The Authors Guild v. Google, Inc.

Filing 69

AMICUS BRIEF, on behalf of Amicus Curiae American Photographic Artists, American Society of Media Photographers, Inc., Graphic Artists Guild, Mystery Writers of America, The National Association of Science Writers, National Press Photographers Association, National Writers Union, North American Nature Photography Association, Professional Photographers of America, Romance Writers of America, Society of Children's Book Writers and Illustrators, The Songwriters Guild of America, Text and Academic Authors Association, The Digital Media Licensing Association and Western Writers of America, FILED. Service date 04/14/2014 by CM/ECF. [1201448] [13-4829]--[Edited 04/16/2014 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,
(For Continuation of Caption See Inside Cover)
––––––––––––––––––––––––––––––
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

BRIEF FOR AMICI CURIAE AMERICAN PHOTOGRAPHIC ARTISTS,
AMERICAN SOCIETY OF MEDIA PHOTOGRAPHERS, INC., GRAPHIC
ARTISTS GUILD, MYSTERY WRITERS OF AMERICA, THE
NATIONAL ASSOCIATION OF SCIENCE WRITERS, NATIONAL
PRESS PHOTOGRAPHERS ASSOCIATION, NATIONAL WRITERS
UNION, NORTH AMERICAN NATURE PHOTOGRAPHY
ASSOCIATION, PROFESSIONAL PHOTOGRAPHERS OF AMERICA,
ROMANCE WRITERS OF AMERICA, SOCIETY OF CHILDREN’S
BOOK WRITERS AND ILLUSTRATORS, THE SONGWRITER’S GUILD
OF AMERICA, TEXT AND ACADEMIC AUTHORS ASSOCIATION,
THE DIGITAL MEDIA LICENSING ASSOCIATION AND WESTERN
WRITERS OF AMERICA IN SUPPORT OF APPELLANT THE
AUTHORS GUILD
STEPHEN E. GILLEN
WOOD HERRON & EVANS LLP
2700 Carew Tower
441 Vine Street
Cincinnati, Ohio 45202
[phone]

MARY E. RASENBERGER
NANCY E. WOLFF
ELEANOR M. LACKMAN
SCOTT J. SHOLDER
COWAN, DEBAETS, ABRAHAMS &
SHEPPARD LLP
Attorneys for Amici Curiae
41 Madison Avenue, 34th Floor
New York, New York 10010
[phone]

HERBERT MITGANG, DANIEL HOFFMAN, individually and on behalf of all
others similarly situated, PAUL DICKSON, THE MCGRAW-HILL
COMPANIES, INC., PEARSON EDUCATION, INC., SIMON & SCHUSTER,
INC., ASSOCIATION OF AMERICAN PUBLISHERS, INC., CANADIAN
STANDARD ASSOCIATION, JOHN WILEY & SONS, INC., individually and
on behalf of all others similarly situated,
Plaintiffs,
v.
GOOGLE, INC.,
Defendant-Appellee.

CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, Amici
Curiae submit the following corporate disclosure statements with respect to those
Amici, that are corporations:
1.

American Photographic Artists (APA) states that it does not have a

parent corporation, and that no publicly held corporation owns 10% or more its
stock.
2.

American Society of Media Photographers, Inc. (ASMP) states that it

does not have a parent corporation, and that no publicly held corporation owns
10% or more its stock.
3.

Graphic Artists Guild (GAG) states that it does not have a parent

corporation, and that no publicly held corporation owns 10% or more its stock.
4.

Mystery Writers of America (MWA) states that it does not have a

parent corporation, and that no publicly held corporation owns 10% or more its
stock.
5.

National Press Photographers Association, Inc. (NPPA) states that it

does not have a parent corporation, and that no publicly held corporation owns
10% or more its stock.

C-1

6.

National Writers Union (NWU) is a national amalgamated union

(Local 1981) of the United Auto Workers, AFL-CIO. NWU states that it does not
have a parent corporation, and that no publicly held corporation owns 10% or more
its stock.
7.

North American Nature Photography Association (NANPA) states

that it does not have a parent corporation, and that no publicly held corporation
owns 10% or more its stock.
8.

Professional Photographers of America (PPA) states that it does not

have a parent corporation, and that no publicly held corporation owns 10% or more
its stock.
9.

Romance Writers of America (RWA) states that it does not have a

parent corporation, and that no publicly held corporation owns 10% or more its
stock.
10.

Society of Children’s Book Writers and Illustrators (SCBWI) states

that it does not have a parent corporation, and that no publicly held corporation
owns 10% or more its stock.
11.

The Digital Media Licensing Association (PACA) states that it does

not have a parent corporation, and that no publicly held corporation owns 10% or
more its stock.

C-2

12.

The National Association of Science Writers (NASW) states that it

does not have a parent corporation, and that no publicly held corporation owns
10% or more its stock.
13.

The Songwriters Guild of America (SGA) states that it does not have

a parent corporation, and that no publicly held corporation owns 10% or more its
stock.
14.

Text and Academic Authors Association states that it does not have a

parent corporation, and that no publicly held corporation owns 10% or more its
stock.
15.

Western Writers of America, Inc. states that it does not have a parent

corporation, and that no publicly held corporation owns 10% or more its stock.

C-3

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ............................................................................... ii
STATEMENT OF INTEREST .............................................................................1
SUMMARY OF ARGUMENT ............................................................................2
ARGUMENT ........................................................................................................6
I.

GOOGLE’S USES OF COPYRIGHTED WORKS ARE
NOT “TRANSFORMATIVE” .........................................................6

II.

THE DISTRICT COURT DID NOT SUFFICIENTLY
CONSIDER THE HIGHLY COMMERICAL NATURE OF
GOOGLE’S USE .......................................................................... 11

III.

THE DISTRICT COURT FAILED TO GIVE EACH OF
THE OTHER STATUTORY FAIR USE FACTORS DUE
CONSIDERATION AND WEIGHT ............................................ 14
A. The District Court Failed to Adequately Analyze the
Second Factor and So Erred in Holding that the Second
Factor Weighed in Favor of Fair Use....................................... 15
B. The District Court Failed to Adequately Analyze the
Third Factor and So Erred in Holding that the Third
Factor Weighed Only Slightly Against Fair Use ..................... 19
C. The District Court Failed to Adequately Analyze the
Fourth Factor and Erred in Holding that the Fourth Factor
Weighed Strongly in Favor of Fair Use ................................... 22

