Righthaven LLC v. Center For Intercultural Organ, et al

Filing 22

Submitted (ECF) Amicus brief for review and filed Motion to become amicus curiae. Submitted by Google Inc.. Date of service: 01/13/2012. [8031992] (APB)

Appeal No. 11-16358
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

RIGHTHAVEN LLC,
Appellant,
v.
CENTER FOR INTERCULTURAL ORGANIZING, and KAYSE JAMA,
Appellees.
Appeal from the United States District Court for the District of Nevada
Case No. 2:10-cv-01322-JCM-LRL
The Honorable Judge James C. Mahan
BRIEF OF AMICUS CURIAE GOOGLE INC.
IN SUPPORT OF APPELLEES CENTER FOR INTERCULTURAL
ORGANIZING AND KAYSE JAMA
Of Counsel:
Fred von Lohmann
Oliver Metzger
GOOGLE INC.
1600 Amphitheatre Parkway
Mountain View, CA 94043
650.253.0000

Andrew P. Bridges (CSB No. 122761)
Laurence F. Pulgram (CSB No. 115163)
Jennifer L. Kelly (CSB No. 193416)
FENWICK & WEST LLP
555 California Street, 12th Floor
San Francisco, CA 94104
415.875.2300
Attorneys for Amicus Curiae Google Inc.

TABLE OF CONTENTS
Page
CORPORATE DISCLOSURE STATEMENT ......................................................... 1 
IDENTITY AND INTEREST OF AMICUS CURIAE .............................................. 1 
SUMMARY OF ARGUMENT ................................................................................. 3 
ARGUMENT ............................................................................................................. 3 
I. 

WORLDWIDE CHURCH OF GOD DID NOT CREATE OR
ENDORSE ANY PER SE DENIAL OF FAIR USE BASED ON
COPYING OF AN ENTIRE WORK. ................................................... 4 

II. 

RIGHTHAVEN’S ARGUMENT RUNS DIRECTLY AFOUL OF
SUPREME COURT PRECEDENT PROHIBITING BRIGHT-LINE
RULES IN THE FAIR USE ANALYSIS. ............................................ 7 

III. 

COURTS AT ALL LEVELS HAVE FOUND FAIR USE IN
NUMEROUS CONTEXTS WHERE COPYING OF AN ENTIRE
WORK HAS OCCURRED. .................................................................. 9 

CONCLUSION ........................................................................................................ 14 

i

TABLE OF AUTHORITIES
Page(s)
CASES
A.V. v. iParadigms,
562 F.3d 630 (4th Cir. 2009) .............................................................................. 13
Apple Computer, Inc. v. Franklin Computer Corp.,
714 F.2d 1240 (3d Cir. 1983) ............................................................................... 5
Ass’n of Am. Medical Colleges v. Cuomo,
928 F.2d 519 (2d Cir. 1991) ............................................................................... 13
Belmore v. City Pages, Inc.,
880 F. Supp. 673 (D. Minn. 1995) ...................................................................... 14
Bill Graham Archives v. Dorling Kindersley Limited,
448 F.3d 605 (2d Cir. 2006) ............................................................................... 13
Bond v. Blum,
317 F.3d 385 (4th Cir. 2003) .............................................................................. 13
Campbell v. Acuff-Rose Music, Inc.,
510 U.S. 569 (1994) ......................................................................................2, 6, 8
Dow Jones & Co. v. Board of Trade,
546 F. Supp. 113 (S.D.N.Y 1982) ...................................................................... 14
Field v. Google,
412 F. Supp. 2d 1106 (D. Nev. 2006)................................................................. 12
Haberman v. Hustler Magazine Inc.,
626 F. Supp. 201 (D. Mass. 1986) ...................................................................... 14
Harper & Row, Publishers v. Nation Enters.,
471 U.S. 539 (1985) .............................................................................................. 7
Hustler Magazine, Inc. v. Moral Majority, Inc.,
796 F.2d 1148 (9th Cir. 1986) .....................................................................passim

