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

Supreme Court brief1975

Ask Donna

What actually matters in this document.

Text

tk ee oe oe ee oa»

StH SF 1974

IN THE MICHAEL RODAK, JR., CLERK

Supreme Court of the United States

OCTOBER TERM, 1973

No. 73-1279

THE WILLIAMS & WILKINS COMPANY,

Petitioner,

Th™ UNITED STATES, E

Respondent.

BRIEF OF AMICI CURIAE, AMERICAN GUILD OF

AUTHORS AND COMPOSERS, BEHAVIORAL PUB-

LICATIONS, INC., EDWIN H. MORRIS & CO., INC.,

HARCOURT BRACE JOVANOVICH, INC. AND

MACMILLAN, INC., IN SUPPORT OF PETITIONER

JOSEPH CALDERON

110 East 59th Street

New York, New York 10022

(212) 758-1100

Counsel for

American Guild of Authors and

Composers

Behavioral Publications, Inc.

Edwin H. Morris & Co., Inc.

Harcourt Brace Jovanovich, Inc.

Macmillan, Inc.

Amici Curiae

Liyven anp DeutscH

Beuxia L. Linpen

Jon A. BAUMGARTEN

Of Counsel

‘

thy NR SSOP Rs ~eomiagt a |

TABLE OF CONTENTS

PAGE

Preliminary Statement ..............cceccceeeeees 2 :

The Interests of Amici ........ 0... cece cece ee eeeee 3

ARGUMENT: q

Pornt I—The Court below misconstrued the constitu- :

tional purpose of copyright and the nature of .

a FET Thea TET INS ae oes ap etese beens 4 :

Pornt II—The photocopying of copyrighted works by :

respondent’s libraries is a violation of the exclu- 5

sive rights to ‘‘copy’’, ‘‘print”, ‘‘reprint’’ and ¢

‘*publish’’ conferred by Section 1 of the Copy- §

eRe RP re aT eee Peer ey PP Pee 7 c

A..The Right To ‘‘Copy’’ Applies To Books and F

eR Oe res ne eee 8 .

B. Photoduplication is a ‘‘Printing’’ and ‘‘Re- ;

printing” Proscribed by Section l(a) ....... 16 4

C. The Libraries’ Providing of Photocopies is

‘*Publishing’’ Proscribed by Section l(a) ... 20 :

D. The Relevance of Section l(c) ............. 21 ;

CN haar Es nuns acceded ene ons bots ceeenes 22 i

MES kc Bis vein 4 e9) dha N OS ea dee adew besa 23

ees ez

ii TABLE OF CONTENTS

Cases Cirep

PAGE

American Code Co. (Inc.) v. Bensinger, 282 Fed. 829

Fe RE. 6 Scwrinkncs Mabe nov iheteteaadees 16

American Visuals Corporation vy. Holland, 239 ¥.2d

Pe COE soi oakcebeesadeeccsevanvesss 17, 21

Blazon, Inc. v. DeLuxe Game Corp., 268 F. Supp. 41€

ea SE na cc sawieurwcdeurenvhaastadx) 9

Bobbs-Merrill Co. v. Straus, 147 Fed. 15 (2d Cir.

1906), aff’d 210 U.S. 339 (1908) .............. 20

Chappell & Co. v. Middletown Farmers Market &

Auction Co., 334 F.2d 303 (3d Cir. 1964) ...... 18

Continental Casualty Co. v. Beardsly, 253 F.2d 702,

Gout, Gee. Bee UE CUNO) cas ccvewevevenscewers 21

Douglas v. Cunningham, 294 U.S. 207 (19385) ...... 18

Eggers v. Sun Sales Corporation, 263 Fed. 373 (2d

et Se Sas Seka tens Sitka tolepmeubsaceete< 10

Folsom v. Marsh, 9 Fed. Cas. 343 (Cir. Ct. D. Mass.

TTT Sen Bites fst ip bignh e the Stree ices ee i4

Foreign & Domestic Music am v. Licht, 196 F.2d

Cy Ce es eb aoa cee ses 11

Greenbie v. Noble, 151 F.Supp. 45 (S.D.N.Y, 1957).. 6, 10

Interstate Circuit, Inc. v. United States, 306 U.S. 208

GOT khan o neues olen Deven taaeeueeeedaans 3

Jeweler’s Circular Pub. Co. v. Keystone Pub. Co.,

281 Fed. 838 (2d Cir.), cert. den. 259 U.S. 581

SOE ou kc ae ended duke baeene oan siaiee kas 20

Jewell-LaSalle Realty Company v. Buck, 283 U.S. 202

GREDRE sacs cevnss cascnatueecouedinel tena anves 9

King Features Syndicate v. Fleisher, 299 Fed. 533 (2d

Ge, SOD oc cxbiccun tee valine esc esduas theee 9

TABLE OF CONTENTS iii

PAGE £

Leon v. Pacific Telephone & Telegraph Co., 91 F.2d E

gk) a: | RE Ae arr eee ion reer an 7 5

Macmillan Co. v. King, 223 Fed. 862 (D. Mass. 1914) .16, 21

Maloney v. Stone, 171 F. Supp. 29 (D. Mass. 1959) ... 10

Mazer v. Stem, 347 US. 201 (1954) ................ 4

N.Y. Tribune v. Otis & Co., 39 F.Supp. 67 (S.D.N.Y.

Nc ic kon Oona s WESed hed nea hei doce aeeuees. 17

Patterson v. Century Prodctions, 93 F.2d 489 (2d

Cir. 1937), cert. den. 303 U.S. 655 (1938) ....... 19

Platt & Munk Co., Inc. v. Republic Graphics, Inc., 315

Pee Ce OC ENED owes lads scaneds ee hats 10

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

366 F.2d 303 (1966), cert. den. 385 U.S. 1009

CROEEE Uahaveneemaeseuwabeusoavectaseaeecehe 14

R. R. Donnelley € Sons Co. v. Haber, 43 F. Supp. 456

Gees: WOES Se vGN icles eee e ies cose been? ve 17

Sebring Pottery Co, vy. Steuhenville Pottery Co., 9 F.

Supp. 564 (N.D. Ohio 1984) .......0cccccescers 10

Shapiro, Bernstein & Co.v. 4636 S. Vermont Ave.,

Inc., 367 F.2d 236 (9th Cir. 1966) ........-s008 18

Walt Disney Productions v. The Air Pirates, 345 F.

TE AE TONG) foc e csc vekerbeeeve sis 9

Washingtonian Publishing Co. v. Pearson, 306 U.S.

BE, Hi SOR MAR ACY de ee NeNSeiaale baneewhe’ 8

White v. Kimmel, 193 F.2d 744 (9th Cir.), cert. den.

