Michigan Document Services Case & Coursepacks

OF COUNSEL

Kay Murray
Ed McCoyd
Carol R. Williams
330 West 42nd Street
New York, NY 10036
(212) 563-5904

February 26, 1996

Table of Authorities

INTERESTS OF AMICI

INTRODUCTION

ARGUMENT

THE DECISION WEAKENS ALL THE INCENTIVES AUTHORS
NEED TO CREATE PUBLISHABLE WORKS

• A. Most Writers Whose Works are Likely to Appear in Coursepacks Expect and Rely Upon Payment of Compensation for Reuse and Copying of their Writings
• B. The Decision Weakens Non-Monetary Incentives to Write

CONCLUSION

Harper & Row, Publishers, Inc v. Nation Enters.,
471 U.S. 539 (1985) . . . . . . . . . . . . . . . . . . . . . . . Page 6

Mazer v. Stein,
347 U.S. 201(1954) . . . . . . . . . . . . . . . . . . . . . .Page 6

Sony Corp. v. Universal City Studios. Inc.,
471 U.S. 539, 558 (1985) . . . . . . . . . . . . . . . . . . . . . . . . Page 6

Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Paul Aiken, Photocopy Royalty Collection, Authors Guild
Bulletin, Summer 1995 . . . . . . . . . . . . . . . . . . . . Page 10

The Authors Registry Takes Off, Authors Guild Bulletin,
Fall 1995 . . . . . . . . . . . . . . . . . . . . Page11

John Blesso, At Long Last Authors Get an ASCAP of Their Own,
Authors Guild Bulletin, Summer 1995 . . . . . . . . . . . . . . . . . . . . Page11

Contemporary Authors, (New Revision Series ed.,
Gale Research 1994) . . . . . . . . . . . . . . . . . . . . Page12

Contemporary Authors, (First Revision Series ed.,
Gale Research 1975) . . . . . . . . . . . . . . . . . . . . Page12

Paul William Kingston & Jonathan R. Cole,
The Wages of Writing (1986) . . . . . . . . . . . . . . . . . . . . Page10

Arthur J. Rosethal, University Press Publishing, in The Business of
Book Publishing: Papers by Practitioners
344 (Elizabeth A. Geiser ed. 1985 . . . . . . . . . . . . . . . . . . . . Page13

Marilyn & Tom Ross, The Self-Publishing Alternative,
Authors Guild Bulletin, Spring 1995 . . . . . . . . . . . . . . . . . . . . Page14

Book Publishing, in Standard & Poor's Industry Surveys,
M26 (July 20, 1995 . . . . . . . . . . . . . . . . . . . . Page14

Thomas D. Setz, Melvin Simensky & Patricia Acton,
Entertainment Law (1991) . . . . . . . . . . . . . . . . . . . . Page10

Louis L. Snyder, New CCC Service to Collect Fees for
Academic Copying, Authors Guild Bulletin, Fall 1992 . . . . . . . . . . . . . . . . . . . . Page10

Louis L. Snyder, The Copyright Clearance Center: A
Potential ASCAP for Book Authors, Authors Guild Bulletin,
Spring/Summer 1987 . . . . . . . . . . . . . . . . . . . . Page10

Samuel S. Vaughan, The State of the Heart, in The
Business of Book Publishing: Papers by
Practitioners 1 (Elizabeth A. Geiser ed. 1985) . . . . . . . . . . . . . . . . . . . . Page13

Amicus curiae the Authors Guild, Inc. is a non-profit incorporated trade association that, together with the Dramatists Guild, Inc., constitutes the Authors League of America, Inc. Amici curiae the American Society of Journalists and Authors, the Text and Academic Authors Association, Inc. and the Authors Registry, Inc. are also non-profit incorporated trade associations. These organizations have no affiliates or subsidiaries. The more than 8,000 members of the Authors Guild, the Text and Academic Authors Association, and the American Society of Journalists and Authors, and the more than 50,000 registrants in the Authors Registry include academic writers, textbook authors, novelists, poets and journalists. While the names of the members and registrants are too numerous to list here, none of the parties to the litigation are members of the amici organizations.

The Authors Guild, Inc. (the "Guild"), founded in 1912, is a national non-profit association of aImost 6,800 professional, published writers of all genres. The Guild counts journalists, historians, biographers, and other writers of nonfiction and fiction as members. Twenty-three percent (1560) of its membership identifies itself primily as academic or textbook authors. Guild members have won Pulitzer and Nobel Prizes, National Book Awards and many other awards and prizes.

