DOCSLIB.ORG

Supreme Court of the United States

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Supreme Court of the United States No. 15-849 IN THE Supreme Court of the United States THE AUTHORS GUILD, et al., Petitioners, v. GOOGLE INC., Respondent. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT BRIEF IN OPPOSITION ALLISON TRZOP SETH P. WAXMAN WILMER CUTLER PICKERING Counsel of Record HALE AND DORR LLP LOUIS R. COHEN 60 State Street PAUL R.Q. WOLFSON Boston, MA 02109 DANIEL P. KEARNEY, JR. BETH C. NEITZEL* DARALYN J. DURIE WILMER CUTLER PICKERING JOSEPH C. GRATZ HALE AND DORR LLP DURIE TANGRI LLP 1875 Pennsylvania Ave., NW 217 Leidesdorff Street Washington, DC 20006 San Francisco, CA 94111 (202) 663-6000 [email protected] QUESTION PRESENTED Google Books gives readers a dramatically new way to find books located in major research libraries. Using text searches they formulate themselves, read- ers can identify, determine the relevance of, and locate books they might otherwise never have found. The question presented is whether the court of ap- peals properly concluded, based on its examination of the facts of this case in light of the statutory “fair use” factors set forth at 17 U.S.C. § 107, that Google Books constitutes fair use of petitioners’ copyrighted works. (i) CORPORATE DISCLOSURE STATEMENT Google Inc. is a wholly owned subsidiary of Alphabet Inc., a publicly traded company. No other company owns 10% or more of Google’s stock. (ii) TABLE OF CONTENTS Page QUESTION PRESENTED ............................................... i CORPORATE DISCLOSURE STATEMENT ............. ii TABLE OF AUTHORITIES .......................................... iv INTRODUCTION .............................................................. 1 STATEMENT ..................................................................... 4 A. The Google Books Project ................................... 4 B. Proceedings Below .............................................. 10 ARGUMENT ..................................................................... 14 I. THE COURT OF APPEALS PROPERLY CON- SIDERED EACH OF THE STATUTORY FAIR USE FACTORS AND REACHED THE COR- RECT RESULT ON THE FACTS OF THIS CASE ............................................................................. 14 II. THE DECISION BELOW DOES NOT CON- FLICT WITH OTHER CIRCUITS’ APPLICA- TION OF THE FIRST FAIR-USE FACTOR .................. 23 III. THE SECOND CIRCUIT’S DECISION AS TO THE LIBRARY COPIES DOES NOT CONFLICT WITH SIXTH CIRCUIT PRECEDENT .......................... 29 IV. ASSOCIATIONAL STANDING IS IRRELEVANT HERE ............................................................................ 32 CONCLUSION ................................................................. 33 (iii) iv TABLE OF AUTHORITIES CASES Page(s) A.V. ex rel. Vanderhye v. iParadigms, LLC, 562 F.3d 630 (4th Cir. 2009) ...................... 3, 25, 26, 28 American Broadcasting Cos. v. Aereo, Inc., 134 S. Ct. 2498 (2014) .................................................. 30, 31 Authors Guild, Inc. v. HathiTrust, 755 F.3d 87 (2d Cir. 2014) ................................................... 10, 16, 32 Bowsher v. Synar, 478 U.S. 714 (1986) ........................... 33 Cambridge University Press v. Patton, 769 F.3d 1232 (11th Cir. 2014) ................................... 27, 28 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) ............................................................ passim Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013) ............... 28 Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985) ........................ 12, 21 Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2003) .................................................................. 3, 25 Kienitz v. Sconnie Nation LLC, 766 F.3d 756 (7th Cir. 2014) ........................................................ 28, 29 Nunez v. Caribbean International News Corp., 235 F.3d 18 (1st Cir. 2000) ......................................... 24 Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007) ........................................... 3, 25, 28 Princeton University Press v. Michigan Document Services, Inc., 99 F.3d 1381 (6th Cir. 1996) .......................................................... 27, 30, 31 v TABLE OF AUTHORITIES—Continued Page(s) Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984) ................. 17, 18, 24 Stewart v. Abend, 495 U.S. 207 (1990) ............................ 19 Video Pipeline, Inc. v. Buena Vista Home Entertainment, Inc., 342 F.3d 191 (3d Cir. 2003) ............................................................................. 26 DOCKETED CASES American Broadcasting Cos. v. Aereo, Inc., No. 13-461 (U.S. Apr. 22, 2014) ................................. 23 CONSTITUTIONAL PROVISIONS AND STATUTES U.S. Const. Art. I, § 8, cl. 8 ............................................... 17 17 U.S.C. § 101 .............................................................................. 