The Authors Guild v. Google, Inc.

Filing 84

AMICUS BRIEF, on behalf of Amicus Curiae Jon Baumgarten, Stuart N. Brotman, Raymond T. Nimmer, Mark Schultz and John Simson, FILED. Service date 04/14/2014 by CM/ECF. [1201863] [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,
HERBERT MITGANG, DANIEL HOFFMAN, individually and on behalf of all
others similarly situated, PAUL DICKSON, THE MCGRAW-HILL
COMPANIES, INC., PEARSON EDUCATION, INC., SIMON & SCHUSTER,
INC., ASSOCIATION OF AMERICAN PUBLISHERS, INC., CANADIAN
STANDARD ASSOCIATION, JOHN WILEY & SONS, INC., individually and
on behalf of all others similarly situated,
Plaintiffs,
v.
GOOGLE, INC.,
Defendant-Appellee.
––––––––––––––––––––––––––––––
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

BRIEF OF JON BAUMGARTEN, STUART BROTMAN, RAYMOND T.
NIMMER, MARK SCHULTZ, AND JOHN SIMSON AS AMICI CURIAE IN
SUPPORT OF PLAINTIFFS-APPELLANTS THE AUTHORS GUILD, ET AL.
JON BAUMGARTEN
Former General Counsel,
U.S. COPYRIGHT OFFICE
STUART BROTMAN
Lecturer on Law,
HARVARD LAW SCHOOL
RAYMOND T. NIMMER
Dean, Leonard Childs
Professor of Law,
UNIVERSITY OF HOUSTON
LAW CENTER

MATTHEW BARBLAN, ESQ.
DIRECTOR, CENTER FOR THE
PROTECTION OF INTELLECTUAL PROPERTY
GEORGE MASON UNIVERSITY
SCHOOL OF LAW
3301 Fairfax Drive, Suite 216 
Arlington, Virginia 22201
[phone]
[e-mail]
Attorney for Amici Curiae

(For Continuation of Appearances See Inside Cover)

MARK SCHULTZ
Associate Professor of Law,
SOUTHERN ILLINOIS UNIVERSITY
SCHOOL OF LAW, and Senior Scholar,
CENTER FOR THE PROTECTION OF
INTELLECTUAL PROPERTY, GEORGE
MASON UNIVERSITY SCHOOL OF LAW
JOHN SIMSON
Executive in Residence and Program
Director of Business and
Entertainment,
AMERICAN UNIVERSITY

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

THE DISTRICT COURT’S EXPANSIVE
INTERPRETATION OF FAIR USE SIGNIFICANTLY
UNDERMINES COPYRIGHT LAW..............................................4
A. The Supreme Court’s Renewed Emphasis on
“Transformative Use” .................................................................5
B. Lower Courts are Citing “Functional Transformation” to
Justify Complete Copying as Fair Use........................................7
C. “Functional Transformation” Drives the Fair Use Factors ..... 11

II.

THE COURT BELOW FAILED TO ADEQUATELY
ASSESS THE FAIR USE FACTORS .......................................... 12
A. Factor One: The purpose and character of the use,
including whether such use is of a commercial nature or
is for nonprofit educational purpose........................................ 12
B. Factor Two: The nature of the copyrighted work ................... 13
C. Factor Three: The amount and substantiality of the
portion used in relation to the copyrighted work as a
whole ........................................................................................ 14
D. Factor Four: The effect of the use upon the potential
market for or value of the copyrighted work. .......................... 14
i

E. Public Benefit ........................................................................... 19
III.

THE DISTRICT COURT’S APPLICATION OF THE FAIR
USE DOCTRINE IS INCONSISTENT WITH TITLE 17 AS
A WHOLE ..................................................................................... 20
A. Copies Made by Google for Its Own Use Do Not Qualify
as Fair Use ................................................................................ 22
B. Copies provided by Google to Libraries Do Not Qualify
as Fair Use ................................................................................ 24

IV.

MASS DIGITIZATION IS AN ISSUE FOR CONGRESS ......... 26

CONCLUSION .................................................................................................. 31

ii

TABLE OF AUTHORITIES
Page(s)
Cases
A&M Records v. Napster,
239 F.3d 1004 (9th Cir. 2001) ......................................................................17, 18
Acuff-Rose Music, Inc. v. Campbell,
972 F.2d 1429 (6th Cir. 1992) .............................................................................. 6
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) ..........................................................passim
Basic Books, Inc. v. Kinko’s Graphics Corp.,
758 F. Supp. 1522 (S.D.N.Y. 1991) ...................................................................24
Bill Graham Archives v. Dorling Kindersley Ltd.,
448 F.3d 605 (2d Cir. 2006) .................................................................................8
Bilski v. Kappos,
130 S. Ct. 3218 (2010) ........................................................................................21
Campbell v. Acuff-Rose Music, Inc.,
510 U.S. 569 (1994) .....................................................................................passim
Conroy v. Aniskoff,
507 U.S. 511 (1993) ............................................................................................21
Craft v. Kobler,
667 F. Supp. 120 (S.D.N.Y. 1987) .....................................................................20
Harper & Row, Publrs. v. Nation Enters.,
471 U.S. 539 (1985) ..........................................................................................4, 5
Infinity Broad. Corp. v. Kirkwood,
150 F.3d 104 (2d Cir. 1998) ................................................................................. 4
King v. St. Vincent’s Hosp.,
502 U.S. 215 (1991) ............................................................................................21
iii

Kungys v. U.S.,
485 U.S. 759 (1988) ............................................................................................21
Meredith v. Fed. Mine Safety & Health Review Comm’n,
177 F.3d 1042 (D.C. Cir. 1999) ..........................................................................21
Perfect 10 v. Amazon.com,
508 F.3d 1146 (9th Cir. 2007) ......................................................................10, 18
Princeton Univ. Press v. Michigan Document Servs.,
99 F.3d 1381 (6th Cir. 1996) ..............................................................................24
Ringgold v. Black Entm’t TV,
126 F.3d 70 (2d Cir. 1997) .................................................................................16
Sony Corp. of America v. Universal City Studios, Inc.,
464 U.S. 417 (1984) .....................................................................................passim
Williams &. Wilkins v. U.S.,
487 F.2d 1345 (Ct. Cl. 1973) ................................................................................8
Statutes
THE COPYRIGHT ACT, 17 U.S.C. (1976) ...........................................................passim
17 U.S.C. § 101 ..........................................................................................................9
17 U.S.C. § 107 ..........................................................................................3, 5, 11, 23
17 U.S.C. § 108 .................................................................................................passim
17 U.S.C. § 108(c) .............................................................................................22, 25
17 U.S.C. § 108(d) ...............................................................................................8, 23
17 U.S.C. § 108(e) ...................................................................................................23
17 U.S.C. § 108(f) ....................................................................................................24
17 U.S.C. § 108(i) ....................................................................................................28
17 U.S.C. § 121 .................................................................................................passim
17 U.S.C. § 121(d) ...................................................................................................25
iv

