Authors Guild, Inc. v. Hathitrust

Filing 75

AMICUS BRIEF, Association of American Pubilshers, FILED. Service date 03/04/2013 by CM/ECF. [864144] [12-4547]--[Edited 03/07/2013 by DH]

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,
ANGELO LOUKAKIS, ROXANA ROBINSON, ANDRE ROY, JAMES
SHAPIRO, DANIELE SIMPSON, T.J. STILES, FAY WELDON,
THE AUTHORS LEAGUE FUND, INC., AUTHORS’ LICENSING AND
COLLECTING SOCIETY, SVERIGES FORFATTARFORBUND, NORSK
FAGLITTERAER FORFATTERO OG OVERSETTERFORENING,
THE WRITERS’ UNION OF CANADA, PAT CUMMINGS, ERIK
GRUNDSTROM, HELGE RONNING, JACK R. SALAMANCA,
Plaintiffs-Appellants,
(For Continuation of Caption See Inside Cover)
_______________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

BRIEF OF ASSOCIATION OF AMERICAN PUBLISHERS
AS AMICUS CURIAE IN SUPPORT OF APPELLANTS

MARY E. RASENBERGER
NANCY E. WOLFF
ELEANOR M. LACKMAN
NICHOLAS J. TARDIF
COWAN, DEBAETS, ABRAHAMS
& SHEPPARD LLP
41 Madison Avenue, 34th Floor
New York, New York 10010
[phone]
Attorneys for Amicus Curiae
Association of American Publishers

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

CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rules of Appellate Procedure 26.1 and 29(c)(1), the
undersigned certifies that the Association of American Publishers does not have a
parent corporation and no publicly held company owns ten percent or more of its
stock.
s/ Mary E. Rasenberger
Mary E. Rasenberger

i

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .............................................................................. iv
STATEMENT OF INTEREST ............................................................................ 1
SUMMARY OF ARGUMENT ........................................................................... 2
ARGUMENT ....................................................................................................... 4
I.

IN PERMITTING MASS DIGITIZATION OF ENTIRE
COPYRIGHTED WORKS, THE DISTRICT COURT
IMPROPERLY EXPANDED LIMITED STATUTORY
EXCEPTIONS IN A MANNER RESERVED TO CONGRESS ............. 4
A.

Creating Blanket Exceptions in the Law is for Congress, Not
the Courts ........................................................................................ 4

B.

The Copyright Office Has Been Taking Preparatory Steps
for Legislative Action Addressing Section 108 Reform and
Mass Digitization of Copyrighted Works ....................................... 6

C.

The District Court Failed to Consider the Interests of the
Copyright Owners in Ensuring the Security of Their Works ....... 10

II.

THE FAIR USE ANALYSIS OF LIBRARY ACTIVITIES
SHOULD NOT BE CONDUCTED IN A VACUUM ............................ 12

III.

THE DISTRICT MISAPPLIED SECTION 121 TO LIBRARIES ......... 18
A.

The District Court Erred in Relying Upon the ADA to
Determine that University Libraries Qualify as “Authorized
Entities” under Section 121 ........................................................... 20

B.

The District Court Erred in Concluding that Rightsholders
Do Not Consider Print-Disabled Individuals to be a
Significant Potential Market.......................................................... 23
ii

IV.

THE DISTRICT COURT MISAPPLIED THE STANDARD FOR
“TRANSFORMATIVE” USE UNDER THE FIRST FACTOR ............ 25

CONCLUSION .................................................................................................. 30
CERTIFICATE OF COMPLIANCE ................................................................. 31

iii

TABLE OF AUTHORITIES
Page(s)
CASES
American Geophysical Union v. Texaco, Inc.,
60 F.3d 913 (2d Cir. 1994), cert. denied, 516 U.S. 1005 (1995) ....................... 25
Authors Guild v. Google, Inc.,
770 F. Supp. 2d 666 (S.D.N.Y. 2011) .................................................................. 4
Bill Graham Archives v. Dorling Kindersley Ltd.,
448 F.3d 605 (2d Cir. 2006) .........................................................................27, 28
Bilski v. Kappos,
130 S.Ct. 3218 (2010) ......................................................................................... 14
Campbell v. Acuff-Rose Music, Inc.,
510 U.S. 569 (1994) ................................................................................25, 28, 29
Castle Rock Entm’t, Inc. v. Carol Publ’g Group, Inc.,
150 F.3d 132 (2d Cir. 1998) ............................................................................... 18
Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837 (1984) ............................................................................................ 13
Clean Flicks of Colorado, LLC v. Soderbergh,
433 F. Supp. 2d 1236 (D. Colo. 2006).................................................................. 5
Folsom v. Marsh,
9 F. Cas. 341 (C.C.D. Mass. 1841) ..................................................................... 26
King v. St. Vincent’s Hosp.,
502 U.S. 215 (1991) ............................................................................................ 13
Micro Star v. FormGen Inc.,
154 F.3d 1107 (9th Cir. 1998) ............................................................................ 27
Morales v. Trans World Airlines, Inc.,
504 U.S. 374 (1992) ............................................................................................ 12
Nihon Keizai Shimbun, Inc. v. Comline Business Data, Inc.,
166 F.3d 65 (2d Cir. 1999) ................................................................................. 28
iv

Princeton Univ. Press v. Michigan Doc. Svcs.,
99 F.3d 1381 (6th Cir. 1994) .............................................................................. 28
Society of the Holy Transfiguration Monastery, Inc. v. Archbishop Gregory
of Denver, Colorado,
685 F. Supp. 2d 217 (D. Mass. 2010), aff’d 689 F.3d 29 (1st Cir. 2012) .......... 28
Sony Corp. of Am. v. Universal City Studios, Inc.,
464 U.S. 417 (1984) ..................................................................................5, 15, 29
Tasini v. N.Y. Times Co.,
206 F.3d 161 (2d Cir.2000) ..........................................................................14, 22
UMG Recordings, Inc. v. MP3.Com, Inc.,
92 F. Supp. 2d 349 (S.D.N.Y. 2000) .................................................................. 27
United States v. American Soc’y of Composers, Authors & Publishers,
599 F. Supp. 2d 415 (S.D.N.Y. 2009) ................................................................ 27
Video Pipeline, Inc. v. Buena Vista Home Entm’t, Inc.,
342 F.3d 191 (3d Cir. 2003) ............................................................................... 27
WPIX, Inc. v. ivi, Inc.,
691 F.3d 275 (2d Cir. 2012) ............................................................................... 13
STATUTES
17 U.S.C. § 106 .................................................................................................passim
17 U.S.C. § 108 .................................................................................................passim
17 U.S.C. § 107 .................................................................................................passim
17 U.S.C. § 121 .................................................................................................passim
42 U.S.C. §§ 12111-12117; 12131-12165; 12181-12189 ....................................... 20
Americans with Disabilities Act, 42 U.S.C. § 12101 ..................................20, 21, 22
Congressional Operations Appropriations Act of 1997........................................... 21
Higher Education Opportunity Act, 20 U.S.C § 1002 ............................................. 23
Individuals with Disabilities Education Improvement Act, P.L.108-446 ............... 24
v

