The Authors Guild v. Google, Inc.

Filing 180

CORRECTED BRIEF, on behalf of Amicus Curiae American Library Assocation, Association of College and Research Libraries and Association of Research Libraries, FILED. Service date 07/24/2014 by CM/ECF. [1279102] [13-4829]

13-4829-cv
______________________________________________________________________________
IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
THE AUTHORS GUILD, BETTY MILES, JIM BOUTON, JOSEPH GOULDEN,
individually and on behalf of all other similarly situated,
Plaintiffs-Appellants,
HERBERT MITGANG, DANIEL HOFFMAN,
individually and on behalf of all others similarly situated, PAUL DICKSON, THE MCGRAWHILL 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
______________________________________________________________________________
BRIEF AMICI CURIAE OF AMERICAN LIBRARY ASSOCIATION, ASSOCIATION
OF COLLEGE AND RESEACH LIBRARIES, AND ASSOCIATION OF RESEARCH
LIBRARIES IN SUPPORT OF APPELLEE AND AFFIRMANCE
_____________________________________________________________________________
Jonathan Band
Jonathan Band PLLC
21 Dupont Circle NW, 8th Floor
Washington, D.C., 20036
202-296-5675
[e-mail]
Counsel for Amici

CORPORATE DISCLOSURE STATEMENT
Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, amici
curiae the American Library Association, the Association of College and Research
Libraries, and the Association of Research Libraries state that none of these entities
has a parent corporation and no publicly held corporation has an ownership stake
of 10% or more in any entity.

i

TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT ......................................................... i
INTEREST OF AMICI AND INTRODUCTION .................................................... 1
ARGUMENT ............................................................................................................ 4
I.

GBS HAS BECOME AN ESSENTIAL RESEARCH TOOL THAT SERVES
THE PUBLIC INTEREST ................................................................................. 4

II. SNIPPETS DO NOT SUBSTITUTE FOR FULL TEXT ................................. 8
III. SECTION 108 DOES NOT WEIGH AGAINST A FAIR USE
DETERMINATION. ....................................................................................... 10
A. The Copyright Act’s Specific Exceptions Do Not Limit the Applicability
of Fair Use.................................................................................................. 11
B. Section 108(f)(4) Unambiguously Provides that Section 108 Does Not
Limit The Applicability of Fair Use. ......................................................... 13
IV. THE LIBRARY COPIES ARE A FAIR USE ................................................. 16
CONCLUSION....................................................................................................... 21
APPENDIX............................................................................................................. 22
!

ii

TABLE OF AUTHORITIES
Federal Cases
Authors Guild, Inc. v. Google, Inc.,
954 F. Supp. 2d 282 (S.D.N.Y. 2009) .......................................................... 16
Authors Guild, Inc. v. Hathitrust,
__ F. 3d __, 2014 WL 2576342 C.A.2 (2d. Cir. 2014) ...................... 3, 10, 20
Sega Enters., Ltd. v. Accolade, Inc.,
977 F.2d 1510 (9th Cir. 1992) ...................................................................... 12
Stewart v. Abend,
495 U.S. 207 (1990) ............................................................................... 12, 13
Federal Statutes
17 U.S.C. § 107................................................................................................ passim
17 U.S.C. § 108................................................................................................ passim
17 U.S.C. § 117....................................................................................................... 13
State Statutes
Legislative Materials
H.R. Rep. No. 107-685 (2002) ............................................................................... 12
H.R. Rep. No. 90-83 (1967) ................................................................................... 12
H.R. Rep. No. 94-1476 (1976) .......................................................................... 14-15
S. Rep. No. 91-1219 (1970) .................................................................................... 14
Other Authorities
Amended Settlement Agreement (“ASA”) at 4.3(b)(i)(1) ........................................ 9

iii

Association of Research Libraries, Expenditure Trends in ARL Libraries, 19862010. ............................................................................................................. 19
Jonathan Band, The Books Rights Registry in the Google Books Settlement, 34
Columbia J. of L. & Arts 671 (2011) ........................................................... 20
Jonathan Band, The Impact of Substantial Compliance with Copyright
Exceptions on Fair Use, 59 J. Copyright Soc’y (2012) ............................... 13
Jonathan Band, The Long and Winding Road to the Google Books Settlement, 9
John Marshall Review of I.P. Law 227, 229 (2009) .................................... 19
David Harvie, et al., Publisher be damned! From Price Gauging to the Open Road,
31 PROMETHEUS CRITICAL STUDIES IN INNOVATION 229 (2014),
http://www.tandfonline.com/doi/full/10.1080/08109028.2014.891710#.U577
bo1dWVt ...................................................................................................... 18
Steve Kolowich, Mending Fences, INSIDE HIGHER ED, June 21, 2012,
http://www.insidehighered.com/news/2012/06/21/university-presses-debatehow-reconcile-libraries-wake-georgia-state-copyright#ixzz1yQpFoFhe..... 18
Randolph D. Moss, Office of Legal Counsel, Whether And Under What
Circumstances Government Reproduction Of Copyrighted Materials
Is A Noninfringing “Fair Use” Under Section 107 Of The Copyright
Act Of 1976 (1999) ....................................................................................... 16
Melville & David Nimmer, Nimmer on Copyright (2011) ..................................... 15
John Quinterno & Viany Orozco, The Great Cost Shift: How Higher Education
Costs Undermine the Future Middle Class, DEMOS (Apr. 3, 2012) ............. 18
Mary Rasenberger and Chris Weston, Overview of the Libraries and Archives
Exception in the Copyright Act (2005) ......................................................... 14
Statement of Paul Drake, User Services and Document Delivery Librarian,
University of Guam, Guam ............................................................................ 6
Statement of Barbara Fister, Library Professor, Gustavus Adolphus College, Saint
Peter, Minnesota ............................................................................................. 8

