SONY CORPORATION OF AMERICA, ET AL., Petitioners, v. UNIVERSAL CITY STUDIOS, INC. AND WALT DISNEY PRODUCTIONS, Respondents.

No. 81-1687

OCTOBER TERM, 1981

May 7, 1982

BRIEF AMICUS CURIAE OF THE AMERICAN LIBRARY ASSOCIATION IN SUPPORT OF THE PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.

NEWTON N. MINOW *, MARY M. HUTCHINGS, One First National Plaza, Chicago, Illinois 60603, (312) 853-7000, Attorneys for Amicus Curiae, American Library Association

* Counsel of Record

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INTEREST OF AMICUS CURIAE

The American Library Association ("ALA"), by its attorneys, respectfully files this brief Amicus Curiae in support of Sony Corporation of America's ("Sony") Petition for a Writ of Certiorari. *

* Consent of the parties has been granted. Copies thereof are on file with the Court.

The ALA is the world's oldest and largest library association. Its 39,000 members include libraries, librarians, library trustees and friends and patrons of libraries, representing a wide spectrum of users of copyrighted materials. A principal mission of the ALA and of libraries is to insure that all in our society have access to information under terms that are fair both to copyright owners and copyright users. For this reason, ALA has been in the forefront of copyright law revision throughout its history and was one of the major consultants to the architects of the Copyright Revision Act of 1976. *

* The Association has worked with coalitions of publishers, other copyright owners and copyright users in general to establish voluntary guidelines governing the photocopying of library materials for classroom use and the educational use of off-the-air tapes.

The Ninth Circuit's decision in this case has major implications for libraries and librarians and for the public's right of access to information and entertainment.

First, the Court's holding below that "intrinsic" uses of copyrighted materials cannot be "fair" uses will profoundly affect the ability of librarians to serve their constituencies effectively. Libraries are the critical link in bringing new information technologies to the public at large. Libraries permit the masses to use such technologies otherwise available only to the rich. Thus, many libraries now, and in the future most libraries will, provide patrons with access to videorecorders for "in-library" use. An increasing number of libraries provide off-air tapes of news and other programs for in-library viewing for patrons who are unable to afford their own recorders, and who otherwise would be denied access to broadcast programming. If the decision of the Court of Appeals is not reversed, libraries could be accused of making, or of aiding and abetting, unfair "intrinsic" uses of copyrighted materials. Rapid technological change and the need to strike a reasonable balance between the interests of copyright owners and copyright users make an early national resolution of these issues a matter of great urgency.

Secondly, the Ninth Circuit's holding that "intrinsie" uses of copyrighted materials must be justified by a countervailing social benefit such as the tremendous value of medical research by which the Ninth Circuit distinguished Williams & Wilkins co. v. United States, 487 F.2d 1345 (Ct. Cl. 1973), aff'd by an equally divided Court, 420 U.S. 376, 43 L. Ed.2d 264, 95 S. Ct. 1344 (1975) will seriously affect public access to information and severely constrict the traditional roles of libraries. For example, libraries photocopy articles from journals for patrons when there would not be significant market impact. However, a library could neither predict or know with any degree of certainty whether reproduction of an article for a patron was of sufficient social benefit to satisfy the Court of Appeals' test. A library cannot inquire as to the patron's need and planned use for the requested material, nor can it judge the educational or scientific value of the patron's request without violating long-established ethics of librarianship.

The effect of the Court of Appeals' holding is to create a dichotomy between entertainment and education which will restrict public access to information and constrict the judicially-recognized role of libraries as "a mighty resource in the free market place of ideas." Minarcini v. Strongville City School District, 541 F.2d 577, 582 (6th Cir. 1976).

Finally, the Ninth Circuit's construction of § 108 of the Copyright Revision Act of 1976, 17 U.S.C. § 101 et seq., threatens the fair use rights of libraries and librarians. The Ninth Circuit stated that Section 108 clearly established that Congress did not intend to create a blanket home video recording exemption. However, Section 108 was designed only to grant certain rights to libraries over and above those available under fair use, Section 107, and does not address home recording. The Ninth Circuit's implication that a library's reproduction rights are limited to those available under Section 108 is contrary to the manifest intent of Congress and should be corrected.

In sum, the issues raised by this case are of great national importance to libraries, librarians and users of libraries. For this reason, and because the ALA believes its analysis of those issues may assist this Court in resolving them, ALA respectfully submits this brief as Amicus Curiae.