30 § 106 ........................................................................ 20, 30 § 107 ........................................................ 1, 11, 15, 22, 24 § 108 .............................................................................. 32 § 121 ........................................................................ 10, 32 IN THE Supreme Court of the United States No. 15-849 THE AUTHORS GUILD, et al., Petitioners, v. GOOGLE INC., Respondent. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT BRIEF IN OPPOSITION INTRODUCTION In a carefully reasoned decision that closely exam- ined the facts of this case in light of the statutory “fair use” factors set forth at 17 U.S.C. § 107, the Second Circuit concluded that Google Books constitutes fair use and thus does not infringe petitioners’ copyrights. That decision follows this Court’s instructions, is cor- rect, and does not conflict with any decision of this Court or any other court of appeals. It therefore does not warrant this Court’s review. As Judge Leval’s opinion demonstrates persuasively, Google Books is en- tirely consistent with the purposes of copyright law and in fact advances the interests of authors. 2 Google Books gives readers a dramatically new way to find books of interest. By formulating their own text queries and reviewing search results, users can identify, determine the relevance of, and locate books they might otherwise never have found. In response to a search query, Google Books provides the user with a list of books that contain the chosen search term and (in many cases) information about the immediate context in which the term appears. Google Books also informs the user where he or she can buy or borrow the book. Google Books is thus, as the Second Circuit concluded, quintes- sentially transformative in nature: It provides new and valuable information that users do not otherwise have. Google Books does not supersede the books them- selves or replace buying or borrowing them. It does not significantly affect the market for books or their protected derivatives (except to boost the market by helping readers find them, see Pet. App. 76a). As Judge Leval’s careful examination of the factual record demonstrates, Google Books has been designed to pre- vent users from reading any substantial portion of any book. To read a book, users must obtain the book else- where—by buying it from a bookseller or borrowing it from a library; Google Books simply enables users to find the books they want to read. And although peti- tioners claimed that Google Books preempted a licens- ing market for similar digital search tools, the Second Circuit correctly concluded that copyright law does not recognize any exclusive right to furnish information about a work; a copyright does not protect its holder against the listing of a work in either a traditional card catalog or in this vastly superior new form of search tool. In any event, there was no evidence of an exist- ing, or likely future, licensing market for such a pur- ported derivative use. Id. 45a-46a. 3 Contrary to petitioners’ caricature of the decision below, Judge Leval carefully and separately weighed each factor in the fair use analysis and assessed Google Books “in light of the purposes of copyright,” as articu- lated by this Court’s decisions, Pet. App. 17a (quoting Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578 (1994)). Petitioners’ attempt to manufacture a circuit split with respect to the first fair-use factor is without merit; no court of appeals has required “creative” ex- pression (Pet. 19) distinct from the dramatically new kind of information provided to users of Google Books. To the contrary, the decision below follows the ap- proach of other circuits that found similar uses to be fair use. See A.V. ex rel. Vanderhye v. iParadigms, LLC, 562 F.3d 630, 645 (4th Cir. 2009); Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1168 (9th Cir. 2007); Kelly v. Arriba Soft Corp., 336 F.3d 811, 822 (9th Cir. 2003). Nor is there any error or circuit conflict in the court of appeals’ conclusion that there was no infringe- ment in the digital scans provided by Google to the li- braries that owned the books. Google provided a digi- tal scan of a book only to the library that owned the book from which the scan was made, and Google re- quired the library to use the digital scans only for their own non-infringing activities. There is no evidence that the libraries are violating those terms. Given the soundness of the Second Circuit’s deci- sion and the absence of any circuit conflict, there is no warrant
Load more

Recommended publications
  • THE AUTHORS GUILD, Betty MILES, Jim BOUTON, Joseph GOULDEN V