Legislative History
77 FED. REG. 64555 (2012) ................................................................................29, 30
79 FED. REG. 7706 (2014) ........................................................................................30
79 FED. REG. 18932 (2014) ......................................................................................30
H.R. REP. NO. 94-1476 (1976) .....................................................................19, 24, 25
Other Authorities
2A SUTHERLAND STATUTORY CONSTRUCTION §46:5 (7th ed. 2007) .......................21
2 Melville B. Nimmer & David Nimmer, Nimmer on Copyright,
§ 13.05(A)(3) (1997).............................................................................................4
2 Melville B. Nimmer & David Nimmer, Nimmer on Copyright,
§ 13.05(A)(4) (1993)...........................................................................................16
Pierre N. Leval, Toward A Fair Use Standard, 103 Harv. L. Rev. 1105
(1990) ....................................................................................................................7
United States Copyright Office, Legal Issues in Mass Digitization: A
Preliminary Analysis and Discussion Document (2011), available at
http://www.copyright.gov/docs/massdigitization/USCOMassDigitization
_October2011.pdf ...............................................................................................29
United States Copyright Office & LOC, The Section 108 Study Group
Report (2008), available at
http://www.section108.gov .................................................................................28

v

STATEMENT OF INTEREST1
The various professors who join this brief, Stuart Brotman, Raymond
Nimmer, Mark F. Schultz, John L. Simson and Jon Baumgarten, a former General
Counsel of the United States Copyright Office, teach, research and have an interest
in the theory, law and practice of copyrights, property rights and contracts.

2

(Biographies of the professors are included in the Appendix to this brief.) The
professors have no other stake in the outcome of this case, but are interested in
ensuring that copyright law develops in a way that best promotes creativity,
innovation and competition in the digital world.
SUMMARY OF ARGUMENT
This copyright infringement case stems from the mass digitization by
Google of millions of books made available to it by various libraries. In November
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 signatories gratefully acknowledge the work of June Besek, Executive
Director of the Kernochan Center for Law, Media and the Arts and Lecturer in
Law, Columbia Law School, whose testimony to the House Judiciary Committee
Subcommittee on Courts, Intellectual Property and the Internet on fair use was the
touchstone for this brief. The Scope of Fair Use: Hearing Before the Subcomm. on
Courts, Intellectual Property, and the Internet of the H. Comm. On the Judiciary,
113th Cong. (2014) (statement of June M. Besek, Executive Director, Columbia
Law School). Professor Besek does not join this brief because of Kernochan
Center policy.
1

2013, the district court entered judgment in favor of Google on its fair use defense.
Evaluating factor one, the court found Google’s use was “highly transformative”
because Google had converted the books’ text into digital form, creating a full text
search capability that made existing works more accessible to users, and enabling
new forms of research. Google also provided each library with a digital copy of all
of the books in that library’s collection.
The court accorded little weight to the commercial benefit that Google
derived from the digital copies of 20 million works that it acquired through this
process (without payment to right holders) and retained for its own use. Neither
factor two nor factor three had any significant influence on the fair use
determination, but on factor four the court found that Google’s activities had little
likely effect on the authors’ actual or potential markets for their works. The court
failed to consider the market impact that could ensue if the use were to become
widespread and other commercial or noncommercial enterprises followed Google’s
lead in mass digitizing collections of works.
The decision below exacerbates the recent trend of citing “transformative
purpose” to excuse the taking and commercial use of complete copies of
copyrighted works on a large scale, and consequently undermines the copyright
law. Google’s transformative purpose seems to drive factors one and four to favor
fair use; factors two and three are largely irrelevant. The district court ignored the
2

substantial commercial benefit to Google, and fixed primarily on the social
benefits from Google’s and the libraries’ activities.

Social benefit does not

provide a carte blanche for unauthorized copying of copyright-protected works.
Education, for example, has significant public benefits, yet schools are not free to
make unauthorized copies of copyrighted textbooks for their students.
The district court’s interpretation of the fair use doctrine, 17 U.S.C. §107, is
inconsistent with

the rest of Title 17, and specifically with sections 108

(exceptions for libraries and archives) and 121 (exception to copy and distribute
works for the blind or otherwise disabled). Both of those provisions reflect a
careful balancing of interests and have conditions that protect right holders. In
interpreting fair use so expansively that it creates, in effect, a broad new exception
to copyright without the conditions and limitations in sections 108 and 121, the
court below violated the cardinal rules of statutory construction.
The court implicitly assumed that recognizing fair use on this extraordinary
scale was the only way to achieve the public benefit of Google’s book search
program. That assumption is unwarranted: Congress and the Copyright Office are
both actively pursuing a legislative solution. Mass digitization raises a range of
complex and interrelated policy issues that are better decided by Congress, with
input from a wide range of concerned parties, rather than by a court whose

3

judgment is inevitably shaped by the particular litigants and circumstances in the
case before it.
The decision of the court below should be reversed.
ARGUMENT
I.

THE DISTRICT COURT’S EXPANSIVE INTERPRETATION OF
FAIR USE SIGNIFICANTLY UNDERMINES COPYRIGHT LAW.
Fair use has undergone an unprecedented expansion over the last few years.

Until recently, the courts held that “[t]hough not an absolute rule, ‘generally, it
may not constitute a fair use if the entire work is reproduced.’” Infinity Broad.
Corp. v. Kirkwood, 150 F.3d 104, 109 (2d Cir. 1998) (quoting Nimmer on
Copyright §13.05[A][3] at 13-178 (1997)).