iv

Statement of Jill Gremmels, Library Director, Davidson College, Davidson, North
Carolina .......................................................................................................... 6
Statement of Lisa Hinchliffe, Coordinator for Information Literacy Services and
Instruction, University of Illinois at Urbana-Champaign, Urbana, Illinois .... 7
Statement of Elizabeth Kocevar-Weidinger, Instruction/Reference and Interim EResources Services Librarian, Longwood University, Farmville, Virginia ... 8
Statement of Melissa Pond, Director of Library Services, Leech Lake Tribal
College, Cass Lake, Minnesota ................................................................... 4-5
Statement of Scott Vine, Information Services Librarian and Deputy College
Librarian, Franklin & Marshall College, Lancaster, Pennsylvania ................ 7
U.S. Copyright Office, Legal Issues in Mass Digitization: A Preliminary Analysis
and Discussion Document (2011) ................................................................ 20
U.S. Copyright Office, Report on Copyright and Digital Distance Education
(1999) ........................................................................................................... 12

v

INTEREST OF AMICI AND INTRODUCTION1
The American Library Association (“ALA”) is a nonprofit professional
organization of more than 58,000 librarians dedicated to providing and improving
library services and promoting the public interest in a free and open information
society.
The Association of College and Research Libraries (“ACRL”), the largest
division of the ALA, is a professional association of academic and research
librarians.
The Association of Research Libraries (“ARL”) is a nonprofit organization
of 125 research libraries in North America, including university, public,
government and national libraries.
Collectively, these three associations represent over 100,000 libraries in the
United States employing over 350,000 librarians and other personnel.
Imagine it is 2004 and you are a researcher at a small, chronically
underfunded university researching indigenous astronomy. Your librarian wants to
help you but struggles to find potential sources and determine what is relevant.
You both know you are likely missing possible sources because the topic is

1

No party’s counsel authored this brief in whole or in part, no party or party’s
counsel contributed money that was intended to fund preparing or submitting this
brief, and no person other than amici, its members, or its counsel contributed
money intended to fund preparation or submission of this brief. All parties have
consented to the filing of this brief.
1

obscure and books on the subject may be out-of-print or buried in other libraries’
collections that may not be well-indexed.
Or, imagine you are a busy mother interested in researching your family’s
history to present at an upcoming reunion. You have used census data to identify
the names and locations of some ancestors, but would love to see if their names
appear in any historical accounts. You do not have much time to spend tracking
down obscure texts, much less working with your local library to get hold of them.
Now fast forward to 2014. Thanks to Google Book Search (“GBS”),
librarians can identify and efficiently sift through possible research sources,
amateur historians have access to a wealth of previously obscure material, and
everyday readers can find books stored in research library stacks.
That is what this case is about and why amici file this brief. There is a great
deal more at stake in this case than any company or author’s bottom line. If
Appellants succeed, the public could be denied access to a tremendous resource –
even though no author will see a penny of additional revenue. Copyright, intended
to be an engine for the promotion of creative expression, will instead stifle that
promotion, to the detriment of readers and authors alike.
Fortunately, copyright law incorporates a crucial safety valve that prevents
such an outcome: the fair use doctrine. In applying this doctrine to the facts of this
case, the district court correctly found that Google’s actions had significant public

2

benefits, and correctly gave great weight to those public benefits in the fair use
calculus.
This Court’s decision last month in Authors Guild v. HathiTrust, __ F. 3d
__, 2014 WL 2576342 C.A.2 (2d. Cir. 2014), resolves many of the issues in this
case in favor of Google. The HathiTrust Court found that the creation of a
searchable full text database was a transformative use because “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.” Id. at *7. Use of the entire work
was reasonably necessary “to enable the full-text search function.” Id. at *8.
Finally, “the full-text search use poses no harm to any existing or potential market”
for the books being searched. Id. at *9. The only functional difference between the
HathiTrust Digital Library (“HDL”) and GBS relevant to this case is that GBS
displays three short snippets in response to a search query. While HDL is
enormously useful to researchers, GBS is even more so because snippet display
allows the user to efficiently filter the search results.
This brief demonstrates the great utility of snippet display to librarians and
researchers. It then shows that snippet display does not substitute for the full text of
books. Next, the brief proves that the library exception in 17 U.S.C. § 108 in no
way limits the availability of the fair use right. Finally, the brief explains why the
copies that Google made available to its partner libraries are a fair use.

3

ARGUMENT
I.

GBS HAS BECOME AN ESSENTIAL RESEARCH TOOL THAT
SERVES THE PUBLIC INTEREST
In preparation for filing an amicus brief in the district court, amici ALA and

ACRL conducted an informal survey asking librarians about their experiences with
GBS. Their responses revealed that GBS had become an indispensable research
tool, particularly for students and faculty at small and remote educational
institutions. The responses further revealed that snippet display was critical to
GBS’s utility. Some illustrative responses are discussed below.2
First, GBS has become an important means for identifying valuable research
sources. One librarian for a small “chronically-underfunded tribal college library”
characterized GBS as “a lifesaver” and “indispensable”:
Because my students, and even some of my faculty members, face
significant challenges and barriers to accessing resources (including
transportation challenges, limited or no internet access, etc.), Google
Book Search helps us find if resources exist, to identify if those
resources may be helpful to their academic purposes, and get us
started on the path to access through other means if not our own
library. . . . I cannot overemphasize how much more difficult my job
would be and how lacking my faculty’s and students’ experiences
would be without access to a free tool like Google Book Search.
Statement of Melissa Pond, Director of Library Services, Leech Lake Tribal
College, Cass Lake, Minnesota.

