The Authors Guild v. Google, Inc.

Filing 148

AMICUS BRIEF, on behalf of Amicus Curiae Computer & Communications Industry Association, FILED. Service date 07/10/2014 by CM/ECF. [1267738] [13-4829]--[Edited 07/11/2014 by KG]

13-4829-cv
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
THE AUTHORS GUILD, BETTY MILES, JIM BOUTON, JOSEPH GOULDEN,
individually and on behalf of all others similarly situated,
Plaintiffs-Appellants,
HERBERT MITGANG, DANIEL HOFFMAN, individually and on behalf of all
others similarly situated, PAUL DICKSON, THE MCGRAW-HILL
COMPANIES, INC., PEARSON EDUCATION, INC., SIMON & SCHUSTER,
INC., ASSOCIATION OF AMERICAN PUBLISHERS, INC., CANADIAN
STANDARD ASSOCIATION, JOHN WILEY & SONS, INC., individually and
on behalf of all others similarly situated,
Plaintiffs,
v.
GOOGLE INC.,
Defendant-Appellee.
______________________________________

On Appeal from the United States District Court for the
Southern District of New York, No. 1:05-cv-08136 (Chin, J.)
BRIEF AMICUS CURIAE OF THE COMPUTER & COMMUNICATIONS
INDUSTRY ASSOCIATION IN SUPPORT OF DEFENDANT-APPELLEE
GOOGLE, URGING AFFIRMANCE
Matt Schruers
Vice President, Law & Policy
Computer & Communications
Industry Association
900 Seventeenth Street NW, 11th Floor
Washington, DC 20006
[phone]
[e-mail]
Counsel for Amicus Curiae
July 10, 2014

CORPORATE DISCLOSURE STATEMENT
Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, amicus
curiae the Computer & Communications Industry Association states that it does
not have a parent corporation and that no publicly held corporation has an
ownership stake of 10% or more in CCIA.
/s/ Matt Schruers
Counsel for Amicus Curiae
July 10, 2014

ii

TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................................................................... iv
INTEREST OF AMICUS.......................................................................................... 1
SUMMARY OF ARGUMENT ................................................................................ 3
ARGUMENT............................................................................................................ 5
I.

LARGE-SCALE COPYING IS INTEGRAL TO THE MODERN
ECONOMY............................................................................................... 5
A. Since Sony, numerous courts have found large-scale copying
to be fair use ......................................................................................... 6
B. The same technology that enables pervasive copying provides
new revenue sources for rights-holders.............................................. 10

II.

FAIR USE IS ESSENTIAL TO INDUSTRIES ACROSS THE
U.S. ECONOMY..................................................................................... 12

III.

A FAIR USE FINDING DOES NOT USURP CONGRESSIONAL
AUTHORITY.......................................................................................... 15

CONCLUSION....................................................................................................... 17
CERTIFICATE OF COMPLIANCE...................................................................... 18
CERTIFICATE OF SERVICE ............................................................................... 19

iii

TABLE OF AUTHORITIES
Cases
American Geophysical Union v. Texaco Inc., 60 F.3d 913 (2d Cir. 1994) .. 10
Authors Guild, Inc. v. Google Inc.,
954 F. Supp. 2d 282 (S.D.N.Y. 2013) ............................................... 14
Authors Guild, Inc. v. HathiTrust,
2014 WL 2576342 (2d Cir. June 10, 2014) ............................. 9, 11, 12
Authors Guild, Inc. v. HathiTrust, 902 F. Supp. 2d 445 (S.D.N.Y. 2012)... 11
A.V. ex rel. Vanderhye v. iParadigms, LLC,
562 F.3d 630 (4th Cir. 2009).......................................................... 4, 10
Bill Graham Archives v. Dorling Kindersley Ltd.,
448 F.3d 605 (2d Cir. 2006)............................................................... 14
Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006)............................................... 4
Bond v. Blum, 317 F.3d 385 (4th Cir. 2003) ................................................ 13
Bouchat v. Baltimore Ravens Ltd. P’ship, 619 F.3d 301 (4th Cir. 2010)..... 13
Bouchat v. Baltimore Ravens Ltd. P’ship, 737 F.3d 932 (4th Cir. 2013)..... 13
Brownmark Films, LLC v. Comedy Partners,
682 F.3d 687 (7th Cir. 2012).............................................................. 13
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)................. 9, 10, 12
Castle Rock Entm’t, Inc. v. Carol Publ’g Grp.,
150 F.3d 132 (2d Cir. 1998)............................................................... 14
Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013) ............................................ 14
Eldred v. Ashcroft, 537 U.S. 186 (2003) ........................................................ 1