LEGISLATIVE HISTORY
142 CONG. REC. S. 9763, 9764 . .........................................................................19, 22
H.R. REP. NO. 94-1476 (1976) ..........................................................................passim
H.R. REP. NO. 101-485(II) (1990)............................................................................ 20
77 FED. REG. 52507 (2009) ........................................................................................ 6
77 FED. REG. 64555 (2012) ........................................................................................ 9
S. REP. NO. 105-190 (1998) ..................................................................................... 11
OTHER AUTHORITIES
Fed. R. App. P. 29 ...................................................................................................... 1
Fed. R. App. P. 32 .................................................................................................... 31
Letter from James H. Billington, Librarian of Congress, and Maria A.
Pallante, Acting Register of Copyrights to Chairman Patrick Leahy and
Senator Charles Grassley of the Senate Judiciary Committee (April 1,
2011), available at
http://www.copyright.gov/docs/massdigitization/statements/gbs_joint_let
ter.pdf. ................................................................................................................... 7
Mary Rasenberger & Chris Weston, OVERVIEW OF THE LIBRARIES AND
ARCHIVES EXCEPTION IN THE COPYRIGHT ACT (2005), available at
http://section108.gov/docs/108BACKGROUNDPAPER%28final%29.pd
f ............................................................................................................................. 7
Pierre N. Leval, Toward A Fair Use Standard, 103 Harv. L. Rev. 1105
(1990) ............................................................................................................25, 26
Priorities and Special Projects of the United States Copyright Office,
October 2011-October 2013, available at
http://www.copyright.gov/docs/priorities.pdf ...................................................... 6
Recommendation of the Register of Copyrights in RM 2002-4 (October 27,
2003), available at http://www.copyright.gov/1201/docs/registersrecommendation.pdf ........................................................................................... 13

vi

REGISTER OF COPYRIGHTS, REPORT OF THE REGISTER OF COPYRIGHTS,
LIBRARY REPRODUCTION OF COPYRIGHTED WORKS (17 U.S.C. 108)
(1983), available at http://www.copyright.gov/reports/libraryreproduction-1983.pdf. ....................................................................................... 13
Report of the Advisory Commission on Accessible Instructional Materials in
Postsecondary Education for Students with Disabilities, December 6,
2011 (the AIM Report”), available at
http://www2.ed.gov/about/bdscomm/list/aim/meeting/aim-report.pdf. ............. 23
Revising Section 108: Copyright Exceptions for Libraries and Archives,
avaiable at http://www.copyright.gov/docs/section108 ....................................... 7
Statement of Marybeth Peters before the Subcommittee on Courts and
Intellectual Property Committee on the Judiciary, Nov. 15, 1995,
available at http://www.copyright.gov/docs/niitest.html ................................... 21
United States Copyright Office, Legal Issues in Mass Digitization: A
Preliminary Analysis and Discussion Document (2011), available at
http://www.copyright.gov/docs/massdigitization/USCOMassDigitization
_October2011.pdf. ................................................................................................ 8
United States Copyright Office & LOC, The Section 108 Study Group
Report (2008), available at
http://www.section108.gov/docs/Sec108StudyGroupReport.pdf. ....................... 7
United States Copyright Office, Orphan Works, available at
http://www.copyright.gov/orphan......................................................................... 9
United States Copyright Office, Revising Section 108: Copyright Exceptions
for Libraries and Archives, available at
http://www.copyright.gov/docs/section108. ....................................................... 15
University of Michigan, Mission Statement, available at
http://president.umich.edu/mission.php. ............................................................. 20
WIPO, Update: Negotiators advance towards an international treaty for the
visually impaired, February 25, 2013, available at
http://www.wipo.int/copyright/en/general/sccr_ss_13.html ................................ 6

vii

STATEMENT OF INTEREST
The Association of American Publishers, Inc. (“AAP”) is the major national
association of publishers of general books, textbooks, and educational materials.1
Its approximately 300 members include most of the major commercial book
publishers in the United States and many smaller or non-profit publishers,
including university presses and scholarly associations. AAP members publish
titles in every field of human interest, including textbooks and educational
materials and scientific, technical, medical, professional and scholarly books and
journals, computer software, and electronic products and services. Adequate
copyright protection and effective copyright enforcement are critical to the success
of AAP member publishers.
AAP is concerned that the district court’s decision will be interpreted
broadly as a green light for libraries to digitize, either independently or in
collaboration with for-profit companies, the works in their collections, without
regard to whether the works are deteriorating, fragile or at-risk; are commercially
available; or whether they can do so securely. Mass copying of collections,
1

Pursuant to Federal Rule of Appellate Procedure 29(c)(5) and this Court’s Rule
29.1(b), no counsel for a party authored this brief in whole or in part, no party or
party’s counsel contributed money that was intended to fund preparing or
submitted this brief, and no person other than the amicus curiae, its members, or its
counsel, contributed money intended to fund preparation or submission of this
brief. Pursuant to Federal Rule of Appellate Procedure 29(a), all parties have
consented to the filing of this brief.
1

