Amicus Curiae Brief — Williams & Wilkins Co. v. United States

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MICHAEL ROBAK, JR..CLERK

Supreme Cowt of the Unite yi

October Term, 1973

ete

IN THE

No. 73-1279

THE WILLIAMS & WILKINS COMPANY,

Petitioner,

against

THE UNITED STATES,

Respondent.

BRIEF OF THE MAGAZINE PUBLISHERS

ASSOCIATION, INC., AS AMICUS CURIAE

Aurrep H. Wasserstrom

Attorney for The Magazine Publishers

Association, Inc., as Amicus Curiae

959 Highth Avenue

New York, New York 10019

(212) 586-1300

Lipton, WAssERSTROM & SIEFKEN

Of Counsel

A MT |

TABLE OF CONTENTS

PAGE

Interest of The Magazine Publishers Association, Inc, 1

Br, MINI oo oo eaves oases evsnicpeectccion 3

NI aR ce Ss sad aap RNY OMe arty Seat TY SC 4

IE OE I soot npiotttctitien bein 5

Point I—The importance of this case extends beyond

the interests of the parties .00000000....0.0.cccccceeeeeeeee 5

Point II—The unauthorized copying of copyrighted

periodicals constitutes infiimgement ...................... 9

Point I1I—The Court below erred in concluding that

petitioner’s entire copyrighted articles could be

copied with impunity under respondent’s ‘‘fair

NT I esis oecestgrta eaten adverse ea 11

Point [V—The Court below erred in requiring proof

of serious economic detriment to the copyrightee

Bc Ns a aR alge en ES NN etn etc 12

SRR SORTED CERIN SERRE RET TPA OAIL SI 13

TABLE OF AUTHORITIES

Cases:

Benny v. Loew’s Incorporated, 239 F.2d 532 000000000... 12

Hill v. Whalen & Martell, 220 Fed. 359 ooo... 12

DE Ws a Be I os ave pcan caegrerctsicmenetoprcccorst 7

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PAGE

Robert Stigwood Group Limited v. O’Reilly, 346 F.

I coetonanie 12

A BR, |, GE 10

Rosemont Enterprises, Inc. v. Random House, Inc.,

aires SSS SOUT ie, Ae Sere 12

The Williams & Wilkins Company v. United States,

REI ae ASD eRe pe ed ee 4,8

The Williams & Wilkins Company v. United States,

ee I ooo ag haces rnp deascsesinnecdoacet 3, 4, 5, 6, 9, 11

Statutes:

I as schnendanasnnpeueenin 9, 10

Sk eT I os icandinadcowions 9,11

Other Authorities:

Frankfurter, Some Reflections on the Reading of

|” aE ERE eS Se PO eee 10

James Madison, 43 Federalist Papers .0000.00000000000.......... 7

Nimmer, On Copyright 00.00.0000... occa 12

Project—New Technology and the Law of Copyright:

Reprography and Computers

Schlesinger, Statement to Postal Rate Commission 8,9

Wasserstrom, The Copyrighting of Contributions to

6... 2 2 Bape Ease eee er onan 7,11

IN THE

Supreme Court of the United States

October Term, 1973

No. 73-1279

THe Wiuuams & Witxins Company,

Petitioner,

against

Tue Unirep Srates,

Respondent.

BRIEF OF THE MAGAZINE PUBLISHERS

ASSOCIATION, INC., AS AMICUS CURIAE

Interest of The Magazine Publishers Association, Inc.

The Magazine Publishers Association is a national trade

association founded in 1919 and organized as a membership

corporation under the laws of the State of New York. (For

convenience of reference, The Magazine Publishers Asso-

ciation may sometimes hereinafter be called ‘‘M.P.A.’’).