iv

Faulkner Literary Rights LLC v. Sony Pictures Classics,
953 F. Supp. 2d 701 (N.D. Miss. 2013) ............................................ 14
Field v. Google Inc., 412 F. Supp. 2d 1106 (D. Nev. 2006) ...................... 8, 9
Fox Broadcasting Co. v. Dish Network LLC,
723 F.3d 1067 (9th Cir. 2013).............................................................. 6
Golan v. Holder, 132 S. Ct. 873 (2012) ......................................................... 1
Healthcare Advocates, Inc. v. Harding, Earley, Follmer & Frailey,
497 F. Supp. 2d 627 (E.D. Pa. 2007) ............................................. 8, 10
In re AutoHop Litigation, 2013 WL 5477495 (S.D.N.Y. Oct. 1, 2013)......... 6
Infinity Broadcast Corp. v. Kirkwood, 150 F.3d 104 (2d Cir. 1998) ............. 8
Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2003)....................... 4, 7, 8
MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993) ... 7
Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd.,
545 U.S. 913 (2005) ........................................................................... 11
New Kids on the Block v. News America Publ’g, Inc.,
971 F.2d 302 (9th Cir. 1992)................................................................ 2
Perfect 10 v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007) ................ 4, 7
Sega Enters., Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992).............. 6
Seltzer v. Green Day, 725 F.3d 1170 (9th Cir. 2013)................................... 14
SOFA Entm’t, Inc. v. Dodger Productions, Inc.,
709 F.3d 1273 (9th Cir. 2013).............................................................. 1
Sony Corp. of America v. Universal City Studios, Inc.,
464 U.S. 417 (1984) ............................................................................. 6

v

Sony Computer Entm’t, Inc. v. Connectix Corp.,
203 F.3d 596 (9th Cir. 2000)................................................................ 6
Twentieth Century Music Corp. v. Aiken, 422 U.S. 151 (1975)..................... 1
White v. West Publ’g Corp.,
No. 12-01340, slip op. (S.D.N.Y. July 3, 2014)....................... 4, 10, 14
Statutes
17 U.S.C. § 101 .............................................................................................. 1
17 U.S.C. § 107 ........................................................................................ 5, 16
Other Materials
Apple, Press Release, HBO GO & WatchESPN Come to Apple TV:
iTunes Viewers Now Purchasing Over 800,000 TV Episodes & Over
350,000 Movies Per Day, June 19, 2013...................................................... 11
Berne Convention for the Protection of Literary and Artistic Works, as
last revised July 24, 1971, amended Oct. 2, 1979, S. TREATY DOC. No.
99-27, 828 U.N.T.S. 221 ................................................................................ 8
Congressional Research Serv., Internet Search Engines: Copyright’s
“Fair Use” in Reproduction and Public Display Rights, July 12, 2007........ 8
Dara Kerr, Digital movie sales climb 47 percent in 2013, CNET, Jan. 8,
2014 .............................................................................................................. 11
David Dean et al., The Internet Economy in the G-20: The $4.2 Trillion
Growth Opportunity (Boston Consulting Grp. 2012)................................... 13
David Fagundes, Market Help, Market Harm, and Fair Use,
17 STAN. TECH. L. REV. 359 (2014) ............................................................. 12
Google Books Ngram Viewer, search query for “intellectual property,
literary property, industrial property, copyrights”, 1775-2000 ...................... 3