    THE AUTHORS GUILD, Betty MILES, Jim BOUTON, Joseph GOULDEN v. GOOGLE, INC. United States Court of Appeals, Second Circuit. October 16, 2015. 6 Before: LEVAL, CABRANES, PARKER, Circuit Judges. 7 LEVAL, Circuit Judge. 8 This copyright dispute tests the boundaries of fair use. Plaintiffs, who are authors of published books under copyright, sued Google, Inc. ("Google") for copyright infringement in the United States District Court for the Southern District of New York (Chin, J.). They appeal from the grant of summary judgment in Google's favor. Through its Library Project and its Google Books project, acting without permission of rights holders, Google has made digital copies of tens of millions of books, including Plaintiffs', that were submitted to it for that purpose by major libraries. Google has scanned the digital copies and established a publicly available search function. An Internet user can use this function to search without charge to determine whether the book contains a specified word or term and also see "snippets" of text containing the searched-for terms. In addition, Google has allowed the participating libraries to download and retain digital copies of the books they submit, under agreements which commit the libraries not to use their digital copies in violation of the copyright laws. These activities of Google are alleged to constitute infringement of Plaintiffs' copyrights. Plaintiffs sought injunctive and declaratory relief as well as damages. 9 Google defended on the ground that its actions constitute "fair use," which, under 17 U.S.C. § 107, is "not an infringement." The district court agreed. Authors Guild, Inc.
    [Show full text]
  • Second Circuit Decision in Authors Guild V. Google [Pdf]
    13-4829-cv Authors Guild v. Google, Inc. 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 4 August Term, 2014 5 6 (Argued: December 3, 2014 Decided: October 16, 2015) 7 8 Docket No. 13-4829-cv 9 10 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X 11 12 THE AUTHORS GUILD, BETTY MILES, 13 JIM BOUTON, JOSEPH GOULDEN, 14 individually and on behalf of all others 15 similarly situated, 16 Plaintiff-Appellants, 17 18 HERBERT MITGANG, DANIEL 19 HOFFMAN, individually and on behalf of 20 all others similarly situated, PAUL 21 DICKSON, THE MCGRAW-HILL 22 COMPANIES, INC., PEARSON 23 EDUCATION, INC., SIMON & 24 SCHUSTER, INC., ASSOCIATION OF 25 AMERICAN PUBLISHERS, INC., 26 CANADIAN STANDARD 27 ASSOCIATION, JOHN WILEY & SONS, 28 INC., individually and on behalf of all 29 others similarly situated, 30 31 Plaintiffs, 32 33 v. 34 35 GOOGLE, INC., 36 Defendant-Appellee. 37 38 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X 39 40 Before: LEVAL, CABRANES, PARKER, Circuit Judges. 41 1 13-4829-cv Authors Guild v. Google, Inc. 1 Plaintiff-appellants, who are authors of published books under copyright, appeal from the 2 judgment of the United States District Court for the Southern District of New York (Chin, J.) in 3 favor of Defendant Google, Inc. Plaintiffs sued Google, alleging that its Library Project and 4 Google Books project infringe Plaintiffs’ copyrights. Through these projects, Google makes and 5 retains digital copies of books submitted to it by major libraries, allows the libraries that 6 submitted a book to download and retain a digital copy, and allows the public to search the texts 7 of the digitally copied books and see displays of snippets of text.
    [Show full text]
  • THE AUTHORS GUILD V. GOOGLE: the FUTURE of FAIR USE? Mary
    THE AUTHORS GUILD v. GOOGLE: THE FUTURE OF FAIR USE? ... Mary Rasenberger and June Besek * Mary E. Rasenberger is a partner with Cowan, DeBaets, Abrahams & Sheppard, New York, NY; June M. Besek is Executive Director of the Kernochan Center for Law, Media, and the Arts at Columbia Law School, New York, NY. I. INTRODUCTION In November, 2013, the district court for the Southern District of New York issued its 1 first decision on the merits in Authors Guild v. Google , a class action first brought almost nine years ago as a challenge to Google's mass book digitization project. Google initiated a program ("Google Books") in late 2004 to digitize millions of books. It entered into agreements with major university libraries to scan books from their collections without obtaining rights from authors and publishers. In exchange for access to the books, Google provided each library with a full text digital version of the books in their collection. It retained copies of the full text database for internal "non-display" uses and allowed customers to search Google's database to identify books of interest. A user's search retrieves a full-text version of a book if it is in the public domain and provides "snippets" of copyright-protected books. Google also uses the full-text database to improve its translation capabilities and enhance its search capabilities in general. The Authors Guild and publishers filed suit for copyright infringement against Google in 2005. Some time after the suit commenced, the parties entered into a class action settlement agreement, which the court rejected.
