The Authors Guild v. Google, Inc.

Filing 149

AMICUS BRIEF, on behalf of Amicus Curiae Association for Computers and the Humanities, Canadian Society of Digital Humanities, A. Sean Pue, Aaron Plasek, Ales Vaupotic, Alex Gil, Allen Riddell, Amanda French, Amanda Visconti, Amy V. Ogden, Andrew Whalen, Annemarie Bridy, Art Neill, Ashanka Kumari, Benjamin Schmidt, Bernard D. Frischer, Bethany Nowviskie, Brandon Butler, Brandon Locke, Brian Croxall, Brian J. Love, Brian Frye, Brian L. Pytlik Zillig, Brian Rosenblum, Brian Carver, Cameron Blevins, Carol Chiodo, Carys Craig, Chandler Warren, Chris Bourg, Christof Schoech, Christopher N. Warren, Collin Gifford Brooke, Courtney Lawton, Dale M. Bauer, Dan Cohen, David H. Radcliffe, David Tan, David-Antoine Williams, Dennis S. Karjala, Derek Miller, Dot Porter, Martin Paul Eve, Elijah Meeks, Elizabeth Lorang, Elton Barker, Erin McKean, Ernesto Priego, Eve V. Clark, George Oates, Gerben Zaagsma, Glen Worthey, Guy A. Rub, Herbert Hovenkamp, Ira Steven Nathenson, Jacob Eisenstein, Jacob H. Rooksby, Jacob Heil, Coltrain, James F. Williams, James Gibson, Jarom McDonald, Jason Boyd, Jason Heppler, Jeannette Eileen Jones, Jeffrey T. Schnapp, Jennifer Guiliano, Jeremy Hunsinger, Jessica Silbey, Jim Pitman, John Laudun, John Unsworth, Jorge Contreras, Jorge R. Roig, Joseph Raben, Julie Ahrens, Kalani Craig, Katarina Peric, Kate Byrne, Katherine L. Walter, Kenneth M. Price, Kevin Reilly, Kurt M. Saunders, Lateef Mtima, Laurie Taylor, Leif Isaksen, Lindsey Seatter, Llewellyn Joseph Gibbons, Marco Forlivesi, Margaret Chon, Margaret Linley, Mark McKenna, Mark Sample, Mark Wolff, Matthew Jockers, Matthew K. Gold, Matthew Kirschenbaum, Matthew Sag, Matthew Wilkens, Melissa Terras, Michael D. Scott, Michael Pierce Williams, Michael Scott Cuthbert, Mikal B. Eckstrom, Millie Gonzalez, Miran Hladnik, Monika Pemic, Morris Eaves, Nicolas Suzor, Nora Martin Peterson, Paige Morgan, Patricia Hswe, Paul J. Heald, Paul N. Courant, Peter Murray-Rust, Peter Organisciak, Puneet Kishor, Raizel Liebler, Ralph D. Clifford, Ray Corrigan, Raymond Ku, Rebecca S. Curtin, Rebecca L. Tushnet, Richard Cunningham, Richard Menke, Robert S. Means, Robyn Luney, Roger Ford, Roman Leibov, Roopika Risam, Ruby Mendenhall, Ryan Cordell, Scott Weingart, Shubha Ghosh, Sree Ganesh Thotempudi, Stephen M. Maurer, Susan Brown, Tassie Gniady, Ted Sichelman, Ted Underwood, Tyler Ochoa, Victoria Stobo, Vika Zafrin, Virginia Kuhn, Wendy J. Gordon, William G. Thomas, William M. Cross, William T. Gallagher, Yolanda M. King and Zach Cole, FILED. Service date 07/10/2014 by CM/ECF. [1268003] [13-4829]--[Edited 07/15/2014 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
other similarly situation, PAUL DICKSON, THE MCGRAW-HILL COMPANIES,
INC., PEARSON EDUCATION, INC., SIMON & SHUSTER, 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
BRIEF OF DIGITAL HUMANITIES AND LAW SCHOLARS
AS AMICI CURIAE IN SUPPORT OF DEFENDANT-APPELLEES
Jason M. Schultz*
On the Brief:
Associate Professor of Clinical Law
Matthew Sag*
NYU School of Law
Professor
245 Sullivan Street
Loyola University of Chicago
New York, NY 10012
School of Law
[phone]
Counsel for Amici Curiae
* Filed in their individual capacity and not on behalf of their institutions

TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................................................................... iv
STATEMENT OF INTEREST OF AMICI CURIAE ................................................1
SUMMARY OF ARGUMENT .................................................................................2
ARGUMENT .............................................................................................................4
I. The Freedom to Make Non-expressive Use of Copyrighted Works is Vital to
the “Progress of Science” in the Digital Humanities .................................................4
II.

Copyright Law Does Not Protect Non-expressive Aspects of Works ...........14

A.

The Idea/Expression Distinction .................................................................14

B.

Section 102(b) .............................................................................................15

C.

Merger and Scènes à Faire..........................................................................16

D.

Fact/Expression Distinction ........................................................................17

E. Non-expressive Metadata Does Not Implicate the Statutory Rights of the
Copyright Holder ..................................................................................................18
F. Non-expressive Metadata Does Not Infringe Because It Does Not Allow the
Public to Perceive the Expressive Content of a Work .........................................22
III. Text Mining Creates Value by Facilitating the Advancement of Our
Collective Knowledge; To Protect That Value, Mass Digitization and Similar
Intermediate Copying for Data Mining and Other Non-expressive Purposes Should
Be Considered "Fair Use" ........................................................................................23
A. Non-expressive Copying to Expand Our Knowledge in the Digital
Humanities Is An Activity of the Sort that Copyright Law Should Favor,
Through Fair Use ..................................................................................................24
B. The Nature of the Works in Question Is Favorable to the Fair Use Analysis
of Mass Digitization for the Advancement of Digital Humanities Research and
Scholarship ...........................................................................................................25
ii

C. To the Extent Relevant, Mass Digitization Uses a Reasonable “Amount
and Substantiality” of the Works in Question, in Light of the Socially Beneficial
Purpose of Facilitating Data Mining for the Advancement of the Digital
Humanities ............................................................................................................27
D. Allowing Intermediate Copying in Order to Enable Non-expressive Uses
Does Not Harm the Market for the Original Works in a Legally Cognizable
Manner, As The Practice Does Not Implicate the Works' Expressive Aspects in
Any Way ...............................................................................................................29
CERTIFICATE OF COMPLIANCE .......................................................................32
CERTIFICATE OF SERVICE ................................................................................33

iii

TABLE OF AUTHORITIES
Cases
A.V. ex rel. Vanderhye v. iParadigms, LLC,
562 F.3d 630, 645 (4th Cir. 2009) ...................................................... 4, 24, 27, 30
Arica Inst. v. Palmer,
970 F.2d 1067, 1078 (2d Cir. 1992) .....................................................................26
Authors Guild, Inc. v. Google Inc.,
954 F. Supp. 2d 282, 291 (S.D.N.Y. 2013) ............................................................3
Authors Guild, Inc. v. HathiTrust,
No. 12-4547-cv (2nd Cir. June 10, 2014)........................................................ 4, 24
Authors Guild, Inc. v. HathiTrust,
No. 12-4547-cv (2nd Cir. June 10, 2014), Slip. Op. ..................................... 25, 27
Basic Books, Inc. v. Kinko's Graphics Corp.,
758 F. Supp. 1522, 1533 (S.D.N.Y. 1991) ...........................................................26
Bill Graham Archives v. Dorling Kindersley Ltd.,
448 F.3d 605 (2d Cir. 2006) .................................................................................25
Bond v. Blum,
317 F.3d 385 (4th Cir. 2003) .................................................................................28
Campbell v. Acuff-Rose Music, Inc.,
510 U.S. 569, 583 (1994) ........................................................................ 25, 27, 29
Castle Rock Entm’t Inc. v. Carol Publ’g Grp., Inc.,
150 F.3d 132, 139 (2d Cir. 1998) ............................................................ 20, 21, 22
Cariou v. Prince,
714 F.3d 694 (2d Cir. 2013) .................................................................................25
Davis v. United Artists, Inc.,
547 F. Supp. 722, 724 n.9 (S.D.N.Y. 1982) ........................................................23
Eldred v. Ashcroft,
537 U.S. 186 (2003) .............................................................................................13
iv

Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc.,
499 U.S. 340, 347 (1991) .....................................................................................17
Fisher v. Dees,
794 F.2d 432, 438 (9th Cir. 1986) ........................................................................29
Fuld v. Nat’l Broad. Co., Inc.,
390 F. Supp. 877, 882 n.4 (S.D.N.Y. 1975) .........................................................23
Golan v. Holder,
132 S. Ct. 873, 890 (2012) ...................................................................................15
Harper & Row Publishers, Inc. v. Nation Enters.,
471 U.S. 539 (1985) .............................................................................................15
Hasbro Bradley, Inc. v. Sparkle Toys, Inc.,
780 F.2d 189, 192-93 (2d Cir. 1985) ....................................................................21
Hoehling v. Universal City Studios, Inc.,
618 F.2d 972, 979 (2d Cir. 1980) .................................................................. 17, 18
Kelly v. Arriba Soft Corp.,
336 F.3d 811 (9th Cir. 2002) .......................................................................... 25, 28
Kregos v. Associated Press,
937 F.2d 700, 705 (2d Cir. 1991) .........................................................................16
MyWebGrocer, LLC v. Hometown Info, Inc.,
375 F.3d 190, 194 (2d Cir. 2004) .........................................................................17
National Basketball Association v. Motorola, Inc.,
105 F.3d 841 (2d Cir. 1997) .......................................................................... 17, 18
New Era Publications Int'l, ApS v. Carol Pub. Group,
904 F.2d 152, 157 (2d Cir. 1990) .........................................................................26
New York Mercantile Exch., Inc. v. IntercontinentalExchange, Inc.,
497 F.3d 109, 118 (2d Cir. 2007) .................................................................. 16, 17
New York Times Co. v. Tasini,
533 U.S. 483 (2001) .............................................................................................22

v

Perfect 10, Inc. v. Amazon.com, Inc.,
508 F.3d 1146, 1168 (9th Cir. 2007) ................................................... 4, 24, 25, 28
Peter F. Gaito Architecture, LLC v. Simone Dev. Corp.,
602 F.3d 57, 67 (2d Cir. 2010) .............................................................................16
Reyher v. Children’s Television Workshop,
533 F.2d 87, 90 (2d Cir. 1976) .............................................................................15
Sega Enters. Ltd. v. Accolade, Inc.,
977 F.2d 1510, 1527-28 (9th Cir. 1992)........................................................ 24, 26
Sony Computer Entm’t, Inc. v. Connectix Corp.,
203 F.3d 596, 609 (9th Cir. 2000) ................................................................. 24, 27
Sony Corp. of Am. v. Universal City Studios, Inc.,
464 U.S. 417, 429 (1984) .....................................................................................15
Toshihide Ono et al., Automated Extraction of Information on Protein-Protein
Interactions from the Biological Literature, 17 BIOINFORMATICS 155 (2001)……
Tufenkian Imp./Exp. Ventures, Inc. v. Einstein Moomjy, Inc.,
338 F.3d 127, 134-35 (2d Cir. 2003) ....................................................................16
Ty, Inc. v. Publ'ns Int’l Ltd.,
292 F.3d 512, 520 (7th Cir. 2002) ........................................................................21
Walker v. Time Life Films, Inc.,
615 F. Supp. 430, 434 (S.D.N.Y. 1985) ...............................................................23
Warner Brothers Entertainment Inc. v. RDR Books,
575 F. Supp. 2d 513 (S.D.N.Y. 2008) ..................................................... 19, 20, 21
Statutes
17 U.S.C. § 102(a) (2012) ........................................................................................20
17 U.S.C. § 102(b) (2012) .................................................................................. 4, 15
17 U.S.C. § 106(2) (2012) .......................................................................................21
17 U.S.C. § 107(1) (2012) .......................................................................................24
17 U.S.C. § 201(c) (2012) ........................................................................................22
vi

Constitutional Provisions
U.S. Const. Art I., Sec. 8. .........................................................................................14
Other Authorities
41 Poetics 545-770 (December 2013),
http://www.sciencedirect.com/science/journal/0304422X/41/6. .........................10
Sophia Ananiadou et al., Text Mining and its Potential Applications in Systems
Biology, 24 TRENDS IN BIOTECHNOLOGY 571, 571 (2006) .....................................5
Leif Isaksen, Elton Barker, Eric C. Kansa, Kate Byrne, GAP: A NeoGeo Approach
to Classical Resources, 45 LEONARDO 82-83 (2012) .............................................7
Christian Blaschke et al. Information Extraction in Molecular Biology, 3
BRIEFINGS IN BIOINFORMATICS 154 (2002) ............................................................5
Patricia Cohen, Digital Keys for Unlocking the Humanities’ Riches, N.Y. TIMES,
Nov. 17, 2010, at C1 ...............................................................................................7
Matthew Jockers, MACROANALYSIS: DIGITAL METHODS FOR LITERARY HISTORY
(2013) ............................................................................................................... 6, 11
Brian Lavoie & Lorcan Dempsey, Beyond 1923: Characteristics of Potentially In
Copyright Print Books in Library Collections, 15 D-Lib Mag.,
http://www.dlib.org/dlib/november09/lavoie/11lavoie.html................................26
Pierre N. Leval, Toward A Fair Use Standard, 103 HARV. L. REV. 1105, 1111
(1990) ....................................................................................................................25
MALLET: MAchine Learning for Language Toolkit, http://mallet.cs.umass.edu/
(last visited May 31, 2013) ...................................................................................10
Jean-Baptiste Michel, Yuan Kui Shen, Aviva Presser Aiden, Adrian Veres,
Matthew K. Gray, The Google Books Team, Joseph P. Pickett, Dale Hoiberg,
Dan Clancy, Peter Norvig, Jon Orwant, Steven Pinker, Martin A. Nowak, and
Erez Lieberman Aiden; Quantitative Analysis of Culture Using Millions of
Digitized Books, 331 SCIENCE 176 (2011) ...........................................................10
MONK: Metadata Offer New Knowledge, http://www.monkproject.org/ (last
visited May 31, 2013) ...........................................................................................10

vii

Franco Moretti, GRAPHS, MAPS, TREES: ABSTRACT MODELS FOR LITERARY
HISTORY 4 (2005) ...................................................................................................6
National Endowment for the Humanities Grant No. HJ-50067-12, “An
Epidemiology of Information: Data Mining the 1918 Influenza Pandemic,”
http://1.usa.gov/Vs1e9z ........................................................................................11
National Endowment for the Humanities Grant No. HJ-50092-12, “Digging by
Debating: Linking massive datasets to specific arguments,”
http://1.usa.gov/Vs1iGo ........................................................................................11
Plaintiffs Ap. Br. at 43 .............................................................................................28
J.K. Rowling, Harry Potter and the Deathly Hallows 303 (2007) ..........................19
Matthew Sag, Copyright and Copy-Reliant Technology, 103 NW. U.L. REV. 1607
(2009) ......................................................................................................................3
Matthew Sag, Orphan Works as Grist for the Data Mill, 27 BERKELEY TECH. L. J.
1503 (2012) .............................................................................................................3
Software Environment for the Advancement of Scholarly Research (“SEASR”),
http://seasr.org (last visited May 31, 2013) ..........................................................10
Toshihide Ono et al., Automated Extraction of Information on Protein-Protein
Interactions from the Biological Literature, 17 BIOINFORMATICS 155 (2001) ......5
Text Analysis Portal for Research (“TAPoR”), http://portal.tapor.ca/portal/portal
(last visited May 21, 2013) ...................................................................................10
Tracking 18th-century “social network” through letters, STANFORD UNIVERSITY
(Dec. 14, 2009) (video), http://www.youtube.com/watch?v=nw0oS-AOIPE. ......7

viii

STATEMENT OF INTEREST OF AMICI CURIAE1
Amici are over 150 professors and scholars who teach, write, and research in
computer science, the digital humanities, linguistics or law, and two associations
that represent Digital Humanities scholars generally.2 Amici have an interest in this
case because of its potential impact on their ability to discover and understand,
through automated means, the data in and relationships among textual works.
Legal Scholar Amici also have an interest in the sound development of intellectual
property law. Resolution of the legal issue of copying for non-expressive uses has
far-reaching implications for the scope of copyright protection, a subject germane
to Amici’s professional interests and one about which they have great expertise.
Amici speak only to the issue of copying for non-expressive uses. A complete list
of individual Amici is attached as Appendix A.