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TABLE OF AUTHORITIES
(continued)
Pages(s)
Kelly v. Arriba Soft Corp.,
336 F.3d 811 (9th Cir. 2003) ....................................................................7, 11, 12
Key Maps, Inc. v. Pruitt,
470 F. Supp. 33 (S.D. Tex. 1978) ....................................................................... 14
Mattel Inc. v. Walking Mountain Prod’ns, Inc.,
353 F.3d 792 (9th Cir. 2003) ............................................................................... 12
Newport-Mesa Unified School District v. California Department of
Education,
371 F. Supp. 2d 1170 (C.D. Cal. 2005) .............................................................. 12
Nuñez v. Caribbean Int’l News Corp.,
235 F.3d 18 (1st Cir. 2000) ................................................................................. 13
Perfect 10, Inc. v. Amazon.com, Inc.,
508 F.3d 1146 (9th Cir. 2007) .....................................................................1, 8, 11
Religious Tech Ctr. v. Netcom Online Commc’n Services, Inc.,
C-95-20091 RNW, 1997 WL 34605244 (N.D. Cal. Jan. 6, 1997) ..................... 12
Sega v. Accolade,
977 F.2d 1510 (9th Cir. 1992), amended 1993 U.S. App. LEXIS 78
(9th Cir. 1993)...........................................................................................5, 10, 11
Sony Corp. of America v. Universal City Studios, Inc.,
464 U.S. 417 (1985) .....................................................................................passim
Sony v. Connectix,
203 F.3d 596 (9th Cir. 2000) (“Connectix”) .............................................5, 10, 11
Triangle Publ’ns, Inc. v. Knight-Ridder Newspapers, Inc.,
626 F.2d 1171 (5th Cir. 1980) ............................................................................ 13
United States v. Rodriguez-Lara,
421 F.3d 932 (9th Cir. 2005) ................................................................................ 6

iii

TABLE OF AUTHORITIES
(continued)
Pages(s)
Worldwide Church of God v. Philadelphia Church of God, Inc.,
227 F.3d 1110 (9th Cir. 2000) ..................................................................3, 4, 5, 6
STATUTES
17 U.S.C. § 101 .......................................................................................................... 5
17 U.S.C. § 102 .......................................................................................................... 5
17 U.S.C. § 107 ..................................................................................................... 7, 8
RULES
Fed. R. App. P. 26.1 ................................................................................................... 1
OTHER AUTHORITIES
H. Rep. No. 94-1476 .................................................................................................. 7
U.S. Const., Article I, § 8, cl. 8 .................................................................................. 2

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CORPORATE DISCLOSURE STATEMENT
Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure and the
Ninth Circuit’s Rules, counsel for amicus curiae certifies the following
information: Google Inc. has no parent corporation, and no publicly held
corporation owns ten percent or more of its stock.
IDENTITY AND INTEREST OF AMICUS CURIAE1
Amicus curiae Google Inc., founded in 1998, is a diversified technology
company headquartered in California’s Silicon Valley. Google’s mission is to
organize the world’s information and make it universally accessible and useful.
Google maintains one of the world’s largest and most popular search engines,
accessible, among other places, on the internet at www.google.com. Google’s
history has coincided with, and contributed to, a vast expansion of the internet and
computer technologies that have profoundly influenced human society.
Like virtually every other internet company, Google depends on fair use.
For example, this Court has ruled that Google’s activities in the operation of its
image search engine constitute fair use. See Perfect 10, Inc. v. Amazon.com, Inc.,
508 F.3d 1146, 1163-68 (9th Cir. 2007).

No person other than amicus curiae and its counsel, including parties to this
action and their counsel, authored this brief in whole or in part or contributed
money that was intended to fund preparing or submitting this brief.