    [Show full text]
  • The Authors Guild, AAP, Google Settlement
    The Authors Guild, AAP, Google Settlement: An Interview with Michael Healy, Executive Director of the Book Industry Study Group and expected Executive Director of the Book Rights Registry KENNEALLY: Authors and publishers in the United States and around the world have followed with interest the class action suit for copyright infringement brought against Google in 2005 by the Authors Guild and Association of American Publishers. Last fall, the parties announced a proposed settlement, and today we hear for the first time from a man whose expected next job will be to make that agreement a reality. On behalf of Copyright Clearance Center, welcome everyone. My name is Christopher Kenneally. As director of Author Relations here at CCC, I have the great pleasure to introduce Michael Healy, who is currently executive director of the Book Industry Study Group. Michael, thanks for joining me. HEALY: Thank you very much for inviting me, Chris. KENNEALLY: It’s a pleasure to have you here today, and here at the offices of Copyright Clearance Center near Boston, it’s a beautiful June day outside but I know you’re looking well ahead into the future. You can see dates in October and September and further even, beyond all of that, all approaching rather quickly. So let’s talk about the proposed settlement, where it’s going to take you and authors and publishers everywhere. First of all, let’s help everyone understand better the arrangement that you’re currently working under. In May, the Book Industry Study Group announced an agreement with the Authors Guild and AAP, which will have BISG provide services to support the establishment of the Book Rights Registry, and with you, as the director of the BISG, devoting about half time to BRR issues.
    [Show full text]
  • Tap, Tap, Click Empathy As Craft Our Cornered Culture
    The Authors Guild, Inc. SPRING-SUMMER 2018 31 East 32nd Street, 7th Floor PRST STD US POSTAGE PAID New York, NY 10016 PHILADELPHIA, PA PERMIT #164 11 Tap, Tap, Click 20 Empathy as Craft 41 Our Cornered Culture Articles THE AUTHORS GUILD OFFICERS TURNING PAGES BULLETIN 5 President Annual Benefit Executive Director James Gleick An exciting season of new 8 Audiobooks Ascending Mary Rasenberger Vice President programming and initiatives is General Counsel Richard Russo underway at the Guild—including 11 Cheryl L. Davis Monique Truong Tap, Tap, Click our Regional Chapters and Editor Treasurer 16 Q&A: Representative Hakeem Jeffries Martha Fay Peter Petre enhanced author websites— 18 Making the Copyright System Work Assistant Editor Secretary on top of the services we already Nicole Vazquez Daniel Okrent offer our members. But as for Creators Copy Editors Members of the Council Heather Rodino Deirdre Bair we all know, this takes funding. 20 Empathy as Craft Hallie Einhorn Rich Benjamin So, in our seasonal Bulletin, 23 Art Direction Amy Bloom we are going to start accepting Connecting Our Members: Studio Elana Schlenker Alexander Chee The Guild Launches Regional Chapters Pat Cummings paid advertising to offset our costs Cover Art + Illustration Sylvia Day and devote greater resources Ariel Davis Matt de la Peña 24 An Author’s Guide to the New Tax Code All non-staff contributors Peter Gethers to your membership benefits. 32 American Writers Museum Wants You to the Bulletin retain Annette Gordon-Reed But our new ad policy copyright to the articles Tayari Jones is not merely for the benefit of that appear in these pages.