Pursuant to Fed. R. App. P. 29(a), (c)(4), (c)(5) and Rule 29.1 of the Local Rules
of the United States Court of Appeals for the Second Circuit, Amici hereby state
that none of the parties to this case nor their counsel authored this brief in whole or
in part; no party or any party’s counsel contributed money intended to fund
preparing or submitting the brief; and no one else other than Amici and their
counsel contributed money that was intended to fund preparing or submitting this
brief. Amici also hereby state that all parties have consented to the filing of this
brief, and we rely on that consent as our source of authority to file.
1

See Association for Computers and the Humanities, http://www.ach.org/;
Canadian Society for Digital Humanities, http://csdh-schn.org.

2

1

SUMMARY OF ARGUMENT
Mass digitization is a key enabler of socially valuable computational and
statistical research (often called “data mining” or “text mining”). While the
practice of data mining has been used for several decades in traditional scientific
disciplines such as astrophysics and in social sciences such as economics, it has
only recently become technologically and economically feasible within the
humanities. This has led to a revolution, dubbed “Digital Humanities,” ranging
across subjects such as literature and linguistics to history and philosophy. New
scholarly endeavors enabled by Digital Humanities advancements are still in their
infancy but have enormous potential to contribute to our collective understanding
of the cultural, political, and economic relationships among various collections (or
corpora) of works—including copyrighted works—and with society. The Court’s
ruling in this case on the legality of mass digitization could dramatically affect the
future of work in the Digital Humanities.
This Court should affirm the decision of the district court below that
Google’s digitization for the purpose of text mining and similar non-expressive
uses present no legally cognizable conflict with the statutory rights or interests of
the copyright holders. Where, as here, the output of a database—i.e., the data it
produces and displays—is noninfringing, this Court should find that the creation
and operation of the database itself is likewise noninfringing. The copying required
2

to convert paper library books into a searchable digital database is properly
considered a “non-expressive use” because the works are copied for reasons
unrelated to their protectable expressive qualities — the copies are intermediate
and – other than snippets of text used to display search results and to “help users
locate books and determine whether they may be of interest”, Authors Guild, Inc. v.
Google Inc., 954 F. Supp. 2d 282, 291 (S.D.N.Y. 2013), – they are also unread.
The type of non-expressive use at issue here – based on the computational
and statistical analysis of text – is common among copy-reliant technologies: for
example, Internet search engines and plagiarism detection software do not read,
understand, or enjoy copyrighted works, nor do they deliver these works directly to
the public. Such platforms copy the works only incidentally, in order to process
them as “grist for the mill”—raw materials that feed various algorithms and indices.
See Matthew Sag, Copyright and Copy-Reliant Technology, 103 NW. U.L. REV.
1607 (2009); Matthew Sag, Orphan Works as Grist for the Data Mill, 27
BERKELEY TECH. L. J. 1503 (2012).
Further, generating data about a copyrighted work (often called “metadata”)
does not infringe the original work because, as has been recognized for over a
century, copyright law protects only an author’s original expression, not the
metadata facts about that expression. That a “fact” might pertain to or describe an
expressive work does not change its factual character—or render it an author’s
3

exclusive intellectual property under the law. Indeed, making such factual
information freely available to everyone is crucial to the harmony between
copyright law and the First Amendment—hence the existence of rules such as the
“idea/expression” distinction (see 17 U.S.C. § 102(b)), the doctrine of scenes à
faire, and the “merger” principle.
The act of copying works into a database in order to enable the generation of
metadata about those works should thus be deemed noninfringing. As numerous
courts (including this Circuit) have found, making intermediate copies that enable
socially beneficial noninfringing uses and/or outputs constitutes a protected “fair
use” under Section 107 of the Copyright Act. See, e.g., Authors Guild, Inc. v.
HathiTrust, No. 12-4547-cv (2nd Cir. June 10, 2014); A.V. ex rel. Vanderhye v.
iParadigms, LLC, 562 F.3d 630, 645 (4th Cir. 2009); Perfect 10, Inc. v.
Amazon.com, Inc., 508 F.3d 1146, 1168 (9th Cir. 2007). Similarly, the mass
digitization of books for text-mining purposes is a form of incidental or
“intermediate” copying that enables ultimately non-expressive, noninfringing, and
socially beneficial uses without unduly treading on any expressive—i.e., legally
cognizable—uses of the works. The Court should find such copying to be fair use.
ARGUMENT
I.

The Freedom to Make Non-expressive Use of Copyrighted Works is
Vital to the “Progress of Science” in the Digital Humanities

4

Where large-scale electronic text collections are available, advances in
computational power and a proliferation of new text-mining and visualization tools
offer scholars of the humanities the chance to do what biologists, physicists, and
economists have been doing for decades—analyze massive amounts of data.
“Digital Humanities” scholars fervently believe that text-mining and the
computational analysis of text are vital to the progress of human knowledge in the
current Information Age. The potential of these non-expressive uses of text has
already been revealed in the life sciences, where researchers routinely use a variety
of text-mining tools to facilitate the search for relevant research across disparate
fields and to uncover previously unnoticed “correlations or associations such as
protein-protein interactions and gene-disease associations.” See Sophia Ananiadou
et al., Text Mining and its Potential Applications in Systems Biology, 24 TRENDS IN
BIOTECHNOLOGY 571, 571 (2006) (citing Toshihide Ono et al., Automated
Extraction of Information on Protein-Protein Interactions from the Biological
Literature, 17 BIOINFORMATICS 155 (2001) and Christian Blaschke et al.
Information Extraction in Molecular Biology, 3 BRIEFINGS IN BIOINFORMATICS 154
(2002)).
Similar breakthroughs are on the horizon in the humanities. Traditionally,
literary scholars have relied upon the close and often anecdotal study of select
works. Modern computing power, advances in computational linguistics and
5

natural language processing, and the mass digitization of texts now permit
investigation of the larger literary record.
Digitization enhances our ability to process, mine, and ultimately better
understand individual texts, the connections between texts, and the evolution of
literature and language. As University of Nebraska Professor Matthew Jockers
explains, by exploring the literary record writ large, researchers can better
understand the context in which individual texts exist, and thereby better
understand the texts themselves. See Matthew Jockers, MACROANALYSIS: DIGITAL
METHODS FOR LITERARY HISTORY (2013). Along similar lines, Stanford University
Professor Franco Moretti has noted that “a field this large cannot be understood by
stitching together separate bits of knowledge about individual cases, because it
isn’t a sum of individual cases: it’s a collective system, that should be grasped as
such, as a whole . . . .” Franco Moretti, GRAPHS, MAPS, TREES: ABSTRACT MODELS
FOR LITERARY HISTORY

4 (2005) (emphasis in original).

Researchers working in the field of information retrieval frequently use text
mining and computer-aided classification to identify and retrieve relevant
documents. Using similar techniques, researchers in the Digital Humanities are
able to identify and retrieve relevant texts, often from unlikely places. Humanities
researchers can thereby expand their traditional study of a few canonical works to a
study of several million in the larger archive of literary history—an archive that
6

has hitherto remained hidden because of the limitations of humans’ reading
capacity. As part of this process, such non-expressive uses often lead to additional
expressive uses, expanding the audience (and the potential market) for enjoyment
of individual works.3
Mass digitization also results in the creation of data that enables scholars to
reimagine relationships between texts—for example, by linking texts with maps.
Thus, Google’s “Ancient Places Project” links the text of public domain books like
Gibbon’s Decline and Fall of the Roman Empire to a map of the ancient world.4
The interface allows the user to browse the books, including the full text, at the
same time as she browses a map. The places mentioned are marked on the map and
hyperlinked.5 Similar maps could be made with reference to works still under
For example, Matthew Jockers used text mining and computer-aided
classification to identify an overlooked tradition of whaling fiction predating (and
arguably informing) Melville’s writing of Moby Dick. See Jockers, supra.

3

See Leif Isaksen, Elton Barker, Eric C. Kansa, Kate Byrne, GAP: A NeoGeo
Approach to Classical Resources, 45 LEONARDO 82-83 (2012).