without any conditions or restrictions to maintain the works securely, is not
transformative and does not qualify as fair use, which is meant to be applied on a
case-by-case basis. We urge that the decision be reversed and that the complex
interests at stake in this case are properly left to the legislature.
SUMMARY OF ARGUMENT
Libraries and archives provide a key role in the dissemination and
preservation of learning and knowledge in our culture. At the same time, the
marketplace for the works that libraries make available and preserve would not
exist but for copyright. These exclusive rights provide the incentives for authors to
write, and also for publishers to publish by allowing them to earn revenue from the
books and other works they publish and thus support the publications of new
works, ensuring a robust market in the creation and dissemination of writings. Any
exceptions for library copying, whether under Section 107 or specific exceptions
such as Sections 108 and 121, must take these dual interests into consideration.
The district court failed to consider the varied interests; its decision to create
a mass digitization and preservation exception to copyright is improper judicial
legislating. Exceptions and limitations that permit mass digitization of entire
copyrighted works is a matter for Congress. The Copyright Office (“CO”) has
made Section 108 reform and solutions for mass digitization a priority. Where the
Copyright Act specifically addressed an activity such as library/archives copying
2

for preservation under Section 108 and created specific limitations on such
copying, it is for Congress to determine whether and how to extend those limits in
light of new technologies and still ensure the exceptions reflect “fair” uses. The
district court’s impatience with the legislative process is an invalid excuse for
circumventing the careful balancing of interests that goes into legislative reform
and threatens to create precedent that would undermine the very purpose of
copyright to incentivize authorship and its dissemination.
Additionally, the district court’s construction of Section 121 without
reference to its legislative history resulted in judicial legislating based on an
erroneous application of the Americans with Disabilities Act to the Chafee
Amendment, by treating university libraries as "authorized entities" contrary to
clear legislative intent. The district court’s holding acts as a disincentive for
AAP’s members to create new digital products to address the needs of the print
disabled.
Finally, the district court improperly applied the transformative use standard
in its fair use analysis. Instead of following the Supreme Court’s and this Court’s
consistent interpretations of the meaning of “transformative” under copyright law,
the district court expanded its meaning to include the ultimate (end-user) purpose
and social benefits of the use. This marked departure from the established
precedent of this Court leaves in its wake a vast loophole that could allow any
3

party that copies works wholesale on a mass scale to satisfy the central first-factor
test of transformative use – so long as it can identify some feature of its activities
that serves a social benefit.
Amicus therefore respectfully requests that the ruling below be reversed, and
that the Court reexamine the use at issue within the traditional contours of
copyright law.
ARGUMENT
I.

IN PERMITTING MASS DIGITIZATION OF ENTIRE
COPYRIGHTED WORKS, THE DISTRICT COURT IMPROPERLY
EXPANDED LIMITED STATUTORY EXCEPTIONS IN A MANNER
RESERVED TO CONGRESS
A.

Creating Blanket Exceptions in the Law is for Congress, Not the
Courts

The district court conceded that its reliance on fair use to sanction
Appellees’ large-scale copying of copyrighted works, in a manner that falls far
outside the boundaries of Section 108, is unprecedented. Dkt#156 at 22.
Nevertheless, the district court engaged in judicial legislation by creating a mass
digitization and preservation exception to the exclusive rights of copyright owners.
This was plain error because Congress, not the Courts, should legislate any new
exceptions for digitization and preservation of copyrighted works on a massive
scale. “[I]t is generally for Congress, not the courts, to decide how best to pursue
the Copyright Clause’s objectives.” Authors Guild v. Google, Inc., 770 F. Supp.
4

2d 666, 677 (S.D.N.Y. 2011) (quoting Eldred v. Ashcroft, 537 U.S. 186, 212
(2003) and Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 429
(1984)). The Supreme Court “has noted that it was Congress’ responsibility to
adapt the copyright laws in response to changes in technology.” Id. (citing Sony,
464 U.S. at 430-31).
While the district court may believe that public policy arguments favor
libraries’ digitization and preservation of copyrighted works, text mining, and
access for the print disabled, the court’s role is to interpret the law, not to enact
major new exceptions to copyright that it believes might further social good. See
Clean Flicks of Colorado, LLC v. Soderbergh, 433 F. Supp. 2d 1236, (D. Colo.
2006) (stating that public policy arguments submitted to the district court are
“inconsequential to copyright law” and “addressed in the wrong forum” because
the “Court is not free to determine the social value of copyrighted works.”). The
district court’s decision creates a significant change in copyright policy without
any open and public debate and input from the numerous and diverse stakeholders
affected by and interested in mass digitations and preservation, including authors,
publishers, photographers, visual artists, libraries, archives, museums, and
scholars.

5

B.

The Copyright Office Has Been Taking Preparatory Steps for
Legislative Action Addressing Section 108 Reform and Mass
Digitization of Copyrighted Works

The legislative process is already well underway for revised exceptions and
limitations to copyright that would address the uses at issue in this case. The CO is
actively engaged in analyzing Section 108 reform to create legislative
recommendations, as well as the complex legal issues surrounding mass
digitization of books to further its intention of making recommendations for
Congressional consideration.2 At the same time, the World Intellectual Property
Organization (“WIPO”) is working on a treaty for exceptions for the visually
impaired, and the U.S. government has been continuously involved in that effort.3
1.

Section 108 Reform

In 2005, the Library of Congress (“LOC”) National Digital Information
Infrastructure and Preservation Program (“NDIIP”) and the CO convened an
independent study group comprised of representatives from the library, scholarly,

2

See Priorities and Special Projects of the United States Copyright Office, October
2011-October 2013, available at http://www.copyright.gov/docs/priorities.pdf, at
5, 8.
3

See, e.g., WIPO, Update: Negotiators advance towards an international treaty
for the visually impaired, February 25, 2013, available at
http://www.wipo.int/copyright/en/general/sccr_ss_13.html; see also Copyright
Office Notice of Inquiry and Request for Comments on the Topic of Facilitating
Access to Copyrighted Works for the Blind or Other Persons With Disabilities, 77
FED. REG. 52507 (2009), available at
http://www.copyright.gov/fedreg/2009/74fr52507.pdf.
6

publishing, entertainment, and academic communities to make recommendations
on updating Section 108 to account for changes brought by digitization and
electronic delivery of copyrighted works (the “Study Group”). The Study Group
met consistently over a three year period and published its report in March 2008
(the “108 Report”).4 The 108 Report presented a number of recommendations to
update the exceptions for libraries and archives in Section 108 to better reflect
digital technology and ensure sound preservation practices. The CO is currently
working on Section 108 Reform as one of its legislative priorities, using the 108
Report as a starting point to produce “a discussion document and preliminary
recommendations on amending section 108.”5
2.