M.P.A. is presently composed of approximately 130 mem-

bers who publish more than 420 magazines. Such magazines

are distributed in almost all cases nationally throughout

the United States, and are issued at various intervals, such

IED EDEL WHO NIG MOLI A LEED RAIA IES MIE OTOL ee. |

as each month or each week, although most are monthly

publications. In the aggregate, these magazines have a

circulation of approximately 200,000,000 copies per issue;

it has been credibly estimated that their combined reader-

ship exceeds 89% of the literate adults in the United

States.

The publications of M.P.A.’s members run the gamut

of reader interest and concern—they possess a rich diver-

sity—ranging from those of general circulation and appeal

to those of limited circulation and special appeal.

The Magazine Publishers Association is reputed to be

the largest organization of consumer magazines in this

country.

In virtually all cases the magazines published by

“sy

M.P.A.’s members are statutorily copyrighted. This is

so because magazine publishing ineseapably involves entre-

preneurial risks, and one meaningful way to safeguard

one’s investment in such venture is for a publisher to ac-

j quire for each of his publications the exclusive rights status

¢ that valid copyright is designed to afford. Furthermore,

i M.P.A. has, among its standing, active and important com-

q mittees, its Legal Affairs Committee, whose duties include

advising M.P.A. on significant cases and developments in

: the law of copyrights.

M.P.A. has joined in amici briefs in this Court. It filed

its own amicus brief in this case in support of petitioner’s

application for the writ of certiorari, which writ this Court

recently granted.

OIE ERP Re BNO

The Magazine Publisher’s Association reaffirms on this

appeal its support of petitioner’s position on the issue of

M.P.A. files this brief (with the written consent of the

parties) because, as will be more fully considered hereafter

under Point I hereof, this case has, we submit, such tran-

scendent meaning as to make it important to copyright

proprietors in general and particularly to those who own

copyrights in and to composite works, such as magazines,

Preliminary Statement

The case below, reported at 487 F. 2d 1345 (1973) was

decided in respondent’s favor by a closely divided United

States Court of Claims. The petitioner claimed in that

Court that its statutory copyrights to certain of its com-

posite medical journals had been infringed by respondent’s

unauthorized, wholesale machine copying and distribution

of entire articles published in those journals. Such copy-

ing and distribution were done by respondent through its

National Institutes of Health (N.ILH.) and its National

Library of Medicine (N.L.M.). For such alleged infringe-

ment, petitioner sought reasonable compensation from the

Government under the applicable jurisdictional statute.

Although petitioner had succeeded on the issue of liability

before the Trial Judge, the Court of Claims itself, by a

four-to-three vote, reversed and, as above indicated, held

for the respondent on the theory that respondent’s accused

conduct constituted no more than fair use, i.e., non-infring-

ing use, of petitioner’s copyrighted journals. The holding

below exonerated the respondent despite its unauthorized,

extensive machine copying or photoduplicating of complete,

discrete copyrighted articles and its subsequent wide-

spread, albeit not-for-profit, distribution of such copies or

photoduplicates to and among putative medical researchers

and medical libraries.

: Facts

; The relevant facts, as found by the Trial Court and ac-

cepted largely by the Court below, are succinctly stated at

page 673 of the Trial Court’s opinion (172 USPQ 670).

Such statement reads in material part as follows:

‘‘The N.LH. library . . . subscribes to two copies

of each of the journals in suit ... Demand by N.I.H.

research workers for access to plaintiff’s journals .. .

is usually not met by in-house subscription copies.

Consequently, as an integral part of its operation, the

library runs a photocopy service for the benefit of its

research staff. On request, a researcher can obtain a

photocopy of an article from any of the journals...

Usually, researchers request photocopies of articles

to assist them in their on-going projects; sometimes

photocoptes are requested simply for background read-

ing ..., the library does not monitor the reason for re-

quests or the use to which the photocopies are put.

The photocopies are not returned.