4

In a similar vein, researchers at Stanford University have mapped thousands of
letters exchanged during the Enlightenment and thereby devised a theory of how
these individual networks fit into a coherent whole, which the scholars refer to as
the “Republic of Letters.” See Tracking 18th-century “social network” through
letters, STANFORD UNIVERSITY (Dec. 14, 2009) (video),
http://www.youtube.com/watch?v=nw0oS-AOIPE. Such aggregation yields
surprising insights: for example, “the common narrative is that the Enlightenment
started in England and spread to the rest of Europe,” but the relatively low volume
of correspondence between London and Paris suggests otherwise. See Patricia
Cohen, Digital Keys for Unlocking the Humanities’ Riches, N.Y. TIMES, Nov. 17,
2010, at C1.
5

7

copyright—importantly, without ever making the text of the book available for free
viewing. Extracting such data from texts to create maps is a quintessential nonexpressive use of the underlying texts that does not implicate any copyrightprotected use—let alone infringe the copyrights of—the works in question.
Google’s “Ngram” tool provides another example of a non-expressive use
enabled by mass digitization—this time easily visualized. Figure 1, below, is an
Ngram-generated chart that compares the frequency with which authors of texts in
the Google Book Search database refer to the United States as a single entity (“is”)
as opposed to a collection of individual states (“are”). As the chart illustrates, it
was only in the latter half of the Nineteenth Century that the conception of the
United States as a single, indivisible entity was reflected in the way a majority of
writers referred to the nation. This is a trend with obvious political and historical
significance, of interest to a wide range of scholars and even to the public at large.
But this type of comparison is meaningful only to the extent that it uses as raw data
a digitized archive of significant size and scope.6

6

Google Ngram is available at http://books.google.com/ngrams.
8

Figure 1: Google Ngram Visualization Comparing Frequency of
“The United States is” to “The United States are”7

To be absolutely clear, 1) the data used to produce this visualization can only
be collected by digitizing the entire contents of the relevant books, and 2) not a
single sentence of the underlying books has been reproduced in the finished
product. In other words, this type of non-expressive use only adds to our collective

Figure 1 is a reconstruction of data generated using Google Ngram, sampled at
five-year intervals. The y-axis is scaled to 1/100,000 of a percent, such that 1 =
0.00001%.

7

9

knowledge and understanding, without in any way replacing, damaging the value
of, or interfering with the market for, the original works.8
Google Ngram is just the tip of the iceberg.9 Digital Humanities methods are
now widely taught to undergraduate and students and recently an entire issue of the
prestigious journal Poetics was devoted to the sophisticated computational analysis
of text known as topic modeling. See 41 Poetics 545-770 (December 2013),
http://www.sciencedirect.com/science/journal/0304422X/41/6. Moreover, major
universities receive large federal grants for the specific purpose of furthering textmining and digital humanities research. See, e.g., National Endowment for the
Humanities Grant No. HJ-50067-12, “An Epidemiology of Information: Data
For additional examples of Ngram’s uses, see, e.g., Jean-Baptiste Michel, Yuan
Kui Shen, Aviva Presser Aiden, Adrian Veres, Matthew K. Gray, The Google
Books Team, Joseph P. Pickett, Dale Hoiberg, Dan Clancy, Peter Norvig, Jon
Orwant, Steven Pinker, Martin A. Nowak, and Erez Lieberman Aiden;
Quantitative Analysis of Culture Using Millions of Digitized Books, 331 SCIENCE
176 (2011) (a study of linguistic and cultural changes in over five million digitized
books).

8

9 The

toolkit available to Digital Humanities researchers is becoming increasingly
sophisticated. See, e.g., Text Analysis Portal for Research (“TAPoR”),
http://portal.tapor.ca/portal/portal (last visited May 21, 2013) (tools to map word
usage over time, including peaks, density, collocations, and types); MALLET:
MAchine Learning for LanguagE Toolkit, http://mallet.cs.umass.edu/ (last visited
May 31, 2013) (a Java-based package for statistical natural language processing,
document classification, clustering, topic modeling, information extraction, and
other machine learning applications to text); MONK: Metadata Offer New
Knowledge, http://www.monkproject.org/ (last visited May 31, 2013) (a digital
environment designed to help humanities scholars discover and analyze patterns in
the texts); Software Environment for the Advancement of Scholarly Research
(“SEASR”), http://seasr.org (last visited May 31, 2013).
10

Mining the 1918 Influenza Pandemic,” http://1.usa.gov/Vs1e9z (analyzing the
influence of local newspaper stories about the 1918 influenza pandemic); National
Endowment for the Humanities Grant No. HJ-50092-12, “Digging by Debating:
Linking massive datasets to specific arguments,” http://1.usa.gov/Vs1iGo
(developing tools to text mine books, journal articles, and comprehensive reference
works to construct analytical models of arguments and argumentative structures).
Figure 2 provides another fascinating example of Professor Matt Jockers’
research. The chart shows the extent to which British, American, and Irish authors
focused on the theme of American slavery during the Nineteenth Century, based on
a corpus of 3,450 novels from that time period. See generally Jockers, supra.
Although it comes as no surprise that slavery was most often addressed by
American authors, the strong Irish reaction to the American Civil War (note the
spike in the light gray line beginning in 1860) compared with the decidedly muted
response by British authors invites—indeed, demands—further investigation.

11

Figure 2: American Slavery in American, English, and Irish Literature, 18001899.
AMERICAN.SLAVERY
2.5

Moving Average

2.0

1.5
American
British
Irish

1.0

0.5

0.0
1800

1825

1850
Year

1875

1900

As Jockers’ work reveals, “macroanalysis” of text archives has the potential
to provide insight into historical literary questions, such as the place of individual
texts, authors, and genres in relation to a larger literary context; literary patterns
and lexicons employed over time, across periods, within regions, or within
demographic groups; the cultural and societal forces that impact literary style and
the evolution of style; the waxing and waning of literary themes; and the tastes and
preferences of the literary establishment—and whether those preferences
12

correspond to general tastes and preferences. However, realizing this potential
requires access to digitized texts.
If libraries, research universities, non-profit organizations, and commercial
entities are prohibited from making non-expressive use of copyrighted material,
literary scholars, historians, and other humanists are restricted to becoming 19thcenturyists; slaves not to history, but to the public domain. History does not end in
1923.10 But if copyright law prevents Digital Humanities scholars from using more
recent materials, 1923 will be the effective end date of the work these scholars can
do.
In short, the possibility of mining huge digital archives and manipulating the
data collected in the process has inspired many scholars to re-conceptualize the
very nature of humanities research. For others, it has played the more modest—but
still valuable—role of providing new tools for testing old theories, or suggesting
new areas of inquiry. None of this, however, can be done in the modern context if
scholars cannot make non-expressive uses of underlying copyrighted texts, which
(as shown above) will frequently number in the thousands, if not millions. Given

10 Due

to repeated extensions of the copyright term, U.S. copyrights after 1923 do
not automatically expire on an annual basis; thus, most modern works are still
copyrighted. See Eldred v. Ashcroft, 537 U.S. 186 (2003).
13

copyright law’s objective of promoting “the Progress of Science,”11 it would be
perversely counterintuitive if the promise of Digital Humanities were extinguished
in the name of copyright protection.
II.

COPYRIGHT LAW DOES NOT PROTECT NON-EXPRESSIVE
ASPECTS OF WORKS
Fortunately, this Court need not contemplate such a scenario, as non-

expressive aspects of copyrighted works—e.g., the facts and ideas contained within
the work and concerning it—are not protected by copyright. Such fundamental
legal principles as the “idea/expression” distinction (reflected in Section 102(b) of
the Copyright Act), the “merger” doctrine, the rule of “scènes à faire,” and the
“fact/expression” distinction all reflect this basic tenet. Metadata—information
about copyrighted works collected through data mining and used by Digital
Humanities scholars in the research described above—either does not implicate
copyright protection at all, or is inoculated by the aforementioned doctrines that
limit authors’ rights to their works’ expressive content.
A.

The Idea/Expression Distinction

Copyright gives authors the right to set the terms upon which their original
expression is made available to the public. But this right is not unlimited. As one of
the

fundamental—and

Constitutional—limitations

11 U.S.

on

those

rights,

the

Const. Art I., Sec. 8. “Science,” as used in the Constitution, referred to
knowledge and learning.
14

idea/expression distinction strikes a balance between “the interests of authors . . .
in the control and exploitation of their writings . . . on the one hand, and society’s
competing interest in the free flow of ideas, information, and commerce on the
other hand.” Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985)
(quoting Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 429
(1984)); see also Golan v. Holder, 132 S. Ct. 873, 890 (2012) (describing the
idea/expression distinction as one of copyright’s “built-in First Amendment
accommodations”). Copyright law protects only expressive use: “It is an axiom of
copyright law that the protection granted to a copyrightable work extends only to
the particular expression of an idea and never to the idea itself.” Reyher v.
Children’s Television Workshop, 533 F.2d 87, 90 (2d Cir. 1976).
B.