CONCLUSION .................................................................................................. 28
CERTIFICATE OF COMPLIANCE ................................................................. 29
APPENDIX : DESCRIPTION AND INTEREST OF AMICI CURIAE ...........A1

i

TABLE OF AUTHORITIES
Page(s)
Cases
A&M Records, Inc. v. Napster, Inc.,
239 F.3d 1004 (9th Cir. 2001) ....................................................10, 11, 12, 13, 22
Arica Inst., Inc. v. Palmer,
970 F.2d 1067 (2d Cir. 1992) .............................................................................. 8
Arista Records, LLC v. Doe 3,
604 F.3d 110 (2d Cir. 2012) ..............................................................................11
Authors Guild, Inc. v. Google Inc.,
954 F. Supp. 2d 282 (S.D.N.Y. 2013) .........................................................passim
Authors Guild, Inc. v. HathiTrust,
902 F. Supp. 2d 445 (S.D.N.Y. 2012) ................................................................14
Authors Guild, Inc. v. Google, Inc.,
282 F.R.D. 384 (S.D.N.Y. 2012) ........................................................................19
Authors Guild v. Google, Inc.,
770 F. Supp. 2d 666 (S.D.N.Y. 2011) ................................................................23
Bill Graham Archives v. Dorling Kindersley Ltd.,
448 F.3d 605 (2d Cir. 2006) ...............................................................................15
Campbell v. Acuff-Rose,
510 U.S. 569 (1994) .....................................................................................passim
Capitol Records, LLC v. ReDigi Inc.,
934 F. Supp. 2d 640 (S.D.N.Y. 2013) ................................................................10
Cariou v. Prince,
714 F.3d 694 (2d Cir. 2013) ...............................................................................15
Castle Rock Ent’m’t, Inc. v. Carol Publ’g Group, Inc.,
150 F.3d 132 (2d Cir. 1998) ................................................................................. 8

ii

Golan v. Holder,
132 S. Ct. 873 (2012) ..........................................................................................17
Harper & Row Publishers, Inc. v. Nation Enterprises,
471 U.S. 539 (1985) .....................................................................................18, 23
Nihon Keizai Shimbun, Inc. v. Comline Business Data, Inc.,
166 F.3d 65 (2d Cir. 1999) .................................................................................10
Peter Mayer Publishers Inc. v. Shilovskaya,
12 CIV. 8867 PGG, 2014 WL1325744, at* 8
(S.D.N.Y. March 31, 2014) ................................................................................11
Princeton Univ. Press v. Michigan Doc. Svcs.,
99 F.3d 1381 (6th Cir. 1994) ..............................................................................10
Stewart v. Abend,
495 U.S. 207 (1990) ............................................................................................16
Statutes
17 U.S.C. § 106 ........................................................................................................23
17 U.S.C. § 107 .................................................................................................passim
17 U.S.C. § 108(c) .............................................................................................20, 26
U.S. CONST., art. I, § 8, cl. 8 ................................................................................8, 17
Other Authorities
2 Melville B. Nimmer & David Nimmer, Nimmer on Copyright,
§ 13.05(A)(4) (2012).............................................................................................5
Alexandra Drury, Note, How Internet Users’ Identities are Being
Tracked and Used, 15 TUL. J. TECH. & INTELL. PROP. 219, 227
(2012)(citing Arjun Kulkarni, How Does Facebook Make Money,
BUZZLE (Jan. 9, 2012), http://www.buzzle.com/articles/how-doesfacebook-make-money.html) ..............................................................................13
Craig W. Dallon, Original Intent and the Copyright Clause: Eldred v.
Ashcroft Gets It Right, 50 ST. LOUIS U. L.J. 307, 329 (2006) ............................18
iii

GOOGLE, COMPANY, OUR PRODUCTS AND
SERVICES, http://www.google.com/about/company/products .............................. 9
Horace E. Scudder, Noah Webster, American Men of Letters 55-64,
67-68 (1890) http:// www.gutenberg.org/files/31238/31238h/31238-h.htm ....................................................................................................18
Joanna Greary, Google: What Is It and What Does It Do? THE
GUARDIAN (April 23, 2012),
http://www.theguardian.com/technology/2012/apr/23/googletracking-trackers-cookies-web-monitoring .......................................................... 9
Joshua Kendall, The Forgotten Founding Father: Noah Webster's
Obsession and the Creation of an American Culture 65-66, 93,
100-02 (2010) http://www.theforgottenfoundingfather.com .............................18
Mary Rasenberger & Chris Weston, Overview of the Libraries and
Archives Exception in the Copyright Act: Background, History,
and Meaning, at 17-21 (April 2005), available
at: http://www.section108.gov/docs/108BACKGROUNDPAPER(f
inal).pdf ...............................................................................................................26
Patrick Cronin, The Historical Origins of the Conflict Between
Copyright and the First Amendment, 35 COLUM. J.L. & ARTS 221,
232 (2012) ...........................................................................................................17
Pierre N. Leval, Campbell v. Acuff-Rose: Justice Souter's Rescue of
Fair Use, 13 Cardozo Arts & Ent. L.J. 19, 22 (1994) ........................................14
Pierre N. Leval, Toward A Fair Use Standard, 103 HARV. L. REV.
1105, 1112 (1990) ........................................................................................passim
Preservation and Reuse of Copyrighted Works: Hearing Before the
Subcomm. on Courts, Intellectual Property, and the Internet of the
H. Comm. On the Judiciary, 113th Cong. (2014)...............................................24
Rebecca Tushnet, My Library: Copyright and the Role of Institutions
in A Peer-to-Peer World, 53 UCLA L. Rev. 977, 981 (2006) ...........................26
The Copyright Clearance Center
(CCC), http://www.copyright.com/content/cc3/en.html ....................................25

iv

STATEMENT OF INTEREST1
Amici are fifteen associations of independent authors’ organizations,
representing

text

writers,

songwriters,

visual

artists,

illustrators

and

photographers. 2 They are concerned about the widespread impact of affirming this
case and respectfully ask this Court to view it with a wide lens. The district court’s
opinion establishes a precedent that, if followed, will unleash commercial, largescale digital copying of all types of creative works. For instance, owners of
collections of photographs or other artwork will feel free to create online,
searchable databases with high quality thumbnails of the images in direct
competition with authorized image licensors; and owners of musical recordings
may create searchable databases of music and make portions available to users
without any security. In each case, the author would get nothing in exchange for
the use and would have no control over ultimate uses.
Allowing mass digitization and mass use as fair use is an extensive taking,
one that has no precedent in the history of fair use jurisprudence. It will harm the
1

Pursuant to Federal Rule of Appellate Procedure 29(c)(5), no counsel for a party
authored this brief in whole or in part, no party or party’s counsel contributed
money that was intended to fund preparing or submitting this brief, and no person
other than the amici curiae, their members, or counsel, contributed money intended
to fund preparation or submission of this brief. Pursuant to Federal Rule of
Appellate Procedure 29(a), all parties have consented to the filing of this brief.
2
The names of amici and further details about their activities are included in the
Appendix to this brief.
1

ability of authors to profit from their works and ultimately to make a living from
their creative work – in a manner not experienced since prior to the enactment of
copyright laws in this country.

