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

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Mh wy OF,

POPOL PINAL YE) Hae eC e ele

ea A i ‘

Puess or Brnon S. Avams Pamtina, Inc., WASHINGTON,

Page

a SH, ROTI 5 0k ees oa pc anaes caa eek ews i

Questions Berore THE COURT ............c0cccseese 2

INTEREST OF THE NATIONAL IepuCATION AssocIATION ... 3

I 5 Say NS ES se Os A ae 11

Ji KAN Rae ae TONE ik kk 4 eons ve bees oes li

At the Fpenrt- of the Cae x. eens haus ieen. 11

Need for Constitutional Decision ............. 12

A. The Constitution Grants No Rights to Copy-

right Proprietors, but Merely Gives Con-

gress the Discretion to Legislate on Copy-

right Within Specified Limits ............ 14

B. The First Amendment Protects the American

People’s Reasonable Access to Matter Sub-

SO CO CINE 63 ar as os s aa ee 17

1. Freedom of Press Protects the American

People Not Publishers ......0..cc00ees: 18

2. The Right of Access Is an Integral Part

of the Rights Guaranteed by the Bill of

GOMME Vieles shkd hie oo Re eee EN eee 21

3. The Rights of Free Press and Free

Speech Include the Right to Read ...... 22

4. The First Amendment Protects the

Student’s Right to Learn .............. 29

d. The First Amendment Protects the

Freedom of Teachers and Students to

Reasonable Access to Copyrighted Ma-

|” EOE OD Ve tat Pian LN bsnl chy amy 30

C. The Ninth Amendment Protects the Rights

of Americans to Knowledge and To Read.

The Respondent’s Practice Here Comes

Within the Penumbra of the Ninth Amend-

WS Sa cee eer neecke shane cate eee 32

TABLE OF CONTENTS

< Sane

Leyes

ii Table of Contenis Continued

Page

D. The Constitution 1s a Living Document .... 37

KE. In ‘‘ Balancing” Interests, Courts Must Give

Priority to the Constitutional Protection of

thePublie Interest (for Reasonable Access)

Over the Statutory Privilege of a Copy-

Se IE So vee i on cewen sen vienees 43

1. Primacy of the Public Interest in Copy-

CUE Sea chines Souk ca cec eh veeens 45

2. Copyright Monopoly Must Be Strictly

SRUUE ra ise Cal vie Gens Wh eey ane? 6 47

] KF. The Burden of Proof is on the Copyright

Proprietor to Show That an Alleged [n-

fringement is not Protected by the First or

; i POT rer ree tee ee 51

. II. Customary Use Is ‘‘Farr Use’? Unper THe

OCIS LA 5 div cxcasesiseecssees: Eiavees a2

A. Custom and the Common Law ............ 52

ee | Bie a err 54

C. The Evidence Shows Custom Prevailed

NN. i sade ed ee NSCaeTRGN eu iobe nities 57

D. Common Sense Approach ................ 60

BEd CORON 55 oa ecedva wh ekavadbermebn cheer 62

TABLE OF AUTHORITIES

CasEs:

Adams Exp. Co. v. Ohio State Auditor, 166 U.S. 185

LS PR rar sess ae ngage ae SN pm ae 61

ACLU v. Radford, 315 F. Supp. 893 (i. D. Va. 1970) 22

AFL v. Swing, 313 U.S. 321 (3941) .. 0... cccccscess 41

| American Tobacco Co. v. Werckmeister, 207 U.S. 284

Es Pek es ae keene eis oe ok ein 15

Appalachian Coals Ine. v. U.S., 288 U.S. 344 (1933)... 40

| Application of Cooper, 254 F.2d 611 (C.C.P.A. 1958),

cert. dew. 358 US. GOD (TGDG) once ccccccccauess 16

Ashwander v. TVA, 297 U.S. 288 (1936)......... 34, 35, 51

Associated Press v. U.S., 326 U.S. 1 (1945) ......... 14,18

ROLL ARIE PO RUGS, REL TM ig! 7 ee

Table of Contents Continued iii

Page

Bentley v. Tibbals, 223 F. 247 (2d 2), a) 15

Berlin v. f. C. Publications Ine., 329 F.2d 541 (2d Cir.

1961), cert. den. 379 USS. 629 5 Sure oh on baa & oe eles 46 3

Board of Kdueation v. Barnette, 319 U.S. 624 (1943) 30 &

Bobbs-Merrill Co. v. Strauss, 210) U. S. 339 (1908) .... 15 ¢

Breen v. Kahl, 419 F.2d 1084 7th Cir. 1969), cert. den. i

Se SA ee CRE a oc) bd evcesanccswueiNens 35

Bridges v. California, 314 U.S. 252 (1941)............ 42

Brooks v. Auburn University, 412 F.2d 1171 (5th Cir.

WUE ne Cay ete mente meee 29

Brown v. Board of Education, 347 U.S. 483 (1954)... .6, 38

Butler v. Michigan, 352 U.S. 380 (1957)............. 23, 24

California v. LaRue, 409 U.S. 109 (1972)............36, 44

California Motor Transport Co. et al. v. Trucking

Valimsited, 406 US. SOB CHUTE) ook vices vncuckns 21

Caliga v. Inter Ocean Newspaper Co., 215 U.S. 182

Sf SRR RS, Seog Dig Se ape gi 40s Foe NY re A Ae FAG Ne ID 15

Chapman v. U.S., 365 U.S. 610 (1961) ............... 41

Coleman v. Alabama, 399 U.S. 1 (1970) .............. 38

Colgrove v. Bettin, 413 U.S. 149 (1973) .............. 38

Communist Party v. Catherwood, 367 U.S. 389 (1961) 12

Conner v. Long, 104 U.S. 228 (1881) ............... 38, 39

Cooper vy. Aarov, 3S USB. 1 (1958) ... 2... ccaeee 38

Orusz v. Beto, 406 U.S. S19 (1972) . www cece ces 21

Cummings v. Missouri, 4 Wall. 277 (1866)........... 42

Deepsouth Packing Co., Inc. v. The Laitram Corp., 406

eee. SRE Ser vase eens esas akuons 16, 48

Dennis v. U.S., 341 U.S. 494 (1951)... ..........000 12, 62

Dodsley v. Kinnersley, 27 Eng. Rep. 270 (1761)...... 54

Erie v. Tomkins, 304 U.S. 64 (1938) ................. 38

Folsom et al. v. Marsh et al., 9 Fed Cas. 342, No. 4901

SUNEEE SUL ircrespeeeusre titans eneweseal ver cas 44

Fortnightly Corp. v. United Artists Television, Inc.,

SOR as SD eon vn cerca pndeakGles 46, 48, 62

Foti v. Immigration and Naturalization Service, 375

tS 2 ees Se 59

Fox Film Corp. v. Doyal, 286 U.S. 123 (1932) ....... 15, 47

Furman v. Georgia, 408 U.S, 238 (1972) ............ 3

En pe Glamdl. 2. © CR oon bo noe ose te a 30

Goldstein et al. v. California, 412 U.S. 546 (1973) . 17

Graham v. John Deere, 381 U.S. 1 (1966) Ot arnt 48, 49

Grant v. Kellogg Co., 58 F.Supp. 48 (S.D.N.Y. 1944),

aff’d 154 F.2d 59. Car Ge, Fie oc oh ekehinceks 15

Seater 2 ee

Baia ae aaa eal EI AR eee el. Leite

iv Table of Contents Continued

Grayned v. City of Rockford, 408 U.S. 104 (1972)..... 14

Greenbie v. Noble, 151 F.Supp. 45 (D.C.N.Y. 1957).... 46

Griswold v. Connecticut, 381 U.S. 479 (1965) . .23, 32-34, 37

Grosjean v. American Press Co., 297 U.S. 233 (1936)

19, 22, 42

Guinn v. U.S., 238 U.S. 347 (1915).................. 42

Healy et al., v. James et al., 408 U.S. 169 (1972)...... 28

Hobson v. Hanson, 269 F.Supp. 401 (1967), app. dism’d

aww che deneeee iar eens 29

Iloldredge v. Knight Pub. Corp., 214 F.Supp. 921

Se ies ewan vee kbcnee ees ines 54

Hurtado v. California, 110 U.S. 516 (1884)........... 39

International Association of Machinists v. Street. 367

SE Sika tn Faw ape bn ck died «Seu © 05a 12

Johnson v. Louisiana, 406 U.S. 404 (1972) Cee 38

Katz v. U.S., 389 U.S. 347 (1967). ........... cece eee 40

Keene v. Wheatley, 14 Fed. Cas. 180, No. 7644 (Cir.

Se TEE 6-05 b04 4 60 s'u0 a8 50404446 So db 0 ee 16

Kent v. Dulles, 357 U.S. 116 (1958) ................ 13

King v. Saddleback Jr. Col. Dist., 445 F.2d 932 (9th

Cir. 1971), cert. den. 404 U.S. 979 (1971)........ 35

Kingsley Books, Inc., v. Brown, 354 U.S. 486 (1957)... 31

Kleindierst v. Mande! et al., 408 U.S. 753 (1972) . .2i, 23, 25,

26, 27, 30, 43-44

Konigsberg v. State Bar of California, 366 J.S. 36

Saat 06 0 ek eK 00S REEL CA a 8 98 40

Kraft v. Cohen, 117 F.2d 579 (8rd Cir. 1941) ........ 16

Lamont v. Postmaster General, 381 U.S. 301 (1965)

21, 23, 24, 26, 27

Lane v. Wilson, 307 U.S. 268 (1939)................. 42

Lee et al. v. Bunge, 404 U.S. 887 (1971).............. 49

Local Landmarks v. Price, 170 F.2d 715 (5th Cir.

ie ey OU ge te ee te, 15

Loew’s Ine. v. C.B.S., 131 F.Supp. 165 (1955), aff’d

239 F.2d 532 (9th Cire. 1956), aff’d by pte di-

vided court, 356 U.S. 43 (19: 58) ee ee Pet ee 15

Louisiana ex rel Gremelion v. NAACP, 366 U.S. 293

La end were eee G web oe sa G Wx vu née o.d% ¥S% 42

Louisville Bank v. Reedford, 295 U.S. 555 (1935) ..... 36

Lovell v. Griffin, 303 U.S. 444 (19388) ................ 2?

Marsh v. Alabama, 326 U.S. 501 (1946).............. 22

Martin v. City of Struthers, 319 U.S. 141 (1943)

21, 22, 25, 27

Table of Contents Con.imued v

Page

Matter of Jackson, 96 U.S. 727 (1878) .............. 22, 23

Mazer v. Stein, 347 U.S. 201 (1954).............. 15, 45, 50

Merciiant’s Bank v. State Bank, 10 Wall. 604 (1870).. 58

Meyer v. Nebraska, 262 U.S. 390 (1923) ............. 29

Miii-«r Musie Corp. v. Daniels, Inc., 362 U.S. 373 (1960) 15 >

Millikin et al. v. Bradley et al., 418 US. ,42 LW 5249

CRN Faced t cacee Acer ire nase eed eek kes 59

Missouri v. Holland, 252 U.S. 416 (1922)............. 39

Molpus v. Fortune, 482 F.2d 916 (Sth Cir. 1970)...... 22

NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1

(1937) ae a naid LE SGee ER Ream Eee Lee ke ee 12, 31

N. Y. Times v. Sullivan, 376 U.S. 254 (1964).......... 22

N. Y. Times, Inc. v. U.S., 403 U.S. 713 (1971)......... 23

Nicoll v Pittsvein Coal Co., 269 F. 968 (2d Cir. 1920) 53

Olmstead v. U.S., 277 U.S. 438 (19G8)...... ees er 40, 42

Orient Ins. Ce. v. ’ Daggs, 172 U.S. 557 (1869)......... 62

i aa me Gg Yh ee err 60

Peters v. Hobby, 349 U.S. 331 (1955)................ 13

Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941).... 61

Pickings v. Bruce, 430 F.2d 595 (6th Cir. 1970)....... 22

Poe v. Ullman, 367 U.S. 497 (1961) ............ 31, 33, 41

Procunier v. Martinez, 416 U.S. , 94 S. Ct. 1800,

CN ia ne ae a eee naa wake (ode mae 21, 24, 28

Red Lion Broadcasting Co. v. F.C.C., 295 U.S. 367

CRUE . okccwh chu cbkos cates teehee one nena 21, 23, 25

Rice v. Sioux City Cemetery, 349 U.S. 70 (1955)...... 13

Roe et al. v. Wade, 410 U.S. 113 (1973) ~.............- 38

Rosemount Enterprises Inc. v. Random House, Inc.,

366 F.2d 303 (2d Cir. 1966), cert. dex. 385 U.S.

Nk cies cece bi ci es BR Re crn aces 46, 54

Saunders v. Smith, 40 Eng. Rep. 1100 (1838)......... 55

Seales v..U.S.A., 367 U.S. 203 (1961)................ 13

Schneider v. State, 308 U.S. 147 (1939).............. 19

Senior v. Braden, 295 U.S. 422 (1935)............... 61

Serrano v. Priest, 5 Cal. 3d 584 (1971) .............. 29

Shapiro, Bernstein & Co., Ine. v. P. F. Collier and

Son Co., 26 U.S.P.Q. 40 (S.D.N.Y. 1989) ......... 54

Shelton v. Tucker, 364 U.S. 479 (1960) .............. 30

Silverman v. U.S., 365 U.S. 505 (1961) .............. 46

Smith v. Univ. of Tennessee, 300 F.Supp. 777 (KE. D.

eh ee ae ee oe erer ep nen

Snyder v. Bd. of Trustees, 286 F.Supp. 927 (N.D. Ill.

POGUE Sincucccsuaenade erence tees Cousedecnes 22

PEON OTE

vi Table of Contents Continued

Page

Speiser v. Randall, 357 U.S. 513 (1958) ............. 42

Stanley v. Georgia, 394 U.S. 557 (1969) ...21, 23, 24, 25, 27

4 State v. Abellani, 50 Haw. 384 (1968) .......-.. +--+: 34

i State of Illinois v. City of Milwaukee, 406 U.S. 91

2 SE ie flues sevens av nduewdencaenienee ds 63

| State of Wisconsin v. Yoder et al., 406 U.S. 205 (1972) 48

3 Stuff v. La Budde Feed and Grain Co., 42 F.Supp.

3 8 Ee ee ees eres 16

4 Sweezy v. New Hampshire, 354 U.S. 234 (1957)...... 31

Teleprompter Corp. v. C.B.S., 415 U.S. 394 (1974).... 48

Textile Workers v. Lincoln Mills, 353 U.S. 448 (1957) 638

Thomas v. Collins. 323 U.S. 516 (1945) ............. 22, 25

Time, Ine. v. Hill, 385 U.S. 374 (1965) .............. 19

Times Film Corp. v. Chicago, 365 U.S. 48 (1961)... .30, 31

Tinker v. Des Moines Sch. Dist., 393 U.S. 503 (1969).. 30

Bird aentenrette

U.S. v. Loew’s, Inc., 371 U.S 38 2 | SR Sees 45

U.S. et al. v. Midwest Video Corp., 406 U.S. 649

ORE ss cd acres kek ead oben ene Leabaareae 49-50

US. v. Nixon, 418 US. , 42 LW 5237 (1974) ........ 38

U.S. v. Paramount Pictures, Inc., 334 U.S. 131 (1948) 45

U.S. v. Powell, 171 F. Supp. 202 (N.D. Calif. 1959)... 19

U.S. v. Robel, "389 awk, Me eR 3 0 wee cke seco en 43

U.S. v. Rumeley, 345 U Ss. 41 (1953) s elahd gia ian’ hehe 12, 42

U.S. v. U.S. Gypsum Co., 333 U.S. 364 (1948)........ 13

U.S. ex rel. Milwaukee Pub. Co. v. Burleson, 255 U.S.