Mass Digitization: The April 2011 Joint Letter

On April 1, 2011, the Librarian of Congress and Acting Register of
Copyrights wrote to Congress offering their own analysis of the legal framework
for mass book digitization.6 The letter underscores the complexity involved and

4

See United States Copyright Office & LOC, The Section 108 Study Group Report
(2008), available at
http://www.section108.gov/docs/Sec108StudyGroupReport.pdf.
5

See United States Copyright Office, Revising Section 108: Copyright Exceptions
for Libraries and Archives, available at http://www.copyright.gov/docs/section108
(“The Office's recommendations will draw upon but not be limited to
recommendations of the Study Group Report.”).
6

See Letter from James H. Billington, Librarian of Congress, and Maria A.
Pallante, Acting Register of Copyrights to Chairman Patrick Leahy and Senator
7

careful consideration required in reviewing the interplay between the exclusive
rights of the copyright owner, the exceptions afforded to libraries under Section
108 and the exceptions to accommodate those with print reading disabilities under
Section 121.
The letter expresses concerns that the “the basic tenets that exclusive rights
afforded by copyright law may not be usurped as a matter of convenience, and
policy initiatives, including those that would redefine the relationship of copyright
and technology, are the proper domain of Congress, not the courts,” and invited
Congress to consider the “unresolved policy issues” raised by the interplay
between mass digitizations and Section 108. Id. at 1, 4.
3.

The Mass Digitization Analysis

In October 2011 the Office of the Register of Copyrights published an
analysis addressing the “issues raised by the intersection between copyright law
and the mass digitization of books,” including the issues raised by the Google
Books case and this case (the “Mass Digitization Analysis”).7 The Register
identified many key policy questions raised by mass digitization, including the

Charles Grassley of the Senate Judiciary Committee (April 1, 2011), available at
http://www.copyright.gov/docs/massdigitization/statements/gbs_joint_letter.pdf.
7

See United States Copyright Office, Legal Issues in Mass Digitization: A
Preliminary Analysis and Discussion Document (2011), available at
http://www.copyright.gov/docs/massdigitization/USCOMassDigitization_October2
011.pdf.
8

objectives and public policy goals of mass digitization and the interplay with
Section 108. The Register noted that, although the issues involved are “complex
and require public discussion,” they must be addressed within “the existing
copyright framework.”8 Id. at ii. The Register invited Congress to “consider
whether the purposes and objectives” of mass digitization are “sufficiently
important to the nation to warrant possible changes to the copyright law.” Id. at
15.
4.

Mass Digitization and Orphan Works Legislation

Orphan works are an obvious issue in any mass digitization effort. In
October 2012, the CO published a Notice of Inquiry regarding orphan works and
mass digitization in order to advise Congress on possible next steps in this area.9
The CO inquired about the use of orphan works in the context of mass digitization,
as well as on a case-by-case basis. Initial public comments, due on February 4,
2013, are available on the CO website; reply comments are due March 6, 2013.10
Issues of mass digitization, orphan works, Section 108 reform, and
initiatives to offer accessible works to the reading disabled are all priorities of the
8

Indeed, the Register noted that “licensing is likely to be part of the mass
digitization equation for libraries.” Mass Digitization Analysis at 20.

9

See Notice of Inquiry, Orphan Works and Mass Digitization, 77 FED. REG. 64555
(2012). The Notice discussed, among other things, the Google Books litigation, as
well as this case.

10

See United States Copyright Office, Orphan Works, available at
http://www.copyright.gov/orphan.
9

CO. The process for the implementation of these reforms must take place in
Congress, where the needs of all stakeholders may be fully considered, debated
and balanced. Libraries and archives unquestionably serve a vital role in society
that must be protected. However, exceptions to copyright that are needed to
support that role must not materially harm the legitimate interests of rights holders
and their incentives to create new works. By permitting mass digitization of
millions of copyrighted books under fair use, the district court improperly
sidestepped the legislative process and overstepped the role of the judiciary.
C.

The District Court Failed to Consider the Interests of the
Copyright Owners in Ensuring the Security of their Works

In granting libraries and archives a broad preservation exception to create a
digital repository of millions of print books, the district court did not consider what
criteria should be used to determine how analog works should be digitized, by
whom, under what circumstances, and by what means to ensure the security of the
works. Security of archives was a concern of both the copyright owners as well as
the library and archives representatives of the Study Group and is a significant
concern to amicus. The Study Group considered the issues in depth and
recommended that there should be a new preservation exception that would permit
qualified libraries and archives to reproduce published at-risk works in their

10

collection prior to deterioration.11 Under this limited exception, qualified libraries
or archives could make copies necessary to create and maintain a preservation
copy of at-risk publicly disseminated works in its collection. These qualified
trusted institutions would be required to use industry best practices and
technologies to ensure the integrity and security of the works preserved (currently
only a limited number of libraries have the capacity to properly implement these).
See 108 Report at 69-79.12
While fair use under Section 107 is appropriate for libraries to invoke from
time to time in assessing the reproduction, display or use of individual works, it is
not the appropriate vehicle to permit any library or archives to conduct large-scale
reproduction of copyrighted works for preservation or access. As the Study Group
noted, such activities should be undertaken only by qualified trusted institutions in
a manner that will not endanger the value of copyrighted works and supplant the
11

Congress acknowledged the significant impact of digital distribution on
copyright owners and the resulting need for imposing limitations on digital copies
made under the library copyright exception (Section 108). See Senate Judiciary
Committee Report on the Digital Millennium Copyright Act (S. REP. NO. 105-190,
at 61-62 (1998) (“[i]n recognition of the risk that uncontrolled public access to the
copies or phonorecords in digital formats could substantially harm the interests of
the copyright owner by facilitating immediate, flawless and widespread
reproduction and distribution of additional copies[] of the work.”)
12

Preservation, as noted by the Study Group, requires resources and experienced
archivists in order to safely digitize, maintain, and monitor the digitize collection
and to prevent unauthorized access or dissemination of the works once in digital
format. See 108 Report at vii.
11

distribution right of publishers and other rights holders. The district court’s
decision does just that; it creates a preservation exception under fair use that lacks
the necessary legislative guidance regarding appropriate limits on library copying,
devalues authors’ and publishers’ incentives, and leaves the nation’s literature at
risk of mass-scale piracy.
II.