Pe SPU NE MEE aa ocd e ie cpelawe besos oer 20, 21

White-Smith Music Publishing Co. vy. Apollo Co.,

Se ee EE pan be vdnk¢ncedy Cinadewsanees 9

Wihtol v. Crow, 309 F.2d 777 (8th Cir. 1962) ...... 7, 10,17

he EME PAB ROG RM oe |

Seman isabieS Cixiee! EL: RAGES ERE REBOS ELE L LCL EERE EAE

Fé 4

py |

iv TABLE OF CONTENTS

CONSTITUTION AND STATUTES

PAGE

United States Constitution

I Passi eieci sce eeveseeeeares 2,4

eS eee Ra Ege eae 7, 9, 10, 11, 13, 16, 20

fo EAR ERATE Sara aE ete 9

LOS O Tet heeibekvakee oe hens 9, 21

Ea ae Eng arene Peer oy eee ee 9

1, Se AIRS Se Ge iene eer ee naar eae 9

ae MELAS SPR EE aaa serene 17

eats de a finn a Said Sw iw ty 10

SEONG SUES be snesesucls sé¥s sss 10

ME aL Beira a Gb en's 0c 804k 4 8 Ans 18

Britis aND Reports

H. R. 19853 (59th Cong. Ist Sess.) ................. 13

ee 8 eee 13

H. R. 25133 (59th Cong. 2d Sess.) .............0.2. 13

a ee 13

H.R. Rep. No. 2222, 60th Cong., 2d Sess. (1909) ....11, 12

S. Rep. No. 1108, 60th Cong., 2nd Sess. (1909) ...... 11, 12

Report of The Librarian of Congress for the fiscal

year ending June 30, 1906 ...........cccceecece 13

Report of the Register of Copyrights on the General

Revision of the U.S. Copyright Law (1961) ..... 10

TABLE OF CONTENTS v

OrHER AUTHORITIES PAGE

Conf:»ences on Copyright (1905-06) ............... 12,13

Congressional Record, Dec. 5, 1905 ...............-. 11

Demand Publishing and Reprint Publishing, Pub-

lishers Weekly, July 29, 1968 at 22 ............. 17

Goldman, The History of U.S.A. Copyright Law Revi-

sion From 1901 to 1954, Copyright Law Revision

OEY TEE CEOUD wide i Kaen need ve vweers coves 12

Melcher, New Techniques Permit the Reprinting of

Books in Editions of 1 to 100 Copies, 1960 Amer-

ican Library and Book Trade Annual 101 ....... 17

Nemeyer, Scholarly Reprint Publishing in the United

NT SAU hac dc ecwheve kuau do ewdsasekeusses 16

New Technology and the Law of Copyright: Reprog-

raphy and Computers, 15 U.C.L.A. L. Rey, 939

RP re er Perel re eT ECT TPCT rite 17

OE, COPUNNE CEOTE) nc vecscvcessssvcrevine 18

Price, Photocopying By Libraries of Copyrighted Ma-

terials, 5 Bull. of the Copr. Soe. of the U.S.A. 345

SUE eh OU ae ran vee 0 a8 il pends Pee ASeS? 6

Random House Dictionary of the English Language

CUFRORTSGIE Bln SUP) cc cte rs esdvepensvecses 16

Spofford, Copyright In Its Relations to Libraries and

Literature, 1 American Library Journal 84

CRE Uirh eek Elsa ceo ee ean 6 ceburarasnen ees

uy |

There’s Money in Microfilms, Business Week, April

ee EE ese cke den bee VEN eho heeens chee ees 17

U.S. Copyright Office Circular 45 (1972) ........... 17

IN THE

Supreme Court of the United States

OCTOBER TERM, 1973

No. 73-1279

THe Wituiams & Witkins Company,

Petitioner,

Tue Unrrep States,

Respondent,

BRIEF OF AMICI CURIAE, AMERICAN GUILD OF

AUTHORS AND COMPCSERS, BEHAVIORAL PUB-

LICATIONS, INC., EDWIN H. MORRIS & CO., INC.,

HARCOURT BRACE JOVANOVICH, INC. AND

MACMILLAN, INC., IN SUPPORT OF PETITIONER

This brief is submitted jointly by the American Guild

of Authors and Composers, Behavioral Publications, Inc.,

Edwin H. Morris & Co., Inec., Harcourt Brace Jovanovich,

Ine. and Macmillan, Inc. with the consent of the parties.

None of the above amici are members of the associations

also filing amicus briefs.

Harcourt Brace Jovanovich, Inc. and Maemillan, Ine.

(or their subsidiaries) are major, diversified publishers

of general, scientific and educational works. Behavioral

Publications, Ine. is a publisher of textbooks and journals.

Edwin H. Morris & Co., Ine. is a music publisher whose

business includes educational music publishing of sheet

music and folios. The American Guild of Authors and

Composers is an association of approximately 2,500

American composers and lyricists.

YE RRL INE RPI I LEELA EN LIAL IGE LIES BONG) ERE EN,

wy bates

Bree Spiteri

PIA R AEE Bh OO TRIO HN

Thus, the amici herein represent a broad spectrum of

private enterprise creators and publishers of general,

educational, scientific, and technical publications and

musical compositions. The decision of the Court of Claims

strikes at the heart of their private sector efforts and in-

vestments in the creation and dissemination of literary

works.

The decision below, though purportedly limited to the

rights of petitioner and the practices of the National In-

stitutes of Health (NIH) and National Library of Medi-

cine (NLM), raises general legal issues regarding copy-

right protection, The amict hereim direct their argument

to two of these issues: (1) the Court of Claims’ erroneous

view of the rights to “copy”, “print”, “reprint” and “pub-

lish” aceorded to copyright proprietors by Section 1 of the

that the rights and privileges of copyright and the public

interest are in conflict, which contradicts the Constitu-

tions dictate that the grant of copyright ‘‘promote[s] the

Progress of Science and Useful arts” (Article 1, Section 8).

Preliminary Statement

The decision of the Court of Claims in this case per-

mitted the unauthorized reproduction and distribution of

petitioner’s entire copyrighted works. Its effect is to

open the gates to the preemption of amici’s literary prop-

erty without compensation.

Clearly under our economic system private sector cre-

ators and publishers of intellectual property can survive

only if the law remains protective of their proprietary

rights in intangible property to the same extent as it re-

spects private interests in tangible property. There is

nothing novel or radical in the notion that literary prop-

i cP

erty is of economic worth to its creato:; and to the coun-

try’s economy. Mr. Justice Roberts dissenting in Jnter-

state Circuit, Inc. v. United States, 306 U.S. 208, 236

(1939), stated the general rule that creators of literary

property are accorded “the same rights as inhere in other

property under common law.” At all times prior to the

institution of this action and during its pendency, private

sector authors and publishers have made it clear that they

are not opposed to the fullest dissemination of their copy-

righted works. However, they have insisted, as do amici

now, on their rigits to compensation.

It should be noted that the Court of Claims found that

in the instant case ‘‘NIH leases its Nerox machines from

Xerox Corporation which it pays according to the number

of pages photocopied.’’ F. # 15, Pet. App. 80.* However,

in its express concern for the public interest the Court

below saw no inconsistency between payments being made

to the owner of the tangible photo-duplicating equipment

and its holding that the public interest required unpaid-for

duplication of copyrighted works.

The Interests of Amici

The amici herein include two of the largest educational

and reference publishers in the country, a specialized pub-

lisher in the social sciences, a leading music publisher, and

an association of the creators of musical works. All of

the amici function in the private sector of our economy.

They are dependent upon income from their copyrighted

works to survive and continue their functions. Among

amici’s publications are various works which are particu-

larly susceptible to unauthorized photocopying. These in-

clude: professional, academic and technical journals; text-

* References to the Opinion and Findings of Fact (‘‘F’’) of the

Court of Claims are to the Appendix to Petition for Certiorari,

herein referred to as ‘‘ Pet. App.”’

Lhe

igo

books and scientific treatises; sheet music; consumable

workbooks, tests and teaching materials and compilations,

anthologies, encyclopedias and other reference works used

in piecemeal fashion rather than read cover to cover.

