities to ensure effective communication.
These statutes and their implementing regulations require universities to make
materials available to students and scholars with disabilities in accessible formats,
access that is impossible in the absence of comprehensive digitization such as that
provided by the HDL.
Furthermore, whether characterized as “fair use” under section 107 of the
Copyright Act or as a permissible format under the Chafee Amendment, the HDL
provides required access -- and permits universities to comply with their antidiscrimination obligations -- in a fashion entirely consistent with copyright law.
Accordingly, amici urge this Court to affirm the decision below.
ARGUMENT
I.

Students with Disabilities are entitled to equal access to all aspects of
education, including library collections.
The ADA was passed “to provide a clear and comprehensive national

mandate for the elimination of discrimination against individuals with
18

disabilities.”37 In enacting the ADA, Congress found “discrimination against
individuals with disabilities persists in such critical areas as . . . education.”38
Accordingly, title III of the ADA – which prohibits discrimination by places of
public accommodation -- specifically covers “undergraduate or postgraduate
private school[s], [and] other place[s] of education.”39 Title II of the ADA
prohibits discrimination in the programs and activities which are provided by
public entities40 and thus title II applies to public educational institutions. Section
504 applies to “any program or activity receiving Federal financial assistance,”41
and its implementing regulations recognize its applicability to postsecondary
education.42
The ADA and section 504 require that students with disabilities have access
to the same information contained in printed text that is available to students
without disabilities. In other words, communications with students and scholars
with disabilities must be “as effective as communications with others.”43 Where
necessary to do this, they must provide auxiliary aids and services, including

37

42 U.S.C. § 12101(b)(1).
42 U.S.C. § 12101(a)(3).
39
42 U.S.C. § 12181(7)(J).
40
42 U.S.C. § 12132.
41
29 U.S.C. § 794.
42
See, e.g., 34 C.F.R. pt. 104 (regulations of the Department of Education
implementing section 504).
43
28 C.F.R. § 35.160(a)(1). See also, Argenyi v. Creighton University, 703 F.3d
441 (8th Cir. 2013).
19
38

“qualified readers, taped texts, audio recordings, Brailled materials, large print
materials, or other effective methods of making visually delivered materials
available to individuals with visual impairments,” 44 so that students with
disabilities have an equal opportunity to achieve the same result or the same level
of achievement as others.45 Title III imposes similar obligations on private
colleges and universities.46

The U.S. Department of Justice and U.S. Department of Education jointly
enforce the laws as they apply to education and access for individuals with print
disabilities.47 In a 1998 publication on the obligation of institutions of higher
learning to provide auxiliary aids and services, the Department of Education stated,
“[n]o aid or service will be useful unless it is successful in equalizing the
opportunity for a particular student with a disability to participate in the education
program or activity.”48 As the district court correctly held, “Congress imposed on

44

28 C.F.R. §§ 35.160(b)(1)(obligation to provide auxiliary aids and services);
35.104 (defining auxiliary aids and services). Public entities must give “primary
consideration” to the communication access preferences of the individual. 28
C.F.R. § 35.160(b)(2). The universities making up the HDL are all public
universities.
45
See, 28 C.F.R. § 35.130(b)(1)(iii) and 34 C.F.R. § 104.4(b)(1)(iii).
46
28 C.F.R. § 36.303.
47
See, 42 U.S.C. § 12117(b);
http://www2.ed.gov/about/offices/list/ocr/aboutocr.html (U.S. Department of
Education).
48
http://www2.ed.gov/about/offices/list/ocr/docs/auxaids.html (last visited June 2,
2013).
20

institutions an obligation to provide equal access and recognized that
‘technological advances . . . may require public accommodations to provide
auxiliary aids and services in the future which today they would not be required
because they would be held to impose undue burdens on such entities.’”49
As demonstrated in the Facts section above, print-disabled students and
scholars do not currently have the equal access to university library programs,
including instructional and research materials as required by the ADA. In the
absence of comprehensive digitization, such students and scholars will not be able
to freely identify and peruse research sources, use tables of contents to navigate
materials, or have access to resources with the same speed and efficiency as
nondisabled peers. Rather, they will be stranded in the existing ad hoc system,
depending on readers or narrated and unnavigable audiobooks, or waiting for itemby-item scanning and optical character recognition processing while their peers
quickly assess, review, and absorb necessary research materials. In other words,
truly equal access demands a project like the HDL.
In connection with a “Dear Colleague” letter on the subject of electronic
book readers,50 the U.S. Departments of Justice and Education issued a list of

49

HathiTrust, 902 F. Supp. 2d at 456 (quoting H.R. Rep. 101–485(II), at 108
(1990), 1990 U.S.C.C.A.N. 303, 391).
50
Joint departmental guidance issued in the form of a “Dear Colleague Letter”
dated June 29, 2010 may be found at
http://www2.ed.gov/about/offices/list/ocr/letters/colleague-20100629.html.
21