From the point where copying an

entire work generally defeated fair use, the court below held that copying the full
contents of millions of works can qualify as fair use, regardless of whether it is
done for commercial or noncommercial purposes. See Authors Guild, Inc. v.
Google, Inc., 954 F. Supp. 2d 282 (S.D.N.Y. 2013).
Fair use has never provided a carte blanche to make use of others’ work,
even for a socially beneficial cause. The rights of creators and the interests of users
must be balanced. As the Supreme Court stated in Harper & Row v. Nation
Enterprises, reversing the Second Circuit’s holding that Nation magazine was

4

protected by fair use when it used pre-publication excerpts of President Ford’s
memoirs without authorization:
[C]opyright is intended to increase and not to impede the harvest of
knowledge. But we believe the Second Circuit gave insufficient
deference to the scheme established by the Copyright Act for fostering
the original works that provide the seed and substance of this harvest.
The rights conferred by copyright are designed to assure contributors
to the store of knowledge a fair return for their labors.
Harper & Row, Publrs. v. Nation Enters., 471 U.S. 539, 545-46 (1985) (citation
omitted).
A. The Supreme Court’s Renewed Emphasis on “Transformative Use.”
The principal reason for this rapid expansion of fair use has been the
increasing significance of “transformative use” in evaluating a fair use defense.
The term “transformative use” is nowhere found in section 107. It is not a new
concept, however: “productive use” – in the sense of producing new and
independent creative works – has long been part of the fair use determination. In
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994), the Supreme Court
embraced “transformative use” as a highly influential (though not determinative)
factor in assessing fair use.
Campbell involved a parody by 2 Live Crew of Roy Orbison’s song, “Pretty
Woman.”

Music publisher Acuff-Rose sued for copyright infringement, and

Campbell (2 Live Crew’s lead vocalist and the first named defendant) asserted a
5

fair use defense.

The Sixth Circuit Court of Appeals held that fair use did not

apply. Relying on the Supreme Court’s statement in Sony Corp. of America v.
Universal City Studios, Inc., 464 U.S. 417, 451 (1984), that “commercial use is
presumptively an unfair exploitation” of the copyright owner’s rights, the Sixth
Circuit resolved the first factor – the purpose and character of the use – in
plaintiff’s favor, because 2 Live Crew’s parody was commercial.

Acuff-Rose

Music, Inc. v. Campbell, 972 F.2d 1429, 1436-37 (6th Cir. 1992), rev'd, 510 U.S.
569 (1994). On the fourth factor, often said to be the most important, the appellate
court stated that because 2 Live Crew’s parody was entirely commercial, it
“presume[d] that a likelihood of future harm to Acuff-Rose exists.” Id. at 1438-39.
The Sixth Circuit’s decision was typical of many post-Sony decisions, which made
commercial use virtually dispositive of factors one and four. As a result, over the
years it had become more difficult to make a commercial fair use.
Reversing, the Supreme Court criticized the appellate court for letting the
commercial nature of the use so heavily influence its fair use determination. See,
e.g., Campbell, 510 U.S. at 583-84. The Court explained that commercial use is
not dispositive of fair use, and whether a use is “transformative” is a very
important consideration. To determine whether a use is transformative, one looks
at whether the allegedly infringing work “merely ‘supersede[s]’” the original work
“or instead adds something new, with a further purpose or different character,
6

altering the first with new expression, meaning or message.” Campbell, 510 U.S.
at 579 (citing Pierre Leval, Toward a Fair Use Standard, 103 Harvard L. Rev.
1105, 1111 (1990)). As Judge Leval explained in the article on which Campbell
relied, “[i]f . . . the secondary use adds value to the original – if the quoted matter
is used as raw material, transformed in the creation of new information, new
aesthetics, new insights and understandings – this is the very type of activity that
the fair use doctrine intends to protect for the enrichment of society.” Leval, supra
at 1111.
The Supreme Court emphasized that there is no “bright line rule.” All four
fair use factors must be explored and “the results weighed together.” Campbell,
510 U.S. at 577-78.

Still, it observed – in the context of the parody it was

evaluating – that “the more transformative the new work, the less will be the
significance of other factors, like commercialism, that may weigh against a finding
of fair use.” Id. at 579 (emphasis supplied).
B. Lower Courts are Citing “Functional Transformation” to Justify
Complete Copying as Fair Use.
Prior to Campbell, fair use cases involving transformative (or productive)
use were generally premised on changes made to the subject work itself:

7

annotating a work, analyzing or critiquing it, creating a parody, and so on. 3
Campbell itself involved a parody of “Pretty Woman,” achieved through changes
to both lyrics and music.
Post-Campbell cases began to interpret “transformative” in two significantly
expansive ways. First, they increasingly used the term to encompass not only
changes to the substance of a work, but also changes to how the work is used (even
absent changes to the work’s content), referring to this repurposing in a new work
as “functional transformation.” For example, in Bill Graham Archives v. Dorling
Kindersley Ltd., 448 F.3d 605, 609 (2d Cir. 2006), the court found defendant’s use
of complete copies of Grateful Dead concert posters to be a fair use because the
copies of the posters were used, in reduced size, as part of a historical timeline in a
group biography of the Grateful Dead, rather than for their original purpose. This
case, however, still concerned a new and independent work, of a kind that has
traditionally come within the ambit of fair use: a biography.
3

There are a couple notable exceptions. In Sony Corp. of America v. Universal
City Studios, Inc., 464 U.S. 417 (1984), the Supreme Court concluded that in-home
copying of free broadcast programming for timeshifting purposes was a fair use,
because it was noncommercial and merely allowed consumers to watch at a
different time programs they were invited to view without charge. Id. at 449-50.
Sony also labeled any commercial use “presumptively unfair,” 464 U.S. at 451 – a
position from which the Supreme Court later retreated in Campbell v. Acuff-Rose.
In Williams &. Wilkins v. U.S., 487 F.2d 1345 (Ct. Cl. 1973), aff’d by an equally
divided court, 420 U.S. 376 (1975), the Court of Claims held that copying by the
National Library of Medicine and the National Institutes of Health of scientific
journal articles at the specific request of researchers was a fair use. Library
photocopying was subsequently addressed in §108(d) of the 1976 Copyright Act.
8