We EE 6 ite bce beer ck bua aae reams vaduwalen 42

U.S. Shipping Board v. Levensaler, 290 F. 297

(C.A.D.C. 1923), cert. den. 266 U.S. 630 (1924) ... 53

Vanston Bondholders Prot. Com. v. Green et al., 329

Be sca ike Fa ee Keane ews one 2

Volansky v. U.S., 246 F.2d 842 (6th Cir. 1957)........ 13

Weems v. U.S., 217 U.S. 349 (1910) .............06.. 41

Wheaton v. Peters, 8 Pet. 591 (1834)......... 14, 15, 16, 54

: White-Smith Musie Pub Co., v. Apollo, 147 F. 26

(2d Cir. 1906), aff’d 209 U.S. 1 (1908)........... 15

: In re Winship, 397 U.S. 358 (1970).............-006- 30

: Winters v. New York, 333 U.S. 507 (1948).......... 22, 23

: Wright v. Emporia City Council, 407 U.S. 451 (1972) 13, 14

4 Yakus v. U.S., 321 U.S. 414 (1944) .............00eee 2

; Younger v. Gilmore, Es a Ee. 5 | Senna 21

‘ Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S.

- ENE nak ee kak ek Aad San oth Pe hee ORMM RS 13

PE I dingo cna gp heen sche nsk nce eb ag nedeeavank 22

STA OA

Table of Contents Continued Vii

Page

(‘ONSTITUTION :

Article I, Section 8 (Copyright Clause)... .3, 5, 6, 12, 14, 17

First Amendment ............ 2, 11, 12, 14, 17, 18, 22-23, 24,

25, 26, 27, 28, 29, 30, 31, 32,

40-43, 47, 51-52

Pt DIE so 6.0 dv nh'de vd davarerSasdenenenes

enh: MON ss sss v obo carwhicane comeae ees 38

CR PPP PET PRETT err esta: toe a 38

Ninth Amendment ............... 2, 11, 12, 30, 32-37, 51-52

Fourteenth Amendment ..................ceceeees 21, 23

Twenty First Amendment ...............ccccccces 36-37

Starurzus AND CONGRESSIONAL Reports:

COE Ute Oe SE eno ac coed bs wae weed bev ue 12, 16-17

House Rep. No. 2222, 60th Cong., 2nd Sess. ......... 15, 45

House Rep. No. 1742, on H. J. Res. 676, 87th Cong.,

Se Te. Cee i ek av ks Cbs cheeses

House Jud. Comm., H. Rep. No. 2237, 89th Cong.,

PE C0 becca hAivwc lee eeeS eee 7,9

House Jud. Comm., H. Rep. No. 83, 90th Cong., Ist

Ie 555.68 5 hb eo ee CECE a a Sea 7,8

Sen. Jud. Comm., 8. Rept. No. 93-983, 93rd Cong., 2nd

i cA ceeded, Skdcdee ld ete roe Rel odees 7, 8,9

30 Srav. S05 (Sumo 90, 1006) . 20. ccc cece cccccces 3

Booxs AND ARTICLES:

Baui, Tue Law or Copyricut anp Lirerary Property

CR oink el ya eid de dibe sab s vale he wid ives 55

BLACKSTONE, COMMENTARIES ...............cccceeee. 3

Carpozo, Nature or THE JupiciaL Process (1921)..... 40

FM CINE 6 a's va Soe bos Fda Cio ca oe 31

Case Note, 15 So. Cauir. L. Rev. 249 (1942) .......... 56

Chafee, Reflections on the Law of Copyright: I, 45

Cl, Ea Bier. SOD CUM oon vec ctccusecvveccs 24, 44

Clapp, Can Copyright Law Respond to the New Tech-

nology, 64 Law Liprary J. 387 (No. 4, Nov. 1968) .58-60

Conn, Law anv THe Soctau Orper (1933), 112 ....... 62

Cohen, Fair Use in the Law of Copyright, ASCAP,

Copyricut Law Symposium, No. 6 (1955), 42..... 57

ASIDE SN ERENCES AE ETE BACT

Perenange

viii Table of Contents Continued

Page

Comments and Notes, Copyright Fair Use-Case Law

and Legislation, 1969 Duke L. J. 73 2.2.22... 60. 6

Crossland, The Rise and Fall of Fair Use: The Pro-

tection of Literary Materials Against Copyright

Infringement by New and Developing Media, 20

So. Can. L. Bav. 153 (1968) .... 0c ccccccecccess 56

De Worr, AN Ovutiixe or Copyricgur axp LiTEerary

eS CE 5 ak chau wae dn adevaecukehaae do 5d

Drone, A TREATISE ON THE LAW oF PROPERTY IN INTEL-

LECTUAL Propuctions (1879) .............0--00. 55, 62

Frankfurter, Some Reflections on the Reading of Stat-

utes, 47 Con, L. Rev. 527 (1947) ...........0006 40

OR ee ee CIE kin cos accnvacctestenvns 5)

4 Garner, The Ninth Amendment (Comment), 30 ALBANY

: Sie EE he sas ey ck CORED O Oe eNO Rdee 36

3 Goldman, Can Copyright Law Revision Respond to the

§ New Technology?, 64 Law Liprary J. (No. 4, Nov.

4 A een cniceenn vans sereaein dees. wise 7-8

3 Hanson, E., The Two Bulwarks ef Inberty: A Free

i Press and an Independent Judiciary, 41 A.B.A.J.

E| Pt es adiedvcts reise ccer ba victadaeeeecas 20

: Ho.iann, THE ELEMENTS or JURISPRUDENCE (1910).... 53

4 Holmes, The Path of the Law, 10 Harv. L. Rev. 458

4 CRED bos ek ho oan bs eece a dak bs T8k sean ve 44, 45

4 THe Coxmon Law (1881) .........2...000: 52

: Hudon, The Copyright Period: Weighing Personal

3 Against Public Interest, 49 A.B.A.J. 759 (1963)... 47

4 Kaptan, An Unuurriep View or Copyricut (1967).... 48

t Kelsey, The Ninth Amendment of the Federal Consti-

3 tution, 11 Inv. L. J. 309 (1936) ... 2... ccc eeeees 35

Hy Kutner, The Neglected Ninth Amendment: The ‘Other

} Rights’ Retained by the People, 51 Mara. L. Rev.

: Be CE hc Reka ie nk saak ch cone es inden ree 34

i Lecky, History or THE Risk aNpD INFLUENCE OF THE

4 Sprrit oF Rationauism iN Europe (1865) ........ 41

4 McCormick, THE Case FoR FREEDOM oF THE PREss

: Es crave new n cokes Say ab aban Kava s oe a 20

4 McDonald, Non-Infringing Uses, 9 BuLL. or CopyricHt

Socrery oF U.S.A. 466 (Aug. 1962) ............. 56

: McKeon, Merton & GELLHORN, THE FREEDOM TO Reap

4 PEE cd kde van taba ¥ Vika as Sea aweni ibe s cwen 22

3 Madison, The Federalist, No. 37, at 236 ............. 64

: MAIMONIDES, THE GUIDE OF THE PERPLEXED........... 39

-_ —— — —— ™ < FR AOSR EER TEE PALE RWG 2 ESTOS Oey LS

METERS E Yr OLY ITT i EOL S EOE TIO AE ONES RL PLT PGS EMO OE SG

Table of Contents Continued ix

Page

OCIS ics 63 Kacvses sdb Rigg daredaaenes 22

New Technology and the Law of Copyright: Reprog-

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

CURE Sune vac ed re vvectRSneew keen siden ceuke rears 8

Nicnoutson, A Manvuau or Copyricur Practice FoR

Writers, Pustisners anpD AGEeNTs (2d ed. 1956) 56

NimMER on CopyriGHts, (1972) ............-00-- 16, 51, 57

Petre, Stututory Copyriaht Protection, ASCAP, Copy-

RIGHT Law Symposium, No. 14 (i966,, 180 ....... 60

Redlich, Are There ‘Certain Rights Retained by the

People’?, 37 N.Y.U.L. REV. 787 (1962) ......... 33

Rincer & Giriin, Copyricnts (rev. ed. 1965)......... 51

Rogge, Unenumerated Rights, 47 CAL. L. REV. 787

CREE 33 ct Soa Ga soba a unary Uh week oa ries aera 34

Shaw, Publication and Distribution of Scientific Litera-

ture, COLLEGE AND Researcn Liprarigs, Vol. X, 293

I SE oi et baka ORS MILAN: a ee bare 61

Srory, MisceLLaANgEous Writines (1852; 1969 ed.), 442 53

Student Comment, The Effect of the Fair Use Doctrine

in Textbook Publishing and Copying, Part II, 2

re Bs. Te. SUR CEB ob cnv ccdsvcscecsupsacs a

Sulzberger, Arthur, Nov. 13, 1956 (privately printed) 19, 2

WEL, Aumnwax CoPyriGHT a a 3) rere 3

WIuiston on Contracts Sec. 649 ..............008- 56, 57

MISCELLANEOUS:

PO SG ON a in win nda wn edad meni 59

American Guild of Authors and Composers, et al.,

SE da aetedupséhvautue vavewenesneas 9-10

Association of Research Libraries, ete., Brief Amicus

SE eh ice nucs ca bak Ges opaemeWee cane sees 58

Cummings, M. M., testimony .................20e00- 58

Gentlemen’s Agreement (1935) ................... 60-61

Haussury’s Laws or Enoiann (3d ed. 1955), Vol. II,

RUE seed aa ee Seabee ROS CEO Ow ee ee eee he oa 5d

pe a ee a re eres 58

Magazine Publishers Association, Ine., Brief amicus

I ere id cae eo bas deans ee eathinsvubanews 10

National Education Association, resolution ........ oS ae

Congressional charter, 30 Stat. 805 ............. 3

A AE os de os ek cae eb Hoods wah wd co 10

CARE RE Sar OEE S|

RR NS

| SSI LLB BSE ROP EE LEE PE GREET FP a a ae SRE EERE a

RS Te ME ee OAS Poy CT ENS Pie he ee ee

x Table of Contents Continued

Page

Report of the Register of Copyrights, House Com.

Print, 87th Cong., Ist Sess. (July 1961) ........ 45-46

Brief PE wi Sacdeagevarisaaeededcesivavess 50

I IND oe 6 WG os os be ou Eh emcee eee ed 57, 58

EEL Le aS Se rs oh ke ak CREA Se pean Le ORRS ORO 58

Oe SR ore rete Corer err yr rrT 59

NT AU bcdas be ewan eer d i essence eians 58, 61

IN THE

Supreme Court of the United States

OcTOBER TERM, 1973

No. 73-1279

THE WILLIAMS & WILKINS ComPANY, Petitioner,

—against—

THE UNITED States, Respondent.

On Writ of Certiorari to the United States Court of Claims

BRIEF OF THE NATIONAL EDUCATION

ASSOCIATION, AMICUS CURIAE

With the consent of both parties, the National Educa-

tion Association of the United States respectfully sub-

mits this brief amicus curiae in support of the Respond-

ent.

The letters of consent have been filed with the Clerk

of this Court.

Se ee a ee ee

QUESTIONS BEFORE THE COURT

‘**Putting the wrong questions is not likely to beget

right answers even in law’’, according to Mr. Justice

Frankfurter.’ Auda Mr. Justice Rutledge once said:

‘*To state the question often is to decide it. And

it may de this by failure to reveai fully what is at

stake.’’ ?

Amicus respectfully suggests that the Petitioner has

put ‘‘the wrong question’? before this Court, and that

its question fails ‘‘to reveal fully what is at stake.”’

Amicus believes that the dispositive questions are as

follows:

1. Constitutional

Does ‘‘fair use’’ have constitutional protection

under the Bill of Rights?

2. Custom and “Fair Use’”’

Ts a customary use a ‘‘fair ase’’, without regard

to the normally applicable criteria used in the

absence of such custom ?

Amicus respectfully suggests that the answer to

these questions is as follows:

1. Constitutional

“Fair use’’ has constitutional protection under

both the First and Ninth Amendments. Reason-

able resort to this protection has priority over

the mere privilege accorded to the copyright

1 Vanston Bondholders Prot. Com. v. Green et al., 329 U.S. 156,

170 (1946) (concurring).

2 Yakus v. U. S., 321 U.S, 414, 482 (1944) (dissenting).

owner by permissive and non-mandatory action

of the Congress under the ecpyright clause of

Article I, § 8.

2. Custom and “Fair Use’’

A customary use is a fair use, without need for

compliance with criteria which are applicable

and necessary where custom is not involved.

THE INTEREST OF THE NATIONAL

EDUCATION ASSOCIATION

The decision of the Court below has implications

which seriously affect millions of teachers and multi-

ple-millions of students in America’s schools. If the

decision of the Court of Claims is not allowed to stand,

it could well limit the capacity of the American school

svstem to teach effectively. While the case before the

Court involves library activities, in the broad reach

those activities are educational in nature.

The National Education Association of the United

States (incorporated under a statute of the Congress)

is the largest professional organization in the United

States. With the combined membership of its State

and loeal affiliates, the NEA represents approximately

two million of the nation’s educators, with elementary

and secondary classroom teachers and college pro-

fessors making up about 90% of its membership.

The NEA is an independent, voluntary, nongovern-

mental organization whose Congressional charter

designates its purpose as ‘‘to elevate the character and

advance the interests of the profession of teaching and

to promote the cause of education in the United

States,’’ 30 Srar. 805, Section 2 (June 30, 1906). To

further this end, it strives for the improvement of the

professional status of teachers.

NEA’s interest in the copyright law is of long stand-

ing. For example, in 1963, it was instrumental in creat-

ing an Ad Hoc Committee on Copyright Law Revision,

which includes representatives of some 42 educational

organizations covering the full range of education in

the United States. This independent committee has

been chaired by an NEA staff member. The group

meets regularly to study proposed copyright legislation

and to make recommendations to the Congress in be-

half of the public interest.

The NEA’s continuing resolution on copyright law

revision, passed by the Delegate Assembly in 1971 and

readopted annually since then, starts with the following

sentence:

‘The National Education Association believes that

maximum access to teaching materials is of vital

concern to every teacher.”’ 1971-72 NEA Hanp-

BOOK FOR LOCAL, STATE AND NATIONAL ASSOCIATIONS

(Oct. 1971), pp. 88-89. ~~

The copyright law affects the teaching process at its

inner core. Formerly, teachers tended to use the same

textbooks for all pupils. Today's teacher uses many

resources in his teaching. He has a variety of texts

and supplementary materials, including trade and

reference books, newspapers and magazines, eduea-

tional motion pictures, film strips, audie and video

tapes and cartridges, overhead transparency projec-

tors, record players, slides, instructional TV and radio,

programmed instructional material, and computer-

assisted instruction. The modern teacher uses all of

these resources in orchestration to do specifie jobs. He

selects resourees to fit particular learner needs and

objectives.

The most effective teachers are those who capture the

mood of the moment, who use some suddenly discovered

motivation of their pupils at the teachable moment.

The copyrighted works most needed by teachers are

recent and contemporaneous materials, not text books.

Teachers want to update texts and have their classroom

work relevant and meaningful to current developments.