Frequently Asked Questions51 to assist postsecondary institutions in complying
with the law. In assessing whether a given technology provides equally effective
educational benefits, the Departments advised the institutions to ask several crucial
questions:
Are all the educational opportunities and benefits .
. . equally available to students with disabilities . . .?;
Are the educational opportunities and benefits
provided to students with disabilities in as timely a
manner as those provided to students without disabilities
. . .?;
Will it be more difficult for students with
disabilities to obtain the educational opportunities and
benefits than it is for students without disabilities (i.e.
does the ease of use for students with disabilities meet
the requirement that students with disabilities be
provided benefits and opportunities in an equally
effective and equally integrated manner)?52
Where the technology in question is print, the resounding answers for student with
disabilities are “No, the benefits are not equal nor are they equally timely; yes, it is
far more difficult.”
There is no question that the current means of access to academic libraries is
appallingly limited and that enabling students with print disabilities to engage in

“Frequently Asked Questions about the June 29, 2010 Dear Colleague Letter”
may be found at http://www2.ed.gov/about/offices/list/ocr/docs/dcl-ebook-faq201105.pdf.
52
Id.
22
51

research on an equal footing with non-disabled peers is required by the letter and
goals of the ADA and section 504. The district court correctly applied the ADA to
the issues presented, holding that (1) the ADA requires that a university make its
existing library collections available to blind and print-disabled students and
scholars; (2) the university libraries may be authorized entities under the Chafee
Amendment, 17 U.S.C. § 121, because the ADA makes equal access to libraries a
primary mission of universities; and that (3) the creation of an accessible digital
library from a print collection for use by those with print disabilities that the
institution is required to serve is a “fair use.”
II.

Copyright law and expanding federal disability rights protections
complement each other in the form of the Chafee Amendment and the
Fair Use Doctrine.
As noted above, the Chafee Amendment provided previously unprecedented

access to people with print disabilities while protecting rights holders. Indeed, its
goal was to “end the unintended censorship of blind individuals’ access to current
information” that is “readily available to sighted individuals in libraries.”53 The
Chafee Amendment continues to provide the necessary protection to individuals
with print disabilities while protecting rights holders.
The Chafee Amendment provides that an “authorized entity” may reproduce
and distribute certain materials “in specialized formats exclusively for use by blind

53

142 Cong. Rec. S9763, S9764 (daily ed. Sept. 3, 1996).
23

or other persons with disabilities.”54 “Authorized entities” include those with “a
primary mission to provide specialized services relating to . . . education . . . of
blind or other persons with disabilities.” 55
Congress has not sought to limit this protection, but rather has expanded its
reach–in the 2004 reauthorization of the IDEA–to ensure that it provided increased
access to the elementary and secondary education market as well. 56
The district court correctly held that the University of Michigan was an
“authorized entity” under the Chafee Amendment and that the ADA makes equal
access for individuals with disabilities a primary mission of institutions such as the
participants in the HDL. Moreover, as the court noted, the University of
Michigan’s mission and that of its retention of a digitized copy of the works was to
ensure equal access on par with nondisabled library users.57 The district court was
also correct that the HDL collection is in a specialized format and that such a
format need not preclude occasional use by those without print disabilities.
Similarly, in establishing protected “fair use” of copyrighted material, the
1976 House Judiciary Committee singled out “the making of copies or
phonorecords of works in the special forms needed for the use of blind persons” as

54

17 U.S.C. § 121(a).
17 U.S.C. § 121(d)(1).
56
17 U.S.C. § 121(c).
57
HathiTrust at *15.
55

24

an example of fair use,58 underscoring and advancing the longstanding federal
public policy of increasing access to individuals with disabilities. The HDL
achieves this goal.

CONCLUSION
For the reasons set forth above and in the brief of Intervenor DefendantsAppellees NFB, Amici respectfully request this Court to affirm the decision of the
district court.
Dated:

Brooklyn, NY
June 4, 2013
Respectfully submitted,
JO ANNE SIMON, P.C.
356 FULTON STREET, 3RD FLOOR
BROOKLYN, NY 11201
By:
/s/
JO ANNE SIMON, ESQ. (JS-2793)
Attorneys for Amicus Curiae

On the Brief:
Jo Anne Simon
Mary J. Goodwin
Amy F. Robertson,
Fox & Robertson, P.C.
104 Broadway, Suite 400
Denver, CO 80203

58

Copyright Law Revision, H. R. Rep. No. 94-1476 at 73 (1976) (“House Report”).
25

Corporate Disclosure Statement
Pursuant to Fed. R. App. P. 26.1, amici certify that they have no parent
corporations and that no corporations own 10% or more of any stock in
amici.
Respectfully submitted,
/s/
Jo Anne Simon
June 4, 2013

26

CERTIFICATE OF COMPLIANCE
Jo Anne Simon, the attorney for the amici, certifies pursuant to Fed.R.App.P.
32(a)(7)(C)(i):
(1) This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because this brief contains 5,446 words, excluding the parts of
the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), for which I am
relying upon the word count of the word-processing system (Microsoft
Word) used to prepare the brief; and
(2) This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because
this brief has been prepared in a proportionally spaced typeface using
Microsoft Office Word 2003 in Times New Roman Font in Size 14.

Dated:

Brooklyn, New York
June 4, 2013
/s/
Jo Anne Simon

27

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

28