1 

INTERESTS OF AMICI CURIAE1 

This brief amici curiae in support of Respondents is 
submitted by the American Library Association and the 
Association of Research Libraries (“amici”) pursuant to Rule 
37 of the Rules of this Court. Amici urge that the Court affirm 
the judgment of the U.S. Court of Appeals for the Second 
Circuit. 

The American Library Association (“ALA”) is a 
nonprofit educational organization of approximately 61,000 
librarians, library educators, information specialists, library 
trustees, and friends of libraries representing public, school, 
academic, state, and specialized libraries. ALA is dedicated to 
the improvement of library and information services and the 
public’s right to a free and open information society. 

The Association of Research Libraries (“ARL”) is a 
nonprofit association of 122 research libraries in North 
America. ARL’s members include university libraries, public 
libraries, government and national libraries. Its mission is to 
shape and influence forces affecting the future of research 
libraries in the process of scholarly communication. ARL 
programs and services promote equitable access to and 
effective uses of recorded knowledge in support of teaching, 
research, scholarship and community service. 

* * * * * 

1 Letters from all parties consenting to the filing of this brief have been filed with 

the Clerk of this Court. No counsel for a party authored this brief in whole or in 
part, and no person or entity other than amici curiae, or their counsel, made a 
monetary contribution to the preparation or submission of this brief. 

2 

Amici are organizations devoted to representing the 
interests of institutions and professionals responsible for 
collecting and preserving historical, scholarly and other 
records, including periodicals and other collective works, and 
for making these materials available to researchers and the 
public at large. These institutions and individuals assist their 
patrons in researching, retrieving and using these materials in 
traditional paper media, in microform, in CD-ROM and other 
multi-media formats and via online services and the Internet. 
A significant part of their mission is to make available reliable, 
accessible, comprehensive repositories of back issues of 
newspapers, magazines, journals and other periodicals. Many 
institutional and individual members of amici subscribe to the 
very electronic databases and CD-ROM products that are at 
issue in this case. For these reasons, amici submit this brief to 
assist the Court’s understanding of the practical implications of 
the issues at stake in this case. 

SUMMARY OF ARGUMENT 

The Second Circuit held that the narrow privilege 
defined in Section 201(c) of the Copyright Act does not confer 
upon commercial electronic database publishers the privilege 
of reproducing and distributing the copyrighted works of 
freelance authors in and through certain online electronic 
databases and certain CD-ROM products. This ruling 
potentially presents significant challenges and costs to the 
publishing community and indeed to libraries. But the ruling is 
consistent with a copyright system designed to further the 
public interest through rewarding the creative labor of authors. 
Although the challenges it presents are significant, affirming 
the Second Circuit’s judgment need not unleash the dire 
consequences predicted by Petitioners and their supporting 
amici. This Court should not be persuaded to adopt a strained 
reading of Section 201(c) in order to avert those potential 
consequences. Amici suggest that there are constructive ways 

3 

for this Court to address the remedial phase of this case so as to 
protect both the interest in fairness to freelance authors and the 
public interest in access to their works without precipitating the 
crisis Petitioners envision. 

First, commercial electronic database publishers 
overstate their role as the nation’s “electronic archives” and the 
extent to which the “physical library has been replaced by the 
electronic archive.” (Brief for Advance Publications, Inc., et 
al. (“Publishers’ Brief”) at 5.) As applied to Petitioners’ 
products, the terms “electronic libraries” and “electronic 
archives” are misnomers. Despite the utility and wide 
availability of commercial electronic databases, they are 
collections of information designed to meet particular market 
demands and do not fulfill the traditional roles of libraries and 
archives. Further, access restrictions and licensing practices of 
many commercial electronic database publishers are designed 
to limit access to digital copies of works. These restrictions 
perpetuate a system of payment by end-users of ongoing 
subscription fees and/or “pay per use” fees to obtain access to 
works, often to the detriment of legitimate fair use and archival 
concerns. 

Second, Petitioners and their amici exaggerate the 
consequences of the Second Circuit’s decision. They insist 
that it necessarily will force commercial electronic database 
publishers to delete articles from databases, destroy CD-ROM 
products, and take other drastic actions that will devastate 
archives and prevent the public from having “meaningful 
access” to back issues of periodicals. In making these broad 
pronouncements, however, Petitioners ignore the discretion 
that Congress has reposed in the courts in the remedial 
provisions of the Copyright Act. These provisions would 
permit the courts to balance the public interest in access to the 
works at issue in this case and the freelance authors’ interest in 
compensation for their exploitation. 