Second, and more radically, courts began to apply the “transformative” and
“functional transformation” labels not only to new works incorporating unaltered
copies of preexisting works, but also to new uses that exploited the prior work(s)
without creating a new work. "Transformative" has thus become uprooted from its
original context of “new works” to become applied to a much broader context of
“new purposes.”
This expansive view of what it means to be transformative has opened the
door to claims that making complete copies of multiple works, even for
commercial purposes, and even without creating a new work, can be a fair use.
This is a substantial departure from the long-prevailing view that copying an entire
work is generally not a fair use. It also implies an important constriction of the
author’s rights respecting “potential market[s]” for her work, because once a court
has found a “transformative purpose” to a new exploitation, it tends increasingly to
find that the new use exploits a “transformative market” that does not compete
with the author’s markets. Factors two and three play little role in the
determination. With respect to factor four, there is inevitable tension between the
concept of “transformative use” and the scope of the derivative works right,
particularly as the word “transformed” is included in the definition of “derivative
work.” See 17 U.S.C. § 101. The courts’ analyses of “transformative markets”
that fall outside the author’s exclusive rights risk inappropriately cabining the
9

scope of the derivative works right which is firmly grounded in the text of the
statute, 17 U.S.C. § 106(2) and in precedent.
For example, in Perfect 10 v. Amazon.com, 508 F.3d 1146 (9th Cir. 2007),
the Ninth Circuit Court of Appeals concluded that making complete copies of
Perfect 10’s copyrighted photos, and providing “thumbnail” reproductions to
consumers in response to image search requests, was a fair use. According to the
court, “even making an exact copy of a work may be transformative so long as the
copy serves a different function than the original work.” Id. at 1165 (citation
omitted). The court viewed defendants’ use as “highly transformative” because
their search engine served an “indexing” purpose which improved access to
information on the Internet, entirely different from the photographs’ aesthetic
purpose, and because of the public benefit the search engine conferred. Id. at 116566.
This was the approach taken by the district court in Authors Guild, Inc. v.
Hathitrust,4 902 F.Supp.2d 445 (S.D.N.Y. 2012), appeal filed, No. 12-4547 (2d
Cir. Nov. 14, 2012). Hathitrust is a nonprofit entity that manages a shared digital
repository of millions of books scanned for Hathitrust’s constituent libraries as part
of Google’s Library project. The repository is used for searches by library users to

4

Hathitrust was filed after Authors Guild v. Google, but it was decided first.
10

identify books (those search results yield no excerpts of text), preservation, and to
provide full text of books in the libraries to persons who are visually impaired.
The court concluded that Hathitrust’s use was a fair use. It considered the
use transformative since Hathitrust and the libraries were using the works for a
different purpose than the originals. The court found factor two “not dispositive”
and concluded on factor three that the full-text copying was necessary to achieve
defendants’ purposes. Id. at 462. The court decided that there was likely to be little
impact on the market for plaintiffs’ works since the plaintiffs were unlikely to set
up a licensing system for this type of use. It also rejected plaintiffs’ claim that
sections 108 and 121 of the Copyright Act limited the scope of section 107, for the
reasons discussed below in section III.
Similarly, the court below relied on this broad notion of “functional
transformation” to justify Google’s mass digitization of library books.
C. “Functional Transformation” Drives the Fair Use Factors
Contrary both to statutory text and to the Supreme Court’s cautious reminder
in Campbell, a finding that a use is “transformative” now tends to sweep all before
it, reducing the statutory multifactor assessment to a single inquiry. The
ascendency of “functional transformation” has created serious concerns that the
fair use pendulum has now swung too far away from its roots and purpose, now
enabling new business models rather than new works of authorship.
11

II.

THE COURT BELOW FAILED TO ADEQUATELY ASSESS THE
FAIR USE FACTORS
Fair use requires a case-by-case analysis. Campbell v. Acuff-Rose, 510 U.S.

at 577 (citations omitted). The sheer volume of works involved in mass
digitization, however, has led the court to eschew the case-by-case fact-based
analysis fair use has traditionally required.
In its effort to treat 20 million works within the confines of a single “case,”
the court below minimized or disregarded material distinctions between works.
Essentially, its approach resembles the pre-Campbell pattern, but instead of
“commerciality” being dispositive, in the district court’s view it was
transformativeness that effectively resolved factor one and informed factor four. It
gave short shrift to the other factors but focused on the public benefit while largely
disregarding the considerable commercial benefit achieved by Google, and the
potential adverse effect on right holders.
A more detailed review of the district court’s treatment of the fair use factors
demonstrates the problems with its analysis.
A. Factor One: The purpose and character of the use, including whether
such use is of a commercial nature or is for nonprofit educational
purposes
The court below disregarded the significant commercial benefit Google
achieved by copying the libraries’ collections. Google acquired 20 million books
12

for its own use, without having to purchase any of them. 5 Google is not an
eleemosynary institution.

It is a highly profitable corporation that exploits

information to make money. The court brushed aside the substantial commercial
benefit Google gained through its acquisition of millions of books without payment
to the right holders, its use of the books to enhance the performance of its search
engine, and the valuable information it gathers from users attracted to Google’s
site.
At the same time, Google neither transforms existing works nor creates new
ones. It digitizes. That is an important contribution, but it is not authorship.
Google created a valuable search and retrieval system, and then populated it with
unauthorized reproductions of others’ works.
B. Factor Two: The nature of the copyrighted work
The district court dismissed this factor in a single paragraph, observing first
that although works of fiction are entitled to greater protection, “the vast majority
of the books in Google Books are non-fiction” and that all have been published.
954 F. Supp.2d at 292. Approximately 7% of the works at issue are fiction. Id. at
285. To bypass this consideration and simply analyze the works in gross because

Compare Sony, where consumers copied works that they had been invited by the
right holder to watch for free. Sony Corp. of America v. Universal City Studios,
Inc., 464 U.S. 417, 449-50 (1984).

5

13

only 1.4 million (7% x 20 million) are fiction illustrates how inappropriate it is to
shoehorn 20 million works into a single fair use analysis.
C. Factor Three: The amount and substantiality of the portion used in
relation to the copyrighted work as a whole
For the district court, this was essentially a nonfactor. According to the
court, Google’s full-text copying did not preclude a finding of fair use since the
copies were necessary to its search function. The court added, “Google limits the
amount of text it displays in response to a search.” Id. at 292.
Even where a second author transforms the copied material, the amount of
the copying remains an important consideration. In Campbell, the Supreme Court
stressed the “transformativeness” of the 2 Live Crew parody, but ultimately
remanded to the Sixth Circuit to determine whether the resulting work copied too
much – that is, more than was needed to achieve its parodistic purpose. 510 U.S. at
589, 594.
D. Factor Four: The effect of the use upon the potential market for or value

of the copyrighted work.
The court below found that the fourth factor weighed heavily in Google’s
favor, since neither the snippets nor Google’s full text scans would serve as
“‘market replacement[s]’” for plaintiff’s books, and Google Books “enhances the
sales of books to the benefit of copyright holders.”