1

1

While Google takes no position on the ultimate merits of this case, it has a
strong interest in the careful and considered application of the fair use doctrine. As
a consequence, it supports Appellees in their arguments in this appeal against
Righthaven’s misguided construction of the fair use doctrine. Consistent with
well-settled precedent, the application of the fair use doctrine requires a flexible,
case-by-case approach in which courts weigh and balance numerous factors and no
single statutory factor is outcome-determinative. As the Supreme Court has made
clear, the ultimate touchstone of any fair use analysis is the Constitutional purpose
of copyright law: “to promote the Progress of Science and useful Arts.”
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575, (1994)(quoting U.S.
Const., art. I, § 8, cl. 8).
Google urges the Court to reject Righthaven’s false assertion that there is
“almost a per se pronouncement” in the Ninth Circuit precluding the application of
the fair use doctrine when an entire work has been copied. That simply is not the
law, nor should it be. Indeed, adoption of any such per se rule would wreak havoc
on businesses like Google, whose ability to offer innovative and useful services to
the public depends on the adaptability of the fair use doctrine.

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SUMMARY OF ARGUMENT
Google submits this brief to rebut Righthaven’s false assertion that the fair
use doctrine is unavailable when a work has been copied in its entirety, regardless
of a court’s findings on the other fair use factors. Such an assertion is false for at
least three reasons: (1) Worldwide Church of God v. Philadelphia Church of God,
Inc., 227 F.3d 1110 (9th Cir. 2000), the sole authority on which Righthaven relies
for its assertion, neither created nor endorsed any per se ban on wholesale copying
when, in dictum, it failed to acknowledge multiple precedents of this Court
upholding fair use in the copying of entire written works; (2) the Supreme Court, in
its first case applying the fair use doctrine under the 1976 Act, Sony Corp. of
America v. Universal City Studios, Inc., 464 U.S. 417 (1985), specifically
recognized a fair use in the copying of complete works, and further indicated that
fair use analysis must use a flexible, case-by-case approach; and (3) using this
flexible approach, the Supreme Court, this Court, and courts in other Circuits
rightly have held, in numerous contexts, that a work may be copied in its entirety
and yet still qualify as a fair use.
ARGUMENT
Relying exclusively on dictum in Worldwide Church of God v. Philadelphia
Church of God, Inc., 227 F.3d 1110 (9th Cir. 2000), Righthaven asserts that
copying of a work in its entirety necessarily precludes application of the fair use

3

doctrine. Opening Brief at 13, 19 (arguing there is an “almost per se
pronouncement [in this Circuit] against a finding of fair use in cases of 100%
unauthorized replication”). This argument is contrary to the law and this Court
should reject it.
I.

WORLDWIDE CHURCH OF GOD DID NOT CREATE OR ENDORSE
ANY PER SE DENIAL OF FAIR USE BASED ON COPYING OF AN
ENTIRE WORK.
Righthaven’s reliance on Worldwide Church of God v. Philadelphia Church

of God, 227 F.3d 1110 (9th Cir. 2000) (“WWCG”) is badly mistaken. That case
neither created nor endorsed any per se prohibition against the reproduction of
entire works. To the contrary, WWCG explicitly rejected such a rule, specifically
acknowledging that “wholesale copying does not preclude fair use per se[.]”
WWCG, 227 F.3d at 1118 (quoting Hustler Magazine, Inc. v. Moral Majority, Inc.,
796 F.2d 1148, 1155 (9th Cir. 1986) (emphasis added).2
While this Court ultimately concluded in WWCG that the use of the
copyrighted work at issue was not fair, that conclusion followed a careful weighing
and balancing of all four statutory fair use factors and a determination that the first

In the wake of the Supreme Court’s decision in Sony, this Court recognized in
Hustler that a work can be copied in its entirety yet still qualify as a fair use
(discussed further in Part II below), and that any previous “pronouncements”
concerning the unavailability of the fair use doctrine to wholesale copying were no
longer valid. Hustler, 796 F.2d at 1155 (“Sony Corp. teaches us that the copying
of an entire work does not preclude fair use per se”).