2

The responses are on file with amici. Other librarians reported similar uses, which
are summarized in the attached Appendix.
4

That resource is valuable not just for research, but also for developing
curricula and collections:
[GBS] has led us to several titles that my faculty have gladly and
gratefully ordered for their private research collections and helped me
to identify the best uses of our very, very limited collection
development resources.
[For example] one of our science faculty instructors was looking to
put together a course on Indigenous astronomy (also called
ethnoastronomy and star knowledge and also related to the term
archaeoastronomy) and was curious as to what resources existed on
the topic. Google Books helped me identify several resources that the
instructor purchased for his own personal professional development
library and for our LLTC campus library.
Id. Thus, GBS’s public benefits accrue, in turn, to copyright holders who received
royalties when books are purchased as a result of research using GBS.
Sometimes, GBS can be used to identify material that is housed by the
library itself but nonetheless hard to find. A librarian at a liberal arts college used
GBS to find sources in her own stacks:
A couple of years ago I was helping a Davidson student look for
information on a speech that Khrushchev made to the National Press
Club. It wasn’t one of his famous, shoe-pounding speeches. We
struggled mightily for a long time, until we looked at Google Books.
There we found a reference to the speech in a book that seems to be
one of the important biographies of Khrushchev, and we had the book.
So the student went to the shelf, picked up the book, and got the info
he needed.
Statement of Jill Gremmels, Library Director, Davidson College, Davidson, North
Carolina.

5

Second, and relatedly, librarians can then decide whether to request those
books via interlibrary loan. Such decisions can be vital to conserving strapped
library budgets and speeding research. At the “geographically isolated” University
of Guam, for example, getting books through interlibrary loan can take weeks, with
significant postage costs. By using GBS to identify the specific chapters needed,
the library can narrow its request and obtain the material in a day or two via fax or
email. Statement of Paul Drake, User Services and Document Delivery Librarian,
University of Guam, Guam. Snippet display is essential to this function. Without
snippet display, the librarian or the researcher only knows where the search term
appears in a given book, but cannot determine the context in which the term
appears and thus cannot assess whether it is worth borrowing the book or a
particular chapter within the book.
Third, GBS has become a crucial tool for finding and checking citations. For
example, a librarian at a research university notes that she has used GBS “to find
full citations and or corrected citations to works I see in bibliographies, to verify
quotations and particularly when I am reviewing a manuscript and want to confirm
that the author has cited the original correctly, to determine where a quotation is
from when a full cite isn't given.” Statement of Lisa Hinchliffe, Coordinator for
Information Literacy Services and Instruction, University of Illinois at UrbanaChampaign, Urbana, Illinois.

6

The ability to efficiently check citations saves libraries (and scholars) money
and time. One librarian described working with a historian to check a citation
where the historian had only a quotation in a paper copy of a single page of an
older multi-volume biography of President Abraham Lincoln. Using GBS, they
were able to track down the quotation and full citation for the original source.
Without GBS, the scholar would have had to wait for an interlibrary loan of printed
copies and might not have been able to access the texts at all. Statement of Scott
Vine, Information Services Librarian and Deputy College Librarian, Franklin &
Marshall College, Lancaster, Pennsylvania. Instead, the scholar was able to
complete the research quickly and move on to the rest of the project. This citechecking function could not be performed without snippet-display.
Fourth, GBS is thoroughly integrated into the educational system – it is part
of the information literacy curriculum, included in research methods taught and
integrated into online library catalogs. Indeed, one librarian believes it is simply
“unethical not to teach Google Books. We often teach it before our own library
catalog.” Statement of Elizabeth Kocevar-Weidinger, Instruction/Reference and
Interim E-Resources Services Librarian, Longwood University, Farmville,
Virginia. Here, too, that education and use can lead to book sales that would not
have occurred but for the use of GBS. For example, one librarian described a
senior student who reported that she bought the books she planned to use in

7

research after discovering them via GBS because she liked to own copies that she
could mark up. Statement of Barbara Fister, Library Professor, Gustavus Adolphus
College, Saint Peter, Minnesota.
The HathiTrust Digital Library is a useful research tool because it directs the
user to the book and page number where the information sought may appear. GBS,
however, is an even more useful research tool because it displays snippets. It
makes the research process far more efficient because it enables the user to quickly
filter out the less helpful books employing the search term.
II.

SNIPPETS DO NOT SUBSTITUTE FOR FULL TEXT
Because Google displays only three snippets of approximately an eighth of a

page in response to a given query, GBS does not substitute for the experience of
reading the book itself or even a single page of the book.3 This is demonstrated by
the structure of the settlement Appellants negotiated and attempted to convince
class members and Judge Chin to accept. Under the settlement, Google would have
been able to provide three services. First, under the “Preview” service, Google
would have allowed users at no cost to search its database for books responsive to
their queries, as in GBS. Second, under the “Consumer Purchase” service, Google

3

Appellants argue that through repeated queries, a user could ultimately read 78
percent of a book. Appellants’ Br. at 11. In the time it would take the user to make
all these queries, she could have gone to her local public library and checked out
the book.
8

would have been able to sell users access to individual titles. Third, under the
“Institutional Subscription” service, Google could have sold a library an annual
subscription to obtain full text access for all its users to the entire Google database.
Significantly, Google in its free “Preview” service would have been
permitted to display far more of any book than Google does under GBS. For outof-print works, which constitute the vast majority of the books in GBS, Google
would have been able to display up to 20 percent of a book’s text in response to a
particular search query. Amended Settlement Agreement (“ASA”) at 4.3(b)(i)(1).4
The number of adjacent pages Google could have displayed depended on the
nature of the work. For non-fiction works, Google could have displayed five
adjacent pages. For works of fiction, Google could have displayed fifteen adjacent
pages. The fact that Appellants were willing to allow Google to provide free access
to up to 20 percent (and fifteen adjacent pages) of a book suggests that Appellants
did not believe such free access would in any way diminish sales of books under
the Consumer Purchase service, or decrease the attractiveness of an institutional
subscription to a library. If display of 20 percent of a book did not cannibalize
sales of the book, then surely display of a few snippets of a book would not do so
either.