vi

John Tehranian, Infringement Nation: Copyright Reform and the
Law/Norm Gap, 2007 UTAH L. REV. 537 (2008) ........................................... 7
Judge Pierre N. Leval, Toward a Fair Use Standard, 103 HARV. L.
REV. 1105 (1990)............................................................................................ 9
Justin Hughes, Copyright and Incomplete Historiographies: Piracy,
Propertization, and Thomas Jefferson, 79 SO. CAL. L. REV. 993 (2006)....... 3
Mark A. Lemley, Property, Intellectual Property, and Free Riding,
83 TEX. L. REV. 1031 (2005).......................................................................... 3
Matthew Sag, Copyright and Copy-reliant Technology, 103 NW.
U. L. REV. 1607 (2009)......................................................................... 8, 9, 10
Preservation and Reuse of Copyrighted Works: Hearing Before the
Subcomm. on Courts, Intellectual Property, and the Internet, H. Comm.
on the Judiciary, 113th Cong. (2014) (statement of Jan Constantine,
General Counsel, The Authors Guild).......................................................... 16
Thomas Rogers & Andrew Szamosszegi, Fair Use in the U.S. Economy:
Economic Contribution of Industries Relying on Fair Use (2011) .............. 13

vii

INTEREST OF AMICUS 1
The Computer & Communications Industry Association (CCIA) represents
more than twenty large, medium-sized, and small companies in the high
technology products and services sectors, including computer hardware and
software, electronic commerce, telecommunications, and Internet products and
services – companies that collectively generate more than $465 billion in annual
revenues.2
CCIA’s members benefit from the Copyright Act’s “statutory monopoly”
when developing new and innovative software and other creative works, and are
also substantially regulated by that same system. 17 U.S.C. § 101 et seq. This
regulation is constitutionally sound when it incentivizes authors in a way that
furthers the public interest, see Twentieth Century Music Corp. v. Aiken, 422 U.S.
151, 156 (1975), and because it is circumscribed by exceptions like fair use. See
Eldred v. Ashcroft, 537 U.S. 186, 219-20 (2003); Golan v. Holder, 132 S. Ct. 873,
890 (2012). Because “an overzealous monopolist can use his copyright to stamp
out the very creativity that the Act seeks to ignite,” SOFA Entm’t, Inc. v. Dodger
1

No counsel for any party authored this brief in whole or part; no such party or
counsel made a monetary contribution intended to fund its preparation or
submission; and no person other than amicus made such a contribution. All parties
have consented to the filing of this brief. Defendant-appellee Google is a member
of CCIA but took no part in the preparation of this brief.
2
A complete list of CCIA members is available at
http://www.ccianet.org/members.
1

Productions, Inc., 709 F.3d 1273, 1278 (9th Cir. 2013), the fair use doctrine exists
to ensure he does not “prevent[] the authors and thinkers of the future from making
use of, or building upon, his advances.” New Kids on the Block v. News America
Publ’g, Inc., 971 F.2d 302, 307 n.6 (9th Cir. 1992).
In the commercial context, this increasingly involves transformative uses. In
many cases these uses create no new work at all; rather, they allow for the
provision of services, which quite frequently help the market for the underlying
work, not harm it. Therefore, while CCIA members include copyright holders who
benefit from strong copyright protection, they also depend greatly upon a strong
fair use doctrine, which enables existing and future innovations in information
services and technology. It is no coincidence that many of the most innovative
information products and services of the Internet revolution have been developed
in the United States, whose copyright law has long balanced robust copyright
protection with a robust fair use doctrine. CCIA offers its perspective with the aim
of preserving that balance.

2

SUMMARY OF ARGUMENT
The functionality of Google Books is without precedent. As the brief of
Appellee Google makes clear, the Google Books service dramatically improves
readers’ and researchers’ abilities to find and purchase books relevant to their
interests, by enabling the world to search (but not read) the contents of many of the
world’s greatest research libraries. Additionally, Google’s book scanning enabled
the Google Ngram project, which allows users to measure word use over time in an
unprecedented corpus of literature. Overnight, a question that copyright scholars
had debated at length – “when did the term ‘intellectual property’ achieve popular
acceptance?”3 – could be answered with a single Google Books Ngram query.4
(The answer: not until the 1980s.)
While the world has never before had the ability to search such vast
quantities of human knowledge, and while it is revolutionary to enable researchers
to easily and empirically check the vintage of a term such as “intellectual
property,” the copying that made this functionality possible was not at all
revolutionary. In fact, mass copying is extremely common. Several courts have
3