The decision of the Court of Claims permits wholesale,

unlicensed and unpaid-for photocopying. Although on a

short term basis this may appear desirable as facilitating

the availability of these works, the inexorable long term

consequences must be the erosion of incentive for private

enterprise to invest in the creation and dissemination of

such works.

ARGUMENT

POINT |

The Court below misconstrued the constitutional

purpose of copyright and the nature of this case.

Article I, Section 8 of the U.S. Constitution provides

that Congress shall have the power:

“To promote the Progress of Science and useful

Arts, by securing for limited Times to Authors and

Inventors the exclusive Right to their respective

Writings and Discoveries ;”

Thus, the clear Constitutional purpose of copyright is to

foster creativity and scholarship in order to facilitate and

enrich the cultural and technological development of the

nation. Because they envisaged a private enterprise

economy, the framers of the Constitution established that

this end would be best served by economic encouragement

to private sector creators of intellectual property. In

Mazer v. Stew, 347 U.S. 201, 219 (1954) this Court recog-

nized that:

“The economic philosophy behind the clause em-

powering Congress to grant patents and copyrights

is the conviction that encouragement of individual

effort by personal gain is the best way to advance

publie welfare through the talents of authors and in-

ventors in ‘Science and useful Arts’. Sacrificial days

devoted to such creative activities deserve rewards

commensurate with the services rendered.”

Neither the creation of ad hoc judicial exemptions to the

principle of economie incentive nor the preemption of

private proprietary rights in intellectual property can or

will serve the public welfare under the framework estab-

ished by the Constitution. As stated by A.R. Spofford,

Librarian of Congress from 1864 to 1897:

“Without stopping to consider the theory of those

who hold that there can be no property in ideas, that

all human thought should be free, and that printed

thought, no less than oral utterances, should be spread

abroad as on the wings of the wind, without money

and without price, it may be said that this kind of

literary communism would result in starvation to

authors, however pleasant or profitable it might be

to the rest of mankind.” [Spofford, Copyright In Its

Relations to Libraries and Literature, 1 American

Library Journal 84 (1876) ].

In repeatedly emphasizing its view of the “personal”

uses of copyrighted works by ‘‘scholars’’ (e.g., Pet. App.

8) and the use of respondent’s libraries’ photocopies by

“scientists” for their “personal” purposes (e.g., Pet. App.

14) the Court below has perverted the language of

the Constitution so that the public welfare is deemed not

to be the objective of copyright protection, but merely an

adversarial consideration. In place of the clear judgment

expressed in the Constitution the Court of Claims substi-

tuted its view that the elimination of authors’ and pub-

lishers’ rights best serves the public interest.

SAX IRA OTE ES

aes a eee TS Sa

Oe Et CN uae

Rives eo Tt»

sieht itu in ate

The Court of Claims’ decision is based on a fundamental

misconception of the nature of this case. This case

simply does not involve a scholar’s or scientist’s personal

(or other) use of copyrighted works. It involves, rather,

respondent’s libraries regular and systematic production,

promotion*® and distribution to scholars, on a massive

seale “dwarf[ing] the output of many smal! publishing

companies”’,** of copies of petitioner’s copyrighted works

—i.e., it involves publishing in preemption of petitioner’s

own function.

As emphasized by a noted law school librarian, library

photocopying of the type here at issue “constitutes two

or more separate and distinct transactions: the copying

by the library and transfer to the reader; and the reader’s

subsequent use of the copy. It is important to keep this

in mind.” Price, Photocopying By Libraries of Copy-

righted Materials, 5 Bull. of the Copr. Soe. of the U.S.A.

345, 347 (1968). Only the first mentioned transaction is

relevant to this case. “The library’s act is complete at

this point .. . [t]he reader did not make the copy; the

library did....” Price, supra at 355. Indeed, it was the

libraries in this case which made the decision not to

charge for the copies and not to compensate petitioner;

and in the case of NLM, the library, not the reader, de-

cided that photocopies would be provided in lieu of the

original (F #20(c), Pet. App. 84).

It is established law that the reproduction of a copy-

righted work, even if in response to a request by a third

party, is an infringing act on the part of the copier. E.g.,

Greenbie v. Noble, 151 F. Supp. 45 (S.D.N.Y. 1957). That

the ultimate recipient is a scientist or scholar making

* E.g., through NLM’s Index Medicus; see F #20(c), Pet. App.

83.

** Pet. App. 31 (Cowan, C.J. dissenting).

personal use of the copy is both an inaccurate view of

the facts of this case* and entirely irrelevant.

Scholars and scientists are, of course, the principal mar-

ket for much of amici’s works. The servicing of their

needs for retained personal copies of copyrighted works

is, under our private enterprise system, a function to be

performed by publishers, not by extension of the reference

and loan function of libraries. The Court of Claims’ fail-

ure to recognize this fact of economic life pervades its

entire opinion. It is particularly relevant to the lower

Court’s erroneous and unprecedented application of the

doctrine of “fair use.” Cf. Leon v. Pacific Telephone & Tele-

graph Co., 91 F.2d 484, 486 (9th Cir. 1937); Wihtol v. Crow,

309 F.2d 777 (8th Cir. 1962). The Court below explained

that in the Wihtol case, a finding of copyright infringe-

ment rather than fair use was proper because it was ‘‘as

if the defendant had purchased one copy of sheet music

and then duplicated it for an entire chorus.’’ Pet. App.

13 n. 12. It is submitted that this is a very accurate

description of respondent’s practices here at issue. The

facsimile duplication of entire scientific works for dissemi-

nation to any interested member of the scientifie ecommu-

nity is an appropriation, not a ‘‘use,’’ of literary property.

POINT Il

The photocopying of copyrighted works by respond-

ent’s libraries is a violation of the exclusive rights to

99 «66 99 «66

“copy”, “print”, “reprint” and “publish” conferred by

the Copyright Act.

Section 1(a) of the Copyright Act accords to the owner

of copyright in all ‘‘copyrighted works’’ the ‘‘exclusive

* Approximately 12% of NLM’s photocopies were provided to

private commercial businesses. F #21(a), Pet. App. 84. Also,

neither NIH nor NLM imposed any restrictions on the receiving

parties’ use of the photocopies. The record demonstrstes that

some requesters “put them in files for use by co-workers or otners.”

|F #6(b), Pet. App. 76], and others ‘‘make further photocopies

from copies obtained from the . . . library to distribute to colleagues

or otherwise’’ | F #:17(b), Pet. App. 81].

wren inact * ASEM TITAS AER PI ERAN LC a aa

right’’ to ‘‘print, reprint, publish, copy and vend.’’ Not-

withstanding the unambiguous language of the statute, the

majority of the Court of Claims expressed a “solid doubt”

whether the right to ‘‘copy’’ established in section 1(a)

applies to books and journals. Pet. App. 9. The Court’s

conclusion on this point must be considered more than

mere dicta because it expressly considered this doubt to

be a ‘‘powerful factor’”’ in determining that the activities

of respondent amounted to fair use. Pet. App. 23. The

Court also held that the photocopying activities of respond-

ent did not amount to a ‘‘print[ing], reprint[ing] or pub-

lishLing]’’ within section 1(a). Pet. App. 10-11.

In reaching these results the majority of the Court of

Claims perverted the clear meaning of the statutory lan-

guage, ignored the applicable precedents and the findings

of fact in the case, and drew unsupportable inferences

from matters outside the trial record. A most apt descrip-

tion of the decision below is that used by this Court in

: Washingtonian Publishing Co. v. Pearson, 306 U.S. 30, 39

(1939): “[It does] not square with the words actually

used in the statute, would cause conflict with its general

purpose, and in practice produce unfortunate conse-

quences. We cannot accept it.”