954 F.Supp.2d at 293.

According to the court, a user is unlikely to make the effort to engage in the
14

numerous searches necessary to reconstruct an entire book, and in any event would
be unable to do so, since certain portions are “blacklisted.” Id. The court assumed
that books are valuable to users only if they have access to the entire work. On the
contrary, books are valuable to users if they have sufficient access for their
purposes. In other words, snippets or collections of snippets may have sufficient
value to the user that seeking out the book is unnecessary. The potential effects on
sales or licensing cannot be so easily dismissed.
The works in this case are dissimilar in material respects.

The court

recognized no distinction between books that have been released in digital form
and those that have not; those that have been released in accessible form for the
disabled and those that have not; books recently published and readily identified
and findable in the marketplace, and those old and hard to locate; and those that, by
their nature, are very useful even with access only to snippets.

The court notes

Google’s assertion that it treats works with “text organized in short ‘chunks’”
differently and does not show snippets. Id. at 287. There is no independent
analysis concerning the nature of works that could be harmed through showing
snippets (for example many history, geography, science, and other factual works
would seem to fit this description), and whether those books are in the “no snippet”
category.

15

The court’s conclusion that Google Books benefits authors is overstated. It
surely benefits some authors. Even so, benefit to authors is not dispositive of
factor four. See Campbell, 510 U.S. at 590 n. 21; Ringgold v. Black Entm’t TV,
126 F.3d 70, 81 (2d Cir. 1997). Many authors – presumably capable of making
informed judgments about their own works – do not regard Google Books as
benefiting them, as this lawsuit and Hathitrust amply demonstrate.

Broad

generalizations about authors illustrate once again the problems inherent in taking
twenty million books together in evaluating fair use.
Significantly, the court below failed to consider the consequences to
plaintiffs’ markets “if the use should become widespread.” The analysis of factor
four requires a court to consider
not only the extent of market harm caused by the particular actions of
the alleged infringer, but also “whether unrestricted and widespread
conduct of the sort engaged in by the defendant . . . would result in a
substantially adverse impact on the potential market” for the original.
Campbell, 510 U.S. at 590 (quoting Nimmer on Copyright, §13.05 [A][4] (1993),
at 13-102.61)).
Perhaps the court implicitly assumed that no one but a company such as
Google could (or might want to) create such a comprehensive and expensive
database. But there is no reason to assume that others might not create their own
databases to provide information about a smaller, narrowly-tailored group of
16

works. The cost of book-scanning is far less now than it was when Google began
its digitization project, so it is hardly unrealistic to imagine that mass digitization
will become more widespread.

It is also possible that other internet service

providers may seek to create databases of digital works to enhance search results
and advertising revenue. The court below simply failed to consider the possible
adverse effects on plaintiffs of a multiplicity of such databases.
As the Sony Court explained:
Actual present harm need not be shown; such a requirement would
leave the copyright holder with no defense against predictable
damage. Nor is it necessary to show with certainty that future harm
will result. What is necessary is a showing by a preponderance of the
evidence that some meaningful likelihood of harm exists.
Sony, 464 U.S. at 451. 6
Lower courts have in the past heeded this counsel. For example, in A&M
Records v. Napster, 239 F.3d 1004 (9th Cir. 2001), the Ninth Circuit found that
Napster’s activities in promoting and enabling consumers to engage in file-sharing
of copyright-protected music CDs harmed the record companies’ future markets.
Although the record companies had not yet entered the market for digital
downloads, they had “expended considerable funds and effort” to commence
licensing them. The court found that the presence of unauthorized copies of
6

The Supreme Court placed the burden of this showing on plaintiffs when the
challenged use is noncommercial. But since fair use is an affirmative defense, the
burden respecting harm remains with defendants who are making commercial use.
17

plaintiffs’ recordings on Napster’s file-sharing network “necessarily harm[ed]” the
record companies’ potential market. Id. at 1017.
Contrast Perfect 10, in which the Ninth Circuit took an unduly constricted
view of a “transformative” use’s effect on Perfect 10’s potential markets. At issue
was Google’s use of thumbnails of photographs (complete, albeit small versions)
owned by Perfect 10 identified pursuant to user queries to Google’s image search
engine.

The court declined to find an adverse market effect attributable to

Google’s ostensibly transformative use, even though Perfect 10 had begun a
program to sell thumbnail photos as cellphone downloads.

In contrast to its

decision six years earlier in Napster, the Ninth Circuit found Perfect 10’s concrete
plans to enter this market unworthy of consideration, since the district court found
no evidence that Google users downloaded images for cellphone use. 508 F.3d at
1166-67. Just as in this case, the “transformative purpose” effectively “drove” the
other factors, resulting in a fair use determination to justify defendant’s taking.
Merely because defendants use a work in a different manner or for a
different reason than the right holder uses it does not justify a less-thancomprehensive consideration of market effect.

In Campbell, where the

transformative use was a parody, the court didn’t merely assume that because there
is no cognizable market for licensing parody, factor four favored 2 Live Crew.

18

Instead, it remanded the case for a determination of potential harm to plaintiff’s
potential market for rap derivatives. Campbell, 510 U.S. at 593-94.
E. Public Benefit
The district court focused on the public benefit achieved through the Google
Book Search program in assessing fair use. In particular, it focused on the
program’s use for identifying and locating “forgotten” books, serving the visually
impaired, and preservation.
There is little question that many users benefit from Google’s Book Search
Program. But just because something is good for users does not mean free use of
copyrighted works should be permitted. Otherwise, copying works for educational
purposes would be per se fair use, but it is not. The House Report accompanying
the 1976 Copyright Act states:
The Committee also adheres to its earlier conclusion, that “a specific
exemption freeing certain reproductions of copyrighted works for
educational and scholarly purposes from copyright control is not
justified.”
H.R. REP. NO. 94-1476, at 66-67 (1976), reprinted in 1976 U.S.C.C.A.N. 5659,
5659-60. Put simply, the end does not justify the means.
The court seemed to assume that mass digitization of library collections can
be undertaken only pursuant to fair use, so this is the only way to achieve the
enumerated benefits. Other countries are developing legislation and other means
19

by which to legally digitize older works. Measures to address mass digitization are
currently under active consideration by policy makers in the United States, as
discussed in part IV, below.
Considering the district court’s overall assessment of the factors, it seems as
though the court is turning fair use on its head, applying a lower level of scrutiny to
massive takings of copyrighted works. It becomes increasingly difficult to explain
to authors and public alike a copyright regime that rigorously examines the extent
of a single scholar’s partial copying,7 while essentially according a free pass to a
for-profit enterprise’s massive takings.
III.