Compare Mark A. Lemley, Property, Intellectual Property, and Free Riding,
83 TEX. L. REV. 1031, 1033 (2005) with Justin Hughes, Copyright and Incomplete
Historiographies: Piracy, Propertization, and Thomas Jefferson, 79 SO. CAL. L.
REV. 993, 1063 (2006).
4
See Google Books Ngram Viewer, search query for “intellectual property,
literary property, industrial property, copyrights”, 1775-2000, available at
http://tiny.cc/ngram-ip (tested July 7, 2014).
3

previously found mass copying of “raw material” to build databases for “sharply
different objectives” to be fair use. White v. West Publ’g Corp., No. 12-01340, slip
op. at 5 (S.D.N.Y. July 3, 2014)5 (quoting Blanch v. Koons, 467 F.3d 244, 251 (2d
Cir. 2006)); A.V. ex rel. Vanderhye v. iParadigms, LLC, 562 F.3d 630, 640 (4th
Cir. 2009); Perfect 10 v. Amazon.com, Inc., 508 F.3d 1146, 1165 (9th Cir. 2007);
Kelly v. Arriba Soft Corp., 336 F.3d 811, 818 (9th Cir. 2003). Moreover, mass
copying by individuals in the course of their daily activities is an inescapable result
of the widespread use of digital technology, and this copying is integral to the
modern economy.
All of these copies – often in the commercial context, and invariably
facilitated by commercial technology – depend on fair use, and indeed courts have
found them to be fair use, acknowledging that they can provide valuable new
revenue streams for rights-holders. In this sense, copying permitted by the fair use
doctrine has long been, and remains, essential to the U.S. economy. Consistent
with this, the district court’s decision finding Google’s copying to be fair use does
not usurp Congressional authority, as Appellants and their amici suggest. On the
contrary, it reinforces widely understood principles of copyright law.

5

http://www.nysd.uscourts.gov/cases/show.php?db=special&id=412.
4

ARGUMENT
I.

LARGE-SCALE COPYING IS INTEGRAL TO THE MODERN
ECONOMY.
Large-scale copying of copyright-protected works is an immutable fact of

the modern economy. Appellants and their amici, however, suggest that the
digitization of millions of works is a “mammoth,” “unprecedented” exercise. See,
e.g., Appellants Br. at 46; Copyright Alliance Br. at 1-2; American Society of
Journalists and Authors Br. at 26. While the functionality of Google Books is both
unprecedented and revolutionary, the copying necessary to develop it was not. For
decades, commercially produced devices and commercial services have facilitated
or directly engaged in large-scale digitization and reproduction, for purposes
orthogonal to the original objective of the author. These technologies and services
are now commonplace in modern society, and they depend upon the fair use
doctrine. 17 U.S.C. § 107. Indeed, at this very moment, on computers and in
networks, on set-top boxes and in smartphones and consumer electronics of all
sorts, “mammoth” amounts of copyright-protected works are being lawfully
reproduced without permission, on a scale far larger than anything contemplated
by the Google Library Project. Appellants and their amici cannot rewrite
technology law history by omitting the precedents that have enabled this copying.

5

A.

Since Sony, numerous courts have found large-scale copying to be
fair use.

This copying rests upon an extensive foundation of legal support.
Consistent with Sony Corp. of America v. Universal City Studios, Inc., 464 U.S.
417 (1984), millions of American households today record hundreds of millions of
hours of television broadcasts with their DVRs. These broadcasts include a wide
range of works, from non-fiction works such as news programs, documentaries,
and sporting events to fictional works such as cartoons, comedies, and dramas.
Relying on the certainty provided by Sony, innovative new consumer electronics
products and services have launched—and been sued and upheld as lawful. See,
e.g., Fox Broadcasting Co. v. Dish Network LLC, 723 F.3d 1067 (9th Cir. 2013);
In re AutoHop Litigation, 2013 WL 5477495 (S.D.N.Y. Oct. 1, 2013).
At the same time, countless commercial software and hardware developers
are making copies of copyright-protected products in the course of reverse
engineering their competitors’ products to ensure interoperability – that is, to
guarantee that one program or device can talk to another. Courts routinely uphold
this copying as lawful, notwithstanding the direct commerciality of the act. See
Sony Computer Entm’t, Inc. v. Connectix Corp., 203 F.3d 596, 606 (9th Cir. 2000);
Sega Enters., Ltd. v. Accolade, Inc., 977 F.2d 1510, 1520 (9th Cir. 1992).
Similarly, audio and video consumer electronic devices make temporary
buffer copies (which some courts construe to be subject to protection, see MAI
6

Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 518-19 (9th Cir. 1993)) in
memory in order to improve playback quality. In the same fashion, millions of
Internet users’ web browsers automatically store and cache copyright-protected
content offline to reduce bandwidth use and speed up load times, and their email
programs save numerous copies of other people’s correspondence, often to
multiple devices, and in the cloud, indexed for ease of search. Cf. John Tehranian,
Infringement Nation: Copyright Reform and the Law/Norm Gap, 2007 UTAH L.
REV. 537, 543-47 (2008) (detailing the amount of copying that all modern
technology users inevitably engage in). A robust interpretation of fair use
guarantees that this persistent, pervasive temporary copying does not transform us
into a nation of infringers.
Routine and indiscriminate copying is particularly essential to the orderly
operation of the Internet. Consistent with the Ninth Circuit’s Perfect 10 decision
and related cases, search engines index (and in so doing reproduce) billions of
copyright-protected web pages containing an enormous variety of works, such as
news, photographs, fan fiction, and blogs, on an ongoing basis, without license.
See, e.g., Perfect 10 v. Amazon.com, Inc., 508 F.3d 1146, 1165-68 (9th Cir. 2007)
(indexing held to be fair use); Kelly v. Arriba Soft Corp., 336 F.3d 811, 820 (9th

7

Cir. 2003) (same);6 Field v. Google Inc., 412 F. Supp. 2d 1106, 1118-19 (D. Nev.
2006) (same);7 see also Healthcare Advocates, Inc. v. Harding, Earley, Follmer &
Frailey, 497 F. Supp. 2d 627, 638-39 (E.D. Pa. 2007) (viewing, printing, and
saving copies of plaintiff’s public website for historical reference in litigation from
Internet Archive Wayback Machine was fair use).
In order for this functionality to be made available to users, mass copying
must occur “routinely, automatically, and indiscriminately”. Matthew Sag,
Copyright and Copy-reliant Technology, 103 NW. U. L. REV. 1607, 1622 (2009).
Without such functionality, effectively navigating the modern World Wide Web
would be impossible.

6

Amicus MPAA relies on Infinity Broadcast Corp. v. Kirkwood, 150 F.3d 104,
108-09 (2d Cir. 1998). However, in finding search indexing to be fair use in Kelly,
the Ninth Circuit explicitly distinguished Kirkwood, which lacked any search
feature, by noting that the transmissions in Kirkwood could completely substitute
for the original work. Kelly, 336 F.3d at 819. Here, Google’s ‘snippets’ or
quotations from works do not substitute for the original. In addition, the United
States is explicitly forbidden by its international treaty commitments from
extending copyright protection to quotations. See Berne Convention for the
Protection of Literary and Artistic Works, Article 10, as last revised July 24, 1971,
amended Oct. 2, 1979, S. TREATY DOC. NO. 99-27, 828 U.N.T.S. 221.
7
These precedents “acknowledge the social utility of online indexing, and factor
it into fair use analysis... adapt[ing] copyright law to the core functionality and
purpose of Internet”. Congressional Research Serv., Internet Search Engines:
Copyright’s “Fair Use” in Reproduction and Public Display Rights, July 12, 2007,
at 13.
8

In our modern digital economy, vast amounts of reproduction are not only
commonplace; they are inescapable. In many contexts, unlicensed reproduction is
not the exception. It is the rule.
Although these copies frequently necessitate full reproduction of the
underlying work by commercial entities, the copying does not impair the
Copyright Act’s regulatory objective because the copies are highly transformative,
and as the Supreme Court stated in Campbell, “the more transformative the new
work, the less will be the significance of other factors, like commercialism....”
Campbell, 510 U.S. at 579. To permit reproduction for “different and socially
important purposes” that “do not merely supercede the objectives of the original
creations”, Field, 412 F. Supp. 2d at 1119, takes nothing away from the author’s
right to control the commercial exploitation of their work. Copies that do not
substitute for the original do not impair the author’s legitimate interests.8 Authors
Guild, Inc. v. HathiTrust, 2014 WL 2576342, at *7 (2d Cir. June 10, 2014)
8