    [Show full text]
  • Authors Guild
    ______________________________________________________________________________ Before the Copyright Office Library of Congress In the Matter of ) ) Mass Digitization Pilot Program ) Docket No. 2015–3 ) Comments of the Authors Guild Submitted by Mary Rasenberger, Executive Director The Authors Guild submits this statement on behalf of its over 9,000 members in response to the Copyright Office’s Request for Comments on a limited mass digitization pilot program. Our members represent the broad sweep of American authorship. They are historians whose work depends upon access to records of the lives and events of the past. They are novelists whose inventions extend our literary traditions. They are rural and urban, translators and poets, Pulitzer Prize-winners and neophytes. They are the authors of every conceivable type of book. Most of these books have been subject to mass digital copying: indeed, the unauthorized, wholesale copying of these works was the subject of two kindred copyright infringement lawsuits, Authors Guild v. Google and Authors Guild v. HathiTrust. As explained in our testimony to the House Judiciary Committee on the Preservation and Reuse of Copyrighted Works,1 we believe that a collective licensing solution to the mass digitization of 1 Preservation and Reuse of Copyrighted Works: Hearing Before the Subcomm. On Courts, Intellectual Property, & the Internet of the H. Comm. Of the Judiciary, 113th Cong. 81 (2014) (statement of Jan Constantine, General Counsel, Authors Guild, Inc.), available at 1 literary works is not only proper, it is possible. An extended collective licensing solution is particularly suitable because it provides for the ability to obtain a broad license, while allowing for an opt-out.
    [Show full text]
  • Supreme Court of the United States ______
    No. 15-849 IN THE Supreme Court of the United States ________ THE AUTHORS GUILD, INC., ET AL., Petitioners, v. GOOGLE INC., Respondent. ________ On Petition for a Writ of Certiorari to the United States Court of Appeals for the Second Circuit ________ REPLY BRIEF OF PETITIONERS ________ Michael J. Boni Paul M. Smith Joshua D. Snyder Counsel of Record BONI & ZACK LLC Lindsay C. Harrison 15 St. Asaphs Rd. Mark P. Gaber Bala Cynwyd, PA 19004 JENNER & BLOCK LLP (610) 822-0201 1099 New York Ave. NW Suite 900 Counsel for Jim Bouton Washington, DC 20001 & Joseph Goulden (202) 639-6000 [email protected] Counsel for The Authors Guild, Inc. & Betty Miles Additional Counsel Listed on Inside Cover March 15, 2016 Edward H. Rosenthal Jeremy S. Goldman FRANKFURT KURNIT KLEIN & SELZ, P.C. 488 Madison Avenue 10th Floor New York, NY 10022 (212) 980-0120 Counsel for The Authors Guild, Inc. & Betty Miles i CORPORATE DISCLOSURE STATEMENT Pursuant to Rule 29.6, Petitioner The Authors Guild, Inc. states that it has no parent corporation. As a nonprofit corporation it has issued no stock. No publicly held corporation owns ten percent or more of the corporation. ii TABLE OF CONTENTS CORPORATE DISCLOSURE STATEMENT .............. i TABLE OF CONTENTS .................................................. ii TABLE OF AUTHORITIES ......................................... iii REPLY BRIEF OF PETITIONERS ............................. 1 I. The Circuits Conflict on Whether Transformative Use Requires New Creative Expression. ............................................................... 3 II. The Second Circuit Allows a Finding of Transformative Use to Override the Statutory Factors. ...................................................................... 6 III. The Second Circuit’s Analysis of the Library Copies is Contrary to the Statute and Conflicts with the Sixth Circuit.