THE DISTRICT COURT’S APPLICATION OF THE FAIR USE
DOCTRINE IS INCONSISTENT WITH TITLE 17 AS A WHOLE.

The district court’s capacious concept of “transformative use” 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
those exceptions.
The “Whole Act Rule” instructs a court to interpret a given section of a
particular statute in light of the entirety of the act. Individual sub-parts of the
statute are not to be read in isolation, but in light of one another in order to produce

7

See, e.g., Craft v. Kobler, 667 F. Supp. 120 (S.D.N.Y. 1987) (Leval, J.) (holding
that a biographer copied more than was needed for his critical examination of the
letters of Igor Stravinsky).
20

a harmonious reading of the statute as a whole. King v. St. Vincent’s Hosp., 502
U.S. 215, 221 (1991) (citations omitted); 2A SUTHERLAND STATUTORY
CONSTRUCTION §46:5 (7th ed. 2007). The Supreme Court has stated that “the
meaning of statutory language, plain or not, depends on context.” Conroy v.
Aniskoff, 507 U.S. 511, 515 (1993).

Consequently, courts move beyond a

particular section to consider a particular construction thereof in light of the
broader statutory scheme. See Meredith v. Fed. Mine Safety & Health Review
Comm’n, 177 F.3d 1042, 1054 (D.C. Cir. 1999).
The “Rule against Redundancies,” a corollary to the Whole Act Rule,
prohibits “interpreting any statutory provision in a manner that would render
another provision superfluous,” Bilski v. Kappos, 130 S. Ct. 3218, 3228-29
(2010) (citation omitted), or redundant, Kungys v. U.S., 485 U.S. 759, 778
(1988). The rule applies regardless of when the provisions in question were
enacted.
Because the district court’s broad interpretation of fair use is radically
inconsistent with title 17 taken as a whole, it fails under these fundamental
principles of statutory interpretation. Not only does the court read significant
portions of sections 108 and 121 out of the statute, but it also renders illusory the
conditions that circumscribe all of the other exceptions.

21

A. Copies Made by Google for Its Own Use Do Not Qualify as Fair Use.
Section 108 of the Copyright Act provides certain special exceptions to
libraries 8 in light of their important functions. For example:
• Section 108(a)(1) provides a threshold condition for all of the section 108
exceptions: Library reproduction or distribution under section 108 must
be made “without any purpose of direct or indirect commercial
advantage.”
• A library may make up to three replacement copies of a published work
in its collections if its copy is damaged, deteriorating, lost, or stolen, or if
the existing format is obsolete (i.e., the playback device is no longer
reasonably available in the marketplace), provided the library has “after
reasonable effort, determined that an unused replacement cannot be
obtained at a fair price.” Any copies made in digital form may be made
available to the public in that form only on the premises of the library. 17
U.S.C. § 108(c).
• Libraries may make copies of an article from a copyrighted collection or
periodical, or a small part of any other copyrighted work from their
collections, at the request of a user or another library. The copy must
8

For ease of reference we refer to libraries and archives collectively as “libraries.”
22

become the property of the user, and the library can have no notice that
the copy would be used for any purpose other than private study,
scholarship or research. U.S.C. § 108(d).
• Libraries may make a copy of all or a substantial part of a work from
their collections at the request of a user or another library if the library
has “on the basis of a reasonable investigation, [determined] that a copy
or phonorecord of the copyrighted work cannot be obtained at a fair
price.” The copy must become the property of the user, and the library
can have no notice that the copy would be used for any purpose other
than private study, scholarship or research. 17 U.S.C. § 108(e).
These sections demonstrate that Congress in drafting section 108 was very
mindful of maintaining a balance between right holders and users. 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. Google is a for-profit entity, and its
copying was done for its own commercial use. It copied all of the published works
in the libraries’ collections, irrespective of their condition, and uses them offpremises. It copied for acquisition: Google itself owned none of these works.
And it copied irrespective of availability in the marketplace (whether in analog or

23

digital form). To excuse the extensive copying Google did on its own account in
this case effectively swallows portions of section 108.
B. Copies provided by Google to Libraries Do Not Qualify as Fair Use.
The court below held that Google was entitled to summary judgment with
respect to copies Google made available to the libraries. According to the court,
Google merely provided the libraries with the means to make digital copies of
books the libraries already own. As demonstrated above, the Copyright Act does
not automatically permit libraries to make digital copies of books they already
own. And even if the libraries’ uses were permissible, many courts have held that
a for-profit user cannot stand in the shoes of its customers and have the benefit of
their exceptions. See, e.g., Princeton Univ. Press v. Michigan Document Servs., 99
F.3d 1381, 1389 (6th Cir. 1996), cert. denied, 520 U.S. 1156 (1997); Basic Books,
Inc. v. Kinko’s Graphics Corp., 758 F. Supp. 1522, 1531 (S.D.N.Y. 1991).
The court below relied on Hathitrust to conclude that the libraries’ activities
are protected by fair use. But the libraries’ activities, like those of Google, run
afoul of the Whole Act Rule.
The statute makes clear that section 108 does not represent the outer limits
of permissible library copying. See 17 U.S.C. § 108(f). But Congress in passing
the 1976 Copyright Act intended fair use to be determined on a case-by-case basis.
H.R. REP. NO. 94-1476, at 65. It did not anticipate or authorize the creation of new
24

blanket exceptions for libraries that would overtake section 108. H.R. REP. NO. 941476, at 74 (“[S]ection 108 authorizes certain photocopying practices which may
not qualify as fair use”). If fair use entitles the libraries to make or acquire full text
digital copies of their entire collections, section 108(c) is superfluous.
The same argument applies with respect to section 121 of the Copyright Act.
That section provides an exception from copyright to provide accessible copies for
those who are blind or otherwise disabled. Section 121(a) states:
(a) Notwithstanding the provisions of section 106, it is not an
infringement of copyright for an authorized entity to reproduce or to
distribute copies or phonorecords of a previously published,
nondramatic literary work if such copies or phonorecords are
reproduced or distributed in specialized formats exclusively for use by
blind or other persons with disabilities.
Section 121 was meant to be a narrow exception. As with section 108,
Congress carefully crafted section 121 to provide a balance between the interests
of the blind or other persons with disabilities and those of authors and other right
holders.