4 

Section 502(a) of the Act provides that “[a]ny court 
having jurisdiction of a civil action arising under this title 
may...grant temporary and final injunctions on such terms as it 
may deem reasonable to prevent or restrain infringement of a 
copyright.” 17 U.S.C. §502(a) (emphasis added). As has been 
recognized in the jurisprudence of this Court, this discretion 
clearly includes withholding injunctive relief and awarding 
damages to a complaining plaintiff. It also enables courts to 
fashion prospective relief that preserves public access to works 
while ensuring that freelance authors are fairly compensated. 
In the view of the amici, the public interest militates against 
courts imposing ordinary injunctive relief in special 
circumstances like those in this case. 

The potential difficulties of identifying and obtaining 
permissions from a large group of freelance authors can be 
greatly simplified according to how the remedy is structured. 
The courts and/or the parties can devise and administer a 
system of monetary relief to compensate freelance authors for 
past acts of copying and distribution of their works and pay 
them continuing royalties for future use of their works by 
commercial electronic database publishers. There are 
statutory, private and judicially devised models for systems 
that would enable commercial electronic database publishers to 
maintain digital collections that would remain accessible to the 
public, while at the same time guaranteeing that freelance 
authors are fairly compensated. 

Finally, even if Petitioners and similarly situated parties 
ultimately choose to remove certain works from commercial 
online databases, these works will remain available through 
other avenues. Hard copies and microform copies of these 
works will not cease to exist. Publicly accessible, non- 
commercial libraries and archives are entitled, under 
circumstances described in Sections 107 and 108 of the 

5 

Copyright Act, to reproduce and distribute works that are not 
otherwise available on the market or that are used by scholars. 
This ruling should not jeopardize future uses of traditional 
media compilations of entire issues of a series of collective 
works like print and microfilm editions. These versions have 
typically involved the reproduction and distribution of 
individual works “as part of” the entire, original collective 
works in which they had originally appeared, thus falling 
squarely within the Section 201(c) privilege. 

ARGUMENT 

The Second Circuit held that the narrow privilege 
defined in Section 201(c) of the Copyright Act does not confer 
upon commercial electronic database publishers the privilege 
of reproducing and distributing the copyrighted works of 
freelance authors in and through certain online electronic 
databases and certain CD-ROM products. While this ruling 
presents significant challenges to commercial electronic 
database publishers, and indeed libraries, it need not mean that 
scholars, libraries, and other institutions will be denied access 
to recent, digitized records. The ruling clearly requires 
payment of remuneration to the freelance authors whose works 
have been reproduced in online electronic databases and CD- 
ROM products and distributed to the public in a manner other 
than “as part of” the types of collective works specified by 
Section 201(c). It may entail potentially high transaction costs 
associated with identifying and negotiating use licenses with 
individual freelance writers or their heirs. There is 
understandable concern with the potential adverse 
consequences of the scenarios predicted by the commercial 
electronic database publishers and their supporting amici -- 
both to their commercial interests and to the public interest -- 
that could arise should this Court affirm the Second Circuit’s 
ruling. Nevertheless, the dire consequences anticipated by the 
Petitioners and their supporting amici are hardly preordained. 

6 

By affirming the Second Circuit’s ruling and ordering relief 
that would permit an efficient system of payment to freelance 
authors, this Court would ensure that the creative labors of 
freelance authors are compensated when their works are 
exploited in the digital environment. 

I. THE “ELECTRONIC ARCHIVE” HAS NOT 
“REPLACED” THE “PHYSICAL LIBRARY” 

A. Petitioners And Their Supporting Amici Portray 

Themselves As Modern Libraries When They Are Not 

Petitioners and their supporting amici portray 
themselves as modern, multifaceted libraries, equating 
computer files with works in a library collection, and computer 
servers with library storage stacks. (Petitioners’ Brief at 3, 

n.2.) These parties dramatically overstate their role as the 
nation’s “electronic archives” and the extent to which the 
“physical library has been replaced by the electronic archive.” 
(Publishers’ Brief at 5.) Despite the utility and wide 
availability of commercial electronic databases, it is a 
misnomer to characterize them as “libraries” or “archives.” 