    [Show full text]
  • 00-201 Supreme Court of the United States the New York
    1 00-201 IN THE SUPREME COURT OF THE UNITED STATES THE NEW YORK TIMES COMPANY, INC., NEWSDAY, INC. THE TIME INCOPORATED MAGAZINE COMPANY; LEXIS/NEXIS and UNIVCERSITY MICROFILMS INTERNATIONAL Petitioner v. JONATHAN TASINI; MARY KAY BLAKELY; BARBARA GARSON; MARGOT MIFFLIN; SONIA JAFFE ROBBINS and DAVID S. WHITFORD Defendants BRIEF FOR AMICI CURIAE THE AUTHORS GUILD, INC., JACQUES BARZUN, JAMES GLEICK, JUSTIN KAPLAN, TRACY KIDDER, NICHOLAS LEMANN, JOHN LUKACS, ROBERT K. MASSIE, JACK MILES, AND JEAN STROUSE, IN SUPPORT OF RESPONDENTS Leon Friedman Counsel of Record 148 East 78th Street New York N.Y. 10021 (212) 737-0400 Kay Murray The Authors Guild, Inc. 31 East 28th Street New York, N.Y. 10016 Attorneys for Amici 2 TABLE OF CONTENTS Page Interest of Amici Curiae . 1 STATEMENT . 7 Introduction and Summary of Argument . 8 ARGUMENT . 9 I. THE OPINION BELOW PROPERLY WEIGHED THE INTERESTS OF AUTHORS, PUBLISHERS, RESEARCHERS AND ELECTRONIC DATABASES . 9 II. THE DECISION BELOW PROPERLY ANALYZED THE STATUTORY LANGUAGE OF SECTION 201(C) . 19 CONCLUSION . 22 3 BRIEF OF AMICI THE AUTHORS GUILD, INC. , JACQUES BARZUN, JAMES GLEICK, JUSTIN KAPLAN, TRACY KIDDER, NICHOLAS LEMANN, JOHN LUKACS , ROBERT K. MASSIE, JACK MILES and JEAN STROUSE This brief amici curiae is submitted in support of Respondents Jonathan Tasini et al. By letters filed with the Clerk of the Court, Petitioners and Respondents have consented to the filing of this brief. 1 INTEREST OF AMICUS CURIAE The Author’s Guild, Inc. founded in 1912, is a national non-profit association of more than 8,200 professional, published writers of all genres.
    [Show full text]
  • Authors Guild V. Google, Inc., 804 F.3D 202 (2D Cir
    No. ___ IN THE Supreme Court of the United States ________ THE AUTHORS GUILD, ET AL., Petitioners, v. GOOGLE, INC., Respondent. ________ On Petition for a Writ of Certiorari to the United States Court of Appeals for the Second Circuit ________ PETITION FOR A WRIT OF CERTIORARI ________ Edward H. Rosenthal Paul M. Smith Jeremy S. Goldman Counsel of Record FRANKFURT KURNIT Lindsay C. Harrison KLEIN & SELZ, P.C. Mark P. Gaber 488 Madison Avenue JENNER & BLOCK LLP 10th Floor 1099 New York Ave. NW New York, NY 10022 Suite 900 (212) 980-0120 Washington, DC 20001 (202) 639-6000 [email protected] December 31, 2015 i QUESTIONS PRESENTED Google made full digital copies of millions of books it obtained from libraries’ shelves without the authors’ consent. As payment, Google gave the libraries digital copies of the books. Google makes the books’ full text searchable on its revenue-generating search engine, and displays verbatim excerpts in response to users’ searches. The questions presented are: 1. Whether, in order to be “transformative” under the fair-use exception to copyright, the use of the copyrighted work must produce “new expression, meaning, or message,” as this Court stated in Campbell and as the Third, Sixth, and Eleventh Circuits have held, or whether the verbatim copying of works for a different, non-expressive purpose can be a transformative fair use, as the Second, Fourth, and Ninth Circuits have held. 2. Whether the Second Circuit’s approach to fair use improperly makes “transformative purpose” the decisive factor, replacing the statutory four-factor test, as the Seventh Circuit has charged.
    [Show full text]
  • Supreme Court of the United States
    No. 15-849 IN THE Supreme Court of the United States THE AUTHORS GUILD, et al., Petitioners, v. GOOGLE, INC., Respondent. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES CouRT OF AppEALS FOR THE SEcoND CIRcuIT BRIEF OF AMICUS CURIAE AMERICAN SOCIETY OF JOURNALISTS AND AUTHORS, INC. IN SUPPORT OF PETITIONERS HillEL I. PARNESS DAVid LEICHTMAN PARNESS LAW FirM, PLLC Counsel of Record 136 Madison Avenue, 6th Floor ROBINS KAPLAN, LLP New York, New York 10016 601 Lexington Avenue (212) 447-5299 New York, New York 10022 (212) 980-7400 [email protected] Counsel for Amicus Curiae 263883 A (800) 274-3321 • (800) 359-6859 i TABLE OF CONTENTS Page TABLE OF CONTENTS..........................i TABLE OF CITED AUTHORITIES ..............iii I. INTEREST OF THE AMICUS CURIAE ........1 II. ARGUMENT .................................2 A. Justification, Not Transformativeness, Is The Inquiry .............................3 1. The Fair Use Inquiry Is Concerned With Justification, And Not “Transformation” By Merely Changing The Context In Which Consumers Encounter A Work ...........4 2. This Court’s Adoption of The Word “Transformation” Must Be Reconsidered In Light Of The Context In Which It Arose ..............9 B. Inventing Around Copyright, To Enable Infringement, is Infringement, Not Fair Use .............................11 ii Table of Contents Page C. The Second Circuit’s Decision Ignored Improperly The Required Qualitative Analysis of Google’s Takings In Favor Of A Quantitative Analysis, Erroneously Impacting Its View Of Potential Market Harm....................................19 III. CONCLUSION ..............................23 iii TABLE OF CITED AUTHORITIES Page CASES A&M Records v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001).................13, 17 ABC, Inc.