4

The settlement had different rules for anthologies by multiple authors, collections
of poetry and short stories, fact works such as dictionaries or encyclopedias, and
books still in print. ASA at 4.3(b).
9

III.

SECTION 108 DOES NOT WEIGH AGAINST A FAIR USE
DETERMINATION.
Appellants and their amici contend that the uses enabled by the copies

received by Google’s Library Partners are “in direct contravention of the
restrictions in Section 108 of the Copyright Act….” Appellants’ Br. at 36 n. 10;
Amicus Br. of Jon Baumgarten et al. at 23-26; Amicus Br. of Copyright Alliance at
10. However, the HathiTrust court dismissed this argument. Pointing to the savings
clause in 17 U.S.C. § 108(f)(4), the Court did not “construe 108 as foreclosing our
analysis of the Libraries’ activities under fair use….” HathiTrust at *4 n. 4.
Appellants make the related argument that a fair use finding in favor of
Google would upset the balance Congress created when it placed “important
restrictions on libraries’ ability to use digital copies” in 17 U.S.C. § 108(c)(2).
Appellants’ Br. at 57. Appellants’ amici similarly argue that the district court’s
analysis “swallows the more specific exceptions Congress has crafted for particular
uses, overriding their limitations and thus disregarding the careful balance that
Congress provided for in these exceptions.” Amicus Br. of Jon Baumgarten et al. at
20. After describing section 108’s provisions, these amici state: “When Google’s
conduct is measured against this backdrop, it is absurd to think that Google could
take advantage of section 107 to authorize copying that Congress so carefully
limited in section 108, even for libraries.” Id. at 23.

10

We believe that the HathiTrust court’s ruling on section 108 disposes of
Appellants’ argument that a fair use determination in favor of Google would upset
the balance established in section 108. To the extent this Court is nonetheless
inclined to consider this argument, we respond that the argument is predicated on a
flawed understanding of section 108 and its relationship to section 107 and the rest
of the Copyright Act.
Contrary to the suggestion of Appellants and their amici, Congress never
intended for the specific limitations in the Copyright Act to constrain the
availability of the fair use right. This legislative intent is especially clear with
respect to section 108, where Congress included a specific savings clause.
Appellants’ understanding of the impact of section 108 on the fair use calculus
asks this Court to ignore the plain meaning of section 108, legislative intent, and
common sense.
A.

The Copyright Act’s Specific Exceptions Do Not Limit the
Applicability of Fair Use.

The Copyright Act’s specific exceptions narrowly define which uses of
which works may be made by which actors under which circumstances. In
contrast, section 107 lists four general, nonexclusive factors a court must weigh in
evaluating whether a particular use is fair. While the specific exceptions provide
courts with little discretion, fair use is “an ‘equitable rule of reason’ which ‘permits
courts to avoid rigid application of the copyright statute when, on occasion, it
11

would stifle the very creativity which that law is designed to foster.” Stewart v.
Abend, 495 U.S. 207, 236 (1990) (internal citations omitted).
The legislative history of the Copyright Act stresses that a specific exception
does not limit the availability of fair use for conduct that does not fall within its
scope. One congressional report noted “[W]hile some of the exemptions in sections
108 through 116 may overlap the fair use doctrine, they are not intended to
supersede it.” H.R. Rep. No. 90-83, at 36-37 (1967). The Register of Copyrights, in
a report that led to the TEACH Act, stated: “[f]air use could apply as well to
instructional transmissions not covered by the changes to section 110(2)
recommended above.” U.S. Copyright Office, Report on Copyright and Digital
Distance Education 162 (1999). The Conference Report that accompanied the
enactment of the TEACH Act reiterated that the “continued availability of the fair
use doctrine” was critical to the Office’s recommendation that Congress pass the
Act. H.R. Rep. No. 107-685, at 234 (2002) (Conf. Rep.).
Similarly, courts have held that a defendant’s failure to qualify for a specific
exception does not prejudice its fair use rights. In Sega Enters., Ltd. v. Accolade,
Inc., 977 F.2d 1510, 1520-21 (9th Cir. 1992), Sega argued that because Accolade’s
disassembly of Sega’s computer program did not fall within the section 117
exception relating to software, Accolade could not rely upon section 107. The
Ninth Circuit responded that this “argument verges on the frivolous. Each of the

12

exclusive rights created by section 106 of the Copyright Act is expressly made
subject to all of the limitations contained in sections 107 through 120.” Id. at 1521.
The court went on to observe that
sections 107 and 117 serve entirely different functions. Section 117
defines a narrow category of copying that is lawful per se .… The fact
that Congress has not chosen to provide a per se exemption to section
106 for disassembly does not mean that particular instances of
disassembly may not constitute fair use.
Id. In short, a defendant’s inability to meet the requirements of a specific exception
cannot have a negative effect on its assertion of fair use.5
B.