It is because of such materials and needs, and because

of the newer educational technologies, that most of edu-

cation’s copyright problems arise.

Perhaps the most dramatic example of the kind of

of Robert Frost’s poem, ‘‘The Gift Outright’’, at Presi-

dent Kennedy’s inauguration. Many English teachers

used it in the immediately following days, to illustrate

the value of poetry in capturing the spirit and essence

of a key moment in our national consciousness. The

poem was copyrighted but not available in any text-

900k. Should a teacher deprive his students of such a

universal national experience because the poem was

not in the textbook? For many younger students in

American schools this might be the first introduction to

one of America’s outstanding poets. Obviously, teach-

ers could not have planned ahead for this situation.

The copyright problems of teachers are infrequently so

dramatically illustrated as with the Frost poem but

they occur daily and are critical to meeting the needs

of effective teaching.

Would it advance the public interest, would it be con-

sonant with the provisions and purpose of the copy-

right clause of the Constitution, to lose the teachable

moment by waiting for months to get the book through

purchase or permission to copy, for a one-time use

whose timeliness would long since have disappeared ?

NEA believes that immediate use of the Frost poem

was a typical educational ‘‘fair use’’ authorized under

aay

the copyright law. Such use is consonant with the

Supreme Court’s concept of the importance of educa-

tion today:

‘Today, education is perhaps the most important

function of state and local government... It is

required in the performance of our most. basic

responsibilities ... It is the very foundation of

good citizenship. Today it is a principal instru-

ment for awakening... cultural values, in prepar-

ing... for later professional training and in help-

ing... to adjust normaily to his environment.’’ ®

In more recent times, the resignation of President

Nixon presents similar ‘fair use’’ problems to teachers

using portions of copyrighted newspapers or mag-

azines for the improvement of education without detri-

ment to the publishers.

The NEA believes that the Constitution’s copyright

clause and the ‘fair use’’ doctrine must be interpreted

so as to support, not to restrict, good teaching practices,

by assuring non-profit and non-commercial educational

purposes of a reasonable and ready access to teaching

materials. In particular, the opinion below aftects two

aspects of ‘‘fair use’’ that are of utmost importance to

America’s pupils and teachers:

(1) the customary and long-established practice

of teachers in making limited copies of copy-

righted print materials for classroom use and

teaching purposes ; and

(2) the opportunity to meet instructional require-

ments through access to copyrighted materials

by means of the new educational technologies,

such as audio-visual materials, broadcast

materials, and others.

3 Brown vy. Board of Education, 347 U.S. 483, 493 (1954).

Special Problem: Legislation Under Consideration.

As already indicated, this case involves more than the

customary concern of an amicus. The reversal of the

decision below may well decide the meaning of pending

Congressional legislation for comprehensive copyright

revision in a manner wholly inconsistent with the Con-

gressional understanding of the meaning of ‘‘fair use’’

as heretofore interpreted by the courts.

For many years the Congress has been considering

proposals for comprehensive revision of the current

hearings have been completed in both the House and

the Senate. Thus far, only the House has passed a bill.

The House Judiciary Committee reported a bill in 1966

(H. Rep. No, 2257, 89th Cong., 2d Sess.) ; and again in

1967 (H. Rep. No. 83, 90th Cong., Ist Sess.) (A bill is

now pending in the Senate, S. 1361, Sen. Rep. No. 93-

983.)

The report of the House Judiciary Committee clearly

reflects vigorous and controversial debate, during

extensive hearings, over the meaning of ‘‘fair use’’ for

education. For the first time, the Committee proposed

statutory recognition of ‘*fair use’’, The House report

indicated some key factors behind its judgment:

(1) There are no judicial precedents for the mean-

ing of ‘‘fair use’’ in connection with nonprofit

schools.*

‘See also Sen. Rep. No. 93-983, 98rd Cong., 2nd Sess. (1974),

p. 116. ‘*. .. the case law on fair use has not dealt with photo-

copying and the analogous ferms of reproduction’’ for educational

purposes. ‘‘... as to cases of copying by teachers ... in this area

there are few if any judicial guidelines,’’. House Rep. No. 2237,

89th Cong., 2nd Sess., on H.R. 4347, pp. 60-1. See also statement

by Copyright Office’s General Counsel: ‘‘. . . The decisions have

not dealt with copying specifically for the purpose of teaching or

re |

;

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(2) In adopting statutory ‘‘ fair use’’, the Commit-

tee ‘‘intended to restate the present judicial

doctrine of fair use’’, neither augmenting nor

constricting it.°

(3) To give some guidelines of what such statu-

torily-adopted judicial ‘‘fair use’’ means, the

Committee set forth at Jength specific exam-

ples of school and teaching activities which in

its judgment are such ‘‘ fair use’’.

The significant fact is that in arriving at such ex-

amples, the House Judiciary Committee relied on no

judicial precedents and cited none. Instead, virtually

all of its examples as to legally acceptable educational

‘fair use’’ were adopted substantially, if not in haec

verbi, from examples which a parade of educational

witnesses had deseribed as being the long-standing

custom of schools and teachers. Thus, we have here a

Congressional understanding that judicial ‘‘fair use’’

derives from the cus.om followed in schools.

Amicus respectfully suggests that there is a funda-

mental inconsistency as to the origin and meaning of

‘‘fair use’’, between the Reports of the House and

Senate Judiciary Committees and the Petitioner’s posi-

tion, and that such difference might be crucial to the

operability of America’s schools. The Petitioner’s

view undercuts the understanding of the House and

research. The formulation in the bill does; it cites, as examples of

purposes for which copying or other uses might qualify as fair use

...’, Goldman, Can Copyright Law Revision Respond to the New

Technology ?, 64 Law Liprary J. (No. 4, Nov. 1968), 387 at 393.

5 House Rep. No. 83, 90th Cong. Ist Sess. (1967), p. 32. To same

effect: Sen. Rep. No. 93-983, 93rd Cong., 2nd Sess. (1974), p. 116.

® See, for example, New Technology and the Law of Copyright:

Reprography cud Computers, 15 UCLA L. Rev. 939, 953 (1968).

Senate Judiciary Committees as to the judicial doc-

trine of ‘‘fair use’’ and therefore vitiates the entire

basis for the House’s action. The Petitioner’s refusal

to accept and give effect to customary use as ‘‘ fair use”’

runs directly counter to the obvious intent and under-

standing of the Senate and House Committees in turn-

ing to educational custom to describe the judicial ‘‘fair

use’’ which it was accepting by statute for educational

purposes. .

The House Judiciary Committee’s report is specifi-

cally designed, in part, to protect the educational com-

munity of America,’ by specifying what ‘‘fair use”’

means for the nation’s schools. The Petitioner would,

on the other hand, negate the substance of that legisla-

tive understanding. Amicus asks this Court, among

other things, to vindicate the basic concept of ‘* fair use”’

upon which the reports of both Judiciary Committees

are based, and which is rejected by the Petitioner, i.e.,

that eustomary use ts ‘‘ fair use’’,

What is at stake here, therefore, is not only the

future of judicial determinations of ‘‘fair use’’ under

the present law but also the meaning, in futuro, of

comprehensive copyright law revision so far as it

intimately affects America’s schools.

In one respect, The National Edueation Association

agrees with comments made by several amici curiae in

support of the Petitioner on the Petition for a Writ of

Certiorari, as follows:

‘The erux of the issue, however, is not limited to

the precise facts of this particular case. It lies in

7 House Rep. No. 2237, 89th Cong., 2nd Sess., on H.R. 4347 at

pp. 60-1. Cf: Sen. Rep. No. 93-983, 93rd Cong., 2nd Sess. (1974),

p. 116.

fC Na, Pe AES Chadd Pi RS

RS BD NOLL SALT) Moe Few HS Ike 2

the principles of law enunciated by the Court be-

low.”’ American Guild of Authors and Composers,

et al., pp. 7-8.

‘1, The Court’s decision below, especially its

rationale, (a) has an importance transcending

the interests of the particular litigants . . .’’

Magazine Publishers Association, Ine., p. 3.

Indeed, the Petitioner itself ‘‘recognizes implica-

tions beyond the instant case’’, Brief p. 29.

This case is one of first impression. The Court of

Claims called it ‘‘ground breaking’’, 487 F.2d 1345,

1346 (1973) and stated there the issue had never been

determined by a court (at 1347) and that there were no

prior dispositive decisions (at 1852). We have here a

case where the parties have raised fundamental issues

of the relationship between proprietors and users of

copyrighted material; of basic questions of constitu-

tional, statutory and common law; and of delicate ques-

tions of the judicial balancing of rights to which

monopolistic claims are asserted by one side. The

Court’s decision as to the meaning of ‘‘fair use’’ will

have far-ranging implications which ean either advance

or retard the all-important functions of America’s

schools. It is in this context that the National Eduea-

tion Association asks this Court to make its determina-

tions in a manner conducive to, and supportive of, the

finest possible educational system in this country.

In circumstances such as here indicated by the vari-

ous amici curiae, where the issues extend far beyond

the particular interests of the parties themselves, the

NEA believes that the Court below was eminently cor-

rect in stating that in the ‘‘balance of risks’’, the bal-

ance should be in favor of the public interest repre-

sented by the Respondent.

Me Res ata co bod

;

11 b

ARGUMENT &

I. CONSTITUTIONAL ISSUES :

At Heart of the Case é

Constitutional issues are at the very heart of this \

case.

Amicus respectfully suggests that ‘‘fair use’’ (or the

right of reasonable access to copyrighted materials)

has constitutional protection under the First and Ninth

Amendments in the Bill of Rights. This constitutional

dimension protects the right of reasonable access to the

cultural, educational, scientific, historical, technical and

intellectual heritage of the Nation.

This right has constitutional protection both directly

and under the penumbra of

(a) the First Amendment (Freedom of Press),

and

(b) the Ninth Amendment.

This case involves a conflict between

(a) the American publie’s constitutional right of

reasonable access to copyrighted materials, and

(b) the copyright owner’s statutory privilege em-

anating from the copyright law. In this latter

connection, the Constitution gives no constitu-

tional right to copyright owners. It merely

authorizes the Congress, under severe limita-

tions, to enact copyright legislation. At most,

therefore, the copyright owner has a statutory

privilege, not a constitutional right.

Consequently, in the necessary ‘‘balancing’’ process

which this Court must undertake, the ‘‘balance’’ must

i bse t x ite eats POE EDL MPN OB: Pa SOR eRe NESTOR RR IIE I in ts So ER eT ce Se aie ee en aiee sarec te =|

be in favor of the overriding and coustitutionally-pro-

tected right of the American public to reasonable ac-

cess to its national heritage, copyright notwithstanding.

In this context, ‘‘fair use’’—as a constitutionally pro-

tected right—fully sanctions the Respondent’s practice

in the instant case.

Need for Constitutional Decision

This Court has said: ‘‘ Federal statutes are to be so

construed as to avoid serious doubt of their constitu-

tionality’’.®

Elsewhere this Court has

‘*repeatedly held that as between two possible in-

terpretations of a statute, by one «f which it would

be unconstitutional and by the other valid, our

plain duty is to adopt that which will save the act.

Even to avoid a serious doubt the rule is the same’’.’

- ¥ ahs, -

Jodie ae tig ES

nb CO ie Ry

Amicus respectfully submits that, in order to avoid

an unconstitutional result as applied to the facts of this

case, the proper application of the First Amendment’s

provision protecting Freedom of Press and the Ninth

Amendment’s reservation of unenumerated rights te

SO ene e oe

' the people require interpreting the copyright clause of

. the Constitution, the copyright act, and the term ‘‘fair

use’’ to authorize the long-established practice followed

by Respondent in this case.

Even where *t has not been necessary to reach consti-

tutional issues vw decide a case before it, this Court has

specifically expressed its view on the constitutional

8 International Association of Machinists v. Street, 367 U.S. 740,

749 (1961). See also Dennis v. United States, 341 U.S, 494, 501

(1951) ; Communist Party v. Catherwood, 367 U.S, 389, 392 (1961).

® NLRB vy. Jones & Laughlin Steel Corp., 301 U.S. 1, 30 (1937).

See also United States v. Rumely, 345 U.S. 41, 45 (1953) and eases

therein cited.

‘

SS en ar ee ee RI AHO Rican Tisai SNe:

acai A Bee Dy ETA Daye

questions whic’. would have been present ‘‘if reached

by the court.’’ ’° On occasion this Court has deliberately

decided to reach the constitutional issue, although the

case could have been decided on other grounds, because

it was necessary to solve such constitutional issue in

order to avoid future difficulties.”

This Court has also indicated that it will delve into

certain areas, albeit rarely,

‘‘not oniy to make sure that substantive constitu-

‘tional standards have not been thwarted, but also to

provide guidance for the future to the lower courts

in an area which borders so closely upon constitu-

tionally protected rights’’.’” 3

The instant case is peculiarly fitting, and calls out,

for constitutional clarification and interpretation.

This Court may be confronted with the argument

that the Constitution authorizes the Congress to enact

authority thus conferred, and without further reference

hereinafter to the amicus’s illustration of the difference

between a constitutional right and a statutory privilege,

a recent statement of this Court is applicable:

ee oa IPR en aoe ¥

Fahy EESTI ETE OLE

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SUD? PAINE SEES PRN

‘“‘The existence of a permissible purpose cannot

sustain an action that has an impermissible

effect’’.”

1 Peters v. Hobby, 349 U.S. 331 (1955) ; Kent v. Dulles, 357 U.S.

116, 129-130 (1958). Semble, Rice v. Sioux City Cemetery, 349 U.S.

70, 72 (1955). See also Volanski v. United States, 246 F.2d 842, 845

(6th Cir. 1957), per Stewart, C.J.

Youngstown Sheet and Tube Co. vy. Sawyer, 343 U.S. 579, 585

(1952). Cf: United States vy, U.S. Gypsum Co., 333 U.S. 364, 387

(1948) (‘‘ While this issue need not be decided to dispose of this

case, it seems inadvisable to leave the decision as a precedent.’’)

” Scales vy. U.S.A., 367 U.S. 203, 230 (1961).

18 Wright v. Emporia City Council, 407 U.S. 451, 462 (1972).

— Abin gf TORI aE ENS I PORE ED eR ON RIN

In Wright v. Emporia City Council, supra, n, 13, this

Court said it ‘‘ focused upon the effect--not the purpose

or motivation— ...’’ “

As Justice Black declared in another context,

‘*Rreedom of the Press from governmental inter-

ference under the First Amendment does not sane-

tion repression of that freedom by private inter-

ests.’’

Very recently, this Court also stated that

‘A clear and precise enactment may nevertheless

be ‘overbroad’ if in its reach it prohibits constitu-

tionally protected conduct.”’ ’°

The constitutional issue is clearly before the court

and requires adjudication in this case.

A. The Constitution Grants No Rights to Copyright Owners

i Article I, §8, of the Constitution grants no rights to

authors; it merely grants power to Congress to enact

first case in which it considered this problem. There,

counsel for complainants insisted that the constitu-

i tional provisions did not originate a right but merely

protected one already in existence. This Court specific-

' ally rejected this argument as to copyright for pub-

lished material :

‘**Congress then, by this act, instead of sanctioning

an existing right, as contended for, created it... .

This right, as has been shown, does not exist at com-

4 Thid., at 462.

5 Associated Press vy, U.S., 326 U.S. 1, 20 (1945).

16 Grayned vy. City of Rockford, 408 U.S. 104, 114 (1972).

a ea a a ee nS eee ee oe et et ee

TTAB Ty TAO VARY ELD AE VLAD N AL CaP AR igloos SATIN SYNOD 4 aE It eRe Mt yen tk Combe A ARLE Re PN CCT ERE OPP AMY

mon law—it originated, if at all, under the Acts of

Congress.’’