Commercial electronic database publishers are not 
“libraries” in some very fundamental respects. Although their 
rhetoric suggests that they are altruistic custodians of the 
nation’s knowledge, open to all comers, this is not the case. 
Commercial electronic database owners are sophisticated 
business enterprises that derive substantial sums from licensing 
online electronic databases and CD-ROM products to end- 
users who incur subscription charges, transactional search fees, 
and/or charges for time spent online. Petitioners’ databases are 
widely available and provide an important resource to 
researchers and the public, but usually only upon payment of 
significant fees by individual end-users or institutional 
subscribers who make them available to their patrons. Those 

7 

researchers and members of the public who are less affluent, 
and who are on the wrong side of the “digital divide” in this 
country, still rely and will continue to rely on traditional, 
“brick and mortar” libraries and archives. These institutions 
provide the public with access to works in allegedly outmoded 
and old-fashioned paper and microform copies, and likewise 
endeavor to provide the public with access to many electronic 
resources at low or no cost to the end-user. Such access is 
possible as not-for-profit libraries expend well over $2 billion 
per year for information resources. 

There is no support for the sweeping claim that “the 
physical library has been replaced by the electronic archive.” 
(Publishers’ Brief at 5.) The “physical library” has been 
augmented, but not “replaced,” by electronic archives, just as 
traditional library services in general are being augmented by 
new forms of technology.2 

Institutional libraries remain vital 
to researchers and to our communities. “Libraries do not serve 
merely individual, informational, and recreational interests, but 
are part of the essential fabric of our society -- its fragile 
cultural and social ecology.” Arthur Curley, Towards a 
Broader Definition of Public Good, in Libraries, Coalitions 
and the Public Good 36 (E.J. Josey, ed., 1987). 

B. Petitioners’ Archival Claims Are Exaggerated 

Use of the term “electronic archive” to refer to the 
Petitioners’ products is also a misnomer. Electronic databases 

2 Over the course of history, “libraries” have evolved and these institutions have 

preserved works in all media, from ancient means of communication, like clay 
tablets, papyrus, and parchment, to paper writings, drawings, and maps, to analog 
photographs, sound recordings, film, video, and now digital media. Recent federal 
legislation, for example, specifically targets improvement of information access at 
libraries through technology. Library Services and Technology Act of 1996, 29 
U.S.C. §9121. 

8 

make it much easier to access information resources, and make 
possible the manipulation and use of data in powerful ways not 
possible with analog media. But this does not translate into the 
ability of any particular electronic medium to serve an archival 
or preservation function. It may be true that some libraries 
have reduced their analog media holdings and make growing 
use of digital information collections. But for research 
libraries, for whom preservation and access are central to their 
mission, retention of paper and microfilm continues because 
these are the only proven preservation media. Indeed, a 
growing number of research libraries (almost eighty) rely upon 
offsite storage facilities to accommodate the burgeoning 
growth of their physical collections.3 

Electronic media may have some advantages over other 
media for preservation purposes and may be the only viable 
means for preserving certain fragile material. (See Brief of 
Amici Curiae Ken Burns, et al. (“Historians’ Brief”) at 10.) 
But what the Historians’ Brief fails to note is that the same 
Library of Congress report they cite goes on to observe that 
electronic media “may introduce new preservation problems of 
their own.”4 In fact, digital reformatting is not yet considered a 
standard preservation strategy. Abby Smith, Council on 
Library and Information Resources, Why Digitize? at 3-7 
(1999) (“Smith”). Though digitization of content is sometimes 
loosely referred to as “preservation,” digitization does not yet 

3 Even research libraries that are investing heavily in electronic resources are 

approaching the replacement of their paper resources with caution. See Peter 
Allison & Carolyn Mills, Library Investing Heavily in Electronic Journals, UCONN 
Libraries, Feb./Mar. 2001, at 6. 

4 Commission on Physical Sciences, Mathematics, and Applications, National 

Research Council, LC21: A Digital Strategy for the Library of Congress at 6-2 
(2000) (“Library of Congress Report”). 

9 

afford the permanence and authenticity5 necessary for it to 
serve as a true preservation medium that is free “from physical 
deterioration.” (Publishers’ Brief at 2.) 