The Guild works to promote the professional interests of authors in various areas, including copyright, freedom of expression and taxation. In the area of copyright, the Guild has fought to procure satisfactory domestic and international copyright protection and to secure fair payment of royalties, license fees and non-monetary compensation for authors' work. Guild attorneys annually help hundreds of members negotiate and enforce their publishing contracts.

In exchange for licensing publishing rights to their works, Guild members, and most authors, receive advances, royalties and license fees from their publishers. This arrangement applies whether the work is "mainstream" or "academic." Therefore, the issues presented in this case are extremely important to the members of the Authors Guild, their publishers and most other writers and publishers.

The Text and Academic Authors Association, Inc. (the "TAA") is a professional association representing approximately 625 text and academic authors throughout the United States. Primarily an organization of college textbook authors, TAA also includes elementary and secondary textbook authors, software creators and authors of scholarly journal articles. The organization is dedicated to the protection of the creators of intellectual property at all levels.

As scholars and educators, members of the TAA are vitally concerned with the dissemination of knowledge and the sharing of ideas. As creators of intellectual property, TAA members believe this goal is best achieved by allowing authors just compensation for their creative intellectual endeavors. Authors spend countless hours, indeed years, creating, writing and integrating knowledge into educationally appropriate forms including texts, case studies and scholarly commentary. When these works are judged to be of high quality and pedagogical value, they are placed for sale on the marketplace by publishers. In addition to the valuable non-monetary rewards of publication by established academic publishers, the authors receive royalties and other fees from their publishers. Many TAA authors find such revenue to be a substantial part of their income. TAA thus believes royalties and permission fees provide strong incentives to write and publish educational materials.

The American Society of Journalists and Authors, Inc. (the "ASJA") is a nationwide organization of independent nonfiction writers. Founded in 1948, the ASJA includes more than 1,000 leading freelance writers of magazine articles, trade and academic works and other nonfiction works who have met the ASJA's standards of professional achievement. More than 20% of ASJA members (206) are textbook or academic authors. The ASJA has brought leadership to the publishing community by establishing high professional standards and encouraging the pursuit of excellence in nonfiction writing. The ASJA takes strong stands against practices likely to diminish the quality or quantity of information available to the public, and it maintains continuing vigilance against encroachments on independent writers' rights and freedoms by government, industry or individuals. Its Contracts Watch newsletter reports regularly on contract negotiations between writers and publishers over economic and other terms.

ASJA members earn their livelihoods through their writing. Their work covers important issues in business, science and medicine, travel, government and history -- and is thus likely to be included in college "coursepacks." Fees to ASJA members for re-sale and re-use of their work provide a substantial portion of their income. This case is, therefore, crucial to the interests of ASJA members.

The Authors Registry, Inc., (the "Registry") is a non-profit organization created in May 1995 to assist authors of all genres in collecting royalties for the distribution of their work through photocopying, electronic transmission and other means. In the first few months following the Registry's creation, over 50,OQO authors, through their agents or professional organziations (including TAA), agreed to register with the Registry's central database. Based on a recent survey conducted by Registry participants representing over 20,000 writers, more than 20% of the Registry's authors identify themselves as textbook and academic writers.

The Registry was formed by the Authors Guild, the ASJA and others in response to evidence that authors and publishers in the United States collectively lose over $1 billion in revenue per year as a result of uncompensated photocopying, and to the rapid development of other technologies which can greatly increase unauthorized copying and re-use. Authors' livelihoods depend substantially on the collection of proceeds from subsidiary uses of their work after first publication. Unauthorized secondary usage damages the entire market for the authors' work. The decision on plaintiffs-appellees' petition will thus directly impact the rights and the livelihoods of these 50,000 authors, including the thousands of textbook and academic writers who joined the Registry to get paid for secondary uses of their work.

For the foregoing reasons, the above amici, (collectively, the "Authors Groups") respectfully submit this motion for leave to file and brief in support of plaintiffs-appellees' petition, and for writers, publishers and readers, who have a profound stake in this case.