If the decision is allowed to stand, there will be

less incentive for authors to create – particularly scholarly, educational, and nonfiction authors – thus contravening the purpose of copyright to promote the
progress of science and useful arts.
SUMMARY OF ARGUMENT
An affirmance of the district court’s opinion will set a novel, unparalleled
precedent that will allow the exception (fair use) to swallow the rule (the exclusive
rights), crippling copyright law’s ability to incentivize new creativity. Any entity,
whether commercial or not, and whether or not technologically capable of keeping
digital works secure to protect them from piracy, might engage in mass digitization
of third-party works and make large portions of those works available to the
public. This includes musical works, sound recordings, photographs and other
images, audiovisual and other works, as well as texts.
The district court’s decision allows Google, one of the richest companies in
the world, to reap profits from the use of millions of books under the guise of fair
use, with no payment to authors.

It allows a commercial enterprise to scan

millions of books (and in so doing to usurp the author’s right to decide when or if
to make his or her work available in digital form), use those scans for its own
2

internal business purposes, provide whole digital copies to participating libraries in
consideration for access to the books, and make a full 78 percent of the books
available to the public on a per snippet basis (Appellant’s Br. 11) – all without
permission or paying the authors a cent. Copyright law, and with it fair use, calls
for balance. The district court’s decision is not a balanced one. As Judge Leval
warned “extensive taking may impinge on creative incentives.” Pierre N. Leval,
Toward A Fair Use Standard, 103 HARV. L. REV. 1105, 1112 (1990).
Amici urge this Court to take a fresh look at the fair use doctrine and the role
of transformative use in particular. Fair use is an integral part of U.S. copyright
law. It is a doctrine that provides “breathing room” to copyright law, recognizing
that copyright law, in some cases when strictly construed, does not serve its own
objectives—to incentivize creation and dissemination of works of authorship. If,
however, the end result of a finding of fair use would be to diminish the copyright
incentives, as is the case here, the use should not be deemed a fair one.
While courts need to have flexibility in interpreting the fair use doctrine to
accommodate new technologies, the district court’s gross extension of fair use to
cover mass digitization and access favors Google’s uses to the extreme detriment
of rights holders generally. If the mass digitization and the uses at issue here
become unrestricted and widespread, it may become impossible for the
marketplace to pay authors for many books, particularly those with narrow
3

margins. This is equally true with respect to the markets for images, musical
works, sound recordings and other types of works.
Several aspects of the district court’s opinion warrant close examination.
First, the district court erroneously held that the first fair use factor – nature and
character of the use – strongly weighs in favor of fair use, relying on its
determination that the use was transformative and socially beneficial.
But a use is not transformative simply because it adds functionality to the original
use. Moreover, purported public benefit of a use, although it may be considered
and weighed, should not nullify consideration of the use’s commercial nature and
the user’s private gain. The district court’s myopic analysis ignores the purely
commercial nature of Google’s use of the works, and it overlooks the very real
evidence of potential harm from widespread use of this nature and, in particular,
the relevance of affected licensing markets.
Second, the district court reduced the fair use inquiry to a one-factor test –
whether, in the court’s view, the defendant has made a convincing case that the use
is in some manner “transformative.”

The district court consistently

overemphasized its finding of transformative use and views each of the other
factors under the lens of this purported transformative use, giving those other
factors only cursory analysis. However, the statute clearly provides that a

4

determination of fair use must be made by independently, weighing and assessing
each factor on its own merits. 17 U.S.C. § 107.
The district court virtually dismisses the second factor by its gross
generalization of the nature of the works; it summarily treats the millions of works
at issue as published “non-fiction books,” weighing in favor of fair use—
notwithstanding the fact there are a huge variety of types of works at issue,
including images and articles, as well as books, and that not all non-fiction works
lack creativity. The court also errs in finding that the third factor weighs only
slightly against fair use because it focuses almost exclusively on the end-user’s
snippet use, disregarding the fact whole copies were made and provided to libraries
and are used by Google.
Finally, the district court conflated the market for the works with the “sale”
of “books” to consumers and thereby ignored major licensing and other markets,
including for excerpts of books. The market for books today, even out of print
books, is far broader than sales of copies. The court neglected to consider the
effect on the potential market for or value of the work of “unrestricted and
widespread conduct of the sort engaged in by the defendant…” Campbell v. AcuffRose, 510 U.S. 569, 590 (1994) (citing Nimmer § 13.05[A] [4]). In this case,
snippet use could have tremendous adverse impact on the market or value of the
works, especially if widespread. Works, especially short works that can be easily
5

assembled from snippets and works whose major markets are excerpts use or
research use (which rarely requires reading a book from end to end), are
particularly vulnerable to market usurpation as a result of snippet use.
ARGUMENT
I.

GOOGLE’S USES OF COPYRIGHTED WORKS ARE NOT
“TRANSFORMATIVE”
The district court held that “Google’s use of copyrighted works is highly

transformative” because it digitized and indexed books in a manner that facilitates
search and research: “The use of book text to facilitate search through display of
snippets is transformative.” Authors Guild, Inc. v. Google Inc., 954 F. Supp. 2d
282, 291 (S.D.N.Y. 2013) (hereinafter “Op”).

“Google Books is also

transformative in the sense that it has transformed book text into data for purposes
of substantive research, including data mining and text mining in new areas,
thereby opening up new fields of research.” Id. The court concluded that “Google
Books does not supersede or supplant books because it is not a tool to be used to
read books.” Id.
This conclusion misunderstands the meaning of “transformative.” The uses
the district court described are not the type of “transformative use” the Supreme
Court carefully analyzed in Campbell, nor do Google’s uses fall within any of the
types of uses contemplated by Judge Leval in his seminal 1990 article, Toward A

6

Fair Use Standard, upon which the Supreme Court’s discussion of transformative
use in Campbell largely relies.
In delineating the boundaries of “transformative use,” the Supreme Court in
Campbell focused on whether the new use added new creative expression to the
body of creative works, or whether the use simply substituted for the original—
whether it:
Adds something new, with a further purpose or different
character, altering the first with new expression, meaning, or
message; it asks, in other words, whether and to what extent
the new work is ‘transformative.’
Campbell, 510 U.S. at 579 (quoting Leval, Toward A Fair Use Standard, supra at
1111) (emphasis added). Judge Leval provides examples of transformative uses:
they may “include criticizing the quoted work, exposing the character of the
original author, proving a fact, or summarizing an idea argued in the original in
order to defend or rebut it.” Leval, Toward A Fair Use Standard, supra at 1111.
They may also include “parody, symbolism, aesthetic declarations, and
innumerable other uses.” Id. He explains that “a quotation of copyrighted material
that merely repackages or republishes the original is unlikely to pass the test.” Id.
All of the uses contemplated by Leval, as well as by the Supreme Court,
“alter” the original work by creating a new work:

they add new creative

expression to the original in a way that transforms the original work into a new
work. This, in turn, furthers the purposes of copyright. As this Court has noted,
7