Summary of Argument

The Ninth Circuit held that only "productive" uses of copyrighted materials could be fair uses under the Copyright Revision Act of 1976, 17 U.S.C. § 101 et seq. This holding is erroneous and in clear conflict with the decision of the Court of Claims in Williams & Wilkins Co. v. U.S., 487 F.2d 1345 (Ct. Cl. 1973), aff'd by an equally divided court, 420 U.S. 376, 43 L.Ed.2d 264, 95 S.Ct. 1344 (1975). The resolution of this conflict and of the questions concerning fair use decided by the Ninth Circuit possesses enormous national importance, particularly for librarians and library users, since the Ninth Circuit's wooden interpretation of the Copyright Act will seriously affect the ability of librarians to serve their patrons and will restrict the public's access to information. In addition, the Ninth Circuit's decision will deprive the copyright law of its flexibility to adapt to new technologies. Rapid technological changes in the information industry and the need to strike a workable, reasonable balance between the interests of copyright owners and copyright users make an early national resolution of these issues a matter of even greater urgency.

Finally, the Ninth Circuit's holding that Section 108 of the Act establishes the Congress' intent not to recreate a blanket home recording right threatens to deprive libraries of their fair use rights and further undermines their ability to adequately serve their patrons.

I. THE HOLDING OF THE NINTH CIRCUIT COURT OF APPEALS THAT ONLY "PRODUCTIVE" USES OF COPYRIGHTED MATERIALS CAN BE "FAIR USES" UNDER SECTION 107 OF THE ACT IS IN ERROR AND IN CONFLICT WITH THE DECISION OF THE COURT OF CLAIMS IN WILLIAMS & WILKINS CO. V. U.S.

The Court of Appeals held that "intrinsic" uses of copyrighted materials cannot be "fair" uses. That holding is in error and in direct conflict with the court's decision in Williams & Wilkins Co. v. United States, 487 F.2d 1345 (Ct. Cl. 1973), aff'd by an equally divided court, 420 U.S. 376, 43 L. Ed.2d 264, 95 S.Ct. 1344 (1975). * There the Court of Claims upheld the applicability of the fair use doctrine to "intrinsic" uses of copyrighted materials. The Ninth Circuit's decision is in obvious conflict with that decision because it holds that an "intrinsic" use cannot be "fair."

* Williams & Wilkins Co. dealt with issues now primarily addressed by Section 108 of the law, and upheld certain institutional photocopying practices.

The Ninth Circuit's holding that fair use must involve "the use by a second author of a first author's work" further conflicts with the clear intent of Congress in Section 107 of the Act to establish a flexible fair use doctrine that can be readily adapted to new technologies, not a wooden principle frozen to the technologies available before 1976. See, H. Rep. 94-1476, 94th Cong. 2d Sess. (1976), p. 66. The legislative history clearly reveals the Congressional intent "to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way." H. Rep. No. 94-1476, 94th Cong. 2d Sess. (1976), p. 66 (emphasis added). Williams & Wilkins held in 1975 that certain intrinsic uses of copyrighted materials by the National Library of Medicine were fair. ** The Ninth Circuit's holding that intrinsic uses cannot be fair narrows the application of the doctrine and thus conflicts with the Congressional intent of the statute.

** In addition, the Register's 1961 Report, cited in the legislative history of Section 107, recognizes some intrinsic uses as fair uses -- reproduction of a part of a work to illustrate a lesson; reproduction by a library of a portion of a work to replace a damaged copy. See H. Rep. No. 94-1476, 94th Cong. 2d Sess. (1976), p. 65.

The Ninth Circuit further held that in any event Williams & Wilkins could be distinguished because of the counter vailing social benefit of the uses of copyrighted materials in that case and the disastrous social consequences of reduced access to the scientific materials there in issue. This holding will seriously inhibit public access to all kinds of information through libraries. Libraries cannot know in advance whether any patron's use of copyrighted materials will be of sufficient social benefit to meet the Ninth Circuit's stringent test and yet if a use fails that test, libraries and librarians could be contributory infringers under the Ninth Circuit's decision. The kinds of materials typically photocopied by libraries or otherwise reproduced for patrons are often for scholarly and research purposes, but there are in practice no lines between information and entertainment as clear as the Court of Appeals is able to discern for purposes of its analysis of this case. The "ordinary" purpose of a television program may be to entertain or to inform -- in either case it may well serve to educate; to generate thought, criticism, comment and scholarship, and to provide the basis and background against which critical thought may take place. Librarians, as the storekeepers of knowledge in all its tangible forms, cannot agree with the Court of Appeals' broad cavalier judgment that:

"the consequences attendant upon reduced consumer control of access do not in any way correspond to the deleterious consequences of reduced access identified by the Court of Claims in Williams & Wilkins Co. "

Universal City Studios, Inc. v. Sony Corporation of America, 659 F.2d 963, 971 (9th Cir. 1981).