2

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three weighed against fair use while the fourth factor was, at most, neutral.
WWCG, 227 F.3d at 1120.
Against this backdrop, Righthaven’s reliance on language in WWCG stating
that this Court “ha[d] found no published case holding that fair use protected the
verbatim copying, without criticism, of a written work its entirety” (Opening Br.
at 14) is misplaced. Counsel in WWCG evidently failed to bring to this Court’s
attention the fact that the Hustler case itself found the defendant’s use of the
plaintiff’s written work to be fair use. Cf. Hustler, 796 F.2d at 1149-50 (describing
written parody interview of Jerry Falwell; Hustler sued Moral Majority for copying
and redistributing that written parody). Moreover, in two other Ninth Circuit
decisions that rejected a per se rule against fair use based on reproductions of
entire works (discussed in Part III below), the defendants had made fair use of
entire computer programs of the plaintiffs. See Sega v. Accolade, 977 F.2d 1510
(9th Cir. 1992), amended 1993 U.S. App. LEXIS 78, *5 (9th Cir. 1993); Sony v.
Connectix, 203 F.3d 596, 601 (9th Cir. 2000) (“Connectix”).3
Further, not only did the WWCG decision fail to acknowledge this Court’s
precedents, but the cited language was also dictum: the observation occurred in the
context of the Court’s evaluation not of the third statutory fair use factor (amount
3

Copyright law treats computer programs as “literary works” within the meaning
of 17 U.S.C. § 102. See 17 U.S.C. § 101 (definition of “literary works”); Apple
Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1246-49 (3d Cir.
1983).

5

and proportionality of the portion used in relation to the original work as a whole)
but instead of the fourth statutory factor (effect of the use on the potential market
for the work), which, this Court recognized, must be judged in conjunction with
the other three statutory factors. In fact, elsewhere in its opinion, the Court
specifically recognized that “[T]he extent of permissible copying varies with the
purpose and character of the use.” WWCG, 27 F.3d at 1118 (quoting Campbell v.
Acuff-Rose Music, Inc., 510 U.S. 569, 586-87 (1994)). Again, as noted above,
WWCG quoted Hustler for the proposition that “wholesale copying does not
preclude fair use per se[.]”4 WWCG, 227 F.3d at 1118 (quoting Hustler, 796 F.2d
at 1155) (emphasis added). WWCG’s failure to identify three relevant Ninth
Circuit precedents involving fair use of entire copies of written works did not
divert this Court from the correct, flexible multi-factor approach to the fair use
analysis that the Supreme Court has mandated (as discussed immediately below),
and in which the third factor is not dispositive.

4

Even if one were to read WWCG as holding that reproduction of entire copies
is per se not fair use, it would not matter. Hustler flatly forecloses this, and, under
Ninth Circuit rules, as the earlier-decided panel opinion, it must be followed
and WWCG disregarded. See United States v. Rodriguez-Lara, 421 F.3d 932, 943
(9th Cir. 2005).

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II.

RIGHTHAVEN’S ARGUMENT RUNS DIRECTLY AFOUL OF
SUPREME COURT PRECEDENT PROHIBITING BRIGHT-LINE
RULES IN THE FAIR USE ANALYSIS.
The fair use doctrine is codified in 17 U.S.C. Section 107, but that provision

does not purport to define fair use. Section 107 instead provides a nonexclusive
list of factors5 to guide courts in determining whether a particular unauthorized use
of a copyrighted work qualifies as fair, thereby rendering it “not an infringement.”
17 U.S.C. § 107. Those factors are: (1) the purpose and character of the use;
(2) the nature of the copyrighted work; (3) the amount and substantiality of the
portion of the copyrighted work used; and (4) the effect of the use on the potential
market for, or value of, the copyrighted work. Id. Courts “balance these factors to
determine whether the public interest in the free flow of information outweighs the
copyright holder’s interest in exclusive control over the work.” Hustler, 796 F.2d
at 1151-52.
The Supreme Court repeatedly has emphasized that the fair use analysis
must be a flexible one, leaving courts room to find fair use (or not) depending upon
examination of all the relevant facts and circumstances and how they interplay
with one another in a particular case. Sony, 464 U.S. at 448 n. 31 (“each case
raising the question must be decided on its own facts” ) (quoting H. Rep.
No. 94-1476); Harper & Row, Publishers v. Nation Enters., 471 U.S. 539, 560
5

Kelly v. Arriba Soft Corp., 336 F.3d 811, 817 (9th Cir. 2003) (describing
statutory fair use factors as “nonexclusive”).