“[t]he ultimate test of fair use … is whether the copyright law’s goal of “promoting
the Progress of Science and useful Arts,” U.S. CONST., art. I, § 8, cl. 8, would be
better served by allowing the use than by preventing it.” Castle Rock Ent’m’t, Inc.
v. Carol Publ’g Group, Inc., 150 F.3d 132, 141 (2d Cir. 1998) (citing Arica Inst.,
Inc. v. Palmer, 970 F.2d 1067, 1077 (2d Cir. 1992)). Judge Leval states, a fair use
must be of a character that services the copyright objective of
stimulating productive thought and public instruction without
excessively diminishing the incentives for creativity. One must
assess each of the issues that arise in considering a fair use defense in
light of the governing purposes of copyright law.
Leval, Toward A Fair Use Standard, supra at 1110.
Consistent with the foregoing, the Supreme Court explained that parody
often “has an obvious claim to transformative value” in that it can “shed[] light on
an earlier work, and, in the process, creat[e] a new one.” Campbell, 510 U.S. at
579. Because parody is a form of criticism, it must refer to the original in order to
conjure it up to make its point. And, as criticism, it generally will not supplant the
original, precisely because it is making fun of and commenting on the original.
But, as the Court describes, even commentary is not always fair use:
If, on the contrary, the commentary has no critical bearing on
the substance or style of the original composition, which the
alleged infringer merely uses to get attention or to avoid the
drudgery in working up something fresh, the claim to fairness in
borrowing from another's work diminishes accordingly (if it
does not vanish), and other factors, like the extent of its
commerciality, loom larger.
8

510 U.S. at 580 (emphasis added). As the Court recognized, the less the work is
used for purposes of creating new and different speech, the less likely it will be
transformative.
Google’s purpose in digitizing books was not to comment on the original
works in any way or to create new works of authorship.

Indeed, Google’s

wholesale copying of millions of books to improve its search and translation
services and other “nondisplay” uses can hardly be compared to core fair uses such
as parody or quotation—uses that incorporate portions of preexisting works as an
integral part of the new expression. Adding new functionality to an existing work
without adding new expression is not transformative in the sense used by the
Court; it does not alter the original work itself, but simply provides new means of
use, access or distribution for the work—all traditionally licensed uses.
While Google Books Search is a tool to search books for terms and retrieve
snippets of the book that include the search term, it does not create any new
expression, meaning or message. 3 All that has occurred in this case is a transfer to

3

Instead, Google’s primary purpose almost assuredly was to acquire massive
amounts of language data in order to improve its search algorithms and translation
capabilities, and to increase (or at least maintain) its competitive edge in the world
of Internet search. See GOOGLE, COMPANY, OUR PRODUCTS AND SERVICES,
http://www.google.com/about/company/products/; Joanna Greary, Google: What Is
It and What Does It Do? THE GUARDIAN (April 23, 2012),
http://www.theguardian.com/technology/2012/apr/23/google-tracking-trackerscookies-web-monitoring.
9

a text-searchable format (a change not authorized by the author)—a quintessential
example of non-transformative copying that violates the reproduction right. First,
digitizing others’ works to enhance one’s own business is simply a form of
copying; it does not transform the work or alter the original work in any way. See,
e.g., Princeton Univ. Press v. Michigan Doc. Svcs., 99 F.3d 1381, 1389 (6th Cir.
1994) (“This kind of mechanical ‘transformation’ bears little resemblance to the
creative metamorphosis accomplished by the parodists in the Campbell case.”)
Merely adding search does not alter this analysis; it allows the work to be accessed
in a different way, but does not create new expression or meaning. See A&M
Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1015 (9th Cir. 2001) (downloading
MP3 files is not transformative); Nihon Keizai Shimbun, Inc. v. Comline Business
Data, Inc., 166 F.3d 65, 72 (2d Cir. 1999) (abstracts that are mostly direct
translations do not add new expression); Capitol Records, LLC v. ReDigi Inc., 934
F. Supp. 2d 640, 653 (S.D.N.Y. 2013) (“the upload, sale, and download of music
files on ReDigi’s website does nothing to ‘add something new…’”). In this case,
the search and indexing functions are tools that allow users to create new meaning,
but do not themselves create new meaning. While this may seem like a subtle
distinction, it is an important one.
If furthering access so that people could use the works for creating new
expression were transformative use, then most infringing distribution, display or
10

performance would be transformative merely because they allowed more access.
For instance, creating MP3s of sound recordings and making them available for
download or creating a searchable e-book would be transformative. But these
types of uses have been found infringing and not transformative new expression.
See, e.g., Napster, Inc., 239 F.3d at 1015; Arista Records, LLC v. Doe 3, 604 F.3d
110, 124 (2d Cir. 2012) (uploads and downloads of digital copies on P2P network
not fair use); Peter Mayer Publishers Inc. v. Shilovskaya, 12 CIV. 8867 PGG, 2014
WL 1325744, at *8 (S.D.N.Y. Mar. 31, 2014) (eBook does not contain “contentbased changes” reflecting new authorship as required for a derivative work).
In addition to adding search functionality to the books, Google made perfect
digital copies of the books and provided them to the participating libraries in
exchange for access to the books. (Op. at 285.) This use was completely ignored
by the district court in its analysis, although it is wholesale copying in its purest
form and provides a direct substitute for library purchase of books. There is
nothing arguably transformative about this use.
II.

THE DISTRICT COURT DID NOT SUFFICIENTLY CONSIDER
THE HIGHLY COMMERCIAL NATURE OF GOOGLE’S USE
As the Campbell Court explained, whether a use is commercial does not

create a presumption that a use is fair or unfair; however, it is a factor that must be
weighed – particularly in a case like the one at bar. See Campbell, 510 U.S. at 580
(“If … the commentary has no critical bearing on the substance or style of the
11

original composition…the claim to fairness in borrowing from another’s work
diminishes accordingly (if it does not vanish), and other factors, like the extent of
its commerciality, loom larger.”) (emphasis added).4 The district court’s failure to
appreciate the commerciality of Google’s uses is reversible error.
The district court acknowledged that Google’s use of its digitized book
collections was commercial, see Op. at 291, then inferred that the “educational
benefits” of the service negated Google’s commercial purposes. Id. at 292 (“even
assuming Google’s principal motivation is profit, the fact is that Google Books
serves several important educational purposes.”). The court improperly allowed
this potential end-use to dominate its analysis of the first factor.
In bolstering its results-driven outlook, the court lost sight of the
complexities of the Internet economy, assuming instead that Google does not
“engage in the direct commercialization of copyrighted works” in that it does not
“sell” books or snippets or have paid advertisements on the accompanying pages.
Id. at 291-92. However, most Internet-based companies and services do not make
money from direct sales or direct commercialization. Many online businesses
create value by drawing users to their services. See, e.g., Napster, 239 F.3d at
4