    [Show full text]
  • Books, Profits & Digits
    Summer 2008 BULLETIN Books, Profits & Digits: Publishing's W"ry Leap Watched Any Good Books Lately? Roy Blount on an Author's Primary Mission Copyright on a Cocktail Napkin LETTER TO THE EDITOR Et". wonder where the (generally top) author roy- gtrineas. A more usual method, however, was publica- lalty of 15 percent came from? I confess that I had tion upon shares. 'The mode of doing so . ,'wrote not, but now I think I may know. Irving, 'is to agree about the number of copies in an Yesterday I acquired Stanley T. Williams's 1935 two- edition, and the retail price to be placed upon them; to volume Life of Washingtort lraing (Oxford) and was multiply the number of copies by the price of each, moved this morning to check his and divide the gross amount by six. Bibliography of the Writings of Wash- The Guild encourages members to For this sixth part, the publisher to irrgton lraing: A Check Llsf, issued write to the Bulletin. Letters should be give his notes to the author.' ["Irving sent to "Letters to the Editor," The in the following year. Looking for to John Murrav" Madrid, July 29, Authors Cuild, ll East 32nd Street. something else, I came upon this: 7827, P. M. Irving, Life and Letters of 7th Floor, New York. NY 10016. They "Let aggrieved authors of the can also be taxed to (212) 564-5363. Washingtotr Irrring (New York, 1862- twentieth century read Walter Scott's or sent via e-mail to staff@authors 7864),il,263.1 frank letter to Irving on conditions in guild.org (type "Letters to the Editor" A sixth part is, of course, 76 2/3 the trade, in which he declares that, in the subject line).
    [Show full text]
  • U.S. House of Representatives Committee on the Judiciary Subcommittee on Courts, Intellectual Property, and the Internet
    U.S. House of Representatives Committee on the Judiciary Subcommittee on Courts, Intellectual Property, and the Internet Preservation and Reuse of Copyrighted Works April 2, 2014, 2:00 p.m. Statement of Jan Constantine General Counsel The Authors Guild, Inc. [email protected] COMMITTEE ON THE JUDICIARY SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY AND THE INTERNET Preservation and Reuse of Copyrighted Works Testimony of Jan Constantine on Behalf of the Authors Guild April 2, 2014 Mr. Chairman, Ranking Member and all other members of the Committee: My name is Jan Constantine, and I represent the Authors Guild, the largest society of published authors in the country. The Guild and its predecessor organization, the Authors League of America, have been leading advocates for authors’ copyright and contractual interests since the League’s founding in 1912. Among our more than 8,500 members are historians, biographers, poets, novelists and freelance journalists of every political persuasion. Authors Guild members create the works that fill our bookstores and libraries: literary landmarks, bestsellers and countless valuable and culturally significant works with more modest sales records. We have counted among our ranks winners of every major literary award, including every U.S. Nobel Prize for Literature1 honoree, dozens of Pulitzer Prize and National Book Award winners,2 as well as U. S. Presidents3 and distinguished members of both Houses of Congress. We have a 100-year history of contributing to debates before Congress on the proper scope and function of copyright law. It’s an honor and privilege to be here today, for the Authors Guild to continue to serve that role before this committee.
    [Show full text]