UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_____________
No. 94-1778
_____________
PRINCETON UNIVERSITY PRESS, MACMILLAN,
INC., and ST. MARTIN'S PRESS, INC.,
Plaintiffs-Appellees,
v.
MICHIGAN DOCUMENT SERVICES, INC.,
and JAMES M. SMITH,
Defendants-Appellants.
_____________________________________________
DEFENDANTS-APPELLANTS' OPPOSITION TO
MOTIONS FOR LEAVE TO FILE BRIEFS
AMICUS CURIAE OF THE COPYRIGHT
CLEARANCE CENTER, INC., THE ASSOCIATION
OF AMERICAN UNIVERSITY PRESSES, INC.,
AND THE AUTHORS GUILD, INC., ET AL.
_______________________________________________
Susan M. Kornfield (P41071)
David G. Chardavoyne (P27034)
Lydia Pallas Loren (P47644)
BODMAN, LONGLEY & DAHLING LLP
Attorneys for Defendants-Appellants
110 Miller, Suite 300
Ann Arbor, Michigan 48104
(313) 761-3780
March 2, 1996
Defendants-appellants oppose the motions for leave to file
briefs amicus curiae of the Copyright Clearance Center
("CCC"), the Association of American University Presses ("AAUP"),
and The Authors Guild, et al. ("Authors Guild").
This case is about the interpretation of §107 of the
U.S. Copyright Act, and whether the statutory language granting
the right to make a fair use of a copyrighted work, "including
reproduction in copies," for purposes such as "teaching (including
multiple copies for classroom use)" means that students and
professors who use the copies for purposes such as teaching,
including multiple copies for classroom use, may direct a
third party to make the copies for them, for a service fee
that is one half that charged at the university library.
The briefs of the proposed amici should not be accepted
for filing in this appeal. The proposed participants are biased,
and their briefs are an attempt to put evidence in the record
that is untrue, unsworn, not subject to cross-examination,
not relevant, and not material to this case. These briefs
merely restate plaintiffs legal arguments and will not aid
the Court in its analysis of the petition for rehearing or
the resolution of the legal issues, and would unfairly prejudice
defendants.
I.The Proposed Participants are Biased and Fail to Meet
the Criteria for Amicus Curiae.
The proposed participants CCC and AAUP are merely other
facets of the Association of American Publishers (AAP), the
trade group coordinating and directing this litigation. (Exhibit
1). The CCC is not an appropriate amicus curiae because
it was created by the publishing industry to collect royalties
for publishers. The CCC's board of directors consists of no
less than nine directors who are publishing industry executives,
including Edward Stanford of plaintiff St. Martin's Press,
Sanford Thatcher, an AAUP committee chair, and Robia Davis
Miller, of the Authors Guild. (See Exhibit 2). The CCC is
also biased because the CCC stands to directly benefit financially
by a ruling affirming the district court's decision; thus,
its offer to participate must be denied. If "the proffer comes
from an individual with a partisan, rather than an impartial
view, the motion for leave to file an amicus brief is to be
denied." Leigh v. Engle, 535 F.Supp. 418, 420 (N.D.Ill.
1982).
The AAUP is also an advocate of the publishers, and is thus
not an appropriate amicus curiae. Plaintiff Princeton
University Press is a member of the AAUP, and the membership
of the AAUP and the AAP overlaps significantly. (Compare Exhibit
3, with AAUP membership list submitted with its brief). The
AAUP is merely a sub-set of the membership of the AAP.
An amicus curiae is to be a friend of the court, not
a friend of a party. Leigh, 535 F.Supp. at 420. "When
the party seeking to appear as amicus curiae is perceived
to be an interested party or to be an advocate of one of the
parties to the litigation, leave to appear amicus curiae
should be denied." Liberty Lincoln Mercury, Inc. v. Ford
Marketing Corp., 149 F.R.D. 65, 82 (D.N.J. 1993). As a
result of their bias in favor of these plaintiffs and the
AAP, the CCC and AAUP are not proper amici curiae.
II.The Briefs Contain Statements that are Not True, are
Not in the Record, and are Not Relevant.