In this case, the output of copying is not even a work at all, but rather an
entirely new function, independent from content consumption. Judge Leval’s
influential article, Toward a Fair Use Standard, 103 HARV. L. REV. 1105, 1111
(1990), refers not only to transformative “works”, but also to “uses,” suggesting
that fair uses of works might not involve placing a new work into the market, but
rather performing some other activity entirely. In such a case, the potential effect
on the market is at its nadir. Professor Sag characterizes these cases as
“nonexpressive uses”, see Sag, supra, at 1624 (observing that “the general
principle of nonexpressive use – that acts of copying which do not communicate
the author’s original expression to the public should not be held to constitute
copyright infringement – flows naturally from an analysis of existing copyright
doctrines.”).
9

(quoting Campbell, 510 U.S. at 591, for proposition that “cognizable market harm”
is limited to “market substitution”). In short, it is incorrect to say that large-scale
copying is unprecedented. Large-scale copying is omnipresent, perpetually
occurring all around us. However, because this copying is highly transformative,
and is frequently for nonexpressive uses, it does not impede the Copyright Act’s
regulatory objective.9
B.

The same technology that enables pervasive copying provides new
revenue sources for rights-holders.

Notwithstanding that all this copying occurs, it does nothing to undercut
authors’ legitimate interests. In fact, online information services that require or
facilitate copying have enabled new markets for content consumption and
distribution, providing new revenue sources for authors and rights-holders. For
example, as of last year, iTunes users downloaded more than one billion TV

9

This boundary demarcating transformative, nonexpressive uses is generally
reflected in precedent. See Sag, Copyright and Copy-reliant Technology, at 161624. While saving web pages locally surely cannot infringe, see Healthcare
Associates, supra, downloading and reselling digital articles might. See American
Geophysical Union v. Texaco Inc., 60 F.3d 913, 923 (2d Cir. 1994), but see White
v. West Publ’g Corp., slip op. at 7-8. And while creating a commercial database of
students’ term papers to detect plagiarism does not infringe, A.V. ex rel. Vanderhye
v. iParadigms, LLC, 562 F.3d 630, 645 (4th Cir. 2009), reselling individual
reprints of those same papers might. Compare Texaco with White, supra.
10

episodes and 380 million movies from iTunes;10 all told consumers spent an
estimated $18.2 billion on digital home entertainment.11
Rather than inhibiting authors’ legitimate interests, the extensive copying
that occurs in the digital environment advances the interests of rights-holders by
making content easier to consume, and enabling Internet users to more efficiently
find, interact with, and, in many cases, lawfully purchase content. Accord Authors
Guild, Inc. v. HathiTrust, 902 F. Supp. 2d 445, 460 (S.D.N.Y. 2012) (copying of
books in HathiTrust Digital Library “is transformative because the copies serve an
entirely different purpose than the original works: the purpose is superior search
capabilities rather than actual access to copyrighted material.”), aff’d 2014 WL
2576342 (2d Cir. June 10, 2014).
As the Supreme Court has noted, “[t]he more artistic protection is favored,
the more technological innovation may be discouraged; the administration of
copyright law is an exercise in managing the tradeoff.” Metro-Goldwyn-Mayer
Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 928 (2005). This tradeoff should be
easily managed, however, in cases where the use in question provides “market
10

Apple, Press Release, HBO GO & WatchESPN Come to Apple TV: iTunes
Viewers Now Purchasing Over 800,000 TV Episodes & Over 350,000 Movies Per
Day, June 19, 2013, available at http://www.apple.com/pr/library/2013/06/19HBO
-GO-WatchESPN-Come-to-Apple-TV.html.
11
Dara Kerr, Digital movie sales climb 47 percent in 2013, CNET, Jan. 8, 2014,
available at http://www.cnet.com/news/digital-movie-sales-climb-47-percent-in2013/.
11

help” rather than “market harm,” or where the purpose of the copying is both
different from that of the author, and socially significant.12
Thus, while Google Books is a revolutionary resource, the reproduction that
it required is hardly unprecedented. The copying involved in the Library Project is
in fact a modest undertaking, compared to the countless fair use copies that
businesses and individual technology users rely upon every day. Because these
activities do not impede the legitimate interests of authors, and in fact often
advance them, they should be considered “quintessentially transformative.” See
Authors Guild, Inc. v. HathiTrust, 2014 WL 2576342, at *7 (2d Cir. June 10,
2014).
II.