Section 102(b)

Recognizing the importance of access to ideas within expressive works,
Congress has placed statutory limits on the rights of copyright holders through
Section 102(b) of the Copyright Act, which provides: “In no case does copyright
protection for an original work of authorship extend to any idea . . . concept,
principle, or discovery, regardless of the form in which it is described, explained,
illustrated, or embodied in such work.” 17 U.S.C. § 102(b) (2012). This provision
has played a key role in modern copyright cases, ensuring that access to nonexpressive aspects of works is not inhibited. See, e.g., Peter F. Gaito Architecture,
15

LLC v. Simone Dev. Corp., 602 F.3d 57, 67 (2d Cir. 2010) (holding that the
principle behind § 102(b) required the court “to determine whether . . . ‘similarities
are due to protected aesthetic expressions original to the allegedly infringed work,
or whether the similarity is to something in the original that is free for the taking’ ”
(quoting Tufenkian Imp./Exp. Ventures, Inc. v. Einstein Moomjy, Inc., 338 F.3d
127, 134-35 (2d Cir. 2003))). As noted above, the process of text mining extracts
and compiles ideas, concepts, and principles in copyrighted works into metadata.
This process generates the very types of “discovery” that § 102(b) envisions.
C.

Merger and Scènes à Faire

The policy of excluding non-expressive elements from copyright protection
is so strong that—even in situations where expressive and non-expressive elements
intertwine—doctrines like that of “merger” and “scènes à faire” preclude copyright
protection for expression “in those instances where there is only one or so few
ways of expressing an idea that protection of the expression would effectively
accord protection to the idea itself.” Kregos v. Associated Press, 937 F.2d 700, 705
(2d

Cir.

1991);

see

also

New

York

Mercantile

Exch.,

Inc.

v.

IntercontinentalExchange, Inc., 497 F.3d 109, 118 (2d Cir. 2007). The “merger”
doctrine is built upon the same principle as the idea/expression distinction: the
protection of expressive elements of a work cannot, for Constitutional and practical
reasons, interfere with the public’s “free access to ideas.” New York Mercantile
16

Exch., Inc., 497 F.3d. at 116. Relatedly, elements of a work that are scènes à
faire—that is, “incidents, characters or settings which are as a practical matter
indispensable, or at least standard, in the treatment of a given topic”—are not
protectable. Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 979 (2d Cir.
1980); see also MyWebGrocer, LLC v. Hometown Info, Inc., 375 F.3d 190, 194 (2d
Cir. 2004).
D.

Fact/Expression Distinction

Finally, the monopoly rights of authors cannot extend to factual elements
that “do not owe their origin to an act of authorship.” Feist Publ’ns, Inc. v. Rural
Tel. Serv. Co., Inc., 499 U.S. 340, 347 (1991). “The distinction is one between
creation and discovery: The first person to find and report a particular fact has not
created the fact; he or she has merely discovered its existence.” Id. The Supreme
Court in Feist made clear that if an “author clothes facts with an original
collocation of words, he or she may be able to claim a copyright in this written
expression”; nevertheless, “[o]thers may copy the underlying facts from the
publication . . . .” Id. at 348.
In National Basketball Association v. Motorola, Inc., 105 F.3d 841 (2d Cir.
1997), for example, a sports reporting service distributing real-time game statistics
based on a data feed from reporters was held noninfringing. This Court reasoned
that “[b]ecause [the service reproduced] only factual information culled from the
17

broadcasts and none of the copyrightable expression of the games, appellants did
not infringe the copyright of the broadcasts.” Id. at 847. This Court has similarly
held that one has “the right to avail himself of the facts contained in [another’s]
book and to use such information, whether correct or incorrect, in his own literary
work.” Hoehling, 618 F.2d at 979. In other words, copyright law clearly
distinguishes between expressive and non-expressive content, and deems only
expressive content protectable.
E.

Non-expressive Metadata Does Not Implicate the Statutory Rights
of the Copyright Holder

Metadata about a copyrighted work does not implicate any legally
cognizable interest of the copyright holder. Metadata may contain facts about the
works themselves, might capture (in different terminology) the ideas contained
within the text, or may convey information such as the number of times a given
word appears in a particular text, how often a particular author uses a specific
literary device, or the essence of what the work is about. Though it is true that
metadata would not exist but for the underlying work, it does not contain the
expression of the work.
Consider, for example, two facts about Moby Dick: first, that the word
“whale” appears 1119 times; second, that the word “dinosaur” appears 0 times.
While a whale is certainly central to the expression contained in Moby Dick, this
data is not. Rather, metadata of this sort—a simplified version of the metadata
18

surveyed in Section I—is factual and non-expressive, and incapable of infringing
the rights of copyright holders.
The same principle can be illustrated using a decision of the court below,
Warner Brothers Entertainment Inc. v. RDR Books, 575 F. Supp. 2d 513 (S.D.N.Y.
2008). Consider the following four statements:
[1] “Goblin-made armour does not require cleaning, simple girl.
Goblins’ silver repels mundane dirt, imbibing only that which
strengthens it.”
[2] “goblin-made armour does not require cleaning, because
goblins’ silver repels mundane dirt, imbibing only that which
strengthens it, such as basilisk venom.”
[3] “Statement [1] contains twenty words, and other than
‘Goblin’, no word in expression [1] is repeated.”
[4] “Statement [2] is strikingly similar to Statement [1].”
Statement [1] originates with J.K. Rowling, the author of the Harry Potter
novels. See Warner Bros., 575 F. Supp. 2d at 527 (quoting J.K. Rowling, Harry
Potter and the Deathly Hallows 303 (2007)). Statement [2] was held out as
originating with a contributor to the Harry Potter Lexicon (a reference work for the
“Harry Potter universe”), which was found to infringe because too much of its
contents consisted of direct quotations or close paraphrases of vivid passages in the
19

Harry Potter books, as the comparison between [1] and [2] illustrates. Id. at 527.
Statements [3] and [4], by contrast, are classic metadata; they would not exist but
for the underlying work, and yet neither passage is substantially similar—or indeed,
bears any resemblance at all—to the expressive elements of the underlying work.
Even more importantly, this metadata does not originate with the author of
the underlying work. As the Supreme Court held in Feist Publications, “copying of
constituent elements of the work that are original” is an essential element of a
copyright infringement claim. 499 U.S. at 361 (emphasis added); see also 17 U.S.C.
§ 102(a) (2012).
Amici wish to emphasize that metadata is not the same thing as so-called
“invented facts.” J.K. Rowling’s conception and description of goblin armor and
thousands of other details in the Harry Potter series could be regarded as “invented
facts” because, quite simply, she made them up. As laid out in the case law, if
such facts and their associated expressive descriptions are reproduced in sufficient
quantity, they may “constitute creative expression protected by copyright because
characters and events spring from the imagination of the original authors.” Warner
Bros., 575 F. Supp. 2d at 536 (quoting Castle Rock Entm’t Inc. v. Carol Publ’g
Grp., Inc., 150 F.3d 132, 139 (2d Cir. 1998)). Metadata, however, cannot be
accurately characterized as “invented facts,” but only as facts about “invented

20

facts.” The distinction is significant: once again, facts are not eligible for
copyright protection.
Nor does metadata infringe the author’s right “to prepare derivative works
based upon the copyrighted work[.]” 17 U.S.C. § 106(2) (2012). As the court
below held in Warner Brothers, an analytical work that provides insight into a
copyrighted work but does not “recast, transform, or adapt” that work does not
violate the derivative work right. 575 F. Supp. 2d at 539; see also Ty, Inc. v.
Publ'ns Int’l Ltd., 292 F.3d 512, 520 (7th Cir. 2002) (holding that collectors’ guide
to certain copyrighted works did not violate 17 U.S.C. § 106(2) because the guides
did not “recast, transform, or adapt the things to which they are guides”).
Amici urge the Court to carefully distinguish the facts of the instant case
from those in Castle Rock Entertainment v. Carol Publishing Group, 150 F.3d 132
(2d Cir. 1998). In Castle Rock, this Court held that a quiz book based on the
popular television series “Seinfeld” was, quantitatively and qualitatively,
substantially similar to that series, considered as a whole. Id. at 138–39. The quiz
book in that case, however, was not an analytical work; rather, it essentially recast
“Seinfeld’s” copyrightable characters into a new format, as if the defendant had
made miniature dolls of those same characters. See Hasbro Bradley, Inc. v. Sparkle
Toys, Inc., 780 F.2d 189, 192-93 (2d Cir. 1985) (upholding copyrightability of
“Transformer” robotic action figures as sculptural works). The supposed “facts”
21

conveyed in the “Seinfeld” quiz book were not truly facts about the television
program; they were “in reality fictitious expression created by Seinfeld’s authors.”
Castle Rock Entm’t, 150 F.3d at 139.
By contrast, the many forms of metadata produced by the Google
digitization at the heart of this litigation do not merely recast copyrightable
expression from underlying works; rather, the metadata encompasses numerous
uncopyrightable facts about the works, such as author, title, frequency of particular
words or phrases, and the like.
F.

