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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1623%3A17

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1975
- **Citation:** 420 U.S. 376

## Text

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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

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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

ee

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

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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

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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.

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The Magazine Publisher’s Association reaffirms on this
appeal its support of petitioner’s position on the issue of
copyright infringement.

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,

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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.)

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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
copyright infringement by ‘‘copying”’’ insofar as
periodicals, including magazines, are concerned,
and

(c) erroneously relies on the doctrine of ‘‘fair use’’
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

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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

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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.).

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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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1623%3A17. Public record. Not legal advice.