7

(1985) (“Section 107 requires a case-by-case determination whether a particular
use is fair”); Campbell, 510 U.S. at 578 (all four statutory factors “are to be
explored, and the results weighed together, in light of the purposes of copyright.” ).
Thus, when evaluating the third statutory fair use factor—the amount and
substantiality of the portion of the work copied—the court should consider whether
the amount copied “is reasonable in relation to the purpose of the copying.”
Campbell, 510 U.S. at 586.
Accordingly, black-and-white rules like the one that Righthaven urges
simply have no place in the fair use analysis. In Sony, the Court observed that the
Senate Committee, like the House Report, “eschewed a rigid, bright line approach
to fair use.” Sony, 464 U.S. 448 n. 31. “The task is not to be simplified with
bright-line rules, for the statute, like the doctrine it recognizes, calls for case-bycase analysis.” Campbell, 510 U.S. at 577. The avoidance of such rigid
proclamations honors Congress’ intent to give courts the freedom to evaluate, on a
case-by-case basis, the “endless variety of situations and combinations of
circumstances that can arise in particular cases,” an adaptability that Congress
viewed as particularly critical “during a period of rapid technological change.”
Sony, 464 U.S. at 448 n. 31; see also Perfect 10 v. Amazon.com, Inc., 508 F.3d
1146, 1166 (9th Cir. 2007) (noting the Supreme Court’s mandate to “analyz[e] fair
use flexibly in light of new circumstances”). Indeed, with modern technology

8

developing at an unprecedented pace, the need for flexibility in the fair use
analysis is more crucial than ever.
III.

COURTS AT ALL LEVELS HAVE FOUND FAIR USE IN
NUMEROUS CONTEXTS WHERE COPYING OF AN ENTIRE
WORK HAS OCCURRED.
Righthaven ignores the fact that the Supreme Court, this Court, and

numerous courts outside this Circuit have expressly found fair use in cases
involving complete copies of a plaintiff’s work.
The Supreme Court recognized this more than 25 years ago, when it
concluded that the copying of television programs in their entirety (for the purpose
of “time-shifting”) was a fair use. “[W]hen one considers the nature of a televised
copyrighted audiovisual work . . . and that timeshifting merely enables a viewer to
see such a work which he had been invited to witness in its entirety free of charge,
the fact that the entire work is reproduced . . . does not have its ordinary effect of
militating against a finding of fair use.” Sony, 464 U.S. at 449-50. This
conclusion was consistent with the Supreme Court’s recognition that the fair use
inquiry must be able to adapt to new situations—there, the creation of a technology
that “expand[ed] public access to freely broadcast television programs, [thereby]
yielding societal benefits.” Id. at 454.
Since Sony, this Court has found the complete copying of a work to qualify
as a fair use in a variety of other contexts. The first such case was Hustler. In that

9

case, Moral Majority, Inc. (a conservative political lobbying group) copied the
complete text of a one page written parody article, published by Hustler Magazine,
and distributed the copies in a mass mailing seeking donations to help fund the
Reverend Jerry Falwell’s legal battle against Hustler Magazine. Hustler, 796 F.2d
at 1151-52. The Court thoughtfully considered and balanced all relevant factors,
concluding that the use was fair notwithstanding that the parody was a creative
work, the copying was for commercial purposes, and the parody was copied in its
entirety, because there was no evidence that the copy displaced the demand for the
original. Id. at 1154-56.
Later, as noted above, the Ninth Circuit twice found fair use where entire
computer programs had been copied during the process of reverse engineering to
ascertain interoperability requirements. In Sega, 1993 U.S. App. LEXIS 78 at *3152 , Accolade’s copying of a video game for purposes of creating a game
compatible with Sega’s Genesis game console was fair; the fact that the third
statutory factor weighed against Accolade due to copying of the whole “[did] not
... preclude a finding of fair use.” In Connectix, 203 F.3d at 602-08, Connectix’s
copying of Sony’s entire BIOS software program, for the purpose of developing a
program that would allow users to play Sony Playstation games on their
computers, was fair; the fact that the third statutory factor weighed against
Connectix due to copying of the entire program was given “‘very little weight’” in