THE FAIR USE ANALYSIS OF LIBRARY ACTIVITIES SHOULD
NOT BE CONDUCTED IN A VACUUM
The district court held that Appellees’ mass-scale use of Appellants’

copyrighted works was fair, despite the fact that their activities fall directly within
the subject matter of the Section 108 exceptions, yet grossly exceed the uses
permitted in Section 108. Where libraries engage in activities that are specifically
legislated in Section 108, the courts should look there for guidance. As a general
rule of statutory interpretation, where there is overlap between a general exception
and a specific exception, the court should apply the more specific law. See
Morales v. Trans World Airlines, Inc., 504 U.S. 374, 385 (1992). Congress would
not have enacted specific exceptions for libraries and archives in Section 108, with
carefully tailored conditions on any copying, and yet intended Section 107 to
permit the same activities but without any such conditions or limits. Applying
Section 107 as the district court did in this case allows Section 107 to swallow
Section 108 entirely, rendering Congress’ careful construct of the latter
superfluous.
12

Without a doubt, “fair use does not undermine Section 108, but rather
supplements it,” Dkt#156 at 13, and activities that are not directly legislated in
Section 108 may fall under Section 107. However, fair use analysis of library
activities should not be conducted in a vacuum as though Section 108 did not exist.
Yet, that is exactly what the district court did. As the CO stated, “[a]ny review of
mass book digitization would need to consider, if not compare, the activities that
currently are, or should be, permissible for libraries under Section 108.”13 The
same principle applies here, particularly in light of the fact that Congress viewed
Section 108 as codifying certain library practices that constituted fair use and even
practices that go beyond fair use.14
Under the canons of statutory construction, courts should interpret statutory
provisions in the context of the statute as a whole. See, e.g., King v. St. Vincent’s
13

Mass Digitization Analysis at 20; see also Recommendation of the Register of
Copyrights in RM 2002-4 (October 27, 2003), at 51, available at
http://www.copyright.gov/1201/docs/registers-recommendation.pdf. The CO’s
reports on its areas of expertise are entitled to Chevron deference. See WPIX, Inc.
v. ivi, Inc., 691 F.3d 275, 279 (2d Cir. 2012) (applying Chevron U.S.A. Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)).
14

Congress stated that “section 108 authorizes certain photocopying practices
which may not qualify as a fair use.” H.R. REP. NO. 94-1476, at 74 (1976)
(emphasis added). For a description of the interplay between and debate regarding
what was considered fair use library copying and the adoption of Section 108, see
REGISTER OF COPYRIGHTS, REPORT OF THE REGISTER OF COPYRIGHTS, LIBRARY
REPRODUCTION OF COPYRIGHTED WORKS (17 U.S.C. 108) (1983) (the “1983
Report”), available at http://www.copyright.gov/reports/library-reproduction1983.pdf.
13

Hosp., 502 U.S. 215, 221 (1991) (citing the cardinal rule that “a statute is to be
read as a whole” because “the meaning of statutory language, plain or not, depends
on context.”); Bilski v. Kappos, 130 S.Ct. 3218, 3228-29 (2010) (noting courts
should not interpret any statutory provision “in a manner that would render another
provision superfluous.”). The district court’s decision fails to view Section 107
within the context of the Copyright Act as a whole, without consideration of the
provisions that speak directly to library uses, Section 108 (or Section 121 with
respect to uses for the visually impaired, discussed in Section III below). The
district court also ignored the purpose and prominence of Section 106. Exceptions
to copyright, including Section 107, must be viewed narrowly as compared to the
exclusive rights. As the Supreme Court stated, where the Copyright Act “sets forth
exceptions to a general rule, we generally construe the exceptions ‘narrowly in
order to preserve the primary operation of the provision.’” Tasini v. N.Y. Times
Co., 206 F.3d 161, 168 (2d Cir. 2000) (quoting Commissioner v. Clark, 489 U.S.
726, 739, 109 S.Ct. 1455, 103 L.Ed.2d 753 (1989)). In its analysis of whether the
uses at issue were fair, the district court instead ignored Section 108 and analyzed
fair use broadly and the exclusive rights narrowly, disrupting Congress’s carefully
crafted balance in Title 17.
The district court determined that digitizing millions of books, creating
optical character recognition copies to index the books, making more copies to
14

create a shared repository distributed among a number of institutions, and
necessarily more in the course of preserving the works to refresh and replicate
data, and also to make audible copies for the visually impaired – all without
permission – was fair use. None of those uses are currently permitted under
Section 108, and none are contemplated in the 108 Report, the starting point for the
CO’s reform efforts without important restrictions and conditions.15 Appellees’
unprecedented uses far exceed anything contemplated by Congress as falling
within Section 108 or fair use and beyond what any single sitting judge can
properly authorize.16
In its reexamination of the library and archives exceptions for the purpose of
recommending updates for the digital age, the Study Group was guided by the
current Section 108 provisions, as well as current library and archives practice.
Though not law, the recommendations at least point out the type of issues a court
must weigh in determining what uses are fair uses. This is particularly true in this
instance, given the varying interests represented, the expertise of the group
15

See United States Copyright Office, Revising Section 108: Copyright Exceptions
for Libraries and Archives, available at
http://www.copyright.gov/docs/section108.
16

Congress never contemplated that either Sections 107 or 108 would be used to
copy works en masse. Of all of the types of potentially fair uses discussed in the
legislative history for Section 107, as well as Section 108, none included the mass
uses of numerous works, but in each instance were a one-time use of a specific
work. See Sony, 464 U.S. at 495 (stating Section 107 legislative history “states
repeatedly that the doctrine must be applied flexibly on a case-by-case basis”).
15

members, the mission of the group to “ensure an appropriate balance,” and the care
and time the group took in considering and crafting its recommendations,
consistent with the Congress’ goal of obtaining a balance among the relevant
interest.17 The mass digitization of copyrighted books and the copying and
distribution conducted to create a shared repository among universities for
preservation and other purposes (including full-text searching and access for the
visually impaired) is rife with the complex issues described in the 108 Report.
While the Study Group recommended a new limited preservation for at-risk
works, it did so with recommendations for specific conditions that would help
avoid significant loss of rightsholder sales, and the risk of unprotected works
making their way onto the internet due to lack of proper security and other
appropriate procedures.18 Such conditions would alleviate publishers’ very real
concern regarding potential loss of sales due to preservation copies serving as
duplicate library copies and the difficulty of ensuring robust security of digital
copies. Id. at 73-78. The district court’s ruling would allow any library to engage
in preservation copying without any conditions essential to protecting copyrighted
works in a balanced manner.