The House Report on the current Copyright Law of

1909 also made this same point crystal clear:

“The enactment of copyright legislation by Con-

gress under the terms of the Constitution is not

based upon any natural right that the author has

in his writings, for the Supreme Court has held

that such rights as he has are purely statutory

rights. . . . The Constitution does not establish

copyrights, but provides that Congress shall have

the power to grant such rights if it thinks best.’

my)

“2

‘

ehieiee

A long and uninterrupted line of cases holds unequi-

vocally that—apart from common law protection for

unpublished works—copyright protection is completely

and solely a matter of statute’ and that copyright is

only a privilege or a franchise.”” Under this Court’s

rulings it is settled law that any copyright right is

simply a creature of statute.’ As distinguished from

17 Wheaion v. Peters, 8 Pet. 591, 661, 663 (1834). To the same

effect, see Mazer vy. Stein, 347 U.S, 201, 214 (1954) ; Fox Film Corp.

v. Doyal, 286 U.S. 123, 127 (1932); Caliga vy. Inter Ocean News-

paper Co., 215 U.S. 182, 188 (1909).

18 House Report No. 2222, 60th Cong., 2d Sess., p. 7.

” Miller Music Corp. v. Daniels, Inc., 362 U.S. 373, 375 (1960) ;

Bentley v. Tibbals, 223 F, 247, 248 (2d Cir. 1915) ; Grant v. Kellogg

Co., 58 F.Supp. 48, 52 (8.D. N.Y. 1944), aff’d 154 F.2d 59 (2d Cir.

1946) ; Bobbs-Merrill Co, v. Strauss, 210 U.S. 339, 346 (1908).

*° Local Landmarks vy, Price, 170 F.2d 715, 718 (Sth Cir. 1948),

21 American Tobacco Co. v. Werckmeister, 207 U.S. 284, 291

(1907) ; Bobbs-Merrill Co, v. Strauss, supra n.19 at 346, White-

Smith Music Pub, Co, vy. Apollo, 147 F.226, 227 (2d Cir. 1906),

aff’d 209 U.S. 1, 15 (1908). See also Loew’s Inc, v. C.B.S., 131 F.

Supp. 165, 173 (1955), aff’d 239 F.2d 532 (9th Cir, 1956), aff'd by

equally divided court, 356 U.S. 43 (1958).

wall ANN Mk eet Tee Le ee ae a ee a ea WARN AER EN MY MSH TENN ORT PN REISE AAPA TEU TRRI

ea ‘ »aageerans oeette

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See as

literary property, copyright is wholly a matter of Con-

gressional discretion to grant or to withhold.” This

Court recently held that in connection with copyrights

‘‘the Constitution is permissive’? not mandatory.”

This Court has also held that the conditions upon

which copyright is granted are wholiy within the con-

stitutional power of Congress to prescribe. The whole

history of the copyright law shows that an author has

no constitutional property right in or to copyright pro-

tection and that such ‘‘right’’ as an author obtains is a

privilege to be granted or withheld by Congress in its

discretion. As the House Report on the present copy-

right law said ef copyright rights granted to authors:

‘+... Congress has the power to annex to them such con-

ditions as it deems wise and expedient.’’®” The very first

gave protection only to «maps, charts and books, and

that only for a 14-year period plus renewal of 14 years.

It did not cover periodicals, drawings, works of art,

musical composition, dramatic composition—to name

but a few. And even the present far more extensive law

of 1909 is not all-inclusive and places limits on authors’

of vears during which an author may exercise copyright

22 Kraft v. Cohen, 117 F.2d 579, 580 (3d Cir. 1941); Keene v.

Wheatley, 14 Fed Cas. 180, 185, 47644 (Cir.Ct.Pa. 1820).

23 Deepsouth Packing Co., Inc. v. The Laitram Corp., 406 U.S.

518, 530 (1972).

24 Wheaton v. Peters, supra n. 17, at 663-4 (1834). See also Ap-

plication of Cooper, 254 F.2d 611, 616 (C.C.P.A. 1958), cert. de-

nied 358 U.S. 840 (1958) ; Stuff v. La Budde Feed & Grain Co., 42

F. Supp. 493, 496 (E.D. Wis. 1941) (See NIMMER ON COPY-

RIGHTS (1972), p. 14.).

*5 Op. cit., supra n. 18, p. 9.

monopoly privileges. Congress has limited the uses to

which the copyright owner’s privileges attach, i.e., the

‘‘for profit’’ limitation on public performance rights;

compulsory licenses; the non-inclusion of ‘‘rental

rights’’, to cite but a few.

In addition to Congressional limitations of any so-

called ‘‘property’’ rights in copyright, the courts have

also developed a further limitation through the doctrine

of ‘*‘fair use’’—which is the dispositive issue in this

“ase.

And just over two years ago this Court, speaking

through the Chief Justice, ruled that the constitutional

Federal control over copyrights.”

Thus, it is clear that copyright is a privilege conferred

by statute and not a right guaranteed by the Constitu-

tion.

B. The First Amendment Protects the American People’s Right

of Reasonable Access to Matter Subject to Copyright.

The First Amendment’s guarantee of Freedom of the

Press protects the American people’s right of reason-

abie access to copyrighted material against the monop-

oly of a rigid construction of the privilege afforded

under the copyright statute. In the balancing of a eopy-

right proprietor’s statutory privileges against the con-

stitutional protection for the people’s right to know

and right to read, the balance must be struck in favor

of the constitutional right. Although protected by the

statute, the copyright privilege does not prevail against

the constitutional guarantee of the First Amendment.

26 Goldstein et al. vy. California, 412 U.S. 546, 553, 558 (1973).

ee a

;

a ‘nt: By

1. Freedom of Press Protects the American People

Not Publishers

The American people’s rights are at stake here. More

particularly, the rights of America’s teachers and stu-

dents, as individuals and as teachers and students, are

in jeopardy unless the decision below is upheld.

The Bill of Rights exemplified a clear rationale for

Freedom of Press, that a free press was the only in-

strumentality for protecting the American people’s

right to know.

This Court has long recognized that a free press is

essertial for a free people. Mr. Justice Black wrote for

the Court:

**The First Amendment ... rests on the assumption

that the widest possible dissemination of informa-

tion from diverse and antagonistie sources is essen-

tial to the welfare of the public, that a free press is

a condition of a free society.” **

Mr. Justice Frankfurter said in the same case that

‘*the business of the press ... is the promotion of truth

regarding public matters by furnishing the basis for an

understanding of them’’, and that the basie fimetion

which a Constitutionally guaranteed free press serves

in our nation ‘tis to have the flow of news not tram-

melled.”’ *

Throughout our national history this eoncept of the

press as an instrumentality of the American people has

been pervasive in judicial readings of the First Amend-

27 Associated Press v. U.S., 326 U.S. 1, 20 (1945).

28 Ibid., pp. 28, 29.

ment. Mr. Justice Sutherland wrote in connection with

a ¢laim of abridgement of freedom of press:

“The predominant purpose of the grant of immu-

nity here invoked was to preserve an untrammelled

press as a vital source of public information.’’ ”

Freedom of Press is a right of the American people ;

the press is a trustee of that right. Freedom of Press

was not designed as a special privilege for the publish-

ing business, but rather as an extension of the personal

rights of each American. It isa guaranty of the individ-

ual’s rights, and was thus joined in the First Amend-

ment of the Bill of Rights with the rights of free speech,

assembly and petition

This Court has characterized ‘*the freedom of speech

and that of press as fundamental personal rights and

liberties. The phrase is not an empty one and was not

lightly used. It reflects the belief of the framers of the

Constitution that exercise of the rights lies at the foun-

dation of free government by free men.”’ “°

This Court has also recognized that the First Amend-

ment’s guarantee of freedom of press is ‘‘not for the

henefit of the press se much as for the bene

99 31

all.

ir)

Chal

of ss

ui Ud

‘*Free press”’ is only a shorthand way of saying that

the press must be free because of the right of all Amer-

icans to be informed. Arthur Hays Sulzburger of the

*" Grosjean v. American Press Co., 297 U.S. 233, 250 (1936).

*° Schneider vy. State, 308 U.S. 147, 161 (1939).

31 Time, Inc. vy. Hill, 385 U.S. 374 389 (1967). See also United

States v. Powell, 171 F.Supp. 202, 205 (N.D. Calif. S.D. 1959).

Re RD

Seema

New York Times addressed the Trustees of the New

York Public Library on this issue:

‘* Perhaps we ought to ask ourselves now just what

freedom of the press really is... Freedom of press

—or, to be more precise, the benefit of freedom of

the press—belongs to everyone, to the citizen as

well as the publisher. The publisher is not granted

the privilege of independence simply to provide

him with a more favored position in the community

than is accorded to other citizens. He enjoys an ex-

plicitly defined independence because it is the only

condition under which he can fully perform his

role, which is to inform fully, fairly and compre-

hensively. The erux is wot the publisher’s freedom

to print; it is rather the citizen’s right to know!

What L would point out is that freedom of the

press is your right as citivens and not imine as a

publisher.’

Col. Robert R. MeCormick of the Chicago Tribune

said: **The freedom of the press is the freedom of the

American people.’’

Elisha Hanson, distinguished counsel for the Amer-

ican Publishers Association, put it thus:

**The right to have a free press is the right of the

people, not a privilege of a particular segment of

our economy engaged in the business of gathering

and disseminating information in printed form.

Publishers are but trustees of this right.’’

82 Nov. 13, 1956. Privately printed, p. 9.

“3 McCormick, The Case for Frecdom of the Press 23 (1933).

34 The Two Bulwarks of Liberty: A Free Press and an Inde-

pendent Judiciary, 41 A.B.A.J. 217, 218 (1955).

SSSA AA memes |

2. The Right of Access is an Integral Part of the Rights

Guaranteed by the Bill of Rights

The right of aecess, as such, has been increasingly

recognized by this Court as an integral part of the rights

guaranteed by the Bill of Rights. Thus,

OR SUR er in NSN

eae ee

—the right of ‘‘suitable access to social, political,

esthetic, moral and other ideas and experiences

99 35

—the right to ‘‘receive information and ideas”’

—the right to receive printed matter ”

—the right of access to certain religious publica-

tions *

—the right of acecss to a sufficient library to permit

prisoners to prepare legal papers ”

—the right of access to the Courts *°

—the right of addressees of letters to read the

letters without censorship *

Just as such rights of access are ancillary to, and

come within the penumbra of, rights protected by the

3° Red Lion Broadcasting Co. v. F.P.C., 395 U.S. 367, 390 (1969).

%6 Kleindienst v. Mandel et al., 408 U.S. 753, 760, 762-5 (1972) ;

Stanley v. Georgia, 394 U.S. 557, 564 (1969).

*7 Lamont v. Postmaster General, 381 U.S. 301 (1965).

88 Cruz v. Beto, 405 U.S. 319 (1972).

39 Martin v. City of Struthers, 318 U.S. 141, 1483 (1948). See

also Younger et al. vy. Gilmore et al., 404 U.S. 15 (1971) (under

equal protection clause of 14th Amendment.

* California Motor Transport Co. et al., v. Trucking Unlimited,

404 U.S. 508, 513 (1972).

4! Procunier v. Martinez, 416 U.S. , 94S. Ct. 1800, 1809 (April

29, 1974).

Ape <hitd Syste eae A ee

seebatss ODA sj

Bill of Rights * (cr other provisions of the Constitu-

tion), so the right of reasonable access (through ‘fair

use’’) to copyrighted materials pertaining to the cul-

tural, historical, edneational, scientific, technical, and

religious heritage of the nation comes within the penum-

bra of the right of Free Press guaranteed by the First

Amendment.

3. The Rights of Free Press and Free Speech Include

the RIGHT TO READ

The First Amendment would be sterile today if its

sanctions were limited to the mere act of printing or

writing. The Zenger Case decid .' that over 200 years

ago.” This Court has not so limited Freedom of Press:

‘Liberty of circulating is as essential to that free-

dom as liberty of publishing; indeed, without the

circulation, the publication would be of little

value.’’ “

This Court ruled that Freedom of Press protects not

only the publisher’s right to print ” and to publish,”

* For the right to hear as being within the penumbra of the

Freedom of Speech provision of the First Amendment, see Thomas

v. Collins, 323 U.S. 516, 5384 (1945). See also Molpus yv. Fortune,

452 F.2d 916 (Sth Cir. 1970); Pickings v. Bruce, 430 F.2d 595,

598-9 (6th Cir. 1970); Brooks v. Auburn University, 412 F.2d

1171, 1172 (Sth Cir. 1969); ACLU v. Radford, 315 F. Supp. 893

(E.D. Va. 1970); Smith v. University of Tennessee, 300 F. Supp.

777 (E.D. Tenn. 1969) ; Snyder v. Board of Trustees, 286 F. Supp.

927 (N.D. Ill. 196s).

As far back at 1644, Milton’s Arcopagitica was a defense of

“‘the liberty of unlicensed printing’, MeKEON, MERTON &

GELLHORN, THE FREEDOM TO READ 43 (1957).

4 In the Matter of Jackson, 96 U.S, 727, (1878), cited with ap-

proval in Lovell v. Griffin, 303 U.S, 444, 452 (1938).

Lovell v. Griffin, supra n. 44, at 452; Winters v. New York, 333

U.S. 507, 509 (1548) See also, MVursh v. Alabama, 326 U.S. 501

(1946); Martin vy. City of Struthers, 319 U.S. 141 (1943).

4% Grosjean vy. American Press Co., supra n. 29, at 250; New York

Times v. Sullivan, 376 U.S. 254, 270 (1964)

NE IME ily AR OS GMAIL EM ISDS

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and the distributor’s right to circulate,” but also the

public’s ‘‘right to receive information and ideas”’ * and

the public’s right to read.

Butler v. Michigan, 352 U.S. 380 (1957), involved a

state statute which made a criminal offense of the pub-

lication, sale and distribution of any literature ‘‘tend-

ing to the corruption of the morals of youth’’. The

”

statute was challenged as an unconstitutional infringe- .

ment of freedom of press and due process under the &

First and Fourteenth Amendments. The State’s Attor- :

ney General denied that the statute did violence either E

to the free press clause of the First Amendment or to F

the due process clause of the Fourteenth Amendment. :

And the Attorney General of Texas, amicus curiae, &

claimed that the book there in question was not within

the protection of the First Amendment’s freedom of E

press.

SEA TRE

This Court unanimously found the statute unconsti-

tutional:

‘*The incidence of this enactment is to reduce the

adult population of Michigan to reading only what

is fit for children. It thereby arbitrarily curtails

one of those liberties of the individual, now en-

shrined in the Due Process Clause of the Four-

teenth Amendment, that history has attested as the

indispensable conditions for the maintenance and

progress of a free society.’? (384-85)

‘7 In the Matter of Jackson, supra n. 44; Winters v. New York,

supra n. 45.

4S Kleindienst v. Mandel et al., supra n. 36; Stanley v. Georgia,

supra n. 36, at 564; Red Lion Broadcasting Co. v. F.C.C., supra

n. 35, at 390; Griswold v. Connecticut, 381 U.S. 479, 482 (1965) ;

Lamont v. Postmaster General, supra n. 37, at 307-8 (Brennan,

concurring). See also New York Times Co. v. U.S., 403 US.

713 (1971).