‘*. , . N.L.M. cooperates with other libraries and

like research- and-education-oriented institutions .. .

in a so-called ‘interlibrary loan’ program. Upon re-

quest, N.L.M. will loan to such institutions, . . .,

books and other materials.... In the case of journals,

the ‘loans’ usually take the form of photocopies of

journal articles which are supplied . . . free of charge

and on a no-return basis. The term ‘loan’ therefore is

a euphemism when journal articles are involved.’’

(Italics ours.)

ESL poe AMESSD, sactiors

Summary of Argument

1. The decision below, especially its ratinnale,

(a) has a significance reaching far beyond the con-

flicting interests of the parties to this litigation,

and

(b) raises erroneous doubts as to what constitutes a

periodicals, including magazines, are concerned,

and

as a copyright infrigement defense.

2. The determination of the Court of Claims should be

reversed and liability should be imposed on respondent for

the infringement of petitioner’s copyrights.

POINT I

The importance of this case extends beyond the

interests of the parties.

While we think that the holding below is erroneous,

the untenable rationale of such holding, as articulated by

the majority below, is significantly more troublesome. It

is, of course, the rationale which will not stay within the

four corners of the particular case. To this effect it is well

to note the dissent of Nichols, J. where at page 1387 he

presciently observed:

‘¢ . . However, hedged, the decision will be read, that

a copyright holder has no rights a library is bound to

respect.”’

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But even on its own factual footing, the instant case

has important dimensions, as indicated by Chief Judge

Cowen in his dissent below where he stated at page 1364:

**. . . What we have before us is a case of whole-

sale, machine copying, and distribution of copyrighted

material by defendant’s libraries on a scale so vast that

it dwarfs the output of many small publishing com-

panies. In order to fill requests for copies of articles in

medical and scientific journals, the NIH made 86,000

Xerox copies in 1970, constituting 930,000 pages. In

1968, the NLM distributed 120,000 copies of such jour-

nal articles, totalling about 1.2 million pages.’’

When broadly perceived, what really confronts us at bar

is the conflict between two interests, one of an emergent

nature and the other of established tenor, one interest which

says I may use the modern technicue of reprography so as

to machine copy or photoduplicate, without let or hin-

drance, and whether or not the matter so reproduced is

validly copyrighted, and the other, countervailing interest

which says my valid copyrights are not to be so infringed.

We submit that in such confliet, reason and judicial au-

thority are on the side of the copyrightee.

Copyrights, we urge, are not to be overwhelmed by im-

provements in the reproduction art, important to society

as such improvements may be. It is doubtless true that

sophisticated duplicating devices have made reproducing

accurate, cheap, easy and quick, and dextrous as these

devices may be, they are evaluatively stupid. Undoubt-

edly the availability of these devices, Xerox et al., has

tended to make of so many of us nimble, though minor,

nimmers, insofar as the copying of copyrighted material is

concerned. But such individual and private copying, in the

confines of one’s home or office, may perhaps be overlooked

as de minimis. In any case, it is not that kind of copying

that is involved at bar.

Furthermore, copyrights can and should stand on their

own footing, especially those which are statutorily engen-

dered. Such copyrights are socially desirable, as the Con-

stitutional sznction of them demonstrates. Madison real-

ized this when he said, writing as Publius, in Number 43

of the Federalist Papers, anent the Copyright Clause of

the Constitution, that ‘‘The utility of this power will

searcely be questioned. The copyright of authors has been

solemnly adjudged .. . to be a right of common law...

The public good fully coincides . . . with the claims of

individuals’’ (italics ours). This same appraisal of copy-

rights as making for societal good was stated by this Court

in Mazer v. Stem, 347 U.S. 201, 219.

