The Authors Guild, Inc. et al v. Hathitrust et al

Filing 122

FIRST MOTION for Leave to File. Document filed by DIGITAL HUMANITIES AND LAW SCHOLARS.(Colman, Charles)

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------X X THE AUTHORS GUILD, INC. et al., X X Plaintiffs, X X v. X X HATHITRUST et al., X X Defendants. X X ------------------------------------------------------X 11 Civ. 06351 (HB) ECF Case Motion for Leave to File Brief As Amici Curiae Counsel for the prospective amici curiae respectfully moves for leave to file the attached BRIEF OF DIGITAL HUMANITIES AND LAW SCHOLARS AS AMICI CURIAE IN PARTIAL SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT. The full list of amici is set out in Appendix A to the Brief. Defendants have consented to this filing, but Plaintiffs have not. In support of this motion, Amici state the following: 1. Amici are professors and scholars who teach, write, and research in the areas of either digital humanities or law (as well as an association that represents Digital Humanities scholars.) 2. Digital Humanities Amici use computational and statistical methods to analyze large corpora of texts to discover and understand the data in and relationships between textual works. These researchers have developed methods to extract non-expressive facts, relationships, ideas, and patterns from digitized works, which can then be used to enable the creation of new research on the underlying subject matter. Applications of these methods traverse scholarly fields, and analysis of digitized works using these methods is of growing importance in fields as diverse as literature, linguistics, astrophysics, history, and economics. 3. Law Scholar Amici reside in the United States and abroad and have particular expertise in intellectual property law. Among these prospective amici are leading U.S. and international copyright experts who have an interest in the sound development of the law. 4. Defendants, in their Motion for Summary Judgment, assert a fair use defense for the digitization of copyrighted works. While Amici’s brief is limited to the question of nonexpressive use, Amici agree that the use of digitized copies for that purpose is fair under 17 U.S.C. § 107. 5. Copyright does not protect the non-expressive aspects of a work. The idea- expression distinction reflected in Section 102(b) of the Copyright Act, along with the scenes à faire doctrine, the “fact-expression” distinction, and the “merger” rule, all embody this core principle of copyright law. These doctrines reflect constitutional, statutory, and judicial limitations on the scope of copyright protection, which is germane to Amici’s interests (and a subject upon which they have great expertise.) 6. The extraction and reuse of facts from a copyrighted work—for example, compiling statistics from a copyrighted sports broadcast—does not infringe copyright, in part because of the aforementioned doctrines. 7. The doctrine of fair use operates to permit certain copying that enables subsequent non-infringing use. Copying to enable non-expressive use, such as for digital humanities scholarship, should be considered fair use. 8. As these issues are central to the future of both digital humanities scholarship and the future of copyright law, Amici are uniquely situated to assist the Court in making its ruling. 2 Therefore, the Court should grant amici’s motion for leave to file a brief as amici curiae. DATED: July 6, 2012 New York, NY Respectfully Submitted, ________________________ CHARLES COLMAN LAW, PLLC Charles Colman (CC-1133) 30 West 70th Street New York, NY 10023 Phone: 212-960-8949 Facsimile: 212-960-8969 E-mail: Jason Schultz* Assistant Clinical Professor of Law UC Berkeley School of Law Matthew Sag* Associate Professor Loyola University of Chicago School of Law Counsel for Amici * Filed in their individual capacity and not on behalf of their institutions 3 PROOF OF SERVICE I hereby certify that the foregoing motion with attached brief amici curiae filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF). /s/ Charles E. Colman (CC-1133)____ 4

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