Amici respectfully urge that (A) the right to “copy”

is applicable to books and periodicals, (B) the photo-

duplication of copyrighted works is a ‘‘printing’’ and ‘‘re-

printing” thereof, (C) the respondent’s libraries providing

of photocopies of copyrighted works to library users is a

“publishing” thereof, and (D) the rights of “reproduction”

and “transcription” of section 1(c) of the Copyright Act

are relevant to this case.

A. The Right To “Copy” Applies To Books and Periodicals.

The photoduplieation of copyrighted works is a ‘‘copy-

ing’’ thereof. Respondent produced facsimile reproduc-

tions of petitioner’s works in a fixed, tangible and visually

perceivable form, In White-Smith Music Publishing Co.

SAARC ts AL ERIN TIN OE LO I

scien an pupenieseenenaenemeeemeaeanaememmamaeamenemmmmmaaitis

» aenentatengege: }

v. Apollo Co., 209 U.S. 1, 16 (1907) this court held that

the word ‘‘copy’’ as used in the Act refers to that term

‘fin its ordinary sense of indicating a reproduction or

duplication of the original.”* See also, e.g., King Features

Syndicate v. Fleisher, 299 Fed. 533, 535 (2d Cir, 1924) ;

Blazon, Inc. v. DeLuxe Game Corp., 268 F. Supp. 416, 434

(S.D.N.Y. 1965). Indeed, in contemporary usage photo-

mechanical duplication is the essential act of proscribed

copying. See Walt Disney Productions v. The Air Pirates,

845 F. Supp. 108, 110 (D. Cal. 1972) (“While the character

was not copied in the sense that it was photographically

reproduced, it was drawn as nearly like the plaintiff’s

drawing as defendant could make it.’’)

The majority of the Court of Claims was apparently not

disposed to frontally questicn the irrebuttable conclusion

that respondent’s libraries had ‘‘copied’’ petitioner’s

works. They achieved the same result by asserting that

the right to ‘‘copy’’ under Section 1(a) might not ‘‘appl[y]

to books and journals’’ (Pet. App. 9), thus suggesting that

the principal component of copyright protection is inappli-

cable to the major vehicles of literary creation. However,

this assertion is equally unsupportable. As this Court has

observed, one of the ‘‘monopolies’’ conferred by the Copy-

right Act is ‘‘that of making copies’? [Jewell-LaSalle

Realty Company v. Buck, 283 U.S. 202, 204 (1931)], and

the ‘‘copying’’ right so accorded by Section 1(a)—unlike

the rights accorded by other provisions of Section 1 of the

* Although the White-Smith court concluded that a pianvla

role is not a “copy” of the recorded music, that is irrelevant to

this case. Respondent’s activities result in a visual'y perceivable

duplication in “intelligible notation” and thus meet the very

definitional tests there established by this Court.

** Thus, Section 1(b) deals particularly with “literary works”,

‘*non-dramatie works’’, ‘‘dramas’’, ‘‘ musical works’’ and ‘‘models

or designs”; Section 1(¢c) treats specifically of “lectures, sermons,

addresses’’ and ‘‘literary works’’; Section 1(d) is directed to dra-

matie works and 1(e) to musical compositions. These provisions

as to exploitation of specific works are to be contrasted with the

general applicability of Section 1(a) to “copyrighted work([s]”.

St, etn eee net ei ts

ee a

righted work[s]’’, without distinction or limitation. The

‘all categories of copyrighted works are protected against

the making and publication of copies’’, and Section 1(a)

embraces ‘‘the twofold right to make and publish copies’’.

Report of the Register of Copyrights on the General Revi-

sion of the U.S. Copyright Law 21-22 (1961) (emphasis

added).

That the right to ‘‘copy’’ is applicable to books and

periodicals is clearly established by case law. In Greenbie

v. Noble, 151 F. Supp. 45, 63 (S.D.N.Y. 1957), an action

for infringement of copyright in a book, the court observed

that ‘‘the mere printing or copying of a copyrighted work,

without proof of sales thereof, will constitute an infringe-

ment’’, See also, e.g., Maloney vy. Stone, 171 F. Supp. 29,

32 (D. Mass. 1959); Platt € Munk Co., Inc. v. Republic

Graphics, Inc., 315 F. 2d 847, 851 (2d Cir., 1963). As stated

in Wihtol v. Crow, 309 F. 2d 777, 780 (8th Cir. 1962), ‘‘ob-

viously the plaintiffs had the exclusive right to copy their

copyrighted song and obviously [defendant] had no right

whatsoever to copy it’’. This principle is as applicable to

books and journals as it is to songs; the “infringe-

ment’’ of a ‘‘hook’’ is ‘‘the copying of some substantial

and material part thereof’’. Eggers v. Sun Sales Corpora-

tion, 263 Fed. 373, 375 (2d. Cir. 1920).

The applicability of the right to ‘‘copy’’, without more,

to books and periodicals is also demonstrated by other

sections of the Copyright Act. Thus, Section 101(b)

provides for the assessment of statutory damages for the

infringement of books and periodicals in an amount of $1

“for every infringing copy made or sold by or found in

the possession of the infringer .... [emphasis added]”.

As noted in Sebring Pottery Co. v. Steubenville Pottery

Co., 9 F. Supp. 384, 387 (N.D. Ohio 1934), statutory dam-

ages under this provision “may be assessed against all

copies made, not merely those distributed.” Similarly,

under Section 101(d) all ‘‘infringing copies’? of ‘‘any

work’’ (§ 101, preamble) are subject to destruction and this

must, of necessity, involve copies ‘‘made’’ but not ‘‘sold’’.

Cf. Foreign & Domestic Music Corp. v. Licht, 196 F. 2d

627 (2d Cir. 1952). These provisions of Section 101 make

it abundantly clear that ‘‘infringement” occurs upon the

mere ‘‘making’’ of copies of books and journals.

The legislative history of the Copyright Act of 1909 is

most relevant. Provision for the right to ‘‘copy’’ in See-

tion 1(a) did not slip unobstrusively into the law; both

the House and Senate Committees reporting on the rele-

vant bills specifically noted the “insertion of the word

‘copy’”. H.R. Rep. No. 2222, 60th Cong., 2d Sess. 4

(1909); S. Rep. No. 1108, 60th Cong., 2d Sess. 4 (1909).

The Trial Judge in this case believed it ‘‘reasonable to

infer” that the addition of the “copying” right was made

“in light of the fact that new technologies (e.g., photog-

raphy) made it possible to duplicate books and periodicals

by means other than ‘printing’ and ‘reprinting’”. Pet. 5

App. 45, 50. The majority below disagreed, crediting :

instead an argument that the 1909 Act did “not suggest 4

any purpose to alter the previous coverage’’, Pet. App.

9. However, a careful examination of the appropriate

legislative history clearly demonstrates the accuracy of

the Trial Judge’s suggestion. Thus, in the President’s

message to Congress in 1905 in connection with the revi-

sion program which culminated in the 1969 Act, he ob-

served that the then-current copyright laws “omit pro-

vision for many articles which, under modern reproductive

processes, are entitled to protection”. Congressional

Record, Dec. 5, 1905 at 102. As suggested by the Trial

Judge, Congress was acutely aware of and concerned

with the effects of new reprographie devices. Indeed,

both the House and Senate Reports on the 1909 Act

refer to the President’s message, including the above

passage, after quoting an address by a prominent attorney

he NN LEER EOE “8 BiG LEN? ABA PLM BAIL Gs PAN a Ot E PEA NOAA IO TELM OUP at et: ety tains il

rout

RN IROL E er AIT PEELS OE GA IES EE EEL ILE ET ETRE IN LEO IES

of the time:

‘« . . the reproduction of various things which are

the subject of copyright has enormously increased.