Non-expressive Metadata Does Not Infringe Because It Does Not
Allow the Public to Perceive the Expressive Content of a Work

The significance of public perception runs deep in copyright law. Indeed,
controlling authority suggests that the copyright holder’s exclusive rights are
limited to the right to communicate the expressive aspects of her work to the public.
For example, in New York Times Co. v. Tasini, 533 U.S. 483 (2001), a case about
the scope of the 17 U.S.C. § 201(c) “privilege” of the copyright owner to
reproduce and distribute individual contributions “as part of [a] collective work,”
the Supreme Court held that “[i]n determining whether the Articles [at issue] have
been reproduced and distributed as part of a revision of the collective works in
issue, we focus on the Articles as presented to, and perceptible by, the user[s] of
the Databases [containing the Articles].” 533 U.S. at 499 (emphasis added; internal
22

quotation marks and citations omitted). The Court elaborated: “the question is not
whether a user can generate a revision of a collective work from a database, but
whether the database itself perceptibly presents the author’s contribution as part of
a revision of the collective work.” Id. at 504 (emphasis added).
This point is especially evident in cases where plaintiffs have argued that,
although a defendant’s final product does not support an allegation of infringement,
the defendant has violated the Copyright Act by making a reproduction of the
plaintiff’s work that is merely intermediate and imperceptible to the reading public.
In Davis v. United Artists, Inc., for example, the court below rejected out of hand
the allegation that the defendant’s unpublished screenplays were substantially
similar to plaintiff’s novel, refusing to “consider the preliminary scripts” because
“the ultimate test of infringement must be the film as produced and broadcast” to
the public. 547 F. Supp. 722, 724 n.9 (S.D.N.Y. 1982). See also Fuld v. Nat’l
Broad. Co., Inc., 390 F. Supp. 877, 882 n.4 (S.D.N.Y. 1975) (“[T]he ultimate test
of infringement must be the television film as produced and broadcast — and not
the preliminary scripts . . . .”); Walker v. Time Life Films, Inc., 615 F. Supp. 430,
434 (S.D.N.Y. 1985) (“The Court considers the works as they were presented to
the public.”).
III.

Text Mining Creates Value by Facilitating the Advancement of Our
Collective Knowledge; To Protect That Value, Mass Digitization and
Similar Intermediate Copying for Data Mining and Other Nonexpressive Purposes Should Be Considered "Fair Use"
23

As demonstrated above, non-expressive metadata itself is noninfringing.
However, Amici recognize that this Court must also consider the legality of the
process of making copies to generate that metadata. Fortunately, numerous courts
including this Court have held that copying to enable purely non-expressive uses,
such as the automated extraction of data, does not infringe the statutory rights of
the copyright holder. See, e.g., Authors Guild, Inc. v. HathiTrust, No. 12-4547-cv
(2nd Cir. June 10, 2014); A.V. ex rel. Vanderhye v. iParadigms, LLC, 562 F.3d 630,
645 (4th Cir. 2009); Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1168
(9th Cir. 2007); Sony Computer Entm’t, Inc. v. Connectix Corp., 203 F.3d 596, 609
(9th Cir. 2000); Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510, 1527-28 (9th
Cir. 1992). Like copying employed for other transformative purposes, such as
parody, criticism, and reverse engineering, intermediate copying for the purpose of
extracting non-expressive metadata is fair use.
A.

Non-expressive Copying to Expand Our Knowledge in the Digital
Humanities Is An Activity of the Sort that Copyright Law Should
Favor, Through Fair Use

First among the statutory factors relevant to a fair use analysis is the purpose
and character of the use. 17 U.S.C. § 107(1). Like more traditional expressive
transformative uses, the more “non-expressive” the use of a copyrighted work, the
less it substitutes for the author’s original expression. As such, non-expressive uses
are properly considered equivalent to (or a subset of) highly transformative uses:
24

their “purpose and character” is such that they do not merely supersede the objects
of the original creation. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 583
(1994). As this Court held in the HathiTrust case, “the creation of a full-text
searchable database is a quintessentially transformative use. … the result of a word
search is different in purpose, character, expression, meaning, and message from
the page (and the book) from which it is drawn.” HathiTrust, Slip. Op. at 18. This
Court then concluded “by enabling full-text search, the HDL adds to the original
something new with a different purpose and a different character.” Id. at 19; See
also Pierre N. Leval, Toward A Fair Use Standard, 103 HARV. L. REV. 1105, 1111
(1990); Cf. Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013); Perfect 10, 508 F.3d at
1165; Kelly, 336 F.3d at 818; Bill Graham Archives, 448 F.3d at 609. As the
process of digitization for text mining is intermediate and non-expressive, and its
purpose is to produce non-expressive metadata, this factor favors fair use.
B.

The Nature of the Works in Question Is Favorable to the Fair Use
Analysis of Mass Digitization for the Advancement of Digital
Humanities Research and Scholarship

When the purpose of a secondary use is socially beneficial, the second fair
use factor, “the nature of the copyrighted work,” is rarely dispositive. See, e.g.,
Bill Graham, 448 F.3d at 612 (“The second factor may be of limited usefulness
where the creative work of art is being used for a transformative purpose.”) This is
especially true in “intermediate copying” cases like this one, where the material
25

ultimately reaching the user is not the expressive content of the copyrighted work
at all, but rather ideas contained within it or facts about it.
Nevertheless, to the extent that the second fair use factor is relevant here, it
weighs in favor of fair use. Firstly, the fact that a work has been published (as is
the de facto case here) favors fair use. Arica Inst. v. Palmer, 970 F.2d 1067, 1078
(2d Cir. 1992). Moreover, “[c]ourts generally hold that ‘the scope of the second
fair use is greater with respect to factual than non-factual works’. . . . [F]ictional
works, on the other hand, . . . require more protection.” Basic Books, Inc. v.
Kinko's Graphics Corp., 758 F. Supp. 1522, 1533 (S.D.N.Y. 1991) (quoting New
Era Publications Int'l, ApS v. Carol Pub. Group, 904 F.2d 152, 157 (2d Cir. 1990)).
A detailed study of the copyrighted works in the collections from which Google
has created its digitized corpus have concluded that the “overwhelming majority –
92 Percent . . . – were non fiction.” Brian Lavoie & Lorcan Dempsey, Beyond
1923: Characteristics of Potentially In Copyright Print Books in Library
Collections, 15 D-Lib Mag.,
http://www.dlib.org/dlib/november09/lavoie/11lavoie.html.
Furthermore, as one court explained, the second fair use factor weighs in
favor of fair use where humans “cannot gain access to the unprotected ideas and
functional concepts contained in [the copyrighted work] without . . . making
copies.” Sega, 977 F.2d at 1525. This is effectively the case for Digital Humanities
26

scholars, as there are no plausible ways to conduct analyses of the sort described in
Section I other than mass digitization and algorithmic analysis, both of which
require making intermediate copies.
C.