17

See 108 Report, at ii; H.R. REP. NO. 94-1476, at 74 (1976) (“it is the intent of
this legislation to provide an appropriate balancing of the rights of creators, and the
needs of users.”).

18

See 108 Report at 69-75.
16

It is helpful in analyzing unauthorized library copying and reproduction
under Section 107 to keep in mind also the long history of Section 108 and its
relationship with fair use.19 Sections 107 and 108 were enacted together, within
the 1976 Act, and Congress intended for them to work together, expressly
addressing their relationship in the legislative history. The Section 108 provisions
were the result of Congress’ weighing decades of debate among the various
interested parties and their variety of interests.20 This long history should not be
shunted aside by a single fair use decision.
Congress addressed the overlap between Sections 107 and 108 in the
legislative history, H.R. REP. NO. 94-1476 at 73-74, noting a lack of clarity under
the case law at the time as to whether even one-off copying for a single user was a
fair use. See 1983 Report at 95-104. While Congress understood that specific
Section 108 exceptions would not cover every activity a library might engage as
fair use, the type of uses it had in mind were user “requests for copies for
legitimate scholarly or research purposes,” not wholesale copying and preservation
19

The 1983 Report includes a description of how Congress viewed library copying
under fair use, the debates leading up to the enactment of Sections 107 and 108 and
Congress’ purpose in enacting a separate set of exceptions for libraries and
archives.
20

For the history of Section 108, see generally Appellants’ Br. at 18-19; Mary
Rasenberger & Chris Weston, OVERVIEW OF THE LIBRARIES AND ARCHIVES
EXCEPTION IN THE COPYRIGHT ACT (2005), available at
http://section108.gov/docs/108BACKGROUNDPAPER%28final%29.pdf; 1983
Report.
17

en masse. H.R. REP. NO. 94-1476, at 78-79; Dkt#156 at 13, n.17. The legislative
history further clarifies that Section 108 goes beyond what might fall under fair
use: “To [the] contrary, Section 108 authorizes certain photocopying practices
which may not qualify as a fair use.” H.R. REP. NO. 94-1476 at 74-75.
In other words, by enacting Section 108, Congress intended to provide
libraries with more liberal, as well as more certain, exceptions than would qualify
under fair use. It did not view fair use as an expansion of Section 108 rights,
swallowing the Section 108 exceptions, but instead viewed Section 108 as
providing more generous uses than might otherwise be allowed under Section 107.
When Section 107 is viewed in the context of Section 108, it becomes
inconceivable that Congress would have intended for Section 107 to allow mass
digitization of copyrighted works without appropriate restrictions to balance all
interests, particularly since it did not do so even in Section 108.
III.

THE DISTRICT
LIBRARIES

COURT

MISAPPLIED

SECTION

121

TO

The district court’s application of Section 121 to the University of Michigan
resulted in dramatically broadening the class of “authorized entities” entitled to
take advantage of this exception under the statute. Section 121, known as the
Chafee Amendment, was enacted in 1996 with support from AAP. It allows “an
authorized entity,” without permission from the copyright owner, “to reproduce or
to distribute copies or phonorecords of a previously published, nondramatic literary
18

work if such copies or phonorecords are reproduced or distributed in specialized
formats exclusively for use by blind or other persons with disabilities.” 17 U.S.C.
§ 121(a). An authorized entity” is defined as “a nonprofit organization or a
governmental agency that has a primary mission to provide specialized services
relating to training, education, or adaptive reading or information access needs of
blind or other persons with disabilities.” 17 U.S.C. § 121(d)(1) (emphasis added).
Speaking in support of his amendment, Senator John Chafee explained that
it “includes a very narrow definition of those who are eligible to undertake such
production and applies the definition for eligibility used by the National Library
Service to those who receive reproductions.” 142 CONG. REC. S. 9763, 9764, Sept.
3, 1996 (emphasis added). He specifically named the “authorized entities”
contemplated: “National Library Service and a number of nonprofit organizations,
such as The American Printing House for the Blind and Recording for the Blind
and Dyslexic, [that] reproduce, in specialized formats, published material that is
readily available to sighted individuals in libraries, bookstores, newsstands, and
countless other locations,” describing them as “groups that produce specialized
formats for the blind.” Id.

19

A.

The District Court Erred in Relying Upon the ADA to Determine
that University Libraries Qualify as “Authorized Entities” under
Section 121

Ignoring the clear statutory meaning of “authorized entity” and the
legislative history of Section 121, the district court concluded that University of
Michigan is an “authorized entity” by using a strained interpretation of the phrase
“has as its primary mission.” Its conclusion ignored the University of Michigan’s
primary mission,21 and instead relied on an unrelated statute, the Americans with
Disabilities Act of 1990 (“ADA”). The ADA requires institutions to take measures
to provide equal access to individuals with disabilities. H.R. REP. 101-485(II), at
108 (1990). The ADA applies to a wide variety of public and private entities,
including those providing public transportation and public accommodations among
others.22 Under the district court’s interpretation, all of these entities are entitled to
avail themselves of Section 121.
The district court is correct in noting that the ADA “provide[s] a clear and
comprehensive national mandate for the elimination of discrimination against
individuals with disabilities.” Dkt#156 at 22. It is also correct in noting that,
among other things, this means that the provision of equal access to copyrighted
information for print-disabled individuals is mandated by the ADA. However, the
21

See University of Michigan, Mission Statement, available at
http://president.umich.edu/mission.php.
22

42 U.S.C. §§ 12111-12117; 12131-12165; 12181-12189
20

ADA only addresses the “obligation” of those providing “public
accommodations,” such as universities and libraries, to provide equal treatment to
and avoid discriminating against individuals with disabilities in such matters; it
does not “authorize” such entities to satisfy those obligations in any particular
manner, and certainly not with respect to unpermissioned and unpaid reproduction
and distribution of copyrighted works in “specialized” accessible formats. Indeed,
the ADA does not refer to copyright or copyrighted works in any manner, much
less grant covered entities the status of “authorized entities” under the Chafee
Amendment.
Nor does the Chafee Amendment, even though it was enacted six years after
the ADA, refer to the ADA anywhere in its limited legislative history or reference
any of the specific language or requirements of the ADA.23 The Chafee
Amendment authorized specific entities identified in Chafee’s floor statement to
engage in reproduction and distribution in “specialized formats exclusively for use
by blind …,” without any reference to their having obligations to provide equal
23