Microfilm, the preservation reformatting 
medium of choice, is projected to last several 
centuries when made on silver halide film and 
kept in a stable environment. It requires only a 
lens and a light to read, unlike computer files, 
which require hardware and software, both of 
which are developed in often proprietary forms 
that quickly become obsolete, rendering 
information on them inaccessible. 

Smith, supra, at 4. Certain digital media, like magnetic 
tape, are inherently unstable and can degrade within a 
decade, id., and their use as archival media presents 
significant logistical hurdles. See 36 C.F.R. §1234.30 
(regulations of National Archives and Records 
Administration on maintenance of electronic records 
storage). Even so, magnetic tape remains the archival 
choice over CD-ROMs, which are not at this time 
considered an archival medium.6 

5 It may be difficult to ascertain the authenticity and integrity of an image, database, 

or text when it is in digital form. In essence, one can change the bit stream of a file 
and leave no record that it has been altered. By contrast with traditional media, 
where evidence of a forgery is often carried in the physical medium itself (e.g., the 
chemical composition of the ink and the date of the paper, physical signs of 
modification or erasure), it is more difficult to detect a forgery in the digital 
environment. Smith, supra, at 6. This level of authenticity may not be routinely 
necessary to most researchers, but it is important to keep in mind that this 
distinguishes digital media from true preservation media for archival purposes. 

6 The stability of the media is not the only issue. There is also the issue of media 

obsolescence. The Copyright Act recognizes that a format has become obsolete “if 
the machine or device necessary to render perceptible a work stored in that format is 
no longer manufactured or is no longer reasonably available in the commercial 
marketplace.” 17 U.S.C. §108(c). In order to keep data fresh and encoded in 

Footnote continued on next page . . . . 

10 

All libraries and archives face a number of challenges 
in dealing with the preservation of digital objects: fragile 
storage media, technology obsolescence and legal questions 
surrounding copying and access.7 These challenges were 
recognized just recently by Congress in its appropriation of 
$100 million to the Library of Congress to establish “a national 
digital information infrastructure and preservation program.” 
The agreement calls for up to $75 million of the appropriation 
to be matched by non-federal contributions and singles out “the 
information and technology industry that has created this new 
medium” to be “a contributing partner in addressing digital 
access and preservation issues inherent in the new digital 
information environment.” 146 Cong. Rec. H12304, H12309 
(Dec. 15, 2000). The solutions to these challenges are being 
sought, but they are not yet available. 

C. Petitioners Are Not Altruists Serving The Public-At-Large, 

But Are Commercial Businesses Requiring Licensed Access 
To Collections 

Further separating these so-called “electronic archives” 
from traditional archives are the contractual obligations that 
restrict the use and preservation of “electronic archives.” For 
example, an online version of a work in a collective database, 
such as NEXIS, may be subject to a variety of payment, time 
and use limitations. Commercial databases and CD-ROMs are 
also often subject to electronic access controls that end-users 
may not circumvent without violating contractual provisions 

Footnote continued from previous page: 
readable file formats, it is necessary for digital data to migrate from one format to 
another. Smith, supra, at 4. 

7 Library of Congress Report, supra, at 4-2. 

11 

and, most recently, Section 1201 of the Copyright Act.8 A 
library can acquire a paper or microform copy of a book or 
periodical through an outright purchase of the copy. A library 
can preserve and access this copy indefinitely and convey it to 
others, with some limitations. See 17 U.S.C. §109(a). By 
contrast, a CD-ROM copy of the same work will often be 
subject to licensing restrictions imposed by the publisher to 
prevent the end-user from making various uses of the copy or 
from reselling it to others. A digital copy of a work can be 
encoded so as to prevent access to it after a certain time has 
elapsed and can be readily structured to permit access to it only 
on a “pay-per-use” basis. Although there are narrow 
exemptions in the statute for nonprofit library, archive and 
educational institutions and for public broadcasting entities, 
one may not circumvent these access restrictions without risk 
of incurring civil and/or criminal penalties for doing so. See 
17 U.S.C. §1201, §§1203-04. 