Butler was decided in 1957. In 1965, this Court pro-

claimed the right—specifically—of school teachers to

read, as part of their First Amendment rights, Lamont

v. Postmaster General, supra n. 37 at 307. And in 1969,

a plaintiff claimed ‘‘the right to read’’ and this Court

confirmed that right, Stanley v. Georgia, supra n. 36 at

565.

As recently as April 29, 1974, this Court further

broadened the constitutional protection for the RIGHT

TO READ by also finding it within the constitutional

guarantee for free speech under the First Amendment.

In Procunier v. Martinez, supra n. 41, the Court was

confronted with the censorship of mail written by

prisoners. Writing for the Court, Mr. Justice Powell

said:

‘Communication by letter is not accomplished by

the act of writing words cn paper. Rather it is ef-

fected only when the letter is read by the ad-

dressee .. . Whatever the status of a prisoner’s

claim to uncensored correspondence with an out-

sider, it is plain that the latter’s interest is

grounded in the First Amendment’s guarantee of

freedom of speech ...’’ (at 1809)

A leading scholar in this field recognized that

**.. the readers and consumers ... have more at

stake than anybody else.’’ *”

Thus, the Constitution protects more than freedom to

print or write; without reading by the publie ‘* publica-

tion would be of little value.”’

The constitutional protections for Freedom of Press

and Freedom of Speech were designed to achieve an

* Chafee, Reflections on the Law of Copyright: I, 45 Cow. L.

Rev. 503, 517 (1945).

Pith DID TENE

end, the right of the public to read. In order to accom-

plish this end—which this Court has ruled to be in-

g cluded within the constitutional protection of each in-

* dividual American—it is necessary to have reasonable

: access. Freedom of Press and Freedom of Speech must

at the very least, include freedom of access to materials

affecting the educational, cultural, historical, political,

scientific and religious background of the nation, Any-

thing less would hamstring a fundamental objective of

the First Amendment, the people’s right to read.

AAPOR ILE NERS PAC

The applicable reach of the First Amendment is well

illustrated by Kleindienst v. Mandel et al., supra n. 36,

where both the majority and the minority agreed that

the First Amendment guaranteed access to hear, to re-

ceive information, to learn, to know. Mr. Justice Black-

mun, for the Court, said (at p. 762-8) :

‘*In a variety of contexts this Court has referred to

a First Amendment right to ‘receive information

and ideas’.

‘It is now well established that the Constitu-

tion protects the right to receive information

and ideas. This freedom [of speech and press]

... hecessarily protects the right to receive...’

Martin v. City of Struthers, 319 U.S. 141, 143

(1943) ...’ Stanley v. Georgia, 394 U.S. 557,

564 (1969).”’

He also cited Thomas vy. Collins, supra un. 42, at 534

(1945) as protecting the right of workers ‘‘to hear what

he [a labor organizer] had to say’’. Mr. Justice Black-

mun also cited Red Lion Broadcasting Co. v. F.CC.,

supra, at 35, where Mr. Justice White, for a unanimous

Court concerning the FCC’s ‘fairness doctrine’’, stated

of the First Amendment:

«It is the right of the publie to receive suitable

access to social, political, esthetic, moral and other

rH, Mie Pe 0 ten ie POW ACOA MOY A

ideas and experiences which is crucial here. That

right may not be constitutionally abridged either

by Congress or by the F.C.C.”’

Kleindienst also cited Lamont v. Postmaster General,

supra n. 37, upholding the right of an American citizen

to receive communist political propaganda as a First

Amendment right. Mr. Justice Blackmun stated: ‘* This

Court has recognized that this right is ‘nowhere more

vital’ than in our schools and universities ...’’

Mr. Justice Blackmun also cited with approval the

following from the District Court’s opinion (at p. 764) :

‘The conceru of the First Amendment is... with

the rights of the citizens of the country to have the

alien enter and to hear him explain and seek to de-

fend his views; that is of the essence of free gov-

ernment’’, 325 F.Supp., at 631.

In a comment peculiarly appropriate to the instant

case, Mr. Justice Blackinun stated:

“The Government also suggests that the First

Amendment is inapplicable because appellees have

free access to Mandel’s ideas through his books,

and speeches ... While alternative means of access

to Mandel’s ideas might be a relevant factor were

we called upon to balance First Amendment rights

; against governmental regulatory interests—a bal-

ance we find unnecessary here in the light of the

discussion that follows . ..—we are loath to hold on

Ee re

TALES OS

3 this record that existence of other alternatives

3 extinguishes altogether any constitutional interest

4 on the part of the appellees in this particular form

5 of access.”? (at p. 765)

“«. .. the Court’s previous decisions concerning the

‘right to receive information’ ,...’’ (to use Mr. Justice

Blackmun’s expression, at p. 762-3) were accepted hy

the dissenting opinions. Mr. Justice Douglas, wrote (at

page 771) :

The First Amendment involves not only the right

to speak and publish but also the right to hear, to

learn, to know. Martin v. Struthers, 319 U.S. 141,

143; Stanley v. Georgia, 394 U.S. 557, 564.”’

And Mr, Justice Marshall’s dissenting opinion, in which

Mr. Justice Brennan joined, states:

BND st

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‘‘As the majority correctly demonstrates, in a

variety of contexts this Court has held that the

First Amendment protects the right to receive in-

formation and ideas, the freedom to hear as well as

the freedom to speak ... the right to speak and

hear—ineluding the right to inform others and be

informed about public issues—are inextricably

part of that process. The freedom to speak and the

freedom to hear are inseparable ; they are two sides

of the same coin.’ (p. 775)

FO GRR

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3? {Sek R ore

The comments of both majority and minority in ;

Kleindienst, concerning the right to hear, as part of the r

First Amendment, apply with equal force to the right

to read, and the right of access to copyrighted reading

matter.

But, it may be asked, where is there anything in the

First Amendment about ‘‘the right to read’’? The same

sort of question was faced directly by Mr. Justice Bren-

nan in a case where the very issue of the right to read

was involved and where this Court specifically stated

that the First Amendment rights of school teachers pro-

tected their right to read.” Ina coneurring opinion, Mr.

Justice Brennan said:

‘*Tt is true that the First Amendment contains no

specific guarantee of access to publications. How-

5° Lamont v. Postmaster General, supra n. 37 at 307.

' " . PUNT ARTS “ge SP FIDLER Oe near nanan neme) canes

ever, the protection of the Bill of Rights goes be-

yond the specific guarantees to protect from con-

gressional abridgement those equally fundamental

personal rights necessary to make the express guar-

antees fully '‘meaningful ... 1 think the right to re-

ceive pubiications is such a fundamental right. The

dissemination of ideas can accomplish nothing if

otherwise willing addressees are not free to receive

and consider them. It would be a barren market-

place of ideas that had only sellers and no buyers.”’

(at 308)

In asimilar situation concerning the right of associa-

tion, Mr. Justice Powell gave this Court’s answer to

this sort of inquiry:

‘*Among the rights protected by the First Amend-

ment is the right of individuals to associate to fur-

ther their personal beliefs. While the freedom of

association is not explicitly set out in the Amend-

ment, it has long been held to be implicit in the

freedom of speech, assembly, and petition.’’’

He also stated that **. ... the Constitution’s protection is

not limited to direct interference with fundamental

rights.”’ (at p. 183) Mr. Justice Powell made a point

that is relevant in the current ease: “We are not free

to disregard the practical realities.’’ (at p, 183)

apne Sanyal bay eee eee

Mr. Justice Powell extended ‘‘the practical realities’

to a constitutional recognition that the right to read a

letter written by a prisoner is guaranteed to the ad-

dressee of that letter by the free speech guarantee of the

First Amendment.”

Ne ai a aaa Seb 2

On the facts of the instant case, Respondent’s prae-

tice is within the permissible realm of ‘‘fair use’’ which

51 Healy et al v. James et al., 408 U.S. 169, 181 (1972)

52 Procunier v. Martinez, supra n. 41, at 1809.

RN BO LOK AMT AE RENE

derives from the right of access that is constitutionally-

protected by the First Amendment’s Free Press and

Free Speech clauses, For the purpose of this case, it is

not necessary to decide the outer reach of such right.

4. The First Amendment Protects the Student’s

Right to Learn

Nhe First Amendment protects, as has alicacdy been

indicated,

Ms —the right of ‘‘suitable access to social, political,

if esthetic, moral and other ideas and experiences”’

—the right to ‘‘receive information and ideas’”’

—the right to receive printed matter

—the right to hear

RGR

—the ‘right to read’’

So far as the student is concerned, all of these constitu-

tionally protected rights add up to the RIGHT TO

LEARN, a right that derives directly from the First

Amendment.”

5% A similar protection emanates from the Fourteenth Amend-

ment. Meyer v. Nebraska, 262 U.S. 390 (1923) (‘‘. . . denotes

.... the right of individual to acquire useful knowledge . . .”’) See

rei also Serrano v. Priest, 5 Cal. 3d 584, 589, 487 Pac. 2d 1241 (1971).

(At 618: ‘‘... in a democratic society free public schools shall make

available to all children equally the abundant gifts of learning.’’).

See also Hobson v. Hanson, 269 F.Supp. 401, 480, 488, 492, 512-3

(196 , app. dism’d. 393 U.S. 801 (1969) where the Court struck

down a school board’s ‘‘track system’’ of assigning pupils as being

contrary to their right to learn. The decision was based on the

equal protection clause.

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2 Gree

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This Court said that the ‘‘aim’’ of the First Amend-

ment ‘‘was to unlock all ideas ...’’** Mr. Justice Doug-

las said that

‘*... the First Amendment involves ... the right

... to learn, to know...’

This constitutionally-protected right to learn re-

quires reasonable access, through ‘‘fair use’’, to copy-

righted materials which are basic to the learning proe-

Css.

5. The First Amendment Protects the Freedom of

Teachers and Students to Reasonable Access to

Copyrighted Materials

This Court has said that

‘The vigilant protection of constitutional freedom

is nowhere more vital than in the community of

American schools.’ *

This right involves not only the Respondent in this case

but also the teaching process im the United States, with

its many million teachers and students. And, of course,

children are within the protection of the Bill of Rights.

‘*Neither the Fourteenth Amendment nor the Bill of

Rights is for adults alone.’’**? The Sixth Amendment

protects a 12-year old,* and First Amendment rights

apply to teen-agers.”

54 Times Film Corp. v. Chicago, 365 U.S. 43, 81 (1969).

*> Kleindienst v. Mandel et al., supra n. 36, at 771 (dissenting).

For the ‘‘right to know’’ under the Ninth Amendment, see infra.

*® Shelton v. Tucker, 364 U.S. 479, 487 (1960).

7 In re Gault, 387 U.S. 1, 13 (1967).

53 In re Winship, 397 U.S. 358 (1970).

°° Tinker v. Des Moines School District, 393 U.S. 503 (1969) ;

Board of Education v. Barnette, 319 U.S. 624 (1943).

ee ee a

ASANTE

Chief Justice Warren said, for this Court, that

‘Teachers and students must always remain free

to inquire, to study and to evaluate...’’”

The First Amendment is basic to effective teaching.

As this Court has stated:

‘The First Amendment was designed to enlarge,

not to limit, freedom in literature and in the arts

as well as in politics, economies, law, and other

fields ... Its aim was to unlock all ideas for argu-

ment, debate, and dissemination.’’ ®

LUST eT

Both the teaching and the learning process require

such ‘‘unlocking’’ of ideas through reasonable access to

knowledge, which means re°sonable access via ‘‘ fair

use’’ to materials subject to copyright protection. Car-

dozo put it well:

“There is no freedom without choice and there is

no choice without knowledge ... Implicit, there-

fore, in the very notion of liberty is the liberty of

the mind to absorb and beget... At the root of all

liberty is the liberty to know.”’ ®

As illustrated by the NEA’s statement of interest,

supra, we have here a situation in which this Court can

not shut its eyes to ‘the plainest facts of our national

life’.

We have here far more than ‘‘harmless, empty

shadows’’.“ A ‘‘pragmatic assessment ® of the instant

60 Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957).

‘! Times Film Corp. v. Chicago, 365 U.S. 43, 81 (1961).

62 Carpdozo, PARAZOXES (1928), 104.

®3 NLRB vy. Jones & Laughlin Steel Corp., supra n. 9, at 41

(1937).

64 Poe vy. Ullman, 367 U.S. 497, 508 (1961).

® Kingsley Books, Inc. v. Brown, 354 U.S. 436, 442 (1957).

NCP ALI SOV LOT,

situation justifies the fear that by ignoring First

Amendment rights the Petitioner’s position, if applied

to the educational system, could destroy the capacity of

America’s teachers te teach effectively and seriously in-

hibit the effectiveness of the pupils’ learning process.

C. The Ninth Amendment Protects the Right of Americans

to Knowledge and to Read

The Ninth Amendment to the Constitution provides

as follows:

‘The Enumeration in the Constitution of certain

rights, shall not be construed to deny or disparage

others retained by the people.”’

This is the reserved right of the American people to all

rights not specifically granted by the Constitution, the

right to all unenumerated rights.

The Ninth Amendment was described in Mr. Justice

Goldberg’s concurring opinion (for himself, the Chief

Justice and Mr. Justice Brennan) in Griswold v. Con-

necticut: ©

‘The language and history of the Ninth Amend-

ment reveal that the Framers of the Constitution

believed that there are additional fundamental

rights, protected from governmental infringement,

which exist alongside those fundamental rights

specifically mentioned in the first eight constitu-

tional amendments .. .’’ (p. 488)

He continued:

‘“The Ninth Amendment simply shows that the in-

tent of the Constitution’s authors that other funda-

mental rights should not be denied such protection

or disparaged in any other way simply because

66 381 U.S. 479 (1965).

they are not specifically listed in the first eight con-

stitutional amendments.’’ (p. 492)

Mr. Justice Goldberg saw the following as the ‘‘fun-

damental rights’’ protected by the Ninth Amendment

but not | ted in the previous eight:

‘‘In determining which rights are fundamental,

judges are not left at large to decide cases in light

of their personal and private notions. Rather, they

must look to the ‘‘traditions and [collective] con-

science of our people’’ to determine whether a prin-

ciple is **so rooted [there]... as to be ranked as

fundamental.”’ Snyder v. Massachusetts, 291 U.S.

97, 105, The inquiry is whether a right involved ‘‘is

of such a character that it cannot be denied with-

out violating those ‘fundamental principles of lib-

erty and justice which lie at the base of all our civil

ard political institutions’. ..’’ Powell v. Alabama,

287 U.S. 45, 67. ‘‘Liberty’’ also gains content from

the emanations of .. . specifie [constitutional ]

guarantees”? and ‘‘from experience with the re-

quirements of a free society.’’ Poe v. Ullman, 367

U.S. 497, 517 (dissenting opinion of Mr. Justice

Douglas)’’ (p. 493-4).

There is strong historical justification for the belief

that the intent of the framers of the Bill of Rights was

that the Ninth Amendment should apply ‘‘where the

asserted right appears to the court as fundamental to a

free sociey but is, nevertheless, not specified in the Bill

of Rights’’.

In a democracy nothing is more fundamental than

the right of the people to have reasonable access to the

cultural heritage of the nation. This is an absolute

®? Redlich, Are There ‘Certain Rights Retained by the People’?

37 N.Y.U.L. Rev, 787, 808 (1962).

;

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MADERA oe Vd

necessity for teachers, if a democracy is to survive and

protect itself as a free society.