As the legislative history for Section 107 Provides: “[T]he commercial or noncharacter of an activity, while not conclusive with respect to fair use, can and
should be weighed along with other factors in fair use decisions. H.R. REP. NO.
94-1476, at 66 (1976).
12

1015-16 (the fact that Napster users did not pay for the service did not negate its
commercial nature). 5 Google Books Search is no different.
As the Napster court stated, “[d]irect commercial benefit is not required to
show commercial use.” 239 F.3d at 1015. Google derives direct economic
benefit from Google Books by drawing users to Google and by using the texts of
the works at issue to improve its search, analytics, and translation capabilities.
Google’s scanning of millions of books provided it with a market advantage that
no other search engine or other entity will be able to match. Google took
advantage of a one-time deal, scanning the rich trove of scholarship in the
country’s major academic libraries, for commercial purposes. The ancillary
benefits to the public of its doing so should not tip the scales in favor of fair use.
There is nothing at all “fair” about a wealthy company taking millions of
authors’ works for free, depriving the authors of important licensing revenue, for
its own commercial benefit. Entities that produce or distribute educational
textbooks, films and other educational works – or access to those works – are
subject to copyright law; otherwise, there would be no market for them and they

5

See also Alexandra Drury, Note, How Internet Users’ Identities are Being
Tracked and Used, 15 TUL. J. TECH. & INTELL. PROP. 219, 227 (2012) (citing Arjun
Kulkarni, How Does Facebook Make Money, BUZZLE (Jan. 9, 2012)),
http://www.buzzle.com/articles/how-does-facebook-make-money.html
13

would not get produced. There is no reason why Google should get a special
exception.6

III.

THE DISTRICT COURT FAILED TO GIVE EACH OF THE
OTHER
STATUTORY
FAIR
USE
FACTORS
DUE
CONSIDERATION AND WEIGHT
A fair use analysis should not begin and end with whether a court finds a use

is “transformative.” Section 107 clearly requires courts to consider and weigh all
four enumerated fair use factors. No one factor – much less a judicially created
subset of one factor – should be dispositive. As the Supreme Court stated in
Campbell, “[n]or may the four statutory factors be treated in isolation … All are to
be explored, and the result, weighed together, in light of the statutory purposes of
copyright.” Campbell, 510 U.S. at 577. Further, “every fair use factor is to be
considered as a subset of th[e] overall goal” of determining the limits of authors’
rights so as to best serve the goals of copyright. Pierre N. Leval, Campbell v.
Acuff-Rose: Justice Souter’s Rescue of Fair Use, 13 Cardozo Arts & Ent. L.J. 19,
22 (1994).

The district court allowed its finding of publicly beneficial,

transformative use to decide the case and, as described below, only summarily
6

In addition, as noted above, Google provided exact copies of the works at issue to
libraries, in a traditional commercial barter as consideration for access to the
books—copies which the libraries have made use of and obtained value from. See
HathiTrust, 902 F. Supp. 2d at 448. This was purely a commercial transaction.
14

considered the other three fair use factors and failed to give them full weight. This
type of analysis threatens to lead to a fair use standard that looks solely at
“transformative use,” contrary to the Supreme Court’s instructions in Campbell.
A.

The District Court Failed to Adequately Analyze the Second
Factor and So Erred in Holding that the Second Factor Weighed
in Favor of Fair Use

The district court incorrectly minimized the importance of the second fair
use factor—the nature of the work—and in doing so assumed that non-fiction
works are not creative. Moreover, it generalized about the millions of works in
question, analyzing them as if they were a single non-fiction, published work—
ignoring the fact there are a variety of types of works at issue, including images
and articles, as well as books, and erroneously concluding that all non-fiction
works lack creativity and are entitled to less protection. All of these errors are
problematic.
First, the district court noted that the second fair use factor “plays little role
in the ultimate fair use determination.” Op. at 292 n.4. Although, troublingly,
other recent cases have made similar statements with respect to transformative
uses, 7 there is no justification in the statute, the legislative history, or Supreme
Court jurisprudence for ignoring the second factor. Section 107 clearly enumerates

7

See, e.g., Cariou v. Prince, 714 F.3d 694, 710 (2d Cir. 2013); Bill Graham
Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 612 (2d Cir. 2006).
15

four factors that need to be weighed; it treats all four the same and does not say
that courts may disregard the second factor—even if a use is “transformative.” See
17 U.S.C. § 107; Campbell, 510 U.S. at 578.
Second, the district court found that the majority of the works at issue are
works of non-fiction, and therefore the corpus of works as a whole was entitled to
less copyright protection than if it were comprised of a higher proportion of
fictional works. See Op. at 292. The second fair use factor, however, looks toward
the level of creativity inherent in a given work. See Stewart v. Abend, 495 U.S.
207, 237 (1990) (explaining that under the second factor a use is less likely fair if
the copyrighted work is “a creative product,” as opposed to “factual”). Whether a
work is fiction or non-fiction is not necessarily determinative of whether a work is
creative. Not all non-fiction works are non-creative, factual works. Some nonfiction works, such as pure news reports, product labels, and instruction manuals,
are primarily fact-based and do not exhibit a high degree of creativity; but others,
including scholarly and educational works, may be highly creative and expressive.
Conversely, certain works of fiction, such as those written by a formula, may lack
significant creativity.
A large number of the non-fiction works at issue in this case are scholarly
works; such works are often highly creative and expressive. They do not report on
facts like news, but analyze prior scholarship or facts and add to prior learning
16

through interpretation and expression. Much scholarship attempts to resolve issues
and convincingly persuade readers of a point of view; they may provide clear and
original expression, interpretation and advocacy. This requires a high degree of
originality and expressive writing. Non-expressive writing, such as a mere report
of facts or data, by contrast, does not. Library shelves are not filled with yellow
pages, but highly expressive books created by talented authors.
By creating a dichotomy between non-fiction and fictional works, the court
fundamentally misunderstood the purpose of the second fair use factor and the
meaning of authorship and expression under the copyright law. Nonfiction works
—such as scholarly works—were the very types of works the Founders had in
mind when including copyright protection in the Constitution. 8 The Founders, like
the colonial governments, which had enacted copyright laws, recognized the need
to develop an American market for educational and informative works from which
people could learn and spread knowledge and sought to do so by encouraging the
production of works of authorship. See Golan v. Holder, 132 S. Ct. 873, 901
(2012) (“Many early colonial copyright statutes, patterned after the Statute of
Anne, also stated that copyright’s objective was to encourage authors to produce