Because the Chafee Amendment was enacted as a Senate floor amendment to an
appropriations bill, the Congressional Operations Appropriations Act of 1997, 142
Cong. Rec. S. 9763, 9764, Sept. 3, 1996, there are no committee reports. The only
directly relevant legislative history of the Chafee Amendment is Senator Chafee’s
floor statement and Register Marybeth Peters’ testimony on an earlier bill. See
Statement of Marybeth Peters before the Subcommittee on Courts and Intellectual
Property Committee on the Judiciary, Nov. 15, 1995, available at
http://www.copyright.gov/docs/niitest.html.
21

access to and avoid discriminating against individuals with disabilities. There is no
mention in the Chafee Amendment and its legislative history of universities and
their libraries or any other entities that might qualify and have obligations as
“public accommodations” under the ADA. See 142 CONG. REC. S. 9763, Sept. 3,
1996. If Congress had intended such entities to be covered it would have expressly
so stated.
Senator Chafee emphasized the “narrow” nature of the provision and that it
was “a very small change in current copyright law” – “a very simple amendment.”
Id.24 But if all institutions of higher education or their libraries, much less all
“public accommodations” under the ADA, were “authorized entities,” as
interpreted by the district court, the number of entities permitted to copy and
distribute accessible versions of publishers’ copyrighted works would be in the
hundreds of thousands – hardly a “narrow” exception.
The district court’s reliance on the ADA in interpreting the Chafee
Amendment is simply without foundation in the histories of either law. If
universities and/or their libraries are to have the status of “authorized entities”
under Chafee, it is for Congress to say so, not for a court to make a public policy
determination in the absence of any supporting intent of Congress.

24

See also Tasini, 206 F.3d at 168.
22

B.

The District Court Erred in Concluding that Rightsholders Do
Not Consider Print-Disabled Individuals to be a Significant
Potential Market

The district court found that “[p]rint-disabled individuals are not considered
to be a significant market or potential market to publishers and authors. As a result,
the provision of access for them was not the intended use of the original work
(enjoyment and use by sighted persons) and this use is transformative.” Dkt#156 at
18 (citations omitted). This is error. To the contrary, the book market for the printdisabled is growing and strong. In particular, there is a potentially vibrant market
for postsecondary students with print disabilities. As part of the Higher Education
Opportunity Act of 2008 (HEOA), Congress established a federal advisory
committee – the “AIM Commission” – to study and make recommendations to
improve the availability of accessible instructional materials (“AIM” products”) for
postsecondary students with disabilities. The AIM Commission reported numerous
efforts and strides being made by publishers to provide market solutions. The
Commission heard testimony from numerous witnesses, including students with
disabilities, providers, faculty and stakeholder groups, including textbook
publishers, among others.25 The Commission found:

25

Report of the Advisory Commission on Accessible Instructional Materials in
Postsecondary Education for Students with Disabilities, December 6, 2011 (the
AIM Report”), at12, available at
http://www2.ed.gov/about/bdscomm/list/aim/meeting/aim-report.pdf.
23

The number of curriculum publishers and other content developers
offering accessible digital versions of their print materials has
increased in recent years. Large learning technology companies, such
as C-engage, Elsevier, McGraw-Hill, Pearson and Wiley are
providing versions of their educational materials with accessibility
features. Other companies, including CouseSmart (a cooperative
digital venture of several major publishers), VitalSource (Ingram
Digital) and CafeScribe (Follett) are currently offering digital versions
of instructional materials on a variety of technology platforms. New
sources are regularly entering the market (e.g., Inkling, AcademicPub,
Kno).
Id. at 16-17. The 108 Report explains that the number of publishers offering
accessible materials for the print disabled is growing and major educational
publishers are providing their educational materials in accessible formats or with
accessibility features, while other technology companies are offering instructional
materials on a variety of platforms.26 In sum, it is simply untrue that the printdisabled publishing market is not a significant current and potential market for
publishers.
The AIM Commission Report also includes a recommendation for Congress
to review the Chafee Amendment. Id. at 43-46. As noted, any amendment
(including the definition of “authorized entity”) is a matter for Congress, as is
currently underway, not the courts. The district court’s radical interpretation and
26

See id. at 12-13, 22-23 and 51; see also The Individuals with Disabilities
Education Improvement Act of 2004, P.L.108-446 (“IDEA Act”) at 40-41 (AAP
and disabilities advocacy groups negotiated law requiring a key “national file
format” and “central national repository” features for improved access to
accessible instructional materials for elementary and secondary students with
disabilities, including through purchase directly from publishers.).
24

departure from the intent of Section 121 cannot be enacted by fiat from a single
court, but only by Congressional legislation that is based on input from all
interested parties, weighing their interests in a manner that maintains a balance of
user and rightsholder interests.
IV.

THE DISTRICT COURT MISAPPLIED THE STANDARD FOR
“TRANSFORMATIVE” USE UNDER THE FIRST FACTOR
The fair use test leads with an inquiry into the “purpose and character of the

use.” 17 U.S.C. § 107(1). The Supreme Court’s landmark ruling in Campbell v.
Acuff-Rose Music, Inc., dictates the central question underlying the first factor:
whether the work is “transformative.” See 510 U.S. 569, 579 (1994). This Court
has properly adopted that holding. See, e.g., American Geophysical Union v.
Texaco, Inc., 60 F.3d 913, 923 (2d Cir. 1994), cert. denied, 516 U.S. 1005 (1995).
The district court itself likewise acknowledged its importance under Campbell.
Dtk#156 at 16.
The district court erred in its understanding of transformative use. As Judge
Leval elaborated in his seminal article on fair use, “the use must be of a character
that serves the copyright objective of stimulating productive thought and public
instruction without excessively diminishing the incentives for creativity.” Pierre
N. Leval, Toward A Fair Use Standard, 103 Harv. L. Rev. 1105, 1110 (1990).
Consistent with these well-established principles, the Campbell Court held that a
work is “transformative” if it “adds something new, with a further purpose or
25