‘**The Ninth Amendment is a reservoir of personal

rights necessary to preserve the dignity of exist-

ence of man in a free society.”’ ‘*The Ninth Amend-

ment is the place to which we must turn for protec-

tion of individual liberty from infringements not

enumerated and perhaps not contemplated, by the

founding fathers.’’ *

“The ninth amendment was intended to assert that

the constitutional formulations were not to be narrowly

interpreted’’.” A leading legal commentator indicates

that, whatever else the Amendment may cover, it pro-

vides for ‘‘the right to have access to information ...’’:

**Related to this right to information is the right to

know as encompassed in academia and cultural

freedom. A college professor or school teacher has

the right to pursue knowledge ...’’”

Another distinguished commentator said (even before

Griswold):

“One of the newest of the unenumerated rights is

that to knowledge.’’™

If the right of voung people to wear long hair in

school comes within the penumbra of the First Amend-

68 State vy. Abelloni, 50 Hawaii 384, 390, 393 (1968) (Levenson,

J. coneurring).

®® Kutner, The Neglected Ninth Amendment: The ‘Other Rights’

Retained by the People, 51 Marg. L. Rev. 121, 125 (1968).

7° Thid., at 139.

1Q. John Rogge, Unenumerated Rights, 47 Cau. L. Rev. 787,

811 (1959).

ment and the reach of the Ninth Amendment,” then

how much more valid is the application of the Ninth

Amendment to something as fundamental to a free

democratic society as the right of those same students

(and their teachers) to reasonable access, through

‘*fair use’’, to that society’s cultural heritage ?

But what about the impact of the copyright provi-

sion of the Constitution (Article 1, Section 8) on the

Ninth Amendment? In Ashwander vy. TVA," this

Court stated:

“And the Ninth Amendment ... does not with-

draw the rights which are expressly granted to the

Federal Government. The question is as to the

scope of the grant and whether there are inherent

limitations... ”’

The Ninth Amendment’s reach starts, at least, from

the limited ‘‘scope of the grant’’ for copyright legis-

lation and from the “inherent limitations’’ so clearly

illustrated by the judicial development of the doctrine

of ‘*fair use’? notwithstanding the seemingly complete

monopolies granted by the copyright laws.

Under the Ninth Amendment, ‘‘rights may arise or

appear by reason of limitations placed upon or by lim-

its of granted powers’’.™

“A person has tue right not to have the govern-

ment act where it lacks power. In addition, he

™ Breen v. Kahl, 419 F.2d 1034, 1036 (7th Cir. 1969), cert.

den. 398 U.S. 937 (1970). Contra, King v. Saddleback Jr. Col.

Dist., 445 F.2d 932 (9th Cir. 1971), cert. den. (with 2 dissents)

404 U.S. 979 (1971).

73 297 U.S. 288, 330-1 (1936).

™ Kelsey, The Ninth Amendment of the Federal Constitution,

11 Inv. L. J. 809, 311 (1936).

has other rights, which deny government power to

act where otherwise it might. For example, the

government has the power to regulate bankruptey

proceedings [U.S. Constitution, Art. I, Section 8],

but it lacks power to regulate them in such a way

that a property owner is deprived of property

without due process of law [Louisville Bank v.

Reedford, 295 U.S. 555 (1935) ]. The government

has ag? to preserve its own existence | Dennis

v. U.S., 341 U.S. 494, 501 (1951) ], but that power

is aso bce by the rights guaranteed by the First

and Fifth amendments [ Aptheker v. Secretary of

State, 378 U.S. 500 (1964) ]. Similarly, where a

person has an inherent right, recognized by the

ninth amendment, it protects him against some

exercise of power which might otherwise be

proper.... It is in areas where government has

power to act that it is important to the individual

to have positive rights.”’

The balancing’ 6f Various constitutional provisions

seemingly applicable to the same set of facts is not a

unique experience for this Court. Recently Mr. Jus-

tice Rehnquist for the Court, cited with approval an

earlier decision of this Court as follows:

‘Both the Twenty-first Amendment and the Com-

merce Clause are parts of the same Constitution.

Like other provisions of the Constitution, each

must be considered in the light of the other, and

in the vontext of the issues and interests at stake

in any conerete case,” Hoste ‘tter v. Idlewild

Liquor Corp., 377 U.S. 324, 832 (1964).

And Mr. Justice Stewart coneurring in the same ease,

stated:

‘*).. And it most assuredly is not to say that the

Twenty-first Amendment necessarily overrides in

™ Comment, G. L. Garner, The Ninth Amendment, 30 ALBANY

lL. Rev. 89, 99 (1966).

California v. La Rue, 409 U.S. 109, 115 (1972).

its allotted area any other relevant provisions of

the Constitution.’’ “

Amicus respectfully submits that, the copyright

clause notwithstanding, the Ninth Amendment guaran-

tees and protects the right of American citizens to read

the cultural heritage of their nation, and authorizes

for teachers reasonable access to such heritage for their

teaching duties, even when the material so used is in

copyrighted form. These rights come within what Mr.

Justice Douglas, speaking for the Court in Griswold,

and specifically mentioning the Ninth Amendment,

called

‘‘penumbras, formed by emanations from those

| Bill of Rights] guaranties that help give them

life and substance.”’ ™

The Ninth Amendment fully authorizes the Respond-

ent’s practices in this case as constitutionally-protected

‘fair use’’,

D. The Constitution Is A Living Document.

The Constitution is a living and sensitive document

which adjusts to the major needs of the American

people. The Bill of Rights protects freedom of rea-

sonable access to the nation’s cultural heritage, under

the copyright law, and thus sanctions Respondent’s

practice in this case. That the articulation of the con-

stimtional right of reasonable access might appear

novel is no defense against its validity. Chief Justice

Burger stated that it makes no constitutional differ-

ence “‘that it has taken this Court nearly two centuries

7 [bid., footnote page 120.

78 Supra n. 66, at 484.

ees

te aT OER

to ‘discover’ a constitutional mandate ...’’” In

Johnson Vv. Louisiana™ this Court reinterpreted a 200-

year-old and admittedly settled doctrine of American

legal history. What was involved there, as well as

here, is what Mr. Justice Powell called ‘‘a change in

focus in the Court’s approach ...’’*' and the require-

ment for ‘‘a fresh look at the question ...’’*? Only

in 1972 did this Court find constitutional infirmity in

capital punishment under the Eighth Amendment al-

though admittedly it had ‘‘been employed throughout

our history.’’* It was not until 1973 that this Court

held that anti-abortion statutes were unconstitutional “

and that a six-member jury in civil proceedings com-

plied with the Seventh Amendment.” And not until

July 1974 did this Court rule that the President of the

United States had no absolute right of executive

privilege.

The very fact that constitutional protection for “fair

use’? has not been customarily articulated is in itself

an aid to this Court in the present instance. As this

Court stated more than 90 years ago:

The question is now a new one in this court, and

we are not fettered by an inveterate course of de-

7 Coleman v. Alabama, 399 U.S. 1, 22 (1970).

89 406 U.S. 404 (1972).

“' Tbid., p. 372, note 9. (coneurring)

* Tbid., p. 376. See also Erie v. Tompkins, 304 U.S. 64 (1938) ;

Brown v. Board of Education, supra n. 3; Cooper vy. Aaron, 359

U.S. 1 (1958).

‘3 Furman v. Georgia, 408 U.S, 238 (1972).

“4! Roe et al. v. Wade, 410 U.S. 113 (1973).

“ Colgrove v. Bettin, 413 U.S. 149 (1973).

“US. v. Nizon 18U.S. , 42 L.W. 5237 (July 24, 1974).

— ; Pee iat Oh <i AR EN

pore |

_ 4

;

‘

eee Se ee Se en oe

cision upon it. We are at liberty ... to decide it

upon reason and not by precedent.’’ *

As the ancient law giver Maimonides put it, the gates

of interpretation are never closed.*

This Court has said:

‘‘The Constitution of the United States... was

made for an undefined and expanding future.

‘*It is more consonant to the true philosophy of

our historical legal institutions to say that the

spirit of personal liberty and individual right,

which they embodied, was preserved and developed

by a progressive growth and wise adaptation to

new circumstances and situations of the forms and

processes found fit to give, from time to time, new

expression and greater effect to modern ideas of

self-government.’’ ©

With reference to the meaning of words in constitu-

tional context, Mr. Justice Holmes said:

‘*! W |hen we are dealing with words that also are

a constituent act, like the Constitution of the

United States, we must realize that they have

called into life a being the development of which

could not have been foreseen completely by the

most gifted of its begettors ... The case before

us must be considered in the light of our whole

experience and not merely in that of what was said

a hundred years ago.’’ ”

57 Conner v. Long, 104 U.S. 228, 243 (1881).

88 THe Guipe OF THE PERPLEXED (ed, S. Pines, Univ. of Chicago,

1963), 327-8.

89 Hurtado vy. California, 110 U.S. 516, 531, 530 (1884).

Missouri v. Holland, 252 U.S. 416, 483 (1922).

oa ene haar dey

] 2a othe

TEN BRE LEDS a6

This Court cited with approval another relevant

comment by Mr. Justice Holmes:

‘**But as Mr. Justice Holmes once said: ‘The pro-

visions of the Constitution are not mathematical

formulas having their essence in their form; they

are organic living institutions transplanted from

English soil. Their significance is vital not for-

mal; it is to be gathered not simply by taking the

words and a dictionary, but by considering their

origin and the line of their growth.’ Gompers v.

United States, 233 U.S. 604, 610,’

The sensitivity of the Constitution to ‘“‘the new cir-

cumstances and situations’’ constantly facing the

American people, its ‘‘adaptability’’,” is especially

true of the great liberties protected by the First

Amendment.

As Mr. Justice Frankfurter said: ‘‘Some words are

confined to their history; some are starting points for

history. Words are intellectual and moral eurrency

... Like currency words sometimes appreciate or de-

preciate in value.”’** Cardozo said: ‘The great gener-

alities of the Constitution have a content and signifi-

cance that vary from age to age.’’™

Words can ‘‘import a policy that goes beyond

them.’’” In constitutional interpretation it is neces-

" Konigsberg v. State Bar of California, 366 U.S. 36, 49-50,

note 10 (1961).

"2 Appalachian Coals Ine. v. United States, 288 U.S. 344, 360

(1933), per Hughes, Ch. J.

Frankfurter, Some Reflections on the Reading of Statutes,

47 Cou. L. Rev. 527, 537-38 (1947).

NATURE OF THE JUDICIAL Process (1921), 17.

" Holmes J., Olmstead v. United States, 277 U.S. 438, 469

(dissenting) ; majority decision overruled, Katz v. U.S., 389 U.S.

347, 352 (1967).

sary to go ‘‘far beyond the meaning of the phrase in

isolation’’ to its ‘‘guiding history’’.”*

The purpose of Constitutional provisions is the con-

trolling feature in their application according to this

Court. Mr. Justice McKenna said for this Court:

‘*Legislation, both statutory and constitutional, is

enacted, it is true, from an experience of evils but

its general language should not, therefore, be nee-

essarily confined to the form that evil had there-

tofore taken. Time works changes, brings into

existence, new. conditions and purposes. There-

fore, a principle, to be vital, must be capable of

wider application than the mischief which gave it

birth. This is peculiarly true of constitutions ...

In the application of a constitution, therefore our

contemplation cannot be only of what has been,

but of what may be. Under any other rule a con-

stitution would indeed be as easy of application

as it would be deficient in efficaev and power...

Rights declared in words might be lost in reality.

And this has been recognized. The meaning and

vitality of the Constitution has heen developed

against narrow and restrictive construction.’’ ”

This Court has long been responsive to the special

need for guarding the Bill of Rights and especially

First Amendment rights ‘‘with a jealous eye’. A

" Chapman v. United States, 365 U.S. 610, 619 (1961), per

Frankfurter, J., coneurring. Cf: ‘‘Reasoning which in one age

would make no impression whatsoever, in the next age is received

with enthusiastic applause’’, I Lecky, History or THe Rise AND

INFLUENCE OF THE Spirit OF RATIONALISM IN Europes, vii (1865).

Weems v. United States, 217 U.S. 349, 373 (1910) (emphasis

added.) Cf: Mr. Justice Harlan, dissenting, Poe v. Ullman, supra

n. 64, at 544.

* AFL v. Swing, 312 U.S. 312, 325 (1941).

eee

CaN E PS eT

“4

| comaanel 2G A a LN INI, SERINE AL BBE AE BT

liberal interpretation of such rights has been called by

this Court ‘‘the only conclusion supported by history”’:

‘For the First Amendment does not speak equiv-

ocally ... It must be taken as a command of the

broadest scope that explicit language, read in the

context of a liberty-loving society, will allow.’’

‘*. . the only conclusion supported by history is

that the unqualified prohibitions laid down by the

framers were intended to give to liberty of the

press, as to the other liberties, the broadest scope

that could be countenanced in an orderly soci-

ety.”’™

First Amendment rights have been persistently pro-

tected from erosion by indirection as well as by direct

act.” ‘Sophisticated as well as simple minded”’ eva-

sions of Constitutional rights have been condemned.”

‘The Constitution deals with substance, not shadows.

Its inhibition was levelled at the thing, not the

name.’’**’ The substance, ‘‘the thing’’, in Freedom

of Press, is freedom of reasonable access.

The extraordinary genius of the Bill of Rights is its

adaptability to the problems of each successive genera-

tion of Americans. The present generation’s special

® Bridges v. California, 314 U.S. 252, 263, 265 (1941). See

also Olmstead vy. United States, supra n. 95, at 471, 476.

1 Guinn v. United States, 238 U.S. 347, 361 (1915); Grosjean

v. Amer. Press Co., supra n. 29, at 250 (1936) ; Speiser v. Randall,

357 U.S. 513, 518 (1958). See also United States ex rel Milwaukee

Publication Co. v. Burleson, 255 U.S. 407, 430-31 (1931) (Brandeis,

J., dissenting) ; United States v. Rumely, supra n. 9 at 58 (Douglas

J., coneurring).

101 See Mr. Justice Frankfurter’s comment, Lane v. Wilson, 307

U.S. 268, 275 (1939). Cf: Louisiana ex rel Gremelion v. NAACP,

366 U.S. 293 (1961).

2 Cummings V. Missouri, 4 Wall. 277, 325 (1866).

Sin i WN aay ATH re

and urgent problem is the protection and assurance of

the American people’s right of reasonable access to its

cultural heritage through the doctrine of ‘‘fair use”’

of copyrighted materials. The history of the struggle

for Freedom of Press and Freedom of Speech bars

any notion that the Bill of Rights provides freedom to

print and disseminate information but denies freedom

to acquire it through reasonable access and ‘‘fair use’’.

In the context of mid-20th century America and the

present world situation, Freedom of Press must em-

body reasonable access, and “fair use’’ of, the nation’s

heritage.

The very nature of the Bill of Rights calls for its

interpretation and re-interpretation to meet new and

undecided issues. Such is this case.

E. In “Balancing” Interests, Courts Must Give Prioriiy to the

Public Interest (For Reasonable Access) Over the Statutory

Privilege of a Copyright Proprietor

‘*Cases such as this one inevitably call for a delicate

balancing of important but conflicting interests’’, said

Mr. Justice White in a different context. That state-

ment is completely applicable here.’”

‘*When Congress’ exercise of its enumerated pow-

ers clashes with those individual liberties pro-

tected by the Bill of Rights, it is our ‘delicate and

difficult task’ to determine whether the resulting

restriction on freedom can be tolerated.’