10

the overall analysis. Connectix, 203 F.3d at 606. As in Sony, this Court carefully
weighed all factors in both cases with an eye toward the ultimate aim of the
Copyright Act—to “‘stimulate artistic creativity for the general public good.’”
Sega, 1993 U.S. App. LEXIS 78 at *49 (quoting Sony, 464 U.S. at 432);
Connectix, 203 F.3d at 603 (quoting Sony).
This Court has also twice found fair use where search engines have copied
and displayed photographic images, in their entirety, as “thumbnails” displayed in
search results. See Kelly, 336 F.3d at 818-822; Perfect 10, 508 F.3d at 1163-1168.
Both times, the Court recognized that, although the images were copied in their
entirety, the “amount and substantiality” factor did not even weigh against the
search engine—much less preclude a finding of fair use—because the 100%
copying was reasonable in view of the purpose of the search engines, namely, to
allow internet users to recognize the images and decide whether to pursue more
information about them. Kelly, 336 F.3d at 821; Perfect 10, 508 F.3d at 11671168.6 The Court observed that this purpose served the public interest by creating
an entirely new use for the original work. Kelly, 336 F.3d at 819 (“Arriba’s use of
the images serves a different function than Kelly’s use - improving access to
6

Also at issue in Perfect 10 was the process by which an internet user’s browser
automatically makes “cache” copies of the entire contents of a webpage, including
the full-sized images at issue. The Ninth Circuit agreed with the district court’s
conclusion that the making of such cache copies was a fair use, even though it
constituted a reproduction of the entire work. Perfect 10, 508 F.3d at 1169.

11

information on the internet versus artistic expression”); Perfect 10, 508 F.3d
at 1165 (“a search engine provides a social benefit by incorporating an original
work into a new work, namely, an electronic reference tool”).
In Mattel Inc. v. Walking Mountain Prod’ns, Inc., 353 F.3d 792 (9th Cir.
2003), this Court reiterated the point: “We have . . . held that entire verbatim
reproductions are justifiable where the purpose of the work differs from the
original.” Id. at 803 n. 8 (citing Kelly, 336 F.3d at 821).
Nor is there anything categorically different about written works. Lower
courts in this Circuit, relying on the precedents cited above, have found fair use
despite the reproduction of entire written works. For example, in Field v. Google,
412 F. Supp. 2d 1106 (D. Nev. 2006), Google’s copying of 51 of plaintiff’s
writings, in their entirety, was a fair use; the court observed that the “Supreme
Court has made clear that even copying of entire works should not weigh against a
fair use finding where the new use serves a different function from the original,
and the original work can be viewed by anyone free of charge.” Id. at 1120. See
also Religious Tech Ctr. v. Netcom Online Commc’n Services, Inc., C-95-20091
RNW, 1997 WL 34605244 (N.D. Cal. Jan. 6, 1997) (citing Sony, 464 U.S. at 449450); Newport-Mesa Unified School District v. California Department of
Education, 371 F. Supp. 2d 1170, 1178 (C.D. Cal. 2005) (citing Hustler, 796 F.2d
at 1155, and Sony, 464 U.S. at 456).

12

Other Circuits likewise have rejected any per se ban on the application of
fair use to reproductions of entire works, including cases involving written
material. See, e.g., Bill Graham Archives v. Dorling Kindersley Limited, 448 F.3d
605, 613 (2d Cir. 2006) (copying of concert posters and tickets in their entirety
protected by fair use; observing that “[C]ourts have concluded that [the
reproduction of an entire work] does not necessarily weigh against fair use because
copying the entirety of a work is sometimes necessary to make a fair use of the
image.”) (emphasis in original); Triangle Publ’ns, Inc. v. Knight-Ridder
Newspapers, Inc., 626 F.2d 1171, 1177 n.15 (5th Cir. 1980) (“[T]he idea that the
copying of an entire copyrighted work can never be a fair use is an overbroad
generalization, unsupported by the decisions and rejected by years of accepted
practice.”) (internal quotation omitted); Nuñez v. Caribbean Int’l News Corp.,
235 F.3d 18, 24 (1st Cir. 2000) (copying of photographs in their entirety protected
as fair use, noting that the inquiry under the third statutory fair use factor “must be
a flexible one, rather than a simple determination of the percentage [of the work]
used”); A.V. v. iParadigms, 562 F.3d 630, 642 (4th Cir. 2009) (wholesale copying
of student papers protected as fair use); Bond v. Blum, 317 F.3d 385, 393 (4th Cir.
2003) (copying of entire manuscript protected as fair use); Ass’n of Am. Medical
Colleges v. Cuomo, 928 F.2d 519 (2d Cir. 1991) (concluding that verbatim copying
of copyrighted standardized testing forms for purpose of statutorily-mandated