different character, altering the first with new expression, meaning or message . . .
” 510 U.S. at 579.
A work is not transformative where the new work “merely ‘supersede[s] the
objects’ of the original creation . . . .” Id. (quoting Folsom v. Marsh, 9 F. Cas. 342,
348 (C.C.D. Mass. 1841)). “[A] work composed primarily of an original,
particularly its heart, with little added or changed, is more likely to be a merely
superseding use, fulfilling demand for the original.” Id. at 587-88. “The first fair
use factor calls for a careful evaluation whether the particular quotation is of the
transformative type that advances knowledge and the progress of the arts or
whether it merely repackages, free riding on another’s creations.” Leval, supra, at
1116.
Had the district court made a “careful evaluation” that adhered to these wellestablished principles, it would have found that the uses were not transformative:
the HDL copies the entirety of the original works and make those full works
available for searching and archiving, and for consumption by a segment of the
public.
To overcome this obstacle to a finding of transformative use, the district
court grossly expanded the boundaries of the fair use doctrine through the
misconstruction of the term “purpose” in the first factor. According to the district
court’s formulation, “[a] transformative use may be one that actually changes the
26

original work. However, a transformative use can also be one that serves an
entirely different purpose.” Dkt#156 at 16 (citing Bill Graham Archives v. Dorling
Kindersley Ltd., 448 F.3d 605, 609 (2d Cir. 2006)). The district court identified
new purposes for the copies, including “superior search capabilities” and
“facilitat[ing] access for print-disabled persons.” Id. at 16, 18.
These purposes may serve the public benefit, but no legal basis exists for
classifying them as “transformative.” District courts in this Circuit have easily
rejected the invitation to rely on the concept of a different “purpose” to turn a nontransformative use into a transformative one. See, e.g., United States v. American
Soc’y of Composers, Authors & Publishers, 599 F. Supp. 2d 415, 424, 427-29
(S.D.N.Y. 2009) (informational purpose); UMG Recordings, Inc. v. MP3.Com,
Inc., 92 F. Supp. 2d 349, 351 (S.D.N.Y. 2000) (providing mp3-format copies of
audio CDs as a means to “space shift,” explaining that, “[w]hile such services may
be innovative, they are not transformative”). Other courts of appeals have
similarly refused to dilute the concept of transformativeness in such a manner.
See, e.g., Video Pipeline, Inc. v. Buena Vista Home Entm’t, Inc., 342 F.3d 191,
198, 200 (3d Cir. 2003) (informational purpose of clip previews did not make use
of plaintiff’s works transformative); Micro Star v. FormGen Inc., 154 F.3d 1107,
1113 n.6 (9th Cir. 1998) (purpose of allowing customers to extend play of
plaintiff’s game could “hardly be described as transformative; anything but.”); see
27

also Princeton Univ. Press v. Michigan Doc. Svcs., 99 F.3d 1381, 1389 (6th Cir.
1994) (“[t]his kind of mechanical transformation bears little resemblance to the
creative metamorphosis accomplished by the parodists in the Campbell case.”).
This Court’s ruling in Bill Graham Archives did not promulgate a rule that
simply finding “a different purpose” may alone render copying of entire works
“transformative.” Indeed, consistent with the aforementioned principles, the
defendant transformed advertising posters by incorporating them in “significantly
reduced form” in an editorial context that placed the works in a historical light.
See 448 F.3d at 609. The purposes here, archiving and consumptive use, are
remarkably different from those in Bill Graham Archives: the HDL copies
substitute for the original rather than transform by adding “new expression,
meaning or message.” That the copies may be used to create audio versions of the
works does not make the copies or their audio versions transformative. All that has
occurred in this case is a change of format, which is a quintessential example of
non-transformative copying. See, e.g., Nihon Keizai Shimbun, Inc. v. Comline
Business Data, Inc., 166 F.3d 65, 72 (2d Cir. 1999); Castle Rock Entm’t, Inc. v.
Carol Publ’g Group, Inc., 150 F.3d 132, 143 (2d Cir. 1998); see also Society of the
Holy Transfiguration Monastery, Inc. v. Archbishop Gregory of Denver, Colorado,
685 F. Supp. 2d 217, 227 (D. Mass. 2010) (placing book in new media format is
not transformative), aff’d 689 F.3d 29 (1st Cir. 2012).
28

The district court appeared to make no finding that the archival purpose of
the HDL copies was transformative. In fact, it noted that “[t]he argument that
preservation on its own is a transformative use is not strong.” Dkt#156 at 15 n.19.
Yet nowhere in the opinion does the district court reconcile its differing
conclusions on the various intended end-uses of the HDL and MDP copies.
Tellingly, at the conclusion of its analysis of the first factor, the district court
abandoned the transformative test in favor of relying on factually distinct dicta in
Sony, 464 U.S. at 455, n.40 (1984) – a pre-Campbell decision – to find fair use per
se.
Moreover, after finding that the uses were transformative under the first fair
use factor, the district court erred in failing to give any meaningful consideration to
the second and third factors in its analysis. See Campbell, 510 U.S. at 578 (“[n]or
may the four [fair use] statutory factors be treated in isolation, one from another.
All are to be explored, and the results weighed together, in light of the purposes of
copyright.”). The district court paid mere lip service to this requirement by
dismissing the second and third fair use factors in two short paragraphs. Dkt#156
at 18-19. The minimal analysis given to the second and third fair use factors
makes clear that the district court failed to properly conduct its fair use analysis
and reached an outcome that was motivated by the public benefits the district court
identified earlier in its opinion.
29

CONCLUSION
For the reasons set forth above, and for those set forth in Appellants’ brief,
amicus curiae respectfully requests that the decision below be reversed.
Dated:

New York, New York
March 4, 2013
s/ Mary E. Rasenberger
Mary E. Rasenberger
Nancy E. Wolff
Eleanor M. Lackman
Nicholas J. Tardif
COWAN, DeBAETS, ABRAHAMS &
SHEPPARD LLP
41 Madison Avenue, 34th Floor
New York, New York 10010
Tel: [phone]
Attorneys for Amicus Curiae

30

CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with the type-volume limitations of
Fed. R. App. P. 32(a)(7)(B) because this brief contains 6,897 words, excluding the
parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), as counted by
Microsoft® Word 2007, the word processing software used to prepare this brief.
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®
Word 2007, Times New Roman, 14 point.
s/ Mary E. Rasenberger
Mary E. Rasenberger
Attorneys for Amicus Curiae
Dated: March 4, 2013

31