The wealth and business of the country and the

methods and means of duplication have increased

immeasurably. The law requires adaptation to these

modern conditions”. [H.R. Rep. No. 2222, 60th Cong.,

2d Sess. 1 (1909); S. Rep. 1108, 60th Cong., 2d Sess.

1 (1909) (remarks of Hon. Samuel J. Elder, Esq.;

emphasis added) |

Also significant are the changes in wording of the vari-

ous bills ultimately emerging as the 1909 Copyright Act.

The original “Memorandum Draft of A Bill To Amend

and Consolidate the Laws Respecting Copyright” pre-

pared by the Copyright Office for the 1905 revision con-

ferences* accorded copyright proprietors the exclusive

right “to make for sale, distribution, exhibition, or hire

any copy by any means whatsoever, or in any form, or

for any purpose, of a work the subject of copyright .. .”

Memorandum Draft § 37(a) in Conferences on Copyright,

Second Session (November 1-4, 1905).** When the Reg-

ister of Copyrights presented this draft provision to the

conference members, he specifically omitted the words

‘*for sale, distribution, exhibition or hire’’, retaining the

copying ‘‘for any purpose”’ clause without qualification.

Conferences on Copyright, Second Session at 314-315

(meeting of November 3, 1905). Accordingly, when the

* The conferences were convened by the Librarian of Congress

and attended by various interested organizations to consider over-

all revision of the copyright laws. See generally, Goldman, The

History of U.S.A. Copyright Law Revision From 1901 to 1951,

** References are to the Conference documents as collected in

the volumes of the U.S. Copyright Office.

pence

CDi STE ay GPL RE MO A RAFIRR EPEAT NN AGE! SSRN AAT EY METS SIE IIL CRIES

Draft’’ to a later session of the revision conference, the

‘‘exclusive rights’’ of a copyright proprietor included the

right ‘‘to make any copy by any means whatsoever, or in

any form, or for any purpose . . .’’ Memorandum Draft

§ 55(a) in Conferences on Copyright, Third Session (March

13-16, 1906). At the conclusion of the revision conferences,

the Copyright Office redrafted its proposed revised ecopy-

right law, submitting it to Congress on May 31, 1906 as

H. R. 19853 and 8. 6330 (59th Cong. Ist Sess.). Section 1(a)

of this bill accorded copyright proprietors the exclusive

right ‘‘to make any copy of any work’’ for the purposes of

sale, distribution, exhibition or leasing; however, section ;

22 expressly added a prohibition of “any reproduction, it

without the consent of the author or copyright proprietor,

of any [copyrighted] work . . . [emphasis added].’’

That section 22 was an “addition” and that the word “any”

was intended as all-inclusive is made clear by the Librarian

of Congress’ report on the bill. He noted:

“The bill, having defined the right of the copyright

proprietor as the exclusive right to do certain things,

defines an infringement to consist in the doing or

causing to be done without his consent of any of

these things, the right to do or to authorize which is

reserved to him. It contents itself with this, adding

only the one specification that ‘any reproduction’

without his consent ‘of any work or material part of

any work in which [his] copyright is subsisting’ shall

be an infringement”. [Report of the Librarian of

Congress for the fiscal year ending June 30, 1906 at

p. 116; emphasis in original}.

After the Hearings on these bills were completed, the

and Senate redrafted the bill, introducing a revised bill

on January 29, 1907 as H. R. 25133 and S. 8190 (59th

Cong. 2d Sess.). In these bills, Section 1(a) was revised

to adopt the present language according the rights to

“print, reprint, publish, copy and vend” without limitation

Seether 1 Fa DOSE LE TL ORIOL 9 OLE MT ITLL LI DO TE ©, ISIE eR ara coe alll

ae, ae

DBS agpatnidR dees

SEAR SORT

Ss Re rbianae tants

B GGA SOARS RRP A As

Batt fl 1 SE ORE RSME TE SGOTL. CLE! ERG OES ALLIES

and this phraseology remained the same in the later bills

culminating in the Act of 1909. From what had gone

before, it is clear that the right to “copy” in the 1909 Act

is absolute and not restricted as to purpose, technique or

otherwise in its application to books and periodicals.

In reaching its ‘‘doubt’’ as to the applicability of the

right to copy to books and periodicals, the majority of the

Court of Claims relied on the fact that ‘‘ the court-created

doctrine of ‘fair use’... is alone enough to demonstrate

that Section 1 does not cover all copying’. Pet. App. 8.

However, the quoted proposition is irrelevant to the point

at issue. ‘‘Fair use’’ is a privilege to engage in certain

kinds of copying of a work which would otherwise violate

the ‘‘copying’’ rights accorded by the Act to that work.

Rosemont Enterprises, Inc. vy. Random House, Inc., 366

F. 2d 303, 306 (1966), cert. denied 385 U.S. 1009 (1967).

It assumes that the right to “copy” is applicable to

the work used; if it were not, the privilege of fair use

would be unnecessary. The majority’s error in relying on

the doctrine of fair use as proof that the right to copy is

not applicable to books and journals is compounded subse-

quently in its opinion, where it states that one reason re-

spondent’s photocopying should be considered fair use is

because of its doubt as to the applicability of the right to

copy. Pet. App. 23. Thus, the majority’s reasoning is

entirely circular—there may be no exclusive right to

‘‘copy’’ books and journals because of fair use; and there

is fair use because there may be no right to copy books

and journals. It should be noted that even the doctrine

of fair use traditionally applied by the courts is based on

criteria protective of the economic interests of copyright

proprietors. See, e.g., Folsom v. Marsh, 9 Fed. Cas. 343

(Cire. Ct. D. Mass. 1841).

The Court below also asserted that ‘‘it is almost unani-

mously accepted that a scholar can make a handwritten

copy of an entire copyrighted article for his own use... .”

Pet. App. 8. This assertion too is irrelevant. Even

apart from the fact that this case does not involve a

scholar’s own use (Point I), since the invention of the

Gutenberg press it has been known that there is no rational

equation between manual transcription and mechanical

duplication. The former has no economic consequences

while the latter is the basis for the existence of the entire

publishing industry.

To support its ‘‘doubt”’ that the right to copy applies

to books and periodicals, the Court of Claims also relied

on certain “Rules” of the Library of Congress applying

to the Library’s photoduplication of materials during ‘‘the

time of enactment and first three decades of the 1909 Act”’

and the tenure of Herbert Putnam, ‘‘a leading public spon-

sor of the 1909 Act”, as Librarian of Congress. Although

the Court considered the Library’s activities to be ‘‘reveal-

ing’’ (Pet. App. 9) and ‘‘illuminating’’ (Pet. App. 10) it

again missed the mark.