Section 108(f)(4) Unambiguously Provides that Section 108 Does
Not Limit The Applicability of Fair Use.

Section 108(f)(4) makes explicit what is implicit in the Copyright Act’s
other specific exceptions: nothing in section 108 “in any way affects the right of
fair use as provided by section 107 ….” The legislative history of this savings
clause underscores the plain meaning. While section 108 creates a safe harbor
where libraries can make settled uses without engaging in a fair use analysis,
nothing in section 108 weighs against libraries (or anyone else) making fair uses.

5

To the contrary, when a defendant engages in the type of activity permitted by a
specific exception, but does not qualify for a technical reason, the court should
give weight to the defendant’s substantial compliance with the exception when
considering the first factor. Jonathan Band, The Impact of Substantial Compliance
with Copyright Exceptions on Fair Use, 59 J. COPYRIGHT SOC’Y 453 (2012).
13

The 1909 Copyright Act did not contain any exceptions for libraries; instead,
libraries relied entirely on the federal common law of fair use. When the possibility
of a specific exception for libraries was raised prior to enactment of the 1976
Copyright Act, library representatives expressed concern that the specific
exception might limit the availability of fair use to libraries. Mary Rasenberger and
Chris Weston, Overview of the Libraries and Archives Exception in the Copyright
Act 13 (2005) (“Library representatives … asserted that there was ‘great danger’ in
the statutory language, because it would freeze what was allowable at the very
moment that technology is advancing.”).
Accordingly, when the Senate Subcommittee on Patents, Trademarks, and
Copyrights reported out the bill in December 1969, it included the language now in
section 108(f)(4). The Subcommittee report’s discussion of Section 108 stated:
“[t]he rights given to the libraries and archives by this provision of the bill are in
addition to those granted under the fair-use doctrine.” S. Rep. No. 91-1219, at 6
(1970). Section 108(f)(4) was intended to ensure that Section 108 had no negative
impact on fair use.
The House Judiciary Committee Report on the 1976 Act quoted the
language of section 108(f)(4) and then explained that “[n]o provision of section
108 is intended to take away any rights existing under the fair use doctrine.” H.R.

14

Rep. No. 94-1476, at 74 (1976). Similarly, in the context of section 108(h), the
House Report observed:
Although subsection (h) generally removes musical, graphic, and
audiovisual works from the specific exemptions of section 108, it is
important to recognize that the doctrine of fair use under section 107
remains fully applicable to the photocopying or other reproduction of
such works.
H.R. Rep. No. 94-1476, at 78. See also 4-13 Melville Nimmer & David Nimmer,
NIMMER

ON

COPYRIGHT § 13.05 (2011) (“[I]f a given library or archive does not

qualify for the Section 108 exemption, or if a qualifying library or archive engages
in photocopying practices that exceed the scope of the Section 108 exemption, the
defense of fair use may still be available.”).
In other words, section 108 sets forth certain situations where a library can
always make reproductions and distributions without the right holder’s
authorization. Some of these actions might be fair uses, but section 108 provides
legal certainty that encourages the library to proceed without conducting fair use
analysis.6 Other actions under section 108 might go beyond fair use, yet Congress

6

See also Randolph D. Moss, Office of Legal Counsel, U.S. Department of Justice,
Whether And Under What Circumstances Government Reproduction Of
Copyrighted Materials Is A Noninfringing “Fair Use” Under Section 107 Of The
Copyright Act Of 1976 14 n.12 (1999). (“[S]ection 108 of the 1976 Act does not
narrow the protection for fair use provided by the common law doctrine codified in
section 107 …. Section 108 thus fairly can be viewed as a very valuable—and not
superfluous—safe harbor: If a certain library practice is noninfringing under the
specific and detailed provisions of section 108(a) … a library need not be
15

in its balancing of competing interests decided to permit them. Section 108(f)(4)
clarifies that libraries can rely on section 108 when they meet its detailed criteria
and on section 107 in other circumstances, when they satisfy its more general
criteria.
Given that section 108 places no limits on the availability of section 107, it
is not “absurd,” as Appellants’ amici suggest, for Google to rely on section 107.
See Baumgarten Br. at 23. If anything is absurd, it is the belief of Appellants and
their amici that this Court could not comprehend the plain language of section 108.
IV.

THE LIBRARY COPIES ARE A FAIR USE
The district court correctly found that the copies Google made available to

its partner libraries were a fair use because “the purpose of the library copies is to
advance the libraries’ lawful uses of the digitized books consistent with the
copyright law.” Authors Guild, Inc. v. Google, Inc., 954 F. Supp. 2d 282, 293
(S.D.N.Y. 2013). The HathiTrust court confirmed that the libraries’ uses were, in
fact, lawful.
Appellants nonetheless contend that the purpose of the library copies must
be assessed from the perspective of Google, not the libraries; that is, why Google
made the copies available rather than how the libraries use those copies. Appellants

concerned about how that particular photocopying practice would fare under
section 107’s more complex and indeterminate fair use standards.”)
16