FAIR USE IS ESSENTIAL TO INDUSTRIES ACROSS THE U.S.
ECONOMY.
Pervasive copying underlies so much modern economic activity, including

Internet functionality and digital technology, that it is no exaggeration to say that
fair use is essential to the U.S. economy. For over 30 years, commercial entities
have relied on the Supreme Court’s Sony decision when engaging in fair use, or
providing products and services that enable fair use by consumers and users. As
the Court reaffirmed ten years later in Campbell v. Acuff-Rose Music, Inc., 510
U.S. 569, 594 (1994), commerciality is not a bar to fair use.
12

David Fagundes, Market Help, Market Harm, and Fair Use, 17 STAN. TECH.
L. REV. 359, 378-85 (2014), available at http://journals.law.stanford.edu/sites/
default/files/stanford-technology-law-review/online/marketharmmarkethelp.pdf.
12

Today, fair use and exceptions to the rights-holder’s statutory monopoly are
of considerable economic importance. Research in 2011 concluded that industries
depending upon fair use and other exceptions to copyright contributed $2.4 trillion
in value-add to the U.S. economy (roughly one-sixth of total U.S. current dollar
GDP).13 The value of the global Internet economy is projected to reach $4.2
trillion in a few years,14 and much of that commerce is facilitated by products or
services engaging in the copying described above.
The benefits of commercial fair use are not confined to the technology
sector, however. “Creative industries” also regularly depend upon fair use in their
commercial endeavors. See MPAA Br. at 2 (citing Brownmark Films, LLC v.
Comedy Partners, 682 F.3d 687 (7th Cir. 2012)); accord Bouchat v. Baltimore
Ravens Ltd. P’ship, 619 F.3d 301, 314 (4th Cir. 2010) (football team’s use of
plaintiff’s copyrighted work was transformative because the work “is used ‘not for
its expressive content, but rather for its … factual content.’” (quoting Bond v.
Blum, 317 F.3d 385, 396 (4th Cir. 2003)); Bouchat v. Baltimore Ravens Ltd.
P’ship, 737 F.3d 932 (4th Cir. 2013) (football team’s successful fair use defense
13

See Thomas Rogers & Andrew Szamosszegi, Fair Use in the U.S. Economy:
Economic Contribution of Industries Relying on Fair Use (2011), available at
http://www.ccianet.org/wp-content/uploads/library/CCIAFairUseintheUSEconomy-2011.pdf.
14
David Dean et al., The Internet Economy in the G-20: The $4.2 Trillion
Growth Opportunity (Boston Consulting Grp. 2012), at 3, available at
https://www.bcg.com/documents/file100409.pdf.
13

was supported by Appellants’ amicus MPAA, among others); Seltzer v. Green
Day, 725 F.3d 1170 (9th Cir. 2013); Cariou v. Prince, 714 F.3d 694 (2d Cir.
2013); Faulkner Literary Rights LLC v. Sony Pictures Classics, 953 F. Supp. 2d
701 (N.D. Miss. 2013) (movie studio’s quotation of Faulkner found to be fair use);
White v. West Publ’g Corp., No. 12-01340, slip op. (S.D.N.Y. July 3, 2014).
Yet notwithstanding Sony, Campbell, and the long established history of
commercial fair use, Appellants and their amici place particular emphasis on the
commerciality of Google’s copying. Although Google Books does not sell copies
or advertise around them, Appellants complain (Br. at 24) that the fact that Google
is a commercial entity carried too little weight in the district court’s analysis – even
though, as Judge Chin noted, the Second Circuit does not “give much weight to the
fact that the secondary use was for commercial gain.” See Authors Guild, Inc. v.
Google Inc., 954 F. Supp. 2d 282, 291 (S.D.N.Y. 2013) (citing Castle Rock Entm’t,
Inc. v. Carol Publ’g Grp., 150 F.3d 132, 141 (2d Cir. 1998)).15
For the reasons discussed above, the district court’s analysis is not only
consistent with this Court’s precedent, but also consistent with the expectations of
a large component of the economy. The commerciality of transformative uses,

15

See also Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 615
(2d Cir. 2006) (“copyright owners may not preempt exploitation of transformative
markets”).
14

particularly those undertaken for a purpose other than communicating creative
expression, should not be considered relevant to the fair use inquiry.
III.