Assuming that the early practices of the Library of Con-

gress are probative of the meaning of the 1909 Copyright

Act, the relevant question is not simply whether the Li-

brary performed photoduplicating services, but whether

such services encompassed the reproduction of copyrighted

works without permission of the copyright owner (and, if

so, under what circumstances, to what extent, and of how

much of the work). Since the documents relied upon by

the majority below were never offered into evidence at the

trial of this case (they surfaced as part of argument in an

cmicus brief in support of respondent below), petitioner

was never able to examine on these issues. The Court of

Claims’ reliance is thus based on a unilateral inference

that the Library freely engaged in wholesale copying of

copyrighted works, without permission, drawn from unex-

plained and ambiguous factual statements existing dehors

the trial record.

A careful study of the history of photoduplication by

the Library of Congress—which must perforce also go out-

| peek

side the record—shows other possible inferences to be

drawn from the Library’s practices and, indeed, strongly

suggests that the Library’s interpretation of the 1909 Act

was that it forbad the photoduplication of copyrighted

books and journals without permission. An analysis of

the sources relied upon by the Court of Claims and others

not called to its attention is set forth in the Appendix to

this brief.

B. Photoduplication is a “Printing” and “Reprinting”

Proscribed by Section 1 (a).

In concluding that respondent’s libraries had not

“printed” or “reprinted” petitioner’s works within the

meaning of Section 1(a), the Court of Claims first stated

that “the photocopy process of NIH and NLM .. . does

not even amount to printing or reprinting in the strict

dictionary sense... .” Pet. App. 10-11. Among the

numerous dictionary definitions of “print”, however, is

“to produce by means of a reproductive process”. Ran-

dom House Dictionary of the English Language 1144 (Un-

abridged Ed., 1969). The statutory use of “print” and

“reprint” cannot reasonably be limited to letterpress.

See Macmillan Co. v. King, 223 Fed. 862, 867 (D. Mass.

1914). If it is so limited, amici’s works will be shorn of

protection not only from the users of Xerox machines, but

also from reproduction by offset, microform, and the

various other photography-based techniques which are

replacing the letterpress and, indeed, are the essence of

the contemporary reprint industry. See Nemeyer,

Scholarly Reprint Publishing in the United States 4 (1972).

To state this proposition is to refute it; for both practical

and statutory purposes, the Xerox machine is as much a

printing device as the Gutenberg press or letterpress.

Numerous cases have found infringement of copyrighted

text by photomechanical processes. See, e.g., American

Code Co. (Inc.) v. Bensinger, 282 Fed. 829 (2 Cir. 1922)

< aes PAR EAT

(photolithography); N.Y. Tribune v. Otis & Co., 39 F.

Supp. 67 (S.D.N.Y. 1941) (photostat); R. R. Donnelley &

Sons Co. v. Haber, 43 F. Supp. 456 (E.D.N.Y. 1942)

(“photographie process”); American Visuals Corporation

v. Holland, 239 F. 2d 740 (2d Cir. 1956) (photostat); see

also, Wihtol v. Crow, 309 F. 2d 777 (8th Cir. 1962) (“school

duplicating machines”). That “printing” for statutory

purposes includes photographic printing techniques is

also demonstrated by the direction that the copyright

notice for motion pictures and videotapes include the year

of first publication. See U.S. Copyright Office Circular

45 (1972). Under the Act, the year of publication can

only be required of “printed” works. 17 U.S.C. §19.

Alternatively, the Court below stated that ‘‘print’’ and

‘‘reprint’? might ‘tbe used more broadiy te include all

mechanical reproduction of a number of copies’’, but held

that this ‘‘would still not cover the making of a single

copy for an individual requester’’. Pet. App. 11. This

definition and exclusion lacks support in both fact and law.

As has been noted, ‘‘!t|he ability to produce single

copies economically is the major feature of the repro-

graphic revolution’’. New Technology and The Law of

Rev. 939, 941 (1968). Entire reprinting businesses are

based on the concept of ‘‘on-demand reprinting’’ of ‘‘single

copies’’ in response to ‘‘individual requests’’; ‘‘single copy

reprints’’ and ‘‘1 copy editions’? is common terminology.

See, e.g., Melcher, New Techniques Permit the Reprinting

of Books in Editions of 1 to 100 Copies, 1960 American

Library & Book Trade Annual 101 (Melcher’s description

of the single-copy on-demand printing techniques of Uni-

versity Microfilms, utilizing microfilm and Xerox Copyflo

printers, is remarkably similar to the techniques used by

respondent’s libraries. See F # 15, Pet. App. 80; F # 21 (b),

Pet. App. 84.); ‘‘ ‘Demand’ Publishing and Reprint Pub-

lishing”, Publishers Weekly, July 29, 1968 at 22; “There’s

Money in Microfilms’’, Business Week, April 22, 1961 at

TT NaN Eg ita ag

Bcwns 5S RAYE A Ee Ft

145. The majority’s alternative definition concedes, as it

must, that ‘‘printing’’ and ‘‘reprinting’’ include contem-

porary means of ‘‘mechanical duplication’’; there can be

no legal or economic logie for including in that definition

only those systems producing multiple copies in response

to single requests.

The Court’s conclusion is also in conflict with established

law that copyright infringement does not depend on the

number of copies or recipients involved. See Douglas v.

Cunningham, 294 U.S. 207, 210 (1935); Shapiro, Bernstein

€ Co. v. 4636 S. Vermont Ave., Inc., 367 F. 2d 236 (9th

Cir. 1966). It also conflicts with the principle that ‘‘print-

ing’’ is an act of infringement independent of the cireum-

stances of any request made to the printer. See 1 Nimmer,

The Copyright Act expressly bars the one-at-a-time im-

portation into the United States of even single ‘‘piratical’’

—i.e., infringing—copies for the nse of an individual (the

same bar extends to importation of single copies for educa-

tional or scientific purposes, or by schools or libraries).

17 U.S.C. $107, proviso. There ean be no justification for

permitting domestie production of unauthorized copies

under similar circumstances. Similarly, copyright has

been held infringed by a single performance. See e.g.,

Chappell & Co. v. Middletown Farmers Market & Auction

Co., 334 F. 2d 303 (3d Cir. 1964). If such ephemeral use

constitutes infringement, all the more so must the produc-

tion of a tangible copy capable of permanently satisfying

consumer demands.

Furthermore, respondent’s libraries do reproduce mul-

tiple copies of the same work. As noted by the Trial

Judge, the “single copy per request” limitation is “illusory

and unrealistic.” Pet. App. 45, 52. Thus he noted that:

“Admittedly, the libraries, as a general rule, make

only one copy per request, usually for different users.

But the record shows that the libraries duplicate par-

ticular articles over and over again, sometimes even

for the same user within a short timespan. E.g., the

NIH library photocopied the Count I article three

times within a 3-month period, two of the times for

the same requester; and it copied the Count IV and

Count V articles twice within a 2-month period, albeit

for different users. The record also shows that NLM

will supply to requesters photocopies of the same

article, one after the other, on consecutive days, even

with knowledge of such facts. In short, the libraries

operate comprehensive duplication systems which pro-

vide every year thousands of photocopies of articles,

many of which are copies of the same article; and,

in essence, the systems are a reprint service which

supplants the need for journal subscriptions. The

effects of this so-called ‘single copying’ practice on

plaintiff’s legitimate interests as copyright owners

are obvious. The Sophar and Heilprin report, at 16,

puts it in terms of a colorful analogy; ‘Babies are

still born one at a time, but the world is rapidly being

overpopulated’ ”.