13

study could constitute fair use, reversing lower court’s decision to the contrary, and
remanding).
Lower courts in other Circuits consistently reach the same conclusion. See,
e.g., Belmore v. City Pages, Inc., 880 F. Supp. 673 (D. Minn. 1995) (wholesale
copying of short story in newspaper protected as fair use); Haberman v. Hustler
Magazine Inc., 626 F. Supp. 201 (D. Mass. 1986) (complete reproduction of fine
art postcards protected as fair use); Dow Jones & Co. v. Board of Trade, 546 F.
Supp. 113 (S.D.N.Y 1982) (non-profit organization’s wholesale copying and
distribution of plaintiff’s time-sensitive, copyrighted financial markets data
protected as fair use); Key Maps, Inc. v. Pruitt, 470 F. Supp. 33 (S.D. Tex. 1978)
(wholesale reproduction of county thoroughfare map protected as fair use).
As the cases discussed here make abundantly clear, a flexible, multi-factor
approach to the fair use analysis, consistent with Supreme Court precedent, allows
no per se rule against application of the fair use doctrine in cases of the
reproduction of entire works.
CONCLUSION
Since the Supreme Court’s decision in Sony, courts at all levels, both within
and outside this Circuit, consistently have recognized that there is no per se rule
against fair use that arises simply because a work has been reproduced in its
entirety. Even WWCG, upon which Righthaven relies, recognized the same thing.

14

Righthaven’s reliance upon WWCG’s dictum, which apparently failed to take into
account precedents of this Court, seeks to divert this Court from those precedents
and from the Supreme Court’s decision in Sony. The Court should reject
Righthaven’s effort.
Dated: January 13, 2012

Respectfully submitted,

Of Counsel:

/s/ Andrew P. Bridges
Andrew P. Bridges

Fred von Lohmann
Oliver Metzger
GOOGLE INC.
1600 Amphitheatre Parkway
Mountain View, CA 94043
650.253.0000

FENWICK & WEST LLP
Attorneys for Amicus Curiae Google Inc.

15

CERTIFICATE OF COMPLIANCE
PURUSANT TO NINTH CIRCUIT RULE 29(d)
I certify that this brief of amicus curiae Google Inc. in support of Appellees,
Center for Intercultural Organizing and Kayse Jama, in Appeal No. 11-16358,
complies with the length limitations established by Ninth Circuit Rule 29(d), which
states that “an amicus brief may be no more than one-half the maximum length
authorized by these rules for a party's principal brief.” This amicus brief contains
3470 words, 291 lines of text, or 15 pages, excluding portions exempted by Federal
Rule of Appellate Procedure 32(a)(7)(B)(iii).
Dated: January 13, 2012

Respectfully submitted,
/s/ Andrew P. Bridges
Andrew P. Bridges

16

CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing Motion for Leave to
File Brief of Amicus Curiae Google Inc. in support of Appellees Center for
Intercultural Organizing and Kayse Jama and the accompanying Brief of Amicus
Curiae Google Inc. in support of Appellees Center for Intercultural Organizing and
Kayse Jama with the Clerk of the Court for the United States Court of Appeals for
the Ninth Circuit by using the appellate CM/ECF system on January 13, 2012.
Participants in the case who are registered CM/ECF users will be served by
the appellate CM/ECF system.

/s/ Andrew P. Bridges
Andrew P. Bridges