8

Indeed, the Constitution’s Copyright Clause uses the term “Progress of Science”
to refer to copyright. U.S. CONST. art. 1, § 8, cl. 8; see also Patrick Cronin, The
Historical Origins of the Conflict Between Copyright and the First Amendment, 35
COLUM. J.L. & ARTS 221, 232 (2012) (“Public educators, not artists, were intended
to be the primary beneficiaries of copyrights.”)
17

new works and thereby improve learning.”). 9 The Copyright Act of 1790, the first
federal copyright law, also was “[a]n Act for the encouragement of learning, by
securing the copies of maps, charts, and books, to the authors and proprietors of
such copies.” Informative and educational works were precisely the kinds of
works the Founders and first Congress sought to encourage for the public benefit.10
Finally, drawing a line in the sand between fiction and non-fiction based on
a majority of works at issue cannot justify a finding of fair use when there are
many diverse types of infringed works in suit. The district court acknowledged
that there are many different types of works at issue in this case. See Op. at 285
(“All types of books are encompassed, including novels, biographies, children’s
books, reference works, textbooks, instruction manuals, treatises, dictionaries,
cookbooks, poetry books, and memoirs.”). Even if non-fiction works represent the
“vast majority of the books in Google Books” (Op. at 292), the number of fiction

9

Fittingly, one of the major lobbyists for the initial U.S. copyright laws was Noah
Webster, who wrote the first American grammar book and campaigned for
copyright protection so he could earn money from his grammar book to support his
family while writing the first American dictionary. Joshua Kendall, The Forgotten
Founding Father: Noah Webster's Obsession and the Creation of an American
Culture 65-66, 93, 100-02 (2010); Horace E. Scudder, Noah Webster, American
Man of Letters 55-64, 67-68 (1890); see also Craig W. Dallon, Original Intent and
the Copyright Clause: Eldred v. Ashcroft Gets It Right, 50 ST. LOUIS U. L.J. 307,
329 (2006).
10

Harper & Row, Inc.v. Nation Enterprises, 471 U.S. 539, 545 (“copyright is
intended to increase… the harvest of knowledge.”).
18

works is still substantial. Seven percent (Op. at 285) of many millions is still a big
number.
Nowhere in the law is there any basis for treating all of a wide variety of
works the same under the second factor – as though they all had the same degree of
creativity—simply because so many works are at issue. Categories of fiction and
nonfiction works that are highly creative should be analyzed separately, in separate
buckets, 11 not lumped together with less creative works.
B.

The District Court Failed to Adequately Analyze the Third Factor
and So Erred in Holding that the Third Factor Weighed Only
Slightly Against Fair Use

The district court also provided only a very summary, dismissive analysis of
the third factor. In no more than a few words, the district court held that the
“amount and substantiality” factor weighed only “slightly” against a finding of fair
use on the grounds that scanning entire works was necessary for Google’s full-text
search capabilities, and because Google only displayed snippets in response to
user-generated searches. See Op. at 292. This rationale is a red herring. Snippet
display is only a small piece of the whole picture of Google’s use.
The district court plainly acknowledged that entire works were being
digitized and copied.

Google copied, verbatim, millions of works, and gave

11

See Authors Guild v. Google, Inc., 282 F.R.D. 384, 390 (S.D.N.Y. 2012) (“The
Court could effectively assess the merits of the fair-use defense with respect to
each of these categories [of books] without conducting an evaluation of each
individual work.”).
19

libraries free, exact digital copies (which was surely not transformative use).
Further, Google makes wholesale use of the full works, not small portions, for its
own internal benefit, to the detriment of rights holders.
First, as noted above, Google made complete copies of millions of books for
libraries, in exchange for libraries granting Google access to the works for
digitization. There is no indication in the law that libraries’ acquisition of free,
complete copies of its books from a third party is intended to be fair use. To the
contrary, Section 108(c) of the Copyright Act, which provides an express
exception for libraries and archives to make replacement copies of full books,
allows only books that are “damaged, deteriorating, lost, or stolen” or in obsolete
formats and includes important restrictions on libraries’ replacement copying. 17
U.S.C. § 108(c) (“The right of reproduction under this section applies … solely for
the purposes of replacement of a copy or phonorecord” if “an unused replacement
cannot be obtained at a fair price” and a copy reproduced digitally “is not made
available to the public in that format outside the premises of the library”). The
district court’s analysis upsets the careful balance sought be Congress between
libraries’ needs and avoiding unreasonable market harm.
Second, the fact that Google makes only portions of books available to the
public at once does not negate the fact that whole works were copied and are being
used or that, despite the variety of measures in place, 78% of the books’ snippets
20

ultimately could be accessed through a series of searches.

(Op. at 286-87

(describing that one snippet per page and one page in ten are blacklisted and other
restrictions); Appellant’s Brief at 11.) As a practical matter, this type of use may
well serve as a substitute for a book for many research and other uses. When
scholars or students use books for research purposes, they are often not reading
them from beginning to end like a novel; rather, they refer to certain portions,
which can easily be accomplished by accessing Google’s snippets. Google’s use
may significantly impact authors despite the fact that the entire work is not
accessible at once.
Last, Google did in fact scan and use the entirety of the books for “nondisplay” purposes – to improve its search and translation capabilities. But by
focusing on the allegedly “transformative” nature of Google’s snippets and its need
to use entire works for the purportedly novel purposes of text search and data
mining, the district court treats the third fair use factor as irrelevant. While “the
extent of permissible copying varies with the purpose and character of the use,” it
still must be considered. Campbell, 510 F.2d at 586-87,
As with the other three factors, the amount of the work used should be
evaluated on its own merits, and when a work is copied verbatim in its entirety,
such complete copying should be weighed as one of the factors against a finding of
fair use, even in cases – unlike here – where the use is truly transformative. Fair
21

use was intended to apply primarily to partial uses (with some exceptions), and the
third factor was intended to be a key part of the fair use analysis. As a general
rule, wholesale coping “militates against a finding of fair use.” Napster, 239 F.2d
at 1016 (citations omitted).

A whole taking should be found fair only if, when

balanced together with the other factors, the magnitude of that taking is
outweighed by the other factors.
C.