Moreover, it should be borne in mind that when an

author or proprietor creates or owns copyrightable matter

he has the choice of retaining it in its unpublished state

under a so-called coninon law copyright or of publishing

it under the panoply of statutory copyright. And here,

too, the public interest comes to the fore. When such

author or proprietor so publishes he makes a bargain with

the prblic: under such quid pro quo theory the common

law right is exchanged for the statutory right, a purpose

of the copyright statute being to induce the author or pro-

prietor to ‘‘bring out’’ the work, i.e., to make it accessible

to the public. (See A.H. Wasserstrom, ‘‘The Copyrighting

of Contributions to Composite Works’’, 31 Notre Dame

Lawyer 381, 395—1956).

\ the value of

copyrights to magazines may be sorely dimif ished, if not

rendered worthless. If such massive machin copying as

obtained at bar should go unabated, magazine in general,

and technical journals in particular, may cedke to exist.

Such eventuality seems not fanciful or far-fet{

cially for such publications as are in a margt

category. If that should come about we might fi}

ment publications filling the vacuum or gove

ventions shoring up the still privately owned and

publications. In either case, the public may we

loser, we think, because government functionaries

than independent copyrightees, will determine wh}

or may not be published. (On this serious threat

sorship, see footnote 7 of the Trial Court’s opinion

at 172 USPQ 670, 676, and the perceptive study ‘‘Prdaject—

New Technology and the Law of Copyright: Reprog ty

and Computers’’, 15 UCLA Law Review 931, 956 et

Apart from the specter of censorship, the sheer di

tion in the number of privately owned and operated mak

zines can only lead, we believe, to a loss in diversity 3

robust discussion, since ‘‘the magazine’’ [is] ‘‘the medi

par excellence for diverse opinion and specialized aud

ences. * * * In the magazine field, competition remaink

an acute fact of life. The magazine has become th

great outlet for the multitudinous energies and value

of our society, the channel of communication for the par

ticular interests in our infinitely varied national life, the

means of expression for all those ideas and views that

are the concern of Americans as individuals and special

. aie ainsi cal

groups rather than as a broad, undifferentiated mass. . .’’

(see page 9 of statement of the noted historian and teacher,

Arthur M. Schlesinger, Jr., submitted to the Postal Rate

Commission, Docket No. R74-1, May 16, 1974).

We submit that petitioner’s rights herein should be

vindicated, despite the advanced technology of duplicating.

If there is to be any public-interest accommodation between

the right of the copyrightee and the demand of the non-

commercial, machine copiest, whether institutional or other-

wise, such as library or school, such accommodation, we

suggest, should be made by the Congress and not by the

Courts. However, the Court below wrongly rejected this

approach and with unseemly self-esteem legislated on its

own in respondent’s favor.

POINT II

The unauthorized copying of copyrighted periodi-

cals constitutes infringement.

The Court below entertained what it called ‘‘solid

doubt’’ that periodicals as such come within the protective

reach of copyright, insofar as copying per se is concerned.

While this may very well have been a ‘‘solid doubt’’ for

the Court below it is, we submit, a gratuitous doubt. The

plain and unmistakable wording of the Copyright Code

(17 U.S.C.) quite clearly provides in Section 1 thereof that

all copyrighted works, and, of course, periodicals and com-

posites are among such works (17 U.S.C. Section 3), are en-

titled to exclusivity not only as to the printing, reprinting

and publishing of such works but also as to the copying

thereof. As the dissent below rightly observed there seems

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to be no legitimate reason for harking back to inapplicable

legislative history regarding prior copyright acts. At bar,

the meaning of the words used in said Section 1 should be

derived from ‘‘. .. the words themselves .. .’’ and ‘‘...

their setting in a text ...’’ (Frankfurter, ‘‘Some Reflec-

tions On The Reading Of Statutes”’ 15—1947) so that here a

court may quite properly ‘‘hug the shores of the statute

itself’’ in construing said Section 1 (ibid.).

The Holmesian approach to reading statutes should be

applied because ‘‘there is no canon against using common

sense in construing laws as saying what they obviously

mean’’ (Roschen v. Ward, 279 U.S. 337, 339).