This case is one of monumental importance to authors, from scholars to novelists, journalists to scientists, throughout the nation. The holding of the divided panel that a for-profit copyshop may manufacture and sell students coursepacks" containing published excerpts of up to 30% of an original work, without obtaining a license to do so, astonishes and alarms the Authors Groups. Never before have the Guild, TAA and ASJA joined as amici in a case. We unite to express our certainty that the decision at issue is both wrong and harmful, and that it fails not only to analyze properly the four statutory "falr use factors," but also mistakenly concludes that elimnating permissions for coursepacks enhances the incentives for authors to write.

We strongly agree with plaintiffs-appellees' arguments that the panel majority failed to apply long-standing Supreme Court precedent to its analysis of each of the statutory fair use factors, and we believe proper analysis of the factors must lead to reversal of the majority decision. The Authors Groups write specifically to address the "additional factor" of the "incentive to create", which the majority used to justify withholding permission revenue from authors and their publishers. The thousands of authors we represent, including thousands of text and academic authors, cannot and do not write without the incentives of compensation and their publishers' support. The holding undermines the strength of both these crucial incentives.

The underlying policy of our copyright laws has always been to promote the public welfare through private market incentives for creators. As the Supreme Court has repeatedly observed:

The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance the public welfare through the talents of authors and inventors in science and useful arts.

Mazer v. Stein, 347 U.S. 201, 219 (1954). Accord: Harper & Row. Inc. v. Nation Enterprises, 471 U.S. 539, 545-46 (1985); Sony Corp. of America v. Universal City Studios, 464 U.S. 417, 429 (1984). Congress effectively provided the incentive of "personal gain" to authors by giving them limited monopoly rights to their work and the ability to market those rights. Thus, Section 106 of the Copyright Act grants authors exclusive rights, inter alia, to reproduce, distribute, and prepare derivative works based upon, their copyrighted work, and to license those rights to others.

The incentives instilled by copyright law play a crucial role in publishing, whether or not the subject marter is academic. Authors create valuable works and publishers sell the works to generate revenue, or, at times, for non-monetary reasons. Authors and publishers are thus interdependent -- authors provide the talent, knowledge and skill essential to creation of the work, and publishers provide the means and expertise to publish, advertise, sell and distribute ihe work.

In publishing agreements, including those covering "educational" books, authors license some of their exclusive rights to publishers in exchange for payment such as advances, royalties and license fees, and for value added by the publisher in the form of editorial assistance, production, distribution and publicity. This ability to license certain rights constitutes the incentives -- both monetary and non-monetary -- for authors to produce valuable works. These incentives are the cornerstone of the academic and non-academic publishing industries.

The Authors Groups believe the panel majority's holding significantly threatens both the monetary and non-monetary facets of this incentive and impedes the "progress of science and the arts" promoted by copyright. The majority's view of authors' incentives to write ignores the teaching of the Supreme Court:

We agree . . . that copyright is intended to increase and not to impede the harvest of knowledge. But we believe [that in finding fair use, court] 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.

Harper & Row, 471 U.S. at 545-46. The majority's astonishing statement that "MDS's use of the copyrighted works without licenses appears to provide the authors with incentive to create new works, thereby advancing the progress of science and the arts, rather than to discourage them from doing so" (Op. at 20) has no logical or legal basis. The Supreme Court disagrees with that reasoning:

The rights conferred by copyright are designed to assure contributors to the store of knowledge a fair return for their labors. . . . [This] limited grant is a means by which an important public purpose may be achieved. It is intended to motivate the creative activity of authors and inventors by the provision of a speeial reward.... The monopoly created by copyright thus rewards the individual author in order to benefit the public. [citation omitted].

Harper & Row, 471 U.S. at 546. Like most people, authors need money to live and work. The Authors Groups' members take a great interest in how the money that represents the fruits of their labors is collected and distributed. Contrary to the majority's insupportable assertion, almost all authors, including academies, want to maximize financial gain from sales of their work. What else could account for the immediate success of the Authors Registry, in which groups and agencies representing over 50,000 authors are registered for collection, accounting and payment of royalties and fees? The fact that this case involves copying for university students does not change this reality. Well over 10% of the Registry's listed authors are academic and textbook writers. See Harper & Row, 471 U.S. at 546 (principle of rewarding individual authors in order to benefit the public "applies equally to works of fiction and nonfiction").