To the Extent Relevant, Mass Digitization Uses a Reasonable
“Amount and Substantiality” of the Works in Question, in Light
of the Socially Beneficial Purpose of Facilitating Data Mining for
the Advancement of the Digital Humanities

The third fair use factor asks whether the amount and substantiality used are
“reasonable in relation to the purpose of the copying.” Campbell, 510 U.S. at 58687. Because the metadata created here does not contain any infringing material, the
third factor “is of very little weight.” See, e.g., Connectix, 203 F.3d at 606. This is
true even where many intermediate copies are made. Id. at 601. Moreover, as
Section I shows, it is not only reasonable to use mass digitization of an entire set of
works to enable the creation of noninfringing metadata about those works, it is a
practical necessity, as there is no equivalent human means of doing so. In order for
Digital Humanities research and scholarship to be as accurate and complete as
possible, every word or image in a copyrighted work must be mined.
Numerous courts, including this one, have relied upon similar rationales to
support full copying in intermediate and non-expressive fair use cases. See, e.g.,
See HathiTrust, Slip Op. at 20-21 (finding it was reasonably necessary under the
third factor to make use of the entirety of the works in order to enable the full‐
text search function); Vanderhye, 562 F.3d at 642 (finding mass digitization of
27

entire student essays to be fair use when reasonable as a means to check for
plagiarism); Perfect 10, 508 F.3d at 1167-68 (finding thumbnail reproduction of
entire photographs reasonable in light of defendant’s use of the images to improve
access to information on the internet versus artistic expression); Kelly, 336 F.3d
820-21 (same); Bond, 317 F.3d at 396 (noting that “[t]he use of the copyrighted
material [as evidence in a custody proceeding], even the entire manuscript, does
not undermine the protections granted by the [Copyright] Act”). In light of
practical necessity and ample precedent in support, the Court should find that the
“amount and substantiality” factor favors the making of intermediate copies for
non-expressive use.
Moreover, Plaintiff’s suggestion that there is no need to preserve entire
copies after an initial search index has been created is both false and misleading.
Plaintiffs Ap. Br. at 43. Even beyond the obvious interest in preservation for the
historical record, maintaining digital copies of the original texts is absolutely
critical to promoting the progress of text mining and digital humanities more
generally. No single search index can provide all of the answers that DH scholars
seek; rather, the state of the art in text analysis is constantly changing with new
methods of analysis developing on a regular basis. To destroy Amici’s primary
source materials would be the equivalent of forcing chemists or biologists to
destroy the cells, blood, and tissue cultures in their laboratory freezers. The Google
28

corpus is not only necessary to derive new and greater understandings of the texts
themselves but also to improve the methods of analysis through experimentation
on those texts. Simply put, there is no way for Google to anticipate every method
and type of data that scholars might want to extract from a text in the future. Thus,
preservation of the original sources is essential. To require destruction would halt
text analysis at its infant stage, never letting it evolve or mature.
D.

Allowing Intermediate Copying in Order to Enable Nonexpressive Uses Does Not Harm the Market for the Original
Works in a Legally Cognizable Manner, As The Practice Does Not
Implicate the Works' Expressive Aspects in Any Way

The fourth statutory fair use factor is “the effect of the use upon the potential
market for or value of the copyrighted work.” In the case of expressive uses such
as parody, and non-expressive uses such as reverse engineering, courts have
consistently held that the protection that copyright affords is limited to certain
cognizable markets. Campbell, 510 U.S. at 591-92; Sega, 977 F.2d at 1523-24.
Transformative expressive uses do not usually affect the market in any relevant
sense because the second author’s expression does not substitute for that of the
original author. Campbell, 510 U.S. at 591; Fisher v. Dees, 794 F.2d 432, 438 (9th
Cir. 1986). As illustrated by the examples in Section I, above, non-expressive uses
have no potential substitution effect on any legally cognizable market for
copyrighted works, because copyright only protects markets for expression, and
not markets for discoveries, ideas, facts, principles, or concepts. See, e.g.,
29

Vanderhye, 562 F.3d at 644 (“[N]o market substitute was created by [defendants],
whose archived student works do not supplant the plaintiffs’ works . . . so much as
merely suppress demand for them . . . In our view, then, any harm here is not of the
kind protected against by copyright law.”).12 Indeed, in many instances, the use of
metadata made by scholars could actually enhance the market for the underlying
work, by causing researchers to revisit the original work and reexamine it in more
detail.

12 There is no foundation for the Plaintiff’s assertion that books could be

reconstructed through snippets. For example, Amici Matthew Jockers attempted to
reconstruct his own book this way and concluded that without already knowing the
full text of a work, “I don’t think such a process of searching and reading is
possible, and if it is possible, it is certainly not feasible!” See
http://www.matthewjockers.net/2014/06/12/reading-macroanalysis-the-hard-way/.
As Jockers explains, “Reading 78% of my book online, as the Guild asserts,
requires that the reader anticipate what words will appear in the concealed sections
of the book.” “Without the full text by my side, I’d be hard pressed to come up
with the right search terms to get the next snippet.” “I’ve now spent 30 minutes to
gain access to exactly 100 words beyond what was offered in the initial preview.
And, of course, my method involved having access to the full text!”
30

In short, there is no reason to disallow the digitization of libraries, whether
by libraries themselves, or commercial search engine companies, so long as that
digitization is for non-expressive use. Non-expressive uses such as those practiced
in the Digital Humanities hold great promise for Amici, other scholars, society at
large—and copyright owners, too.

Respectfully submitted.
/s/ Jason M. Schultz
JASON M. SCHULTZ
NYU School of Law
245 Sullivan Street
New York, NY 10012
[e-mail]
[phone]
Counsel for Amici
DATED: July 10, 2014

31

CERTIFICATE OF COMPLIANCE
1. This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) and 29(d) because this brief contains 6785 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 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 in Times
New Roman, 14 point font.
/s/ Jason M. Schultz
Jason M. Schultz

32

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on July 10, 2014, I electronically filed the foregoing
with the Clerk of the Court for the United States Court of Appeals for the Second
Circuit by using the appellate CM/ECF system. All counsel for petitioner and
respondents in this case are registered CM/ECF users, so they will be served by the
appellate CM/ECF system.

July 10, 2014
New York, NY

/s/ Jason M. Schultz
____________________
Associate Professor of Clinical Law
NYU School of Law
245 Sullivan Street
New York, NY 10012
[phone]
Counsel for Amici Curiae

33

APPENDIX A
The Association for Computers and the Humanities
Canadian Society of Digital Humanities/Société canadienne des humanités
numériques
A. Sean Pue
Assistant Professor
Michigan State University
Aaron Plasek
New York University
Aleš Vaupotič
Assistant Professor
University of Nova Gorica, Slovenia
Alex Gil
Digital Scholarship Coordinator
Columbia University
Allen Riddell
Neukom Fellow
Dartmouth College
Amanda French
Independent Scholar
Amanda Visconti
Ph.D. Candidate
University of Maryland English a Department
Amy V. Ogden
Associate Professor
University of Virginia
Andrew Whalen
University of St. Andrews
34

Annemarie Bridy
Professor of Law
University of Idaho College of Law
Art Neill
Executive Director, New Media Rights Program
California Western School of Law
Ashanka Kumari
University of Nebraska-Lincoln
Benjamin Schmidt
Assistant Professor of History
Northeastern University
Bernard D. Frischer
Professor of Informatics
Indiana University
Bethany Nowviskie
Director, Digital Research & Scholarship and Special Advisor to the Provost
University of Virginia Library
Brandon Butler
Practitioner-in-Residence
American University Washington College of Law
Brandon Locke
Digital Humanities and Social Science Specialist
Michigan State University
Brian Croxall
Digital Humanities Strategist, Assistant Librarian, Lecturer of English
Emory University
Brian J. Love
Assistant Professor of Law
Santa Clara University

35

Brian L. Frye
Assistant Professor of Law
University of Kentucky College of Law
Brian L. Pytlik Zillig
Professor
University of Nebraska-Lincoln
Brian Rosenblum
Co-Director, Institute for Digital Research in the Humanities
University of Kansas
Brian W. Carver
Assistant Professor
University of California, Berkeley School of Information
Cameron Blevins
Stanford University
Carol Chiodo
Yale University
Carys Craig
Associate Professor
Osgoode Hall Law School, York University
Chandler Warren
University of Nebraska-Lincoln
Chris Bourg
AUL for Public Services
Stanford University Libraries
Dr. Christof Schoech
University of Würzburg
Christopher N. Warren
Assistant Professor of English
Carnegie Mellon University
36