To argue, as the Court below did, that the word ‘‘copy’’

may not mean ‘‘copy’’ is, we believe, to make of it a

humpty-dumpty word, and seemingly to border on preten-

tious nonsense.

That the aforementioned ‘‘solid doubt’? can have a

seriously adverse effect on all periodicals, quite apart from

those particular ones involved at bar, seems manifest be-

cause, if such doubt is to hover over this genre tke copy-

righted material, publishers of copyrighted periodicals will

not know with reasonable certainty how to predict their

legal rights in this context, that is, whether the copying of

their works will entitle them to the same measure of pro-

tection as the law accords to other copyrighted works.

In fine, we submit, there seems to be no sound ground

for excluding copyrighted periodicals from the protection

of Section 1 of the Copyright Code, or of even having

doubts on this score.

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POINT III

The Court below erred in concluding that petition-

er’s entire copyrighted articles could be copied with

impunity under respondent’s “fair use” defense.

The Court below dismissed “as an overbroad generali-

zation, unsupported by the decisions’’ (1353) the statement

that “the copying of an entire copyrighted work cannot

ever be ‘fair use’.’’ Such dismissal, we submit, is sim-

plistic, and, indeed, erroneous. However, one need not

take a position in this case on the making of but one, com-

plete, unauthorized copy of a copyrighted work. What the

Court below did was to permit the extensive copying, 1.¢.,

the making of many copies, of articles contained within pe-

titioner’s copyrighted works on the ground that such copy-

ing constituted only fair use of such works. In the instant

case we have the machine copying of several articles in

their respective entireties. Such was tantamount to the

copying of disparate, copyrighted works because the ap-

propriated articles within petitioner’s copyrighted journals

constituted, under Section 3 of the Copyright Code, com-

ponent parts of such journals. The general copyright to

each journal as a whole was, under said Section, spread to

the copyrightable components thereof, as if those compo-

nents had been specifically copyrighted (A. H. Wasserstrom,

op cit., supra, p. 11 at 403 et seq.). In short, each of the sep-

arate articles comprising the petitioner’s medical journals

constituted a distinct copyrighted work, even without a

specific notice of copyright imprinted thereon. When such

articles were unauthorizedly photocopied, petitioner’: copy-

;

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rights thereto were, we submit, infringed, and the bounds of

‘*fair use’’ were overpassed. (Benny v. Loew’s Incorpo-

rated, 239 F.2d 532, 537; Wihtol v. Crow, 309 F.2d 777,

780, et seq.; Rosemond Enterprises, Inc. v. Random House,

Inc., 366 F.2d 303, 310; Robert Stigwood Group Limited v.

O’ Reilly, 346 F.Supp. 376, 384; Nimmegr, ‘‘On Copyright’’,

sec. 145, p. 652.)

POINT IV

The Court below erred in requiring proof of serious

economic detriment to the copyrightee to negate “fair

”

use.

The fair use doctrine is made up of a plurality of con-

siderations or criteria, only ore of which is the adverse

economic impact of the use on the potential market for, or

the value of, the copyrighted work. Put another way, the

fair use defense should not be available if the challenged use

injuriously affects the copyrightee’s rights. (Hill v. Whalen

¢é Martell, 220 Fed. 359.) At bar, the machine copies of

the whole articles were the functional equivalents of the

original articles and replaced them. Hence, the copies

quite clearly prejudiced the sale of the originals, and the

defense of fair use should not have been invoked (Nimmer,

op. cit., supra, 12 at pp. 646, 655, et seq.).

Conclusion

The decision below siiculd be reversed, and liability :

should be imposed upon the respondent for the in- _

fringement of the petitioner’s copyrights. ‘

Respectfully submitted,

Aurrep H. WassErsTRoM

Attorney for The Magazine Publishers

Association, Inc., as Amicus Curiae

959 Eighth Avenue

New York, New York 10019

(212) 586-1300

Lipron, WassersTRoM & SIEFKEN

Of Counsel

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