A FAIR USE FINDING DOES NOT USURP CONGRESSIONAL
AUTHORITY
Appellants and their amici repeatedly assert that the copyright issues relating

to the mass digitization of books are better left to Congress, and that the district
court usurped Congressional authority by creating a “blanket exception” for mass
digitization. See Appellants Br. at 56-58; Baumgarten Br. at 25-30. The district
court did nothing of the sort.
In support of the contention that the district court overreached, the Copyright
Alliance states that the district court preempted ongoing discussions concerning
mass digitization, and that “the policy discussion regarding mass digitization …
[is] well underway.” Copyright Alliance Br. at 5-7. See also Baumgarten Br. at 30
(“Congress and the Copyright Office are actively pursuing the complex issues
surrounding mass digitization”).
To be sure, a policy discussion concerning mass digitization is underway,
but legislative resolution of this issue is nowhere in sight. The Copyright Office in
October 2011 did publish a document “to advance the discussions concerning mass
digitization,” Baumgarten Br. at 29, but it offered no legislative proposals.
Similarly, the Library of Congress’s Section 108 Study Group (cited by
Appellants’ amicus) issued a report in 2008 after three years of deliberations,
15

containing certain general recommendations for legislative change, but none of
which are applicable to the facts of this case. In the six years since, neither the
Copyright Office nor any member of Congress has proposed implementing
legislation.
The history of orphan works legislation is no more encouraging. A 2006
Copyright Office report on orphan works led to legislative proposals in Congress
in 2006 and 2008. The legislation died in the House in the face of furious
opposition from visual artists and some of Appellants’ amici. Indeed, Appellant
Authors Guild recently told Congress the orphan works problem was “vastly
overstated,” suggesting that it would oppose orphan works legislation.16
In conclusion, while Congress has considered mass digitization in the decade
since Google’s Library Project began, there has been little legislative action. And
when action has been considered in the venue which Appellants and some of its
amici ostensibly prefer, Appellants and their amici have opposed it. Fortunately,
Congress already authored its “legislative solution” in 1976: the fair use right, in
Section 107.

16

Preservation and Reuse of Copyrighted Works: Hearing Before the Subcomm.
on Courts, Intellectual Property, and the Internet, H. Comm. on the Judiciary,
113th Cong. (2014) (statement of Jan Constantine, General Counsel, The Authors
Guild), at 19, available at http://judiciary.house.gov/index.cfm/2014/4/hearingpreservation-and-reuse-of-copyrighted-works.
16

CONCLUSION
Although Google Books is unprecedented, the copying necessary to build it
was not. Mass copying for various purposes, both transformative and
nonexpressive, is pervasive in our modern digital society. As a result, a significant
segment of the U.S. economy depends upon the same fair use doctrine that Google
relies upon here.
Accordingly, CCIA urges this Court to affirm the district court’s ruling and
uphold the decades of fair use law that have resulted in substantial dissemination of
creative content, as the Copyright Act intended.
Respectfully submitted,
/s/ Matt Schruers
Matt Schruers
Vice President, Law & Policy
Computer & Communications
Industry Association
900 Seventeenth Street NW, 11th Floor
Washington, DC 20006
[phone]
[e-mail]
Counsel for Amicus Curiae
July 10, 2014

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CERTIFICATE OF COMPLIANCE
1.

This brief complies with the type-volume limitations of Fed. R. App. P.

32(a)(7)(B) because it contains 3,806 words, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
2.

This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the types style requirements of Fed. R. App. P. 32(a)(6) because it has
been prepared in a proportionally spaced typeface using Microsoft Word in 14
point Times New Roman.

/s/ Matt Schruers
Counsel for Amicus Curiae
July 10, 2014

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CERTIFICATE OF SERVICE
I hereby certify, that on this 10th day of July 2014, a true and correct copy of
the foregoing Brief of Amicus Curiae the Computer & Communications Industry
Association was timely filed in accordance with FRAP 25(a)(2)(D) and served on
all counsel of record via CM/ECF pursuant to Local Rule 25.1(h).

/s/ Matt Schruers
Counsel for Amicus Curiae
July 10, 2014

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