There can be no rational basis for making copyright pro-

tection dependent upon whether one or more copies are

produced, or whether they are produced for the same or

different users, or whether the same user makes his re-

quest at one or more times. Moreover, the microfilm/

Xerox Copyflo techniques utilized by defendant’s libraries

apparently did regularly make multiple copies (a micro-

film copy and a Xerox copy) of the same work at the

same time in response to the same request. See F. #15,

Pet. App. 80; F. #21(b), Pet. App. 84. Cf. Patterson

v. Century Productions, 93 F.2d 489, 493 (2d Cir. 1937},

cert. den, 303 U.S. 655 (1938). If this requires even

further distinctions, it serves thereby to demonstrate

the illogie of the “single copy” argument.

C. The Libraries’ Providing of Photocopies Is “Publish-

ing” Proscribed by Section 1(c).

After holding that respondent had not violated peti-

tioner’s exclusive right to “print and reprint” its works,

the Court of Claims held that ‘‘for similar reasons’’ re-

spondent’s libraries had not violated petitioner’s rights

to ‘‘publish’’ its works. To the extent that the Court’s

reasoning on this issue encompasses the thought that the

dissemination of a ‘‘single copy’’ cannot be a publication,

it is rebutted by the authorities and points referred to

above. See also, e.g., Bobbs-Merrill Co. v. Straus, 147 Fed.

15 (2d Cir. 1906), aff’d 210 U.S. 339 (1908) (‘‘publication’’

y sale of a single copy).* Of course, a large portion of

e commercial market for amici’s publications comprises

ngle copies sold to individual customers.

ye teat eee Ca

NIH made photocopies available to any of its personnel

NLM made photocopies available to any requesting

party through inter-library loan. In neither case was

the copy required to be returned; nor were there any re-

strictions placed on the recipients’ rights to further dis-

inate or duplicate the photocopies. See fn. p. 7, supra.

In hoth cases the library functioned simply to provide

interested parties with copies of petitioner’s works for

whatever use they might wish—i.e., for the same purpose

as petitioner and amici distribute their works. As a mat-

ter of\law, as a matter of function, and even as a matter

of semantics, respondent’s libraries ‘‘published’’ copies

of petitioner’s works. See, e.g., White v. Kimmel, 193 F.

2d 744 (9th Cir.) cert. den. 343 U.S. 957 (1952); American

* The \Bobbs-Merrill court did refer to copyright as the right

to “multiply copies”. However, this does not suggest agreement

with the Qourt’s “single copy” argument. Respondent’s libraries

had one @opy and made (at least) one more. The resulting

(minimum \f) two copies was a “multiplication”. As pointed out

in Jeweler’y Circular Pub. Co. vy. Keystone Pub. Co., 281 Fed. 83,

cert. den. 259 U.S. 581 (1922) to define copyright as

t of multiplying copies “means that you must not

A OR One treo Meng wert Los ey AR Be Pe SO rn cB hala! Sera

Visuals Corporation v, Holland, 239 F. 2d 740 (2d Cir.

1956) ; Continental Casualty Co. v. Beardsley, 253 F. 2d

702, cert. den. 358 U.S. 816 (1958).

The majority’s purported analogy to the doctrine of a

limited publication which does not divest common law

rights is inappropriate. Under the reported cases, the

distribution of copies in the manner at issue would not

fall within this doctrine. See White v. Kimmel, supra;

American Visuals Corporation v. Holland, supra; see also,

Continental Casualty Corp. v. Beardsley, supra. In any

event, even a ‘‘limited publication’? is au infringement of

section (la). Macmilian Co. v. King, 223 Fed. 862 (D.

Mass., 1914). This is consistent with the fact that (i) the

doctrine of limited publication is designed to avoid a for-

feiture of common law rights and hence protect literary

property owners from infringement; and (ii) a limited

publication is sufficient to invest the rights of statutory

eovyright. As stated in American Visuals Corporation

v. Holland, supra at 744: ‘‘{i]n each case the courts

appear to treat the concept of ‘publication’ as to prevent

piracy.”

D. The Relevance of Section 1(c).

Section 1(¢c) of the Copyright Act, as amended in 1952,

accords to the proprietor of copyright in a “nondramatic

literary work’’ (which would include petitioner’s journals

and much of amici’s works) the exclusive rights, inter alia,

to ‘‘reproduce it in any manner or by any means whatso-

ever’’ and to make ‘‘any transeription’’ thereof. It is

submitted that the infringement issue in this case could be

resolved simply on the basis of the rights of reproduction

and transcription in section l(c). Since, however, this pro-

vision was not cited below and we do not believe it neces-

sary to 2 determination of infringement, we would merely

call it to this Court’s attention as indicative of the intent

of the statute to protect the copyright owner against any

means of reproducing his work, regardless of the varying

technology which might be developed to achieve this end.

SER LEO a Nie TRIN ea

CONCLUSION

The interpretations of the Copyright Act by the

Court of Claims are in error and the order dismissing

the petition should be reversed.

Respectfuliy submitted,

JoserH CALDERON

Counsel for

American Guild of Authors and

Composers

Behavioral Publications, Inc.

Edwin H. Morris & Co., Inc.

Harcourt Brace Jovanovich, Inc.

Macmillan, Inc.

Amici Curiae

110 East 59th Street

New York, New York 10022

(212) 758-1100

4 Lixpen anv DevutscH

Betta L. Linpen

4 Jon A. BAUMGARTEN

Of Counsel

Bol AS rl REA Nel LULLED CAITR, PELE MORRIE ALAS HOR o sent i>

APPENDIX

Photocopying Rules and Practices of the Library of Congress

(1) The Court of Claims noted that while the bills lead-

ing to the Copyright Act of 1909 were being considered by

Congress, the Library’s 1908 ‘‘Rules of Practice Governing

the Use and Issue of Books’’ (p. 6) provided:

‘*Photographing. Photographing is freely permitted.

The permission extends to the building itself and any

of its parts, including the mural decorations. It ex-

tends to articles bearing claim of copyright, but the

Library gives no assurance that the photograph may

be reproduced or republished or placed on sale. These

are matters to be settled with the owner of the

The very language of this provision indicates that it

was concerned not with the Library’s photoduplication of

books and journal ‘‘articles,’’ but rather with library vis-

itors taking ‘‘snapshots’’ or the like of three-dimensional

artifacts. (See the dissenting opinion of J. Nichols below,

Pet. App. 69.) This is also suggested by the fact that the

Library of Congress apparently did not install a photostat

machine until 1912,* and by the fact that, as noted below,

specific provision for photostatic reproduction services was

made in addition to the ‘‘Photographing”’ provision in edi-

tions of the Library’s Rules issued after that year. (That

the Library’s ‘‘permission’’ extended to copyrighted three

dimensional objects on its premises is irrelevant to this

case since the effects and circumstances of such practices

* See Thompson, The Microfacsimile in American Research Li-

braries, 8 Libri (Int’l. Lib. Rev.) 209 (1958). Originally, of course,

a “‘photocopy’’ in the sense at issue in this case ‘‘was a photostat

and nothing but a photostat’’. Hawken, Reprographic Technique:

Present aad Future in Hattery & Bush, Reprography and Copy-

right Law 39 (1964).