As Mr. Justice Marshall wrote:

‘*As Robel and many other cases show, all govern-

mental power—even the war power, the power to

103 State of Wisconsin v. Yoder et al., 406 U.S. 205, 237 (1972)

(concurring).

4 U, 8. v. Robel, 389 U.S. 258, 264 (1967).

maintain national security, or the power to con-

duct foreign affairs—is limited by the Bill of

Rights. When individual freedoms of Americans

are at stake, we do not blindly defer to broad

claims of the Legislative or Executive, but rather

we consider those claims in the light of the indi-

vidual freedom.’ *”

And as has already been noted, Mr. Justice Rehn-

quist adopted the following language where two con-

stitutional provisions seem relevant,

“each must be considered in the light of the

other, and in the context of the issues and interests

at stake in any concrete case...’ °°

‘**Balancing’’ has a unique context in copyright mat-

ters. As Story said in one of the very early cases:

‘Patents and copyrights approach, nearer than

any other class of cases belonging to forensie dis-

cussion, to what may be called the metaphysics of

the law, where the distinctions are, or at least may

be, almost evanescent.’? "7

And Chafee stated that

“Copyright admits of philosophie thinking more

than most other parts of the law.’’ ?”

Holmes warned courts of this sort of special prob-

lem:

“T think that judges themselves have failed ade-

quately to recognize their duty of weighing con-

% Kleindienst v. Mandel et al., supra n. 36, at 782-3 (dissenting).

1 California v. LaRue, supra n. 76, at 115.

107 Folsom et al. v. Marsh ct al., 9 Fed. Cas. 342, No. 4901, at

344 (1811).

108 Chafee, supra n. 49, at 503.

Sere Le) omen LEE

siderations of social advantage. The duty is in-

evitable, and the result of the often proclaimed

judicial aversion to deal with such considerations

is simply to leave the very ground and foundation

of judgments inarticulate, and often unconscious

99 109

1. Primacy of the Public Interest in Copyright Law

The Congress, this Court, and the Register of Copy-

rights have all affirmed the primacy of the publie in-

terest over the copyright proprietor’s interest:

The House Report on the present law stated that

‘not primar'ly for the benefits of the author, but

primarily for the benefit of the public.’’

This Court has said:

**... the copyright law... makes a reward to the

owner of secondary consideration,’’ ™

The Register of Copyrights stated to Congress in his

Report:

“Within limits the author’s interests coincide

with those of the public. Where they conflict the

public interest must prevail. ... And the inter-

ests of the authors must yield to the publie wel-

fare where they conflict.’’ (p. 6)

1 Tlolmes, The Path of the Law, 10 Harv. L. Rev. 458, 467

(1897).

"° Tlouse Report No. 2222, 60th Cong., 2d Sess., p. 9.

1 Mazer v. Stein, supra n. 17, at 219 (1954). Accord.: U.S. v.

Paramount Pictures, Inc., 334 U.S, 131, 158 (1948) ; U.S. v. Loew’s

Inc., 371 U.S. 38, 46 (1962).

™ Copyricnt Law Revision, Report of the Register of Copy-

rights, House Com. Print, 87th Cong., Ist Sess. (July 1961).

Be me. AD tae ie ye

‘The needs of all groups must be taken into ae-

count. But these needs must also be weighed in

the light of the paramount public interest.’

(p. xi)

In ‘‘balancing’’ between the copyright owner’s mere

statutory privilege and the user’s constitutional rights,

the decision must fall on the user’s side of the line, in

terms of the concept adopted by this Court.’

With particular reference to the judicial doctrine of

‘fair use’’—the issue at stake in this case—the courts

gave as a justification for their doctrine the constitu-

tional requirement to subordinate the interest of the

Heed to the fragility of constitutional rights was

urged by this Court. The ‘‘spike mike’ decision, said

Mr. Justice Stewart,

‘tis based upon the reality of an actual intrusion

into a constitutionally protee ted area. What the

Court said long ago hears repe: ating now: “It may

be that it is the obnoxious thing in its mildest and

least repulsive form; but illegitimate and uncon-

stitutional practices get their first footing in that

way, namely, by silent approaches and slight de-

viations from legal modes of procedure.’ Boyd v.

United States, 116 U.S. 616, 635,.”’

113 Fortnightly Corp. v. United Artists Television, Inc., 392 US.

390 (1968).

14 Berlin v. E. C. Publications Inc., 329 F.2d 541, 543-4 (2d

Cir. 1961), cert. den. 379 U.S. 822; Rosemont Enterprises Inc. v.

Random House, Inc., 366 F.2d 303, 309 (2d Cir. 1966), cert. den.

385 U.S. 1009; Greenbie v. Noble, 151 F. Supp. 45, 67 (D.C_NLY,

1957).

5 Silverman v. U.S., 365 U.S. 505, 512 (1961).

Inconspicuous rejection or unrecognized suppression

of reasonable access (or ‘‘fair use’’) to materials vital

to the teaching and learning of America’s cultural

heritage can, and often is, achieved through copyright.

Petitioner’s position could well deprive Respondent

—and, by extension, millions of teachers and students

in America’s schools—of rights of Freedom of Press

guaranteed by the First Amendment.

2. Copyright Monopoly Must Be Strictly Construed

This Court has indicated that copyright ownership

is a monopoly. For the Court, Chief Justice Hughes

said:

‘The owner of the copyright, if he pleases, may

refrain from vending or licensing and content

himself with simply exercising the right to exclude

others from using his property.’’ °

‘Copyrights’, the Attorney General of the United

States stated, ‘‘are forms of monopolies ...’’'”’ Even

at its best, wrote the Assistant Librarian of this Court,

‘copyright necessarily involves the right to restrict as

well as to monopolize the diffusion of knowledge.’’ ’*

In Fortnightly, this Court showed its antipathy to

broadening the scope of the copyright owner’s mo-

nopoly:

“The Copyright Act does not give a copyright

holder control over all uses of his copyrighted

16 For Film Corp. v. Doyal, supra n. 17, at 127.

7 House Rep. No. 1742, on H.J. Res. 676, 87th Cong., 2d Sess.

(May 2, 1962), p. 6.

"8 Hudon, The Copyright Period: Weighing Personal Against

Public Interest, 49 ABAJ 759 (1963).

~ eee |

work. Instead, § 1 of the Act enumerates several

‘rights’ that are made ‘exclusive’ to the holder

of the copyright. If a person, without authoriza-

tion from the copyright holder, puts a copyrighted

work to a use within the scope of one of these

‘exclusive rights’, he infringes the copyright. If

he puts the work to a use not enumerated in § 1,

he does not infringe.’’ '”

In a patent case arising under the copyright-patent

provision of the Constitution, Mr. Justice White said

for this Court:

‘**Moreover, we must consider petitioner’s claim in

the light of this Nation’s historical antipathy to

monopoly.’? *”°

Mr. Justice Douglas recently adverted to the rela-

tionship between monopoly and the constitutional

status of copyright:

‘While this Court has not had many oceasions to

consider the constitutional parameters of copy-

right power, we have indicated that the introduc-

tory clause, ‘‘To promote the Progress of Science

and useful arts’’, acts as a limitation on Congress’

power to grant monopolies through patents. In

19 Fortnightly Corp. v. United Artists Television, Inc., 392 U.S.

390, 20 L.Ed. 2d 1176. 1180 (1968). Footnote 8 of the Court’s

opinion reads in part, as follows:

**8. ‘The fundamental [is] that ‘‘use’’ is not the same thing

as ‘‘infringement,’’ that use short of infringement is to be enecour-

aged ...,’ Kaplan, An Unhurried View of Copyright 57 (1967).”’

This quotation was again cited in Teleprompter Corp. v. C.BS.,

415 U.S. 394, 94 8. Ct. 1129, 1133 (March 4, 1974).

120 Deepsouth Packing Co., Inc. v. The Laitram Corp., supra

n. 23, at 530. <A footnote to this statement said, ‘‘See the dis-

cussion in Graham v. John Deere, 381 U.S. 1, 7ff (1966) ”’.

Graham v. John Deere Co., 383 U.S. 1, 5-6, we

said:

‘The clause is both a grant of power and a

limitation ... The Congress in the exercise

of the patent power may not overreach the

restraints posed by the stated constitutional

purpose...”

He continued:

“The framers of the Bill of Rights added the

guarantees of freedom of speech and of the press

because they did not feel them to be sufficiently

protected by the original Constitution. This lib-

erty is necessary if we are to have free, open, and

lively debate of political and social ideas... We

should not construe the copyright laws to eonflict

so patently with the values that the First Amend-

ment was designed to protect.’ ™

Petitioner argues (Brief, p. 42) that whatever mav

have been legal prior to photocopying, the whole con-

text has changed (to the presumed detriment of the

user’s legal rights) with the advent of the photocopy-

ing machine. This is erroneous in constitutional terms.

That the photocopier was not contemplated in 1909,

when the present copyright law was enacted, gives the

have had with earlier systems of reproducing copies.

See, for example, U.S. et al. v. Midwest Video Corp.,

406 U.S. 649, 650 (1972), where the Court held that the

Federal Communications Commission had jurisdiction

over CATV although CATV ‘“‘was developed long after

enactment of the Communieations Act of 1934.’’ See

21 Lee et al. v. Runge, 404 U.S. 887, 888-9, 892-3 (1971) (dis-

senting on denial of petition for writ of certicrari) (emphasis

added).

es ere ay

also concurring opinion of Chief Justice Burger (at

p. 649).

It is also relevant to note that the Copyright Office

submitted a brief amicus to this Court in Mazer v.

Stein, supra n. 17, which made the important point

that the method of reproduction does not affect the

copyrightability of a work. The Copyright Office’s

Brief Amicus to this Court in Mazer stated:

‘*Literary works which in an earlier era would

perhaps have been reproduced by hand on illumi-

nated parchment or in.other single copies have not

become less copyrightable by virtue of their pres-

ent reproduction in thousands of copies by manu-

facturing techniques involving the use of movable

types, plates, ete. Similarly, painting master-

pieces once reproduced on canvas or as murals in

single copies are now frequently reproduced in

color plates for distribution in thousands of indi-

vidual copies or in periodical or book form.

Neither the mechanical and manufacturing proc-

esses used in this reproduction, the number of

copies... would appear to affect the copyright-

ability or essential nature of the work itself.’

(pp. 30-1, n. 13) (italics supplied)

It would seem an a fortiori conclusion that the same

proposition constitutionally applies to ‘fair use’? and

that reasonable copying for non-profit educational pur-

poses does not become an infringement because it is

done by photoduplicators rather than by hand.

Thus, in terms of ‘‘balancing’’ rights, the monopoly-

granting power of the copyright provision of the Con-

stitution must be construed in a manner consonant with

two fundamental considerations:

(1) that Congress’s monopoly-granting power in

ay iene |

(2) that the copyright-granting power of Con-

gress cannot override rights protected by the

First and Ninth Amendments of the Bill of

Rights.

In ‘‘balancing”’ the interests involved, it is cufficient

for this Court to rule that in the current case the Re-

spondent acted within its rights. It is not necessary,

in this case, to reach any other questions on the rela-

tionship of the First Amendment and the copyright

clause." This is all the more true since we have here

merely a question of determining the meaning and

scope of the judicial doctrine of ‘‘fair use’’, In this

‘ase, Respondent’s use was clearly a ‘‘fair use’. The

further reach of the constitutional protection, if any,

must await the customary case-by-case determination

based on specific facts of the particular case.

F. The Burden of Proof is on the Copyright Proprietor to Show

That an Alleged Infringement is Not Protected by the First

or Ninth Amendments

Significant procedural effects attach to the concomi-

tant legal conclusions that copyright is merely a statu-

tory privilege whereas ‘‘fair use’’ has constitutional

protection. Without its constitutional dimension,

‘‘fair use’’ has been regarded as merely an affirmative

defense, which puts the burden of proof on the user,

as an alleged infringer, to prove that the alleged in-

fringement was a ‘‘fair use’. B. RrIncer Anp P. Girt-

LIN, CopyricHts (Rev. 1965 ed.), pp. 68-9; NimMMER,

supra, Section 145. However, once ‘‘fair use’’ is prop-

erly vested with its appropriate constitutional basis,

the burden of proof shifts to the copyright proprietor

122 See Ashwander vy. TVA, supra n. 73, at 347 (Brandeis, J.,

coneurring).

SNe NeI ter:

orpyae

Sid ie OWS

to prove that an alleged infringement is not protected

by the First and Ninth Amendments.

This location of the burden of proof is an appropri-

ate adjustment between a statutory privilege (i.e.,

(‘‘fair use’’).

Il, CUSTOMARY USE IS “FAIR USE” UNDER THE

A use that has been sanctioned by custom is ‘fair

use’’, without regard to other criteria which may be

applicable to uses not sanctioned by custom. Once a

‘fair use’? has been moulded by custom, it operates

without regard to the normal criteria used for deter-

mining Whetlier a use Is a **fair use’’,

A. Custom and the Common Law

‘*Fair use’? is a common law doctrine, fashioned by

the courts themselves. The courts have rejected the

purportedly ‘‘exclusive’’ rights of the copyright pro-

prietor, by developing the common law doctrine that

some uses, ‘‘fair uses’’, are exempted from the copy-

right proprietor’s monopoly.

The history of Anglo-Saxon law teaches that com-

mon law springs, to a large degree, out of custom.

Holmes, in the opening paragraph of THE ComMon

Law (1881), said: ‘*The life of the law is not logie,

but experienece.”’ (p. 5).

Klsewhere in the same classic, Holmes speaks of a

specifie field of law:

‘e.. may only mean that the custom of the realm

and the common law are the same thing ...’’ (p.

150)

Story wrote:

‘*The common law is the lex non seripta, that is,

the unwritten law, ... composed of customs, and

usages, and maxims.’’

Blackstone wrote:

‘The unwritten or Common Law is properly dis-

tinguishable into three kinds: (1) General cus-

toms... (2) Particular customs... (3) Certain

particular laws... ’’ ™

Holland put it thus:

‘Custom exists in law in every country ... It is

known in England as ‘the common law’...’’’™”

Our courts have accepted this same doctrine. This

Court said in 1870:

“Customs have sprung from the necessities and

convenience of business and prevailed in duration

and extent until they acquired the force of law.

This mass of our jurisprudence has thus grown,

and will continue to grow, by successive accre-

e¢ 126

tions.

And similar expressions have been found in more re-

cent Federal decisions:

‘ea lawful custom is itself part of the com-

99 127

mon law.

—‘A lawful custom is part of the common law

39 128

125 Story, MisceLLANEOUS Weritrnas, (1852, reprint 1969) 442.

124 COMMENTARIES, pp. 67-8.

125 Tite ELEMENTS OF JURISPRUDENCE (1910), 59.

26 Merchants’ Bank v. State Bank, 10 Wall. 604, 651 (1870).

127 Nicoll y. Pittsvcin Coal Co., 269 F. 968, 971 (2d Cir. 1920).

28 1S. Shipping Board E, F. Corp. v. Levensaler, 290 F. 297,

300 (C.A.D.C. 1923), cert. den. 266 U.S. 630 (1924).

B. Custom and “Fair Use”

In one of the earliest copyright cases before it, this

§ Court clearly indicated that ‘‘custom or usage’’ is a

valid basis for determining the common law of copy-

4 right.”

A leading case speaks of:

**... What is commonly referred to as a ‘fair use’

—one that is reasonable and customary.’’

