# Amicus Curiae Brief — Williams & Wilkins Co. v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1623%3A22 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1975 - **Citation:** 420 U.S. 376 ## Text Mh wy OF, POPOL PINAL YE) Hae eC e ele a 4 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 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 i 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 4 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 30 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: Copyright Act of 1790, 1 Star. ¢. 15 ................ 16 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 -_ —— — —— ™ of 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 14 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 copyright legislation. This Court so ruled in the very 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- ee 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 15 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.’ a ee ot va my) oh R “2 FA 2] c ae ‘ 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 Sob SL ARE SARS 2 See as ee 16 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 copyright law, enacted in 1790, 1 STAT. p. 124, e. 15, 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’ copyright privileges. Congress has limited the number 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. 17 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 copyright provision does not even provide exclusive 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 GJ % 4 : yd ; A a ‘nt: By 18 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. 19 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 5 % a x Seema 20 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 | 21 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 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 31 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, 32 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). 33 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). *% 4 2 ; : eM neal thet ion PO nicl wi eee MADERA oe Vd 34 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). 35 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). 36 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.”’ *y 3 * 4 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). 37 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. j : ees me te aT OER © | 38 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 Ae « - : 58 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 copyright law in 1909, the Library of Congress con- 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 copyright.’’ °° 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). 59 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). i 3 4 ; 60 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 eS 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. 61 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 H = 4 ees eee 62 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’’. 9 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 63 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 64 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1623%3A22. Public record. Not legal advice.