SGM PML OER CE ee

Appendix

are entirely different. Moreover, it indicates absolutely

nothing about the point at issue—viz., whether the right to

copy applies to books and periodicals. )

(2) The Court of Claims also noted that after the

passage of the Copyright Act of 1909, the 1913 edition

of the Library’s “Rules” added a provision entitled “Photo-

stat” after the “Photographing” section. The “Photostat”

section stated:

“Photo-duplicates of books, newspapers, maps, ete.

can be furnished at a reasonable rate by means of the

photostat, installed in the Chief Clerk’s Office. Apply

to the Chief Clerk for a schedule of charges.” [Lib.

of Cong., Rules of Practice Governing the Use and

Issue of Books 6 (1913); Pet. App. 10]

This provision says nothing about whether the subjects

of such photoduplication might include copyrighted works

and, if so, to what extent, etc. Since, in the retained provi-

sion on ‘‘photographing’’ [Pt. (1), above] the Library felt

it necessary to specify that copyrighted artifacts might

be photographed, the proper inference to be drawn from

the silence of the photostat provision might well be that

copyrighted books, etc. would not be copied without per-

mission. This is also suggested by changes in later edi-

tions of the “Rules” noted below. On its face, however,

this provision is totally ambiguous with respect to the

relevant points at issue.

Consideration should also be given to the nature of

these so-called “Rules”. They did not purport to be a

complete or detailed compendium of Library regulations.

They represented “a body of practice rather than a formal

set of definitions adopted at one time, or a priori” and

an attempt to “summarize” the Library’s experience.

ities

Appendix

Library of Congress, Rules of Practice Concerning The

Use and Issue of Books 3 (1913).

(3) The Court of Claims further asserted that later edi-

tions of the Library’s Rules ‘‘throughout Dr. Putnam’s

tenure (which ended in 1939), contained the same or com-

parable provisions’’. Pet. App. 10. This is simply ineor-

rect. In 1921, the ‘‘Photostat’’ section was changed to

refer to the ‘‘photoduplicat[ion] of certain classes of

books ...’’ (emphasis added). Library of Congress, Rules

of Practice Concerning the Use and Issue of Books 6

(1921). (This qualification was repeated in the subse-

quent editions of the Rules in 1929 and 1932). In view

of the retained reference to the permissible ‘‘ photograph-

ing’’ of copyrighted artifacts and subsequent specific

references to the Library’s refusal to photoduplicate copy-

righted textual works [Pt. (4), below] it is at least a fair

inference that copyrighted books and journals were among

the forbidden ‘‘classes’’. This qualification as to ‘‘classes’’

was retained in the 1929 and 1932 editions of the Rules.

However, in the 1939 edition (p. 5) the ‘‘ Photostat’’ section

was changed again and now referred simply to the fact that

‘The Library of Congress maintains a Photoduplication

Service [i.e., as a department] from which copies (on film

or paper) of available materials may be obtained at nomi-

nal cost.’? As noted immediately below, a basic tenet of

the Library’s Photoduplication Service from its inception

has been the refusal to duplicate copyrighted works with-

out permission.

(4) It is apparent that the Library of Congress did

provide photostats, although not necessarily of copy-

righted works, from 1912 through 1938. However, the

extent of photocopying was apparently rather minimal in

view of the lack of sufficient government appropriations

for photographic apparatus. See Schwegmann, The Photo-

duplication Service of The Library of Congress, J. Docu-

‘

FE PMLA ANS eee ce |

Appendix

mentary Reproduction, September, 1939 at 176. (Mr.

Schwegmann also referred to ‘‘legal limitations’? as a bar

to meeting all photocopy requests prior to establishment

of the Photoduplication Service. Id. Although not en-

tirely clear, it is not unreasonable to assume that copyright

was among such limitations. If this was the ease it is

clear from the announced policies noted subsequently that

although the establishment of the Photoduplication Service

solved the Library’s financial needs, it did not remove the

limitation imposed by copyright)...

In 1938 Dr. Putnam accepted a grant from the Rocke. ~

feller Foundation and established the Library’s Pho-

toduplication Service. See Schwegmann, supra; Annual

Report of the Librarian of Congress for the Fiscal Year

Ending June 30, 1938 at 312.

In 1939-40 the Service commenced regular operations.

See Annual Report of the Librarian of Congress for the

Fiscal Year Ending June 30, 1940 at 192. Virtually from

its inception the announced policy of the Photoduplication

Service has been that it will not reproduce copyrighted

works without permission; the relevant statements suggest

that such restraint had always been the basic policy of the

Library. See e.g., The Library of Congress—Its Collec-

tions and Services (Gov’t. Pr. Off.—1941 ed. at 9; 1942 ed.

at 12; 1945 ed. at 12) (The Photoduplication Service pro-

vides copies ‘‘subject to the usual copyright limitations’’) ;

Annual Report of the Librarian of Congress for the Fiscal

Year Ending June 30, 1947 at 35 (‘*The Library must of

course in its photocopying activities scrupulously observe

sion’’); The Library of Congress and Its Work at 9 (Gov’t.

Pr. Off. 1950) (‘‘Copies of materials... in photostat ...

not subject to copyright or other restrictions are provided

at a moderate charge’’): The Library of Congress—1800-

1550—Photoduplication Service at 2 (Lib. of Cong. 1950)

. en |

” 4

, 4

Apjiendiz ‘

(‘‘Copyrighted material will ordinarily not be copied with- f

out the signed authorization of the Copyright Owner’’*).

(5) In 1944 a bill was introduced in Congress which

specifically provided that under certain circumstances the

making of a photocopy of copyrighted works by the

Librarian of Congress for, among others, members of the

78th Cong., 2d. Sess. Its introduction is further evidence

that the Library considered itself bound by copyright re-

_.Strictions as a matter of basie policy. (No action was

taken on this bill; however, in view ofthe poliey of not.

copying copyrighted materials followed by the Library

even after its introduction, this cannot be attributed to

a belief that the Library had the right to photocopy copy-

righted works, without permission, under existing law.)

(6) The Court of Claims also considered it signifi-

cant that in 1939 Dr. Putnam ‘‘was honored by the

American Council of Learned Societies because (among

other things) ‘You have led in adapting the most modern

photographic processes to the needs of the scholar, and

have * * * made widely available for purposes of research

copies of your coliections * * *’”, Pet. App. 10. The Court’s

apparent inference that Dr. Putnam believed it permissible

to photoduplicate copyrighted books and journals without

permission is, again, unsupported. It is equally, if not

more, logical to assume that the praise was directed (a)

*The use of “ordinarily” did not imply exceptions to the

principle that the Library would not duplicate copyright ma-

terials without consent. It is explained, instead, by a subsequent

reference in the same source (p. 9) to the fact that the Library had

‘‘compiled a substantial list of blanket copyright releases from

newspaper and magazine publishers’’ which permit, ‘‘under certain

conditions, the reproduction of copyrighted material for official or

public use without specific correspondence with the copyright pro-

prietor in each case’’. See also, Annual Report of the Librarian of

Congress for the Fiscal Year Ending June 30, 1948 at 46.

PME NORRIS HELIN nels to >

Appendix

to Dr. Putnam’s efforts in establishing the Library’s

Photoduplication Service (which has traditionally re-

fused iv duplicate copyrighted works without permission) ;

and/or (b) to his efforts in acquiring for the Library’s

collections facsimile copies of foreign materials (which

might well have been in the public domain in this country,

or secured with permission). See Putnam, American Re-

search Libraries in Relation to Scholarly Studies (Lib. of

Cong. pamph. 1929).

Since at least 1941 the Library of Congress has an-

nounced a policy of refusing to photoduplicate copyrighted

works without permission of the copyright owner. Amici

concede that on this documentary record it is impossible

to accurately determine the Library’s policy at the incep-

tion of the 1909 Copyright Act; they submit, however, that

the Court of Claims’ inference that the Library freely

photocopied copyrighted material without permission at

that time is entirely unjustified.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.