Even accepting that some minority of authors whose works might appear in coursepacks prefer that copyshops profit from their labors instead of their publishers and themselves (Op. at 19), the majority's assumption that MDS's activity "does not deprive authors and inventors of the rewards that the record indicates authors value, such as recognition" (Op. at 20) cannot withstand scrutiny. The charging of permission fees and the author-declarants' professed "professional and personal reasons" for writing are far from mutually exclusive. In fact, permission fees, which are shared by publishers and authors, make these "professional and personal" incentives possible by allowing publishers to maintain their current levels of publishing activity.

A. Most Writers Whose Works are Likely to Appear in Coursepacks Expect and Rely Upon Payment of Compensation for Re-use and Copying of Their Writings.

Like the "more than one hundred authors" whose declarations the majority credited (Op. at 19-20), the thousands of members of the Authors Guild, the TAA and the ASJA write for a variety of reasons. Few writers, however, can ignore potentially lucrative sources of income from their work. A study completed in 1981 found that the average writer earns less than $5000 a year from his profession, with only ten percent of writers earning more than $45,000.[FN 1] While the average writer's income has increased over the past 15 years, it is still remarkably low. The average Authors Guild member earns less than $25,000 a year writing.

This stark financial reality leads writers to fear widespread unauthorized dissemination of their works by photocopying and electronic reproduction. Indeed, for the past ten years the Authors Guild has regularly reported to its members on the threat such unauthorized reproduction poses to authors' copyrights and income. See, e. g., Aiken, Photocopy Royalty Collection, Authors Guild Bulletin, Summer 1995, at 7; Snyder, Copyright Clearance Center: A Potential ASCAP for Book Authors, Authors Guild Bulletin, Spring/Summer 1987, at 19; Snyder, New CCC Service to Collect Fees for Academic Copying, Authors Guild Bulletin, Fall 1992, at 5.

So great is authors' alarm over the photocopying situation that they formed the Authors Registry, a licensing fee collection organization. At the Registry's founding last spring, Authors Guild President Mary Pope Osborne described the extensive problem of unauthorized photocopying:

Unauthorized photocopying of books and magazines seems harmless, until you realize the scale of the infringement. . . . Reasonable estimates place the revenue lost to illegal photocopying at one to two billion dollars a year in the United States. At a time when an increasing number of freelance writers are finding that this career no longer pays a living wage, we cannot afford to continue to ignore that lost income.

Blesso, At Long Last Authors Get an ASCAP of Their Own, Authors Guild Bulletin, Summer 1995, at 7. So far, organizations and agencies representing over 50,000 authors have echoed that concern over the collection and payment of their fees by signing on to the Registry. The Authors Registry Inc. Takes Off. Authors Guild Bulletin, Fall 1995, at 10.

While individual permission checks to individual authors might seem a "mere pittance" to the panel majority (Op at 20), they do not tell the whole story. One author's profit from a single sale of his book might not look impressive either. Add up the total number of book sales, however, and the author's profit can tally several thousand dollars. Likewise, the insignificance of an individual author's profit from the grant of one photocopying license belies the potential income for that author in this market. Almost all publishing contracts entitle authors and publishers to an even split of photocopying income. Authors thus almost certainly earned some $62,500 in peniission fees from St. Martin's Press alone in fiscal 1992. (See Pls.-Appellee's Br. at 33). A sum this large is not a "mere pittance": it can mark the difference between a successful writing career and an unsuccessful one.

Further, the Authors Groups submit that the view of their thousands of members -- that monetary compensation does matter - more aceurately reflects the opinion of writers whose works appear in coursepacks than do the boilerplate declarations chosen by the defendant copyshop. The majority itself recognizes that the nature of coursepack material necessarily includes writers in the mainstream of their respective disciplines, widely read and reviewed in the popular market (See Op. at 2). Of the seven authors published by plaintiffs whose works are in issue here, not one could be classified as a writer secluded in academia's ivory tower. All seven published a number of books, at least three had their works issued in paperback (usually a sign of a profitable book), Randy Roberts twice was nominated for a Pulitzer Prize and Walter Lippmann was a leading political commentator of this century. See Contemporary Authors (New Revision Series ed., Gale Research 1994); Contemporary Authors (First Revision ed., Gale Research 1975).

The writers most directly affected by this decision, therefore, are hardly esoteric intellectuals whose writings have little interest outside the classroom. Rather, these are the writers who struggle to earn a living from their craft, whose concern over lost income moved them to create the Authors Registry, and who can ill afford to turn their back on the opportunity to profit from their work -- no matter how small the profit might be for a particular author at a particular time - if they want to continue writing.