Perhaps the most significant failing in all of the proposed
amicus briefs is that they are not relevant and not
material to this case in light of the critical concession
of the plaintiffs: the publishers do not contend that it would
have been an infringement of their copyrights for the professors
to excerpt and copy the works at issue and to charge students
the per-page copy fee for the copying, without asking
any permission and without paying any fees. Indeed,
the publishers conceded at oral argument that the professors
and students may be able to claim a fair use as to their use
of these very excerpts, copied by MDS. (Oral Argument Hearing
audiotape, argument by Mr. Rauschberg). Any focus on the permissions
practices of the CCC, and the royalty demands of the AAUP
and the Authors Guild, does not aid this Court in a determination
of whether the professors and students may employ the services
of MDS to copy those materials they could have copied themselves.
When participation of a potential amicus curiae "will
not aid in consideration of the relevant issues, leave to
appear has been denied." Liberty Lincoln Mercury, 149
F.R.D. at 82.
A second failure of these briefs is that each claims that
this case is about "coursepacks" and whether "coursepacks"
should be legal. This case is not about the legality
of coursepacks; this case is about six excerpts from
six separate works which were excerpted by professors
and used by students in connection with their course activities.
Neither the plaintiffs in this case, nor certainly any proposed
amici, have any legal standing to complain about materials
in which they do not own copyright, or in materials that happen
to be bound together for the sake of convenience for the students.
There is nothing in the U.S. Copyright Act that transforms
fair use into infringement by the application of glue and
a cover page.
A. CCC's Proposed Brief.
CCC attempts to "help" this Court by offering to "attest"
to statements and by alleging that it is "aware of" certain
"facts." (Proposed brief pp. 3, 8 n1). Their offerings, however,
are not in the record, are untrue, are not sworn to, are not
subject to cross-examination or opposing proof by the defendants-appellants,
and are irrelevant in light of the record before this Court
and Supreme Court precedent.
First, plaintiffs failed to put such alleged "facts" in the
record because those "facts" do not exist. The assertions
contained in an amicus curiae cannot make up for plaintiffs'
inability to create a factual record.
Second, the facts in the record show that CCC's assertions
of an efficient permission system are false. Defendants submitted
hundreds of affidavits showing that the publishers' permission
system is a disaster: requests are ignored and not responded
to in a timely manner, fees assessed are unreasonable and
unrelated to the number of copies made, persons requesting
permission are treated unequally, permission for the same
work must be repeatedly requested semester after semester,
and unreasonable and unnecessary conditions are attached to
the granting of permission. (R.54 Decl. Ternes ¶8, Joint
Appendix ("JA") p. 1045; R.61 Ex.A , JA pp. 1203-1288, and
Ex.P, JA p. 1443). The publishers' permissions scheme has
driven companies out of business (R.54 Decl. Ternes ¶¶7-11,
JA pp. 1043-1046).
Trying to introduce "evidence" through an amicus, and false
"evidence" at that, is an entirely inappropriate use of the
privilege of an amicus brief. Had plaintiffs offered
such evidence at the appropriate time to the trial court,
defendants would have had the opportunity to show it was false.[
FN 1 ]
Third, the U.S. Supreme Court has rejected as irrelevant permission
practices and fees if the use is otherwise a fair use. See
Campbell v. Acuff-Rose, 114 S.Ct. 1164, 1173-1174 &
n.18 (1994).[ FN 2 ] Thus, all of the assertions
and opinions from the CCC regarding its permissions practices
and fees cannot aid this Court in determining whether professors
and students may employ the services of a commercial copy
shop to make their fair use copies for them.
Fourth, even if the Court somehow found the permissions system
relevant, the CCC does not assert that permission for the
six excerpts at issue in this litigation could be obtained
from the CCC. Therefore, whether or not the CCC's system is
efficient is irrelevant to the determination of the issue
in this case.
B. The Authors Guild's Proposed Brief.
The Author Guild attempts to dispute the uncontroverted affidavits
that defendants submitted concerning incentives for creation
of written works. The sworn declarations in the record
show that authors want their works to be excerpted by professors
and students in coursepacks when a professor has already decided
to not assign the book for class, and that authors object
to the publishers' barriers to such use. (R.69 Ex.B, Decl.
of 51 Instructors and Professors, JA pp. 2585-2790; R.61 Ex.A,
Decl. Kinder, ¶6-7, JA pp. 1253-54; Dawson ¶7-8,
JA pp. 1234-35; Lieberman ¶8, JA pp. 1240-41; Lofland
¶4, JA pp. 1284-85; Brown ¶¶5-6, JA p. 1265).
Roger Brown, the author of one of the works at issue,
believes that the use made of his work was a fair use, and
he was dismayed that Macmillan brought this suit. (R.61 Ex.A,
Decl. Brown ¶3, JA p. 1264). He believes Macmillan is
using his original copyright in a manner contrary to the purpose
of the copyright laws. He and at least 160 authors view the
position of the publishers as harmful to education (R.69 Ex.B,
JA pp. 2585 2790, R.62 Ex.B, JA pp. 1457-1860) and as a disincentive
to create more works of scholarship. (E.g., R.61 Ex.A,
Decl. Lieberman ¶8, JA pp. 1240-41). The Authors Guild
brief, far from arguing about evidence in the record,
merely contains arguments about what the trade groups think
their members feel, with no reference to any sworn affidavits
or statements of authors.
Second, in protesting the hardship of their life and their
meager compensation (a grievance they should take to their
publishers), they admit their real agenda: they should get
paid for every use (and even "re-use") of a work. They are
oblivious to the fact that Congress and the U.S. Supreme Court
have flatly rejected such a position. For example, copyright
owners do not get paid when books are resold (17 U.S.C. §109),
or for uses that are fair (17 U.S.C. §107), or for certain
uses by libraries and archives (17 U.S.C. §108). Because
they fail to recognize the limits upon their statutory rights,
and to offer an explanation as to how those limits should
be evaluated in light of the facts of this case, their proposed
brief will not aid the Court in its determination of whether
the Court correctly analyzed this case.
C. The AAUP's Proposed Brief.
The AAUP brief does not even pretend to do anything other
than reargue the plaintiffs' case, plead for more money, and
predict impending disaster if the panel's opinion is an accurate
analysis of the law. It offers nothing as a proposed amicus.
The AAUP brief merely adds to the cacophony of voices insisting
that they are somehow entitled to all revenues that
may be made from making copies and accusing MDS of theft because
MDS makes copies of materials for people who are permitted
to make their own copies.
The AAUP neglects the fact that this case is about six excerpts
and argues a legally irrelevant contention: whether coursepacks
replace books. It veers off into the abyss of discredited
legal arguments -- criticizing the majority for not requiring
a "transformative use," forgetting that a unanimous Supreme
Court rejected that argument for the making of multiple copies
for classroom use, Campbell, 114 S.Ct. at 1171 n.11;
overlooking that pesky section of the Copyright Act that states
a fair use of a copyrighted work, including the making of
multiple copies for classroom use, is not an infringement;
relying on Texaco when the Second Circuit pointed out
that the case had nothing to do with educational fair use,
Texaco, 913 F.3d at 916; relying on the old "heart
of the work" argument when the uncontroverted testimony here
is that there is no such heart and if there were, the heart
was not used (R.61 Ex.A, Decl. Dawson ¶4, Kinder ¶3,
Lieberman ¶5); predicting the end of publishing if the
statutorily-authorized practice of making multiple copies
for classroom use became widespread, when coursepack preparers
had been providing these services for two decades without
any demands for payment of permission fees;[ FN
3 ] and characterizing the making of multiple copies for
classroom use as a "derivative work" (in an attempt to exclusively
control such copying) when copyright law requires additional
authorship for a work to be derivative (See 17 U.S.C.
§101).
III. Permitting the CCC, the AAUP, and the Authors Guild
to File Amicus Briefs Would Unduly Prejudice the Defendants,
is Inappropriate, and Should Not be Allowed
The plaintiffs-appellees were chosen by the AAP, whose
membership includes over 250 publishing entities, to represent
the interests of all publishers in this litigation. The attorneys
representing the plaintiffs-appellees are experienced copyright
attorneys who also represented the named plaintiffs in both
the Kinko's and Texaco litigation. These attorneys
know the appropriate mechanisms for bringing facts and arguments
to the attention of the Court. They know that a failure to
introduce appropriate, relevant, admissible evidence
at the appropriate time, and the tactical decision to make
or avoid making certain arguments, can result in a victory
for the defendants. Plaintiffs were aware of the sworn declarations
submitted by the defendants to the trial court, but were unable
to rebut those affidavits. Now that the panel opinion has
highlighted the deficiencies in plaintiffs' factual record,
their legal arguments, and their legal strategy, the proposed
amicus curiae briefs attempt to make up for these deficiencies
through unsupported, unsworn and untrue assertions about permissions
systems and incentives for authors, reargument of plaintiffs'
case, and the types of mischaracterizations of the law that
have plagued this case since 1992.
Additionally, the amicus curiae briefs put the defendants
at a clear disadvantage. It is quite clear that the amicus
briefs have been coordinated to expand on the number of pages
permitted for a petition for rehearing. The AAUP's proposed
brief focuses its argument on the first and third fair use
factors, the CCC's proposed brief focus on the fourth factor,
and the Authors Guild's proposed brief focuses on the second
fair use factor and the additional factor considered by this
Court. This division of labor effectively expands the pages
in support of a petition for rehearing from 15, the limit
for such a petition, to 53 pages! Defendants have been requested
to respond to the petition for rehearing en banc with a filing
of no more than 10 pages. Because of this page limitation,
defendant will be limited in its ability to respond to the
untrue, unsworn, irrelevant and immaterial assertions, and
the biased arguments contained in the proposed amicus
briefs.
The din of an association of university presses purporting
to represent the view of all university presses, of authors
groups purporting to represent all authors, and of the permissions
departments of the AAP outsourced through the CCC, cannot
be allowed to drown out the sworn, verified, uncontested facts
in this record and the express language of the Copyright
Act authorizing the making of multiple copies for classroom
use.
In order to ensure fair consideration of the petition for
rehearing with suggestion for rehearing en banc, the
motions by the CCC, the AAUP, and the Authors Guild, should
be denied and the proposed briefs rejected.
Respectfully Submitted,
BODMAN, LONGLEY & DAHLING
Date: March 2, 1996
______________________________
Susan M. Kornfield (P41071)
David G. Chardavoyne (P27034)
Lydia Pallas Loren (P47644)
Attorneys for Defendants-Appellants
110 Miller, Suite 300
Ann Arbor, Michigan 48104
(313) 761-3780
Footnotes
Footnote 1 For example,
the CCC has admitted that, "the mechanism for the negotiation
of a photocopy license fee is often not even in place. . . .
Nor can it be said that CCC's current licensing programs have
adequately met the market's needs." American Geophysical Union
v. Texaco, 60 F.3d 913, 938 (2d Cir. 1994) ("Texaco").
Footnote 2 As the publishers
have admitted, they did not seek to control academic fair
use until after the decision in Basic Books, Inc. v. Kinko's
Graphics Corp. 758 F. Supp. 1532 (S.D.N.Y. 1991) ("Kinko's").
(See CCC brief, p. 2). Prior to the Kinko's decision, coursepack
preparers around the country operated their business in the
same manner as does MDS (R. 54 Decl. Ternes ¶2-6, 15, JA pp.
1042-44, 1048, R.54 Decl. Smith ¶16, 21, JA pp. 1056, 1058-59).
There was no change in the Copyright Act or any Supreme Court
precedent.
Footnote 3 The AAUP
asserts that without permission fee revenues, fewer books
will be published and disseminated. However, as with all of
the assertions contained in the proposed briefs, there is
no evidence that this is true. Indeed the number of books
in print steadily increased during the entire period in which
publishers were not demanding permission fees for excerpts
contained in coursepacks and use of coursepacks was already
widespread. |
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