Br. at 36. Appellants further contend that Google made the library copies available
“as payment for permission to scan.” Id. at 12. But Google’s ultimate purpose in
getting permission to scan was creation of the search database necessary for GBS.
To the extent that Google’s purpose is relevant to determining the fair use status of
the library copies, the Court should focus on Google’s ultimate purpose of creating
its search database.
Further, even if the Court decides that the library copies were not
transformative as to Google, the evaluation of the market effect of those copies
must center on whether the libraries would have paid license fees for digitizing the
books in their collections had Google not made these copies available. We wish to
make it perfectly clear that the libraries would not have paid any such fees.
First, libraries simply do not have the budget to pay license fees for
digitizing their collections. Forcing libraries to divert scarce funds to support this
activity would undermine their public service missions and simply benefit some
rights holders at the expense of others. Like the rest of the economy, libraries were
hit hard by the “Great Recession.” The trend of state spending on higher education
not keeping up with enrollment growth and inflation was exacerbated during the
recession and adversely affected many research libraries. See John Quinterno &
Viany Orozco, The Great Cost Shift: How Higher Education Costs Undermine the
Future Middle Class, DEMOS (Apr. 3, 2012). At the same time, other library costs

17

have increased dramatically. For example, between 1986 and 2010, research
library expenditures on academic journals increased 379 percent, more than double
the rate of overall library expenditures. See Association of Research Libraries,
Expenditure Trends in ARL Libraries, 1986-2010.
Given libraries’ stagnant or shrinking budgets, any new spending for
digitization licenses would have to be reallocated from existing expenditures, and
the most likely source would be the budget for collections. As one librarian pointed
out, “[W]e pay six figures each year to [Copyright Clearance Center], and that
money is reallocated from our collections budget.… So that’s new content we’re
not buying.”7 A digitization license requirement thus would harm the market for
new works and works by new authors. The idea that libraries can afford to pay new
fees for digitization of legacy material while maintaining current levels of
investment in acquisition of new material is a short-sighted, self-defeating
delusion. Libraries’ total investment would be the same, but resources would be

7

Steve Kolowich, Mending Fences, INSIDE HIGHER ED, June 21, 2012,
http://www.insidehighered.com/news/2012/06/21/university-presses-debate-howreconcile-libraries-wake-georgia-state-copyright#ixzz1yQpFoFhe. Academic
libraries in the United Kingdom are also cannibalizing their book acquisition
budgets to pay for increasingly more expensive journals; since 1999, spending on
books has fallen by 20 percent in real terms, while expenditures on serials have
increased by 63 percent. David Harvie, et al., Publisher be damned! From Price
Gauging to the Open Road, 31 PROMETHEUS CRITICAL STUDIES IN INNOVATION 229
(2014),
http://www.tandfonline.com/doi/full/10.1080/08109028.2014.891710#.U577bo1d
WVthttp://www.tandfonline.com/doi/full/10.1080/08109028.2014.891710.
18

diverted away from new works to redundant payments for existing ones, in direct
contradiction of copyright’s purpose of “promot[ing] progress.” U.S. CONST. Art. I,
§ 8, cl. 8.
Second, there is no efficient mechanism for libraries to pay licensing fees for
the mass digitization of books, even if they had the resources to do so. The real
value of a searchable database of books such as GBS or HDL is its
comprehensiveness. The less comprehensive it is, the less useful it is because holes
in the database mean important references researchers may miss. Yet, the copyright
clearance difficulties for a database containing millions of books are monumental.
Jonathan Band, The Long and Winding Road to the Google Books Settlement, 9
JOHN MARSHALL REVIEW OF I.P. LAW 227, 229 (2009). Because most of these
books were written in the pre-digital era, the digitization rights were not clearly
allocated between the author and the publisher. Even if it could be determined to
whom the digitization rights were initially allocated, it is difficult to identify who
owns those rights now. Publishers go out of business and their assets (including the
copyrights they own) may be distributed among numerous creditors and
purchasers. Authors die and their various heirs inherit their copyrights.
The broad and uncertain ownership of the digitization rights in books means
that any voluntary, opt-in licensing system would fall far short of the objective of

19

relative comprehensiveness.8 What was so creative about the Book Rights Registry
proposed under the ASA was that it used the device of a class action settlement to
create a collective right organization that would possess a nonexclusive license to
the millions of works covered by the settlement. See Jonathan Band, The Books
Rights Registry in the Google Books Settlement, 34 COLUMBIA J. OF L. & ARTS 671
(2011). With the rejection of the settlement by the district court, the only way to
create a comprehensive licensing mechanism for books is through legislation, such
as a Scandinavian-style extended collective licensing. Appellants and their amici
refer to extended collective licensing arrangements as potential markets that GBS
has harmed, but they neglect to mention that such markets require Congressional
action. Obviously, a market that could exist only by virtue of not-yet enacted
legislation should not be considered an “existing or potential traditional market.”
HathiTrust at *9 (emphasis supplied). Moreover, the prospect of Congressional
adoption of a complex regulatory approach for mass digitization is completely
speculative.9

8

The Copyright Office has emphasized the infeasibility of individual licensing
arrangements and ineffectiveness of voluntary collective licensing for a project like
HDL. U.S. Copyright Office, Legal Issues in Mass Digitization: A Preliminary
Analysis and Discussion Document 30-34 (2011).
9
At a 2009 hearing on the Google Books Settlement, then-Register of Copyrights
Marybeth Peters suggested that a statutory compulsory license for mass
digitization of books might be inconsistent with international treaty obligations.
Hearing on: Competition and Commerce in Digital Books before the H. Comm. on
20

CONCLUSION
For the foregoing reasons, this Court should affirm the district court.
Dated: July 8, 2014

Respectfully submitted,
/s/ Jonathan Band
Jonathan Band
Jonathan Band PLLC
21 Dupont Circle NW, 8th Floor
Washington, D.C., 20036
202-296-5675
[e-mail]
Counsel for Amici

the Judiciary, 111th Cong. 66 (2009). At the very least, Peters believed that such a
statutory compulsory license would subject the United States to “diplomatic
stress.” Id. at 8.
21

APPENDIX
In May 2012, amici ALA and ACRL conducted an informal survey asking
librarians about their experiences with GBS. Excerpts from the responses received
are included in the accompanying amicus brief. Numerous librarians reported
similar uses. These reports are summarized below (the responses are on file with
amici).
1.