The ALA believes that the purposes of the original broadcasts here in issue and of home videorecordings are not the same. The purpose of the first is the commerical distribution of the programming; the second is the non-profit, non-commercial, private use of that same programming. The Court of Appeals has treated home recording as if it were done for the purpose of commercial gain or advantage, and in so doing has established the fair use doctrine as a censor of the kinds of private, non-commercial uses for which an individual or a library may use copyrighted material. It has confused commercial, systematic, multiple copy reproduction with ad hoc private, non-commercial activity and has established a distinction between uses not previously found in the fair use doctrine. Because this confusion will seriously affect libraries' and patrons' rights of access to information, this Court must resolve the important issues regarding fair use presented by this case.

II. THE NINTH CIRCUIT'S DECISION HAS CREATED DOCTRINAL CONFUSION CONCERNING WHETHER FAIR USE RIGHTS OF LIBRARIES ARE IN ADDITION TO SPECIAL LIBRARY RIGHTS UNDER SECTION 108, AND THIS COURT SHOULD CORRECT THIS ERROR BECAUSE THE PUBLIC'S RIGHT OF ACCESS TO COPYRIGHTED MATERIALS DEPENDS ON LIBRARY REPRODUCTION UNDER BOTH SECTIONS 107 (FAIR USE) AND 108.

The Ninth Circuit's holding that Section 108 establishes that Congress did not intend to create a home recording exemption is also of major concern to librarians, libraries, and library patrons because it seriously misconstrues the intent of Section 108. The Ninth Circuit referred to the limitation in Section 108 that requires libraries to distribute taped audiovisual material only by lending and concluded "In light of this cantion with respect to the limited § 108 exemption, it is clear that Congress did not intend to create a blanket exemption for home video-recording...." Id. at 967. This conclusion overlooks the fact that Section 108 grants to libraries and archives open to the public certain rights in addition to those granted under fair use, (Section 107) and was not intended to address private, in-home videotaping. The decision below, if it is allowed to stand, is likely to be construed as a definition of all of a library's reproduction rights, when in fact 108 was meant to allow libraries to engage in certain additional activities, such as inter-library loan arrangements, which may not otherwise be deemed fair use. The Act specifically states:

"(f) Nothing in this section (4) in any way affects the right of fair use as provided by Section 107..."

17 U.S.C. 108(f)(4).

The House report explains:

"Nothing in Section 108 impairs the applicability of the fair use doctrine to a wide variety of situations involving photocopying or other reproduction by a library of copyrighted material in its collections, where the use requests the reproduction for legitimate scholarly or research purposes." (emphasis added)

House Report 94-1476, 94th Cong. 2d Sess. p. 78 (1976).

Thus, Section 108 explicitly recognizes that libraries may have additional fair use rights to reproduce copyrighted works -- in print and in tape form -- for patrons. The House Report specifically notes that although Section 108(h) generally removes musical, graphic, sculptural, motion pictures and non-news audiovisual works from the library reproduction exemption,

"it is important to recognize that the doctrine of fair use under Section 107 remains fully applicable to the photocopying or other reproduction of such works."

Id. at 78.

The public relies on libraries as its primary source of many kinds of information. Economic conditions have placed a great strain on library services, and inter-library loans, networks, photocopying and other forms of resource sharing have allowed libraries to maintain high levels of public service. It is thus vital to the public interest that libraries utilize both Sections 107 and 108 of the Act in fulfilling requests for information and service and that the Ninth Circuit's decision not undermine this access by its misinterpretation of Section 108.

CONCLUSION

National questions of major public importance are presented here. The Ninth Circuit's decision conflicts with the intent of Congress in enacting § 107 of the Copyright Revision Act of 1976 and with the decision of the Court of Claims with respect to the availability of the fair use defense for "intrinsic" uses of copyrighted materials. Also at stake is the nature of libraries' rights under Sections 107 and 108 of the Copyright Revision Act of 1976. A speedy resolution of both issues is needed to protect the public's right of access to information and the vital role of libraries in providing that access. Therefore, the American Library Association respectfully urges this Court to grant the Petition for a Writ of Certiorari to The United States Court of Appeals for the Ninth Circuit.

Respectfully submitted,

NEWTON N. MINOW *, MARY M. HUTCHINGS, One First National Plaza, Chicago, Illinois 60603, (312) 853-7000, Attorneys for Amicus Curiae, American Library Association

* Counsel of Record

Of Counsel SIDLEY & AUSTIN, One First National Plaza, Chicago, Illinois 60603, (312) 853-7000