Section 121 allows reproduction and distribution of copies (i) by an

authorized entity; (ii) of previously published nondramatic literary works; (iii) that
must be distributed in specialized formats exclusively for use by the blind or other
persons with disabilities. All of the relevant terms (e.g., “authorized entity,” “blind
or other persons with disabilities” and “specialized formats”) are carefully defined
in the statute. 17 U.S.C. § 121(d)(1),(2),(4). Based on its cursory analysis, the
court in Hathitrust concluded that although defendants in its view “fit[] squarely
25

within” section 121, they “may certainly rely on fair use . . . to justify copies made
outside of these categories or in the event they are not authorized entities.”
Hathitrust, 902 F. Supp. 2d at 465 (footnote omitted).
Hathitrust’s interpretation of fair use effectively reads section 121 out of the
statute. According to the court, even without meeting the conditions of section121,
libraries are entitled under fair use to provide copies of all published works in their
collections in a form accessible to the visually impaired.9 The court interprets fair
use in a manner that renders the provisions of section 121 irrelevant, violating
fundamental principles of statutory construction.
IV.

MASS DIGITIZATION IS AN ISSUE FOR CONGRESS

Defining the terms and conditions under which mass digitization can be
undertaken is quintessentially a legislative activity. The courts, whose perspective
is based on the single set of facts that confront them in a particular case, are not
well suited to determining how best to regulate in this difficult and complex area.
The prevailing message from the existing mass digitization cases, in
particular the decision below and Hathitrust, is that mass digitization inherently
has such important public benefits that even if undertaken by a large and profitable

9

Of course, if the libraries failed to satisfy section 121 and relied on fair use, the
effect on the market would be an important consideration, and the libraries would
presumably have to establish that the works it provided to the visually impaired
were not already available on the market in accessible form.
26

commercial entity in its own commercial interests, it is permissible under
copyright.
These decisions create a slippery slope. If longer snippets make use of a
database more attractive, isn’t it likely that snippets will expand? Can anyone
engage in mass digitization and retain and use the digitized material? As observed
earlier, it may well be that no one but Google would create as comprehensive a
database as the one at issue here, but it is certainly plausible that others will seek to
create digital databases similar in concept but focused on works in a particular
field.
What happens when mass “digitization” moves beyond legacy works to
born-digital material? Is it an acceptable transformative purpose simply to want
the digital full-text books standardized in one’s own database? What if the work is
already preserved and available for full-text search in a database? Is the public
benefit from a second or third (or twentieth) instantiation of the work in digital
form still as compelling? What are the security requirements? Who is permitted to
acquire books for free, as Google did? And is it realistic that these multiple
databases will all exist without anyone using the component works for their

27

substance, rather than merely for indexing purposes? And if this can be done with
books, why not motion pictures or musical works? 10
There are fundamental issues that should be considered and decided on by
Congress. The conditions for mass digitization should be carefully balanced with
input from the wide range of affected parties. Those issues include, for example,
(i) who should be permitted to digitize works and under what circumstances; (ii)
when the digitized works may be used for profit of the digitizer; (iii) under what
conditions libraries or other institutions may make full text materials available to
users; (iv) if digitization is done for the ostensible purpose of “preservation,” what
preservation standards the digitizer should be required to meet (mere digitization is
not preservation11); and (v) whether and how some form of collective licensing
might be developed to facilitate a mass digitization scheme fair to authors and
users alike.
Congress and the Copyright Office are already engaged in copyright reform
efforts. Fair use and mass digitization, together with interrelated issues such as

10

Certain types of works, such as motion pictures and musical works, have an
exemption from some of section 108’s exceptions. See 17 U.S.C. § 108(i).
11
See U.S. Copyright Office & Library of Congress, The Section 108 Study Group
Report (2008), available at http://www.section108.gov (last visited April 11,
2014).
28

orphan works, revision of section 108 and possible creation of new library
exceptions, are all under consideration. For example, 12
• In October 2011 the U.S. Copyright Office published a Preliminary Analysis
and Discussion Document to advance the discussions concerning mass
digitization, setting out the legal considerations and various possible
approaches.

See United States Copyright Office, Legal Issues in Mass

Digitization: A Preliminary Analysis and Discussion Document (2011),
available

at

http://www.copyright.gov/docs/massdigitization/USCOMassDigitization_Oc
tober2011.pdf.
• The U.S. Congress is in the process of a comprehensive review of the U.S.
Copyright Act. In this connection, the Subcommittee on Courts, Intellectual
Property and the Internet of the House of Representatives Committee of the
Judiciary has held several hearings over the past year. The topics already
addressed include, inter alia, fair use, mass digitization and preservation.
These are matters clearly on the radar for Congress.
• In the meantime, the U.S. Copyright Office is moving ahead in its study of
orphan works and mass digitization in order to advise Congress as to
possible next steps. It issued a comprehensive Notice of Inquiry in October
12

A more comprehensive discussion of these efforts can be found in Notice of
Inquiry, Orphan Works and Mass Digitization, 77 FED. REG. 64555 (2012).
29

2012 soliciting comments, see Notice of Inquiry, Orphan Works and Mass
Digitization, 77 FED. REG. 64555 (2012)); issued a second Notice of Inquiry
in February 2014 to seek further input through written comments and
roundtable discussions, see Notice of Inquiry, Orphan Works and Mass
Digitization: Request for Additional Comments and Announcement of
Public Roundtables, 79 FED. REG. 7706 (Feb. 10, 2014)); and held public
roundtable discussions in Washington D.C. on March 10-11, 2014. Final
comments are due on May 21, 2014. FED. REG. 18932 (Apr. 4, 2014).
In short, Congress and the Copyright Office are actively pursuing the complex
issues surrounding mass digitization, and are aware of the critical importance of
reaching a solution that advances the public interest in manner that takes into
account the various competing interests. Congress is best situated to address mass
digitization and the cluster of important related issues, and to formulate a balanced
solution.