GBS helps find valuable research sources
•

Rebecca Hedreen, Buley Library, Southern Connecticut State
University, New Haven CT (“The main uses I see are taking
advantage of the full text search capabilities to find things that aren’t
findable in traditional book search venues and viewing either the full
text or enough of the text to determine if getting a full copy is worth
the hassle.”).

•

Bryan Skib, University of Michigan, Ann Arbor MI (Noticed in the
acknowledgements to UM Professor Juan Cole’s book Napoleon’s
Egypt that Cole praised GBS. In later conversations with Cole, Skib
learned that GBS had unearthed several “needles in the haystack” that
Cole felt would have been difficult or impossible to find with other
research tools.).

22

•

Nancy McClements, University of Wisconsin, Madison WI (“It assists
our patrons in the middle of the night, when they cannot enter a
particular library with a particular book . . . .” McClements reports
using GBS to locate books for a variety of patron research projects,
including: scholarship on the role of women in bars and taverns in the
nineteenth and twentieth centuries; a graduate thesis about Orson
Wells’ radio career; and art historical antecedents to ladies almanacs.).

•

Lindsay Sarin, University of the District of Columbia, Washington
DC (Used GBS to find the names of Haitian soldiers who fought in
the American Revolution. “I point students to Google Books to view
snippets while they wait for a copy to be returned or to arrive from a
library in our consortium.” Sarin believes GBS will be getting even
more use for searching print journals and microfiche/microfilm as her
library is moving its collections off-site. “In my own research I use
Google Books frequently to locate old book chapters. I can’t always
find them in full-text, but I usually find them as snippets so I can
decide if I need to get a copy of the book or not . . . . I’m starting to
look at how democratic theory and democratic ideals have been used
in library advocacy. Eventually, this will turn into a longitudinal
analysis . . . . That means I’ve been looking at some older library and

23

information science books. Many of these I can find in my library or
through the consortium, but since they're older many are in our
storage facility. I use Google Books to look at snippets or at least the
table of contents before requesting a title be sent over from storage.
Basically I want to make sure that it's worth getting . . . . Google
Books was a lot easier to use than our catalog to locate [a particular
book] and allowed me to verify that it was the book I needed” before
requesting it from storage. “The related books feature
was extremely helpful when I looked for this book. Library catalogs
don't do a great job of finding related titles so this was much faster
than browsing the shelves or catalog.”).
•

Anne Larrivee, Binghamton University State University of New York,
Binghamton NY (“Google Book Search is helpful when you are
looking for very precise information, if patrons would like to see
books that specifically mention a rare ritual, event, etc. Google Book
Search can help pinpoint which books might have a small chapter or
paragraph about that topic that may not often be mentioned as the
primary topic in articles and books.”).

•

Barbara Fister, Gustavus Adolphus College, St. Peter MN (“I have
been impressed by how often students in the past couple of years have

24

used GBS to discover books on topics they are studying.”).
•

Mary Jane Cedar Face, Southern Oregon University, Ashland OR (“I
helped a student with her senior capstone research on Methodist
circuit rider preachers of the west. We found a few books that held
promise.”).

•

Cathy Rettberg, Menlo School, Atherton CA (“Our kids are very
adept at using Google Books, and use it frequently. It’s a great
resource.”).

•

Thomas T. Kaun, Bessie Chin Library, Redwood High School,
Larkspur CA (Students “have successfully used it as a tool for finding
books in a local library. The really neat thing about it is the ability to
find obscure information since the entire text can be searched even if
the page is not available for perusal.”).

•

Halsted Mencotti Bernard, Wayne State University, Detroit MI
(Describing how he used GBS to locate materials on the 1967 Detroit
riot.).

•

Rachel Gollub (“When I was doing research for my Master’s thesis in
Military History, I found Google Book Search a valuable resource.
Several of the topics I wrote about were somewhat obscure
(references to early bayonets, the first uses of gunpowder in the west,

25

etc.). Being able to do a Google Books Search was highly useful,
because I found mentions of my topics in obscure books that I
otherwise wouldn’t have found . . . . I would hate to lose a resource
like that.”).
2.

GBS helps in collection development
•

Judy Panitch, University of North Carolina at Chapel Hill, Chapel Hill
NC (“Google Books [is] a terrific resource[] for examining books, or
for patrons to do so, before purchase, ILL [inter-library loans],
retrieval from storage, etc., and for checking citations, quotes, and the
like.” Panitch also describes a student’s use of GBS to identify books
discussing the runaway slave Dolly.).

•

Susan Whitehead, Union Institute & University, Montpelier VT (“Our
faculty and students use Google Book Search all the time” for
“previewing books for purchase/requesting.”).

•

Rebecca Hedreen, Buley Library, Southern Connecticut State
University, New Haven, CT (“I’ve used Google Books for collection
development – especially when we’re looking for something that
covers a very specific topic” such as nursing theorists.).

•

Lindsay Sarin, University of the District of Columbia, Washington
DC (“I usually use it to read a small section in order to determine if I
26

should get the book in-print either from a library or purchasing it.”).
3.