B. The Decision Weakens Non-Monetary Incentives to Write.

Permission fees, especially in educational publishing, largely pay for the professional benefits of "wide dissentnation" which defendants' declarants stated they desire more than money. Given the state of the publishing industry, especially the educational market, we believe that publishers, which rely on permission fees, will be forced by this holding drastically to curtail their publishing activities. Authors will feel the harmful results directly in the form of fewer titles published and smaller investments in individual titles. "[U]niversity presses, once profit proof, have to pay their way these days. . . . Without at least a moderate profit, a publisher can do nothing. Unless there are salable books to pay the rent. . . a house cannot publish others' books, whether literature or 'popcorn.'" Samuel S. Vaughan, Vice President of Doubleday, The State of the Heart , The Business of Book Publishing: Papers by Practitioners, 5 (Elizabeth A. Geiser, ed. 1985). Accord, Arthur J. Rosenthal, Director, Harvard University Press, University Press Publishing, The Business of Book Publishing.

The dollar value of sales of college texts and course materials rose a mere 1.6% in 1994, compared to increases of 13% in adult trade, 9.6% in professional books and 6% in paperback sales for the same year. Book Publishing, in Standard & Poor Industry Surveys, M26 (July 20, 1995). By depriving authors and publishers of an important source of revenue, the majoriry decision will necessarily lead to the publishing of fewer works. Cf., Selz, supra, at § 3.08.

Unless authors can assume the risk and expense of self-publishing they need publishers to print, bind and disseminate their work in accessible form. See generally, Marilyn & Tom Ross, The Se!f-Publishing Alternative , Authors Guild Bulletin, Spring 1995, at 24, 26. Most authors accept some level of editorial input from their publishers. They also need the publicity and marketing, market study and targeting provided by publishers, even if they do not need compensation. And, perhaps most crucial to authors' non-monetary incentives to write, publishing companies distribute the books.

Ironically, then, the majority's implicit desire to support higher education is ill served by allowing unrestricted copying of coursepacks by copyshops. The ready availability of these works to the academicians who choose them for coursepacks depends on the continued survival of the publishers who fmd works suitable for publication, nurture the creative process by providing needed editorial services and compensation and get the books printed and distributed. Diminishing publishers' income by letting copyshops take their product without paying will weaken the very source of communication the majority seeks to enhance.

Authors devote labor and talent to produce writings for the public's enlightenment and enjoyment. The incentive to write is already undermined by the bleak financial reality facing authors. If for-profit copyshops are allowed to engage in systematic, wholesale copying of large portions of authors' work, the monetary blow will further hinder the profession. Even if financial considerations do not matter to certain authors, the panel's ruling would curtail the dissemination of creative work by making it economically implausible for academic publishers to maintain their current levels of publishing. The majority decision thus harms the interests of both authors and the public, the two groups the Copyright Act was created to protect.

For these reasons, and on behalf of over 50,000 authors of all genres, including thousands of text and academic writers, the Authors Groups urge the court to grant plaintiffs-appellees' petition.

OF COUNSEL:

Kay Murray
Ed McCoyd
Carol R. Williams
330 West 42nd Street
New York, NY 10036
(212)563-5904

February 26, 1996

Footnote 1

Thomas D. Selz, Melvin Simerisky & Patricia Acton, Entertainment Law § 3.02 (1991).

This is to certify that a copy of the foregoing has been sent by ordinary United States mail, postage prepaid to Ronald S. Rauchberg, Jon Baumgarten and Herman Goldsmith, Proskauer Rose Goetz & Mendelsohn, 1585 Broadway, New York, NY 10036; James E. Stewart and J. Michael Huget Butzel Long, P.C., 150 West Jefferson, Detroit, Michigan 48226; L. Ray Patterson, School of Law, University of Georgia, Athens, Georgia 30602-6012, Susan M. Kornfield, David G. Chardavoyne, Louise-Annette Marcotty and Lydia Pallas Loren, Bodman, Longley & Dahling, 110 Miller, Suite 300, Ann Arbor, Michigan 48104, and Carole F. Handler, Alschuler, Grossman & Pines, 2049 Century Park East, 39th Floor, Los Angeles, CA 90067 on this 26th day of February,1996.