The District Court Failed to Adequately Analyze the Fourth
Factor and Erred in Holding that the Fourth Factor Weighed
Strongly in Favor of Fair Use

The fourth fair use factor requires courts to look at “the effect of the use
upon the potential market for or value of the copyrighted work,” 17 U.S.C. § 107,
and to determine “whether unrestricted and widespread conduct of the sort
engaged in by defendant . . . would result in a substantially adverse impact on the
potential market.” Campbell, 510 U.S. at 591 (emphasis added). Here, the district
court wrote these requirements out of its analysis, and considered the effect of only
one of the uses at issue, snippet availability, on only one of several existing and
potential markets for the works at issue, namely, the sale of “books.” Again, its
inquiry under this factor was conclusory at best.
The district court wrongly concluded that the fourth fair use factor weighed
“strongly” in favor of fair use, on the grounds that “Google does not sell its scans,
and the scans do not replace the books.” Op. at 292-293. First, as discussed
22

above, Google Books Search does not sell any product, nor must it for purposes of
usurping a relevant market. Second, as the Supreme Court has clearly instructed,
the question is not merely the effect of Google’s use, but the effects if the use were
“unrestricted” and “widespread.” The court nevertheless disregarded existing, as
well as potential markets and failed to consider the impact when the use is
magnified.
Moreover, the district court ignored the fact that authors have a marketable
right to digitize their copyrighted works; it is a core right of the copyright owner
under the section 106 reproduction right, subject to the author’s authorization. 17
U.S.C. § 106. A fundamental aspect of the exclusive rights under copyright is the
right to decide how and when to make one’s works available. Harper & Row, 471
U.S. at 552 (the Copyright Act of 1976 expressly recognizes “a right of first
publication”). Some authors do not want their works digitized; they may fear the
widespread piracy that inevitably comes with the availability of unsecured digital
copies on the internet or have other concerns. See Authors Guild v. Google, Inc.,
770 F. Supp. 2d 666, 681-82 (S.D.N.Y. 2011).
If uses such as Google’s become “widespread” and “unrestricted,” then
widespread, uncontrolled piracy is a likely result.

Given that piracy can

cannibalize an entire market, many authors and publishers are rightfully cautious
about who may digitize and have access to unsecured digital copies of their works;
23

if perfect, unsecured, free copies become viral, paying markets for the works will
eventually be devastated. While Google may have the capability of providing
secure storage and display, few others have those same resources; and yet there is
nothing in the district court’s analysis that would prevent an entity completely
lacking secure technologies from making the same uses.
Furthermore, the district court takes an exceedingly narrow view of the
markets at issue, considering only consumer markets for books. The court focuses
narrowly on the alleged promotional value of Google Books, and how it could
provide a new way for authors’ works to be discovered on forums such as online
booksellers. Op. at 293. The problem with this analysis is that there is no
evidence that Google Books ever steers readers to online sellers; 12 and, even if it
did, it is the overall impact of the use that must be carefully considered, not
whether, incidentally, it is possible the infringing use might steer a person here or
there to a legitimate purchase and offset potential losses.
The district court’s conclusory analysis of the fourth factor misses a much
broader and more complex picture of the marketplace, including the ways Google
Books Search usurps revenue streams from licensed excerpts and replacement
12

See Preservation and Reuse of Copyrighted Works: Hearing Before the
Subcomm. on Courts, Intellectual Property, and the Internet of the H. Comm. on
the Judiciary, 113th Cong. (2014) (statement of Jan Constantine, General Counsel,
The Authors Guild, Inc.).

24

books, including the lucrative excerpt market for books. There is a significant
market for licensed excerpts of scholarly works, particularly for educational and
scholarly uses. The Copyright Clearance Center, for instance, licenses excerpts of
books around the world, serving over 35,000 companies. 13 The excerpt market for
scholarly works is particularly robust because teachers, students, and academics
often do not need access entire works, from front to back, to fulfill their purposes.
Google’s dissemination of snippets is a direct substitute for this market
because Google Books allows users to search for and view snippets from books on
topics they are researching. As described above, if a user runs enough searches,
she can access almost the entire book through snippets. As a result, the targeted
consumers of excerpts – scholars, teachers and students – get what they need for
free. Despite this clear market usurpation, the district court failed to even consider
the existence of a robust excerpt market.
The relevant markets also include the library market for replacement copies.
Libraries are a major market for many books, and represent a major source of
13

The Copyright Clearance Center (CCC) is “a global rights broker for the
world's most sought after materials – such as in- and out-of-print books, journals,
newspapers, magazines, movies, television shows, images, blogs and ebooks –
CCC makes it easy for businesses and academic institutions to use copyrightprotected materials while compensating publishers and content creators for their
works.” CCC offers customers the option to “republish an article, book excerpt
or other content in your own books, journals, newsletters and other materials.”
See http://www.copyright.com/content/cc3/en.html.

25

revenue for authors. 14

Indeed, the purpose of Section 108(c), 15 which allows

libraries and archives to make replacement copies in only very particular
circumstances, as described above, is to prevent libraries from making replacement
copies at will, so as to protect this important revenue stream. 16

Google’s

dissemination of full copies of millions of books replaces a significant market for
these books because Google gave libraries free digital backup copies (in exchange
for access to full works) of these books –copies that would have otherwise been
purchased by those libraries. It is simply not true that “the scans do not replace
books.” Op. at 292-93.
If Google Books is allowed to substitute its free content, under fair use, for
the paid content offered by authors, publishers and their licensing agents, whether
as trade books, replacement editions, or licensed excerpts, authors will not be able
to continue to afford to create (unless subsidized by government or private
entities). As amici member Linda Butler, author of materials for teachers and
students of English as a second language (and one of TAA’s members), offers:
14

“[W]e should not forget that intermediate institutions like schools and libraries
are major markets for copyright owners and, therefore, major sources of
copyrighted works for many consumers.” Rebecca Tushnet, My Library: Copyright
and the Role of Institutions in A Peer-to-Peer World, 53 UCLA L. Rev. 977, 981
(2006).
15
17 U.S.C. § 108(c).
16
Mary Rasenberger & Chris Weston, Overview of the Libraries and Archives
Exception in the Copyright Act: Background, History, and Meaning, at 17-21
(April
2005),
available
at:
http://www.section108.gov/docs/108BACKGROUNDPAPER(final).pdf.
26

My concern derives from the fact that this is how I make my living,
writing educational materials, including textbooks. If the materials I
produce, once published, become available to library patrons to
borrow (and copy) for free, then I can’t afford to go on producing
them. I’ll have to spend my time earning a living in some other way. I
have good reasons to believe that the textbooks I’ve written are
valuable to teachers and students, so if I—and people like me—stop
writing them, because we cannot afford to volunteer years of our time
to creating them, that’s a loss not just to me and my family, but to
teachers and students as well. Who will provide the materials that help
young teachers learn how to teach, help experienced teachers do their
jobs effectively, and help students get the education they need?
One group cannot simply be allowed to take from creators and give works to
the public for free with impunity. This undermines the very purpose of copyright
law and ultimately of fair use. Yet this is exactly what the decision below
promotes.