GBS helps screen books for interlibrary-loan
• Scott Cohen, Jackson State Community College, Jackson TN (“Our
students used Google Books . . . for their papers in World Literature.
While some used it and gleaned information from the book online,
others used it for interlibrary loan purposes. We used it to order
printed books that we didn’t have.”).
• Mary Jane Cedar Face, Southern Oregon University, Ashland OR
(“The snippets are useful for determining if it’s worth the effort to
actually get the book in hand” via ILL.).
• Naulayne Enders, Kentucky Christian University, Grayson KY (“Our
faculty and students are encouraged to look at previews of books that
they have ordered through Interlibrary Loan.”).
• Stewart Baker, California State University, Dominguez Hills, Carson
CA (“[W]hen students need a book right away, I tend to see if it’s
available on Google Books, and suggest they browse through it there
before requesting it in ILL. This both avoids unnecessary loans and
makes the student’s life more convenient, as they can start their
research right away instead of waiting 1-2 weeks. We don’t generally,

27

however, recommend using GB instead of ILL, due to restrictions on
pageviews . . .”).
• Michael Dudley, University of Winnipeg, Winnipeg MB, Canada
(“Google Books has come in very handy … letting people know that
an ILL or even running over to the main campus to get something we
don’t have will be worth their while.”).
4.

GBS helps find and check citations
•

Sarah B. Cornell, Daniel Webster College, Nashua NH (Describing
how GBS enabled a student to discover that an article had misquoted
“Leadership” by James Burns – “a remarkable demonstration of how
Google . . . rescues the unwary researcher.”).

•

Irene M.H. Herold, Keene State College, Keene NH (“I used Google
Book Search to avoid requesting materials via ILL when I just needed
to see one page or a chapter that I was tracking down from another
source’s citations.”).

•

Serenity Ibsen, Pacific Northwest College of Art, Portland OR (“I []
find GBS helpful to determine whether an essay has been printed in
multiple anthologies or whether an artist is in a certain book” when
“faculty do not supply students with a full citation for every essay or

28

article they assign . . . I have even used it to see whether a quote was
correct.”).
•

Beverly Geller, The Frisch School, Paramus NJ (“A student needed to
know which book a quote was from (he had forgotten to make a note
of it for his footnotes) . . . [GBS] came up with the book and the page
[number] in a matter of seconds. I loved it.”).

•

Lindsay Sarin, University of the District of Columbia, Washington
DC (“Sometimes I come across citations for articles or books that are
incomplete, wrong, or illegible. I can use Google Books to help find
the complete citations and other items that have cited the original
work via full text searching . . . . I use Google Books to find citations
. . . when I actually have a book but can’t find the passage I’m looking
for.”).

•

Nancy McClements, University of Wisconsin, Madison WI (“I have
been very successful in finding elusive quotations” using GBS, such
as quotations by author Colette about erotic dance. It is also helpful
“when a student doesn’t have an entire citation.”).

•

Rebecca Hedreen, Southern Connecticut State University, New Haven
CT (“I used Google Books this morning in the hopes of tracking down
an ‘article’ mistily remembered by an emeritus professor.”).

29

•

John Gottfried, Western Kentucky University Libraries, Bowling
Green KY (“We recently made considerable use of Google Books as
we struggled to accurately cite quotations submitted by a large
number of contributors working on a campus project. Many of the
quotes were simply attributed to a well-known figure, but included no
information on where or when the quote had been published. We
located several of them through Google Books.”).

•

Susan Whitehead, Union Institute & University, Montpelier VT
(“[GBS is] a wonderful tool for locating original quotations and page
numbers (for citations).”).

5.

GBS is integrated into library research and education systems
•

Mary Jane Cedar Face, Southern Oregon University, Ashland OR
(“We teach students to use Google Books as a way to keyword search
within/across content (full[]- text) of the universe of Google Books.
It’s especially useful if they have very specific search terms. Then, we
show them how to access the book by checking our catalog, the union
catalog of our consortium, or request the book by ILL. . . . We have
added Google Books links to almost all Lib Guides in a ‘Finding
Books’ box.”).

•

Michael Mitchell, Brazosport College, Lake Jackson TX (“I’ve got
30

our catalog set to include a link to Google Preview (Books) in its
search results,” which “adds a great deal of supplemental information
to our catalog for students and faculty. . . .”).
•

Tina M. Hovekamp, Barber Library, Central Oregon Community
College, Bend OR (“I often pick a catalog search result to show
students how they may preview the book on GBS.”).

•

Lindsay Sarin, University of the District of Columbia, Washington
DC (“We [] teach students to use Google Books in their research,
especially if they’re doing historical or primary research. We even
link to it in our Research Guides.” “Some faculty members [] have
created assignments that require that students use primary source
materials especially magazines . . . Because many of these are
digitized in Google Books students are using more sources in their
assignments than they would if they had to use microfiche (getting
students to use that is like pulling teeth). . . .”).

31

CERTIFICATE OF COMPLIANCE
1.

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

P. 32(a)(7)(B) because it contains 6,966 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.
Dated: July 8, 2014

/s/ Jonathan Band
Jonathan Band

32

CERTIFICATE OF SERVICE
I hereby certify, that on July 8, 2014, a true and correct copy of the
foregoing Brief of Amici Curiae American Library Association, Association of
College and Research Libraries, and Association of Research Libraries was timely
filed in accordance with FRAP 25(a)(2)(D) and served on all counsel of record via
CM/ECF.
I further certify that on July 8, 2014, I caused six (6) copies of the foregoing
Brief of Amici Curiae American Library Association, Association of College and
Research Libraries, and Association of Research Libraries to be delivered
overnight to the Clerk of the United States Court of Appeals for the Second
Circuit.
Dated: July 8, 2014

/s/ Jonathan Band
Jonathan Band

33