II. THE COPYRIGHT ACT DOES NOT REQUIRE 
DELETION OF WORKS FROM ELECTRONIC 
DATABASES OR DESTRUCTION OF CD-ROMS, AND 
THE COURTS CAN REQUIRE PAYMENT OF FAIR 
COMPENSATION IN THE FORM OF PAST AND 
CONTINUING ROYALTIES FOR USE OF THESE 
WORKS 

8 17 U.S.C. §1201, et seq., was adopted as part of the Digital Millenium Copyright 

Act, Pub. L. No. 105-34 (1998) (“DMCA”). The DMCA adds legal force to 
previously privately enforced contractual clauses. Exemptions are few. When the 
U.S. Copyright Office initiated a rulemaking proceeding to evaluate the nature and 
scope of possible exemptions from prohibitions on circumvention of access controls, 
commercial interests aggressively challenged any proposed exemptions. See 65 
Fed. Reg. 64,555 (2000). In its Final Rule, the Copyright Office describes concerns 
that Congress had in the development of marketplace realities that could restrict 
access to copyrighted materials in the digital environment. “Possible measures that 
might lead to such an outcome included the elimination of print or other hard-copy 
versions, permanent encryption of all electronic copies and adoption of business 
models that restrict distribution and availability of works.” Id. at 64,557-58. 

12 

A. The Argument That Electronic Files Must Be Destroyed 

Ignores Discretionary Provisions Of Section 502(a) Of The 
Copyright Act And The Courts’ Authority To Shape 
Balanced Relief 

Petitioners and their supporting amici insist that the 
Second Circuit’s decision necessarily will force commercial 
electronic database publishers to delete articles from databases, 
destroy CD-ROM products, and take other drastic actions that 
will devastate archives and prevent the public from having 
“meaningful access” to back issues of periodicals. For 
example, Petitioners state that if the Second Circuit’s ruling is 
affirmed, “Petitioners and those similarly situated will have no 
alternative but to destroy any CD-ROMs that contain freelance 
articles and remove all freelance contributions from electronic 
libraries. . . .” (Petitioners’ Brief at 49.) Petitioners and their 

supporting amici also insist that it would be infeasible to 
remunerate freelance authors due to the large numbers of 
works involved and the difficulty and expense of locating 
freelance contributors and obtaining their authorization for 
republication in those forms. (See, e.g., Petitioners’ Brief at 
14, 49; Publishers’ Brief at 3, 10; Brief of the Software & 
Information Industry Association, et al. (“SIIA Brief”) at 24.) 

In making these alarmist pronouncements, Petitioners 
and their supporting amici ignore the discretion that Congress 
has reposed in the courts in the remedial provisions of the 
Copyright Act. Section 502(a) of the Act provides that “[a]ny 
court having jurisdiction of a civil action arising under this title 
may . . . grant temporary and final injunctions on such terms as 
it may deem reasonable to prevent or restrain infringement of a 
copyright.” 17 U.S.C. §502(a) (emphasis added). Indeed, it is 
notable that neither Petitioners nor their supporting amici 
appear to have cited or discussed Section 502 in support of 
their assertions that they will be “required” to delete and 

13 

destroy the materials in question. While it is possible that the 
parade of horribles that Petitioners envision could come to 
pass, it is neither inevitable nor likely, particularly if this Court 
is careful to emphasize and clarify the law on this point. 
Certainly, a less drastic alternative is a ruling that ensures fair 
compensation to freelance authors, while permitting 
commercial electronic database publishers to continue to 
reproduce and distribute freelance submissions under a 
manageable licensing system. This solution is not only within 
the authority of the courts, it is also a sound balancing of the 
interests of freelance authors in being compensated for the 
exploitation of their works and the public interest in access to 
those works. 

As has been recognized in the jurisprudence of this 
Court even before enactment of Section 502(c), the courts’ 
discretion to issue injunctions against copyright infringement 
includes the discretion to withhold injunctive relief and to 
award damages to a complaining plaintiff for past or 
prospective infringement. Likewise, a court could condition 
denial of injunctive relief upon a defendant’s payment of 
damages on either a retroactive or prospective basis. 

In Dun v. Lumbermen’s Credit Ass’n, 209 U.S. 20 
(1908), this Court held that lower courts “wisely exercised” 
discretion in refusing an injunction against the defendant’s 
infringing work and requiring the copyright owner to seek 
damages at law for infringement. In Dun, most of the 
defendant’s work consisted of non-infringing material, 
combined with a relatively small amount of infringing 
material. 209 U.S. at 23. Similar circumstances may obtain 
here, where there is apparently a substantial amount of non- 
infringing material in the electronic databases and CD-ROMs 