30

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/ Matthew Barblan

.

Matthew Barblan, Esq.
CENTER FOR THE PROTECTION OF
INTELLECTUAL PROPERTY
GEORGE MASON UNIVERSITY
SCHOOL OF LAW
3301 Fairfax Drive, Suite 216
Arlington, VA 22201
[phone]
[e-mail]

31

CERTIFICATE OF COMPLIANCE
Pursuant to Rule 32(a)(7)(C) of the Federal Rules of Appellate
Procedure, the foregoing brief is in 14-Point Times Roman proportional font
and contains 6,990 words and thus is in compliance with the type-volume
limitation set forth in Rule 32(a)(7)(B) of the Federal Rules of Appellate
Procedure.

Dated: April 14, 2014
/s/

Matthew Barblan

Matthew Barblan, Esq.
CENTER FOR THE PROTECTION OF
INTELLECTUAL PROPERTY
GEORGE MASON UNIVERSITY SCHOOL
OF LAW
3301 Fairfax Drive, Suite 216
Arlington, VA 22201
[phone]
[e-mail]
Attorney for Amici Curiae

Appendix

____________________________
APPENDIX
____________________________

This amicus brief is joined by the following professors:
Jon Baumgarten: After graduating from New York University School of
Law in 1967 Jon A. Baumgarten initially spent almost a decade in the private
practice of copyright law and policy. Appointed General Counsel of the United
States Copyright Office in January 1976 Mr. Baumgarten was a leading participant
in the final formulation of the general revision of the U.S. Copyright Act and was
responsible for the novel, comprehensive rulemakings and thorough overhaul of all
Copyright Office regulations and practices required under the new law. Mr.
Baumgarten represented the Copyright Office before courts, Congressional
committees and the Department of State and as liaison to the National Commission
on New Technological Uses of Copyrighted Works (CONTU), and represented the
U.S. Government in the World Intellectual Property Organization, and other
international copyright forums. Mr. Baumgarten returned to private practice in
1980. In the course of a distinguished career representing individuals, companies,
leading trade associations, and international consortia and lasting for more than
four decades until his retirement in 2011, Mr. Baumgarten was a leading figure on
the scene of copyright’s dramatic encounters with changing technology and

international trade, and was frequently called upon to explain U.S. copyright law to
governments, policy makers, and affected groups
Stuart N. Brotman is a Lecturer on Law at Harvard Law School, where he
currently teaches Entertainment and Media Law and serves as a faculty adviser to
the Harvard Law School Committee on Sports and Entertainment Law. Brotman
has served in four Presidential administrations on a bipartisan basis, including the
landmark federal task forces that led to the introduction of cellular telephone and
direct broadcast satellite services in the United States, and to the development of email as a competitive, commercial service. He also was an inaugural member of
the Library of Congress Copyright Arbitration Royalty Panel. Brotman received
his J.D. from the University of California at Berkeley, where he served as Note and
Comment Editor of the California Law Review. He received his M.A. in
Communications from the University of Wisconsin-Madison, where he specialized
in communications regulation and policy, and his B.S. in Communication Studies
and Mass Media, summa cum laude, from Northwestern University.
Raymond Nimmer is the Leonard Childs Professor of Law at the University
of Houston Law Center and co-director of the Houston Intellectual Property and
Information Law Institute. He is also a Distinguished Chair in Residence at
Universidad Catolica in Lisbon, Portugal and former Dean of the Law Center.
Admitted to practice in Illinois, Texas, and the U.S. Supreme Court, Nimmer was a

Fulbright Distinguished Chair of International Commercial Law. He has been Of
Counsel to the law firms Weil, Gotshal & Manges and Sheinfeld, Maley & Kay.
He was the co-Reporter to the Drafting Committee on Revision of U.C.C. Article 2
and the Reporter for the Uniform Computer Information Transactions Act
(UCITA). Professor Nimmer is the author of over twenty-five books and numerous
articles, including a three-volume treatise on Information Law, a multi-volume
book on the Law of Computer Technology, and a treatise on Modern Licensing
Law. He is a member of the American Law Institute, the Texas Bar Foundation,
and the American College of Commercial Finance Attorneys. The first edition of
his book The Law of Computer Technology received a national book award from
the Association of American Publishers in 1985. Prof. Nimmer is listed in The Best
Lawyers in America in the practice areas of: Copyright Law, Information
Technology Law, Litigation - Intellectual Property. He is also one of 700 lawyers
listed in the International Who’s Who of Business Lawyers in the category of
Information Technology Law. He has been recognized in 2011 by his peers as the
as the Best Lawyer in Houston in Information Technology Law. In 2013, his peers
voted him the Best Lawyer in Houston in Copyright Law.
Mark Schultz is the Co-Director of Academic Programs and Senior Scholar
at the Center for the Protection of Intellectual Property at George Mason
University School of Law, a center that he co- founded. He also continues to serve

as Associate Professor & Director of Faculty Development at the Southern Illinois
University School of Law where he teaches copyright, patent, cyberlaw, and
trademark & unfair competition. He has extensive experience in private practice in
the area of intellectual property and served as a judicial clerk in both the U.S.
Court of Appeals for the Federal Circuit and U.S. Court of Federal Claims.
John Simson is currently the Executive in Residence and Business and
Entertainment Program Director at the Kogod School of Business at the American
University in Washington, D.C. where he teaches and develops entertainment
industry curriculum. Simson has also been an Adjunct Professor of Entertainment
Law at Georgetown Law School, as well as at American University’s Washington
College of Law. He has lectured on entertainment, intellectual property, and
business issues at numerous universities. He makes frequent media appearances
and has been quoted in the New York Times, Los Angeles Times, Billboard
Magazine, Washington Post, and Wall Street Journal. Prior to academia, Simson
managed Grammy-winning artists Mary-Chapin Carpenter and Harry Belafonte,
and he was instrumental in creating SoundExchange, serving as its Executive
Director from 2001-2010. He has been nominated for an Emmy Award for his
work supervising the music of the PBS series, “American Roots Music.” He was
also selected as “Outstanding Volunteer Attorney” during the 10th Anniversary
celebration of the Washington Area Lawyers for the Arts.