Another Federal Court defined ‘‘fair use”’ as follows:

‘**Though technically an infringement of copyright,

it is allowed by law on the ground that the appro-

priation is reasonable and customary.’? ''

And a Federal Court of Appeals has stated that

... it is both reasonable and customary for bi-

ographers to refer to and utilize earlier works

99 132

The same position had earlier been adopted by the very

early English cases. In 1761, in a case where the ques-

tion was the copying of one-tenth of a work, the court

said:

‘Consider it upon the custom and usage.’’

129 Wheaton v. Peters, supra n. 17 at 659.

1 Shapiro, Bernstein & Co. Inc. v. P. F. Collier and Son, Co.,

26 U.S.P.Q. 40, 42 (S.D.N.Y. 1939).

181 Holdredge Vv. Knight Pub. Corp., 214 F. Supp. 921, 924

(D.C, Calif. 1963).

1382 Rosemont Enterprises Ine. v. Random House, Inc., supra

n. 114, at 308.

133 Dodsley v. Kinnersley, 27 Eng. Rep. 270, 271 (1761).

ie I OL

In another early English case involving very substan-

tial copying, an injunction was denied because

‘* .. it is very important to observe that, for many

years, such a course as I have stated has been

pretty generally adopted ...’’

Halsbury states:

“As regards the matter to which it relates, a

custom takes the place of the general common

law.’? 25

The legal commentators on copyright have also

equated custom and ‘‘fair use’’, at least since Drone in

1879:

‘simply a use which is legally permissive, either

because of the scope of a copyright, the nature of

a work, or by reason of the application of known

commercial, social or professional usages, having

the effect of custom, insofar as these do not ex-

pressly run contrary to the plain language of copy-

right legislation.’’ '™*

De Wolf described ‘‘fair use”’ as

‘fa use technically forbidden by the law, but al-

lowed as reasonable and customary ...’’’®

Ball wrote:

‘Fair use is technically an infringement of copy-

right, but is allowed by law on the ground that the

appropriation is reascuable and eustomary.”’

134 Saunders v. Smith, 40 Eng. Rep. 1100, 1107 (1838).

135 Laws OF ENGLAND (3rd ed, 1955).

136 Drone, A TREATISE ON THE LAW OF PROPERTY IN INTELLEC-

TUAL Propuctions (1879), 389.

137 Wert, AMERICAN CopyricgHt Law (1917) 429 (underlining

supplied).

138 De WOLF, AN OUTLINE oF Copyricnt Law (1925) 143.

1399 Batt, Tae Law or Copyrigut aNp LITERARY PROPERTY

(1944) 260. Cited with approval in Loew’s Inc. v. C.B.S., supra

n. 21, at 175.

;

Nicholson stated:

‘**Fair use’ of copyrighted material has been de-

fined by the courts as that extra-legai use that is

usual, reasonable and customary.’’ ’*”

Similar comments appear in the law reviews.

A significant comment was made by a distinguished

and long-time leader of the copyright bar, Joseph A.

McDonald:

‘‘Non-infringing uses are either ‘fair use’ as

recognized in the decided cases or uses which are

sanctioned by custom in the trade or in the busi-

ness to which they relate. It might be argued that

uses which are sanctioned by custom are impliedly

authorized. This is true. However, such an

authorization springs not from the owner of the

material or his representative but from the overall

framework of creation, licensing or use i: the

field. Under such circumstances the authoriza-

tion, express or implied, of the individual owner

is not needed by.the user.’’ '*

This latter point is clear, and attested by many cases,

that consent by the copyright owner is not necessary

where custom has its effect:

‘*.. eustom derives its efficacy from its adoption

into law, and when 6nee established is binding,

149 NICHOLSON, A. MANUAL OF CovyriGHt PRACTICE FOR WRITERS,

PUBLISHERS AND AGENTS (2d ed. 1956) 91.

41 Comments and Notes, Copyright Fair. Use—Case Law and

Legislation, 1969 Duke L. J. 73, 88: Student Comment, The Effect

of the Fair Use Doctrine in Terthook Publishing and Copying,

Part II, 2 Akron L. Rev. 112 (1968); Case Note, 15 So. Cauir. L.

Rev. 249 (1942).

2 Jos. A. McDonald, Non-Infringing Uses, 9 Buti. or Copy-

riGHT Society or U.S.A. 466 (Aug. 1962).

irrespective of any manifestation of assent by

parties concerned .. .’’'*

‘*Rair use’? does not depend upon the consent of the

criteria or from custom independently of other criteria.

The absence of relevant cases has troubled some of

the commentators. Nevertheless, Nimmer writes:

“There is no reported case on the question of

whether a single handwritten copy of all or sub-

stantially all of a protected work made for the

copier’s own use is an infringement or fair use.

If such a case were to arise the force of custom

might impel a court to rule for the defendant on

the ground of faic use.’’

Thus, ‘‘fair use’’ derives from two major sources,

(1) customary use, and (2) other uses meeting certain

criteria established by the courts. In both instances

the courts have fashioned a common law doctrine

independent of—and to some extent contradictory

with—the copyright statute. Custom, therefore, is a

basic source of ‘‘fair use’, When such customary

use is established, ‘‘fair use’? prevails independent of

the other criteria applicable in the absence of custom.

C. The Evidence Shows Custom Prevailed Here

The undisputed evidence in the trial of this ease

shows a history of at least 50 years of photocopying in

143 WILLISTON ON ContTRACTS, Section 649.

144 Nim MER ON Copyricuts, See. 146, p. 654 (1972). Per contra:

Cohen, Fair Use in the Law of Copyright, ASCAP, Copyricnt

Law Symposium, No. 6 (1955), 42 at 51; Crossland, The Rise and

Fall of Fair Use; The Protection of Literary Materials Against

Car. L. Rev. 153, 154, 166 (1968).

> Ae

library systems. Plaintiff's own witness, Karl F.

Heumann, Exeeutive Editor of the Federation of

American Societies for Experimental Biology, replied

to questions as follows:

*Q. Are you familiar with library photocopying ?

A. Reasonably familiar.

Q. How long would you say that has been going on ?

A. Fifty vears.

Q. Would you say that is the custom ?

area

The Director of the National Library of Medicine,

Dr. M. M. Cummings, testified that copying has been

**going on more than 50 vears.’? '*

There is other solid documentary evidence that the

Library of Congress had a custom of copying, in-

cluding photocopying, dating back at least until

1901, '* and that after the enactment of the current

tinued and expanded this practice." The former

Acting Librarian of Congress, Verner Clapp, wrote:

‘Back in 1901, the regulations of the Library of

Congress freely permitted photocopying, a room

being reserved for the purpose, and this per-

mission specifically ran to articles covered by

mT. 430-1.

M6T, 455. See also Respondent's Exhibits No. 51, 74, and

T. 431, 836.

17 See Brief Amicus Curiae of Association of Research Libraries,

et al., before Commissioner, pp. 13-4.

"48 Thid., pp. 21 et seq.

VV. Clapp, Can Copyright Law Respond to the New Technol-

ogy, 64 Law Library J. 387 (No. 4, Nov. 1968).

Undisputed testimony in this case by the Deputy

Director of the National Medical Library, Seott

Adams, reaffirms this statement by Verner Clapp:

‘*Let me say that this code of practice—that it is

rooted in custom; it goes all the way back to the

beginnings of the century, or even before the be-

ginning of the century ... During the intervening

years this has become a well-established custom,

a well-established practice.’ '°

Apropos of this historical evidence of custom for

library photocopying, it is pertinent to note that this

Court has held, in another context, that where usages

and procedures were in actual practice at the time

legislation was enacted, it must be reasonably assumed

that they became an accepted part of the legislation.

The relevance and importance of customary use to

**fair use’’ is especially important in America’s schools.

At the end of the October 1973 term, this Court relied

very heavily on ‘‘tradition in publie education’’ *? a

reliance likewise accepted by the concurring opinion of

Mr. Justice Stewart (at p. 5261). In the schools of

this nation there has been a custom that is at the least

traditional and may extend from time immemorial, to

make reasonable use and copies of copyrighted

materials for non-profit educational purposes without

specific permissions or consents from the copyright

owners. This tradition and custom has, in itself, be-

150 'T, 837-8.

15) Poti v. Immigration and Naturalization Service, 375 U.S. 217,

223 (1963).

152 Millikin et al. v. Bradley et al., 418 U.S. , 42 L.W. 5249,

5237 (July 24, 1974).

;

come the legally permissible standard for ‘‘fair use’’ in

such schools.

D. Common Sense Approach

**... common sense often makes good law’’, said Mr.

Justice Douglas.” After all, society’s purpose in

creating and fostering libraries as institutions for the

preservation of culture is, at least in part, to enable

successive generations to study that culture and

heritage for the advancement of science and the arts.

**) 2. and it has been the custom from time immemorial

for scholars and others to hand copy.’’'* Verner

Clapp, former Acting Librarian of Coligress, looked at

this whoie matter in perspective :

**Now from very earliest times, this record

keeping profession [librarians] has facilitated

copying. It facilitated copying with cuneiform

stvles, with goosequill pens and fountain pens

and ball-point pens, with typewriters, photostat

‘ameras, microfilm cameras, and now with coin-

operated photocopying devices. It has taken

technology in its stride for at least 3,000 years

99 155

In this connection there is significance in the so-

‘called Gentlemen’s Agreement of 1935, to which

reference is made by the Court below (Finding of

Fact No. 41) This Agreement included the following

statement:

**).. a student has always been free to ‘copy’ by

hand; and mechanical reproductions from copy-

153 Peak v. U. S., 353 U.S. 48, 46 (1957).

4 Petre, Statutory Copyright Protection for Books and Maga-

zines Against Machine Copying, ASCAP, Copyrichr Law Sym-

posiumM, No. 14 (1966), p. 180. (‘'.... it is submitted that photo-

copying single copies for private research is a ‘fair use’.’’ p. 202).

55 Clapp, op. cit., supra n. 149, at 399.

righted material are presumably intended to take

the place of hand transcriptions, and to be gov-

erned by the same principles governing hand

transecriptions.’’ °°

It is respectfully submitted that this statement makes

sense. It represented at the time not a new practice

but rather a reaffirmation of an existing custom

accepted by all concerned in the field of publishing and

libraries.

If the law fails to accepts the common sense point

of view and the custom recognized in the Gentlemen’s

Agreement, the following comment seems appropriate:

‘*).. we are in the ridiculous position of insisting

that the scholar has a right to make a copy for his

private use only if he does so under conditions of

maxunum inefficiency in the use of bis time and

resources ...'7

Custom is stabilized common setise, a recognition by

society of a stabilized relationship between possible

or actual adverse parties. As Mr. Justice Frank-

furter said, ‘*. . . words aequire scope and function

from the history of events which they summarize’’, **

“Our concern is with realities, not nomenclature”’,

said Mr. Justice McReynolds,’ and Mr. Justice

Brewer stated that **. . . courts must recognize things

as they are...””™

156 Respondent’s Exhibit 74.

7 R. Shaw, Publication and Distribution of Scientific Literature,

CoLLEGE AND Researcu Lisraries, Vol. XVII(4), 293 at 302 (July

1956).

158 Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177, 186 (1941).

59 Senior v. Braden, 295 U.S. 422, 429 (1935).

16° Adams Exp. Co. v. Ohio State Auditor, 166 U.S. 185, 225

(1897).

Pas ERE Ue NE MERE ES OT Oa

ees

eee

The realities of the present situation are that ‘‘fair

use’’ includes the custom of library photocopying in

this case.

III. CONCLUSION

The specific issue before this Court is whether the

judicial doctrine of ‘‘fair use’’ authorizes the Re-

spondent’s practice in this case. Amicus respectfully

submits that it does.

The doctrine of ‘fair use’? is merely a short-hand

way of saying that the copyright proprietor does not

have complete monopoly despite the statutory lan-

guage. “The Copyright Act does not give a copy-

right holder control over all uses of his copyrighted

work.”?'® “It would be idle and trite to say that no

99 162

right is absolute’’.

The judicial doctrine of ‘fair use’’, which was

developed in the face of a seemingly exelusive copy-

righted privilege, is a recognition of the publie interest

against monopoly. And with good reason, for as

Drone once stated of **fair use’’,

“The recognition of this doctrine is essential to

the growth of knowledge .. .”*'

The judicial development of ‘fair use’’ is an example

of what the distinguished legal philosopher Morris R.

Cohen once said:

“Tf judges never make law, how could the body of

rules known as the common law ever have arisen

or have undergone the changes which it has.’?'™

161 Fortnightly Corp. v. United Artists Television Inc., supra

n. 113, at 393.

162 Orient Ins. Co. v. Daggs, 172 U.S. 557, 566 (1869). See also

Dennis v. US., 341 U.S. 494, 508 (1951).

163 Drone, op. cit., supra n. 136, at 386-7,

164 ConeNn, LAW AND THE SOCIAL OrvER (1933), 112.

LONE ASS OE

The fashioning of Federal remedies to protect Fed-

eral rights has been recognized by this Court over the

years. Recently, for example, this Court said:

‘The remedy sought by Illinois is not within the

precise scope of remedies prescribed by Congress.

Yet the remedies which Congress provides are

not necessarily the only federal remedies available.

‘It is not uncommon for federal courts to fashion

federal law where federal rights are involved.’

Textile Workers vy. Lincoln Mills, 353 U.S. 448,

457. When we deal with air and water in their

ambient or interstate aspects, there is a federal

common law, as Teras vy. Pankey 441 F.2d, re-

ceitly held.’

In such instances, this Court held that ‘‘There are no

fixed rules that govern;...’’, and the Court’s discretion

’

prevails. "”°

In Tertile Workers, this Court said: “The range

of judicial inventiveness will be determined by the

nature of the problem,”’ 167

The present case calls for this same inventiveness in

fashioning a remedy for the protection of Respondent’s

Federal constitutional and customary rights to con-

tinue the practice here involved. The doctrine of

‘fair use’? is already in place and already codifies

customary and acceptable practice. ‘‘Fair use’’—as ¢

common law doctrine—is not a static principle. It

partakes of the common law’s most characteristic trait,

flexibility and sensitivity to changing developments,

16 State of Illinois v. City of Milwaukee, et al., 406 U.S. 91, 103

(1972).

166 Thid., at 106-7.

7 Tertile Workers v. Lincoln Mills, 353 U.S. 448, 456-7 (1957).

> - t

PE eee

ake

he tae ORAS pte

societal demands, aid the public interest at any give

time. As Madison once put it, ‘‘no language is s

copious as to supply words and phrases for ever

complex idea.’’** Few ideas in the law are as com

plex as ‘‘fair use”’.

In initiating and developing the ‘‘ fair use’’ doctrin

the Anglo-American courts have shown their ‘‘ judicis

inventiveness’’ and their sensitivity to the need fo

fashioning a remedy ‘‘where federai rights are in

volved”’.

The instant case cries out for the courts, once agair

to fashion the parameters of their own ‘‘fair use

doctrine so as to recognize the validity of constitutiona

protections, customary uses, and the public interest i

the advancement of knowledge and the sciences, by pre

tecting the practice here sub judice.

For all the foregoing reasons, the decision of th

Court of Claims should be affirmed and the Re

spondent’s photocopying practice in this case shoul

be held to be authorized.

Respectfully submitted,

Harry N. Rosenriecp,

Attorney for Amicus Curiae

1735 DeSales St., N.W.

Washington, D.C, 20036

Of Counsel:

STEPHEN M. NASSAU,

Associate General Counsel,

National Education Association

168 The Federalist, No. 37 (Cooke ed., 1961), at 236.

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