Collin Gifford Brooke
Associate Professor
Syracuse University
Courtney Lawton
Research Assistant
University of Nebraska-Lincoln
Dale M. Bauer
Professor of English
University of Illinois
Dan Cohen
Executive Director
Digital Public Library of America
David H. Radcliffe
Professor of English
Virginia Tech
David Tan
Associate Professor
National University of Singapore Law School
David-Antoine Williams
Assistant Professor
St Jerome's University in the University of Waterloo
Dennis S. Karjala
Jack E. Brown Professor of Law
Arizona State University
Derek Miller
Assistant Professor of English
Harvard University
Dot Porter
Curator, Digital Research Services
University of Pennsylvania
37

Dr, Martin Paul Eve
Lecturer in Literature
University of Lincoln
Elijah Meeks
Digital Humanities Specialist
Stanford University
Elizabeth Lorang
Research Assistant Professor, Digital Humanities Projects Librarian
University of Nebraska-Lincoln
Elton Barker
Reader in Classical Studies and Principal Investigator of the Google Ancient
Places Project
The Open University
Erin McKean
Founder
Wordnik.com
Ernesto Priego
Lecturer in Library Science
Centre for Information Science, City University London
Eve V. Clark
Professor
Stanford University
George Oates
Good, Form & Spectacle
Gerben Zaagsma, PhD
Georg-August-Universität Göttingen
Glen Worthey
Digital Humanities Librarian
Stanford University Libraries

38

Guy A. Rub
Assistant Professor
The Ohio State University, Michael E. Moritz College of Law
Herbert Hovenkamp
Professor
University of Iowa College of Law
Ira Steven Nathenson
Associate Professor of Law
St. Thomas University School of Law
Jacob Eisenstein
Assistant Professor
Georgia Institute of Technology
Jacob H. Rooksby
Assistant Professor of Law
Duquesne University School of Law
Jacob Heil
Mellon Digital Scholar
The Five Colleges of Ohio
James Coltrain
Assistant Professor
University of Nebraska
James F. Williams II
Dean of Libraries
University of Colorado Boulder
James Gibson
Professor of Law, Associate Dean for Academic Affairs
University of Richmond School of Law
Jarom McDonald
Director, Office of Digital Humanities
Brigham Young University
39

Jason Boyd
Assistant Professor
Ryerson University
Jason Heppler
Academic Technology Specialist
Stanford University
Jeannette Eileen Jones
Associate Professor
University of Nebraska-Lincoln
Jeffrey T. Schnapp
Professor, director of metaLAB
Harvard University
Jennifer Guiliano
Assistant Director
University of Maryland
Jeremy Hunsinger
Assistant Professor
Wilfrid Laurier University
Jessica Silbey
Law professor
Suffolk University Law School
Jim Pitman
Professor of Statistics and Mathematics
U.C. Berkeley
John Laudun
Associate Professor
University of Louisiana
John Unsworth
Vice Provost, University Librarian, CIO & Professor of English
Brandeis University
40

Jorge Contreras
American University Washington College of Law
Jorge R. Roig
Assistant Professor of Law
Charleston School of Law
Joseph Raben
Prrofessor emeritus
Queens College / CUNY
Julie Ahrens
Director of Copyright & Fair Use
Stanford Law School
Kalani Craig
Independent scholar
Katarina Perič
Teacher
Kate Byrne
Research fellow
University of Edinburgh
Katherine L Walter
Professor
University of Nebraska-Lincoln
Kenneth M. Price
Hillegass University Professor
University of Nebraska-Lincoln
Kevin Reilly, MSN, RN
Doctoral Student
Pepperdine University
Kurt M. Saunders
Professor of Business Law
California State University
41

Lateef Mtima
Professor of Law, Director Institute for Intellectual Property and Social Justice
Howard University School of Law
Laurie Taylor
Digital Scholarship Librarian
University of Florida
Dr. Leif Isaksen
University of Southampton
Lindsey Seatter
Simon Fraser University
Llewellyn Joseph Gibbons
Professor
University of Toledo College of Law
Marco Forlivesi
Tenured Researcher
Università degli Studi di Chieti-Pescara, Italy
Margaret Chon
Donald & Lynda Horowitz Professor for the Pursuit of Justice
Seattle University
Margaret Linley
Associate Professor
Simon Fraser University
Mark McKenna
Professor of Law and Notre Dame Presidential Fellow
Notre Dame Law School
Mark Sample
Associate Professor of Digital Studies
Davidson College

42

Mark Wolff
Associate Professor of French
Hartwick College
Matthew Jockers
Associate Professor
University of Nebraska, Lincoln
Matthew K. Gold
Associate Professor of English and Digital Humanities
Graduate Center, City University of New York
Matthew Kirschenbaum
Associate Professor
University of Maryland
Matthew Sag
Professor
Loyola University of Chicago, School of Law
Matthew Wilkens
Assistant Professor of English
University of Notre Dame
Melissa Terras
Professor
University College London
Michael D. Scott
Professor
Southwestern Law School
Michael Pierce Williams
PhD Candidate, Instructor
Carnegie Mellon University
Michael Scott Cuthbert
Associate Professor of Music
MIT
43

Mikal B. Eckstrom
Ph.D. Candidate
University of Nebraska-Lincoln
Millie Gonzalez
Emerging Technologies and Digital Services Librarian
Framingham State University
Miran Hladnik
Professor
University of Ljubljana
Monika Pemic
University of Hamburg
Morris Eaves
Professor of English
University of Rochester
Nicolas Suzor
Senior Lecturer
QUT School of Law
Nora Martin Peterson
Assistant Professor
University of Nebraska-Lincoln
Paige Morgan
Adjunct Instructor
University of Washington
Patricia Hswe
Digital Content Strategist
The Pennsylvania State University
Paul J. Heald
Richard W. and Marie L. Corman Research Professor
University of Illinois College of Law

44

Paul N. Courant
Professor
University of Michigan
Dr. Peter Murray-Rust
University of Cambridge
Peter Organisciak
PhD Student
University of Illinois
Puneet Kishor
Senior Researcher and Developer
University of Wisconsin-Madison
Raizel Liebler
Head of Faculty Scholarship Initiatives
John Marshall Law School
Ralph D. Clifford
Professor of Law
University of Massachusetts School of Law
Ray Corrigan
Senior Lecturer in Maths, Computing and Technology
The Open University
Raymond Ku
Professor of Law
Case Western Reserve University School of Law
Rebecca S. Curtin
Assistant Professor of Law
Suffolk University Law School
Rebecca Tushnet
Professor
Georgetown University Law School

45

Richard Cunningham
Professor
Acadia University
Richard Menke
Associate Professor of English
University of Georgia
Robert S. Means
English Language and Literature Librarian
Brigham Young University
Robyn Luney
Graduate Student
North Carolina State University
Roger Ford
Assistant Professor of Law
University of New Hampshire School of Law
Roman Leibov
The University of Tartu, Estonia
Roopika Risam
Assistant Professor of English
Salem State University
Ruby Mendenhall
Associate professor
University of Illinois, Urbana
Ryan Cordell
Assistant Professor of English
Northeastern University
Scott Weingart
Indiana University

46

Shubha Ghosh
George Young Bascom Professor of Business Law
University of Wisconsin Law School
Sree Ganesh Thotempudi
University of Goettingen
Stephen M. Maurer
Adjunction Associate Professor
Goldman School of Public Policy, UC Berkeley
Dr. Susan Brown
University of Guelph and University of Alberta
Tassie Gniady
Digital Humanities Advisor
Indiana University
Ted Sichelman
Professor
University of San Diego School of Law
Ted Underwood
Associate Professor of English
University of Illinois, Urbana-Champaign
Tyler T. Ochoa
Professor, High Tech Law Institute
Santa Clara University School of Law
Victoria Stobo
University of Glasgow
Vika Zafrin
Institutional Repository Librarian
Boston University
Virginia Kuhn
Associate Professor
University of Southern California
47

Wendy J. Gordon
William Fairfield Warren Distinguished Professor and Professor of Law
Boston University Law School
William G. Thomas
Angle Professor in the Humanities, Chair of the Department of History
University of Nebraska-Lincoln
William M. Cross
Director of the Copyright and Digital Scholarship Center
North Carolina State University
William T Gallagher
Professor of Law
Golden Gate University School of Law
Yolanda M. King
Northern Illinois University College of Law
Zach Coble
Digital Scholarship Specialist
New York University

48