The Authors Guild, Inc. et al v. Hathitrust et al
FIRST MOTION for Leave to File. Document filed by DIGITAL HUMANITIES AND LAW SCHOLARS.(Colman, Charles)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
THE AUTHORS GUILD, INC. et al.,
HATHITRUST et al.,
11 Civ. 06351 (HB)
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:
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
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.
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.
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.
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.)
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.
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.
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.
Therefore, the Court should grant amici’s motion for leave to file a brief as amici curiae.
DATED: July 6, 2012
New York, NY
CHARLES COLMAN LAW, PLLC
Charles Colman (CC-1133)
30 West 70th Street
New York, NY 10023
Assistant Clinical Professor of Law
UC Berkeley School of Law
Loyola University of Chicago School of Law
Counsel for Amici
* Filed in their individual capacity and not on behalf of their institutions
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)____
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