27

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

New York, New York
April 14, 2014
s/ Mary E. Rasenberger
Mary E. Rasenberger
Nancy E. Wolff
Eleanor M. Lackman
Scott J. Sholder
COWAN, DeBAETS, ABRAHAMS &
SHEPPARD LLP
41 Madison Avenue, 34th Floor
New York, New York 10010
Tel: [phone]
Attorneys for Amici Curiae

28

CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with the type-volume limitations of
Fed. R. App. P. 32(a)(7)(B) because this brief contains 6,802 words, excluding the
parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), as counted by
Microsoft® Word 2007, the word processing software used to prepare this brief.
This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this
brief has been prepared in a proportionally spaced typeface using Microsoft®
Word 2007, Times New Roman, 14 point.
s/ Mary E. Rasenberger
Mary E. Rasenberger
Attorneys for Amici Curiae
Dated: April 14, 2014

29

Appendix

______________________
APPENDIX
______________________

DESCRIPTION AND INTEREST OF AMICI CURIAE

1.

American Photographic Artists (APA) is a trade association of more

than 2,000 photographic professionals who promote professional practices,
standards, and ethics in the photographic community.
2.

American Society of Media Photographers, Inc. (ASMP) represents

the interests of professional photographers whose photographs are created for
publication and has approximately 7,000 members. It is the oldest and largest
organization of its kind in the world.
3.

Graphic Artists Guild (GAG) is a national union of graphic artists

dedicated to promoting and protecting the social, economic and professional
interests of its members. The Guild’s members include graphic designers, Web
designers, digital artists, illustrators, cartoonists, animators, art directors, surface
designers and various combinations of these disciplines.

A-1

4.

Mystery Writers of America (MWA) , an association of mystery

writers, was founded in 1945 and is an independent New York 501-c-3
corporation. We have about 2800 members, 1500 of whom are published mystery
writers (both fiction and non fiction such as true crime). Many of our 1300
associated members are also published but not in our genre. In addition to the
Edgars, which are the Oscar of the mystery writer, we provide courses on the craft
and business of mystery writing.
5.

National Press Photographers Association, Inc. (NPPA) is an

association of 9,500 news photographers and related professionals.
6.

National Writers Union (NWU) The NWU is a national amalgamated

union (Local 1981) of the United Auto Workers, AFL-CIO. It is a labor union that
advocates for freelance and contract writers. The NWU includes local chapters as
well as at-large members nationwide and abroad. The NWU works to advance the
economic conditions of writers in all genres, media, and formats. NWU
membership includes, among others, book authors, journalists, business and
technical writers, website and e-mail newsletter content providers, bloggers, poets,
playwrights, editors, and academic writers.

A-2

7.

North American Nature Photography Association (NANPA) is a trade

organization with approximately 2,300 members involved in all aspects of nature
photography.
8.

Professional Photographers of America (PPA) represents more than

17,000 photographers and photographic artists from dozens of specialty areas
including portrait, wedding, commercial, advertising and art.
9.

Romance Writers of America (RWA), founded in 1980, is a non-

profit trade association, with a membership of more than 10,000 romance writers
and related industry professionals, whose mission is to advance the professional
interests of career-focused romance writers through networking and
advocacy. RWA works to support the efforts of its members to earn a living, to
make a full-time career out of writing romance—or a part-time one that generously
supplements his/her main income.
10.

Society of Children’s Book Writers and Illustrators (SCBWI) is a non-

profit, 501(c)3 organization, is one of the largest existing organizations for writers
and illustrators. It was founded in 1972 by Lin Oliver and Stephen Mooser. It is
the only professional organization specifically for those individuals writing and
illustrating for children and young adults in the fields of children’s literature,
magazines, film, television, and multimedia. Our mission is to support the creation

A-3

and availability of quality children’s books around the world. We accomplish this
by fostering a vibrant community of individuals who bring books for young
readers to the public including writers, illustrators, editors, publishers, agents,
librarians, educators, booksellers, bloggers, enthusiasts and others. We provide
education and support for these individuals through our awards, grants, programs
and events. We strive to increase the quality and quantity of children’s books in the
marketplace, and act as a consolidated voice for professional writers and
illustrators worldwide.
11.

The Digital Media Licensing Association (PACA) membership is

comprised of over 150 stock image libraries across the world that are engaged in
licensing millions of images, illustrations, film clips and other content on behalf of
thousands of individual creators. As part of its mission, PACA actively advocates
copyright protection and enforcement for its members.
12.

The National Association of Science Writers (NASW) is a New York

corporation and a non-profit organization. Founded in 1934 and formally
incorporated in 1955, NASW is an independent organization with approximately
2100 members. The mission of NASW is to foster accurate information about
science and science’s role in society as well as to advance the professional interests
of science writers. NASW members write about all areas of science for all types of

A-4

print and online media, including books, magazines, newspapers, trade
publications, scholarly publications, institutional publications, and children’s and
young adult publications. The membership includes freelance writers as well as
employees of media outlets, universities, research organizations and other
institutions. Approximately 800 of its members are book authors. NASW
provides its members varied educational and professional development resources
and opportunities through an annual conference, a quarterly magazine, a
substantial website, and other activities.
13.

The Songwriters Guild of America (SGA) is the nation’s oldest and

largest organization run exclusively by and for songwriters, with more than 5,000
members nationwide and over seventy-five years advocating for songwriters’
rights. It is a voluntary association of songwriters, composers, and the estates of
deceased members. SGA provides a variety of services to members, including
contract advice, copyright renewal and termination filings, and royalty collection
and auditing to ensure that members receive proper compensation for their creative
efforts. SGA’s efforts on behalf of all U.S. songwriters include advocacy before
regulatory agencies and Congress, and participating as amicus in litigation of
significance to the creators of the American canon of popular music.
14.

Text and Academic Authors Association, Inc. (TAA) is the only non-

profit membership association dedicated solely to assisting authors of scholarly
A-5

books, textbooks, and journal articles. Formed in 1987, the TAA has over 2,000
members, primarily consisting of authors or aspiring authors of scholarly books,
textbooks, and academic articles. Many of the TAA’s members serve on college
or university faculties. The TAA’s mission is to support textbook and academic
authors in the creation of top-quality educational and scholarly works that
stimulate the love of learning and foster the pursuit of knowledge.”
15.

Western Writers of America, Inc. is the oldest non-profit membership

association dedicated solely to promoting literature of the American West. Formed
in 1953, WWA has more than 650 members who live and work in the United
States and abroad, primarily consisting of authors of scholarly books, textbooks,
popular history, biographies, memoirs, essays, encyclopedias and other reference
works, dictionaries, cookbooks, novels, screenplays and television scripts, and
popular and academic articles. Our members also write poetry, songs, and multimedia scripts all related to the American West and early frontier. WWA members
create original books and materials that appeal to multi-generational readers, from
very young readers to adults. The WWA mission is to further the appreciation of
Western American literature and history and in preserving Western Americana
through the written word.

A-6