Oppose Amicus Curiae

No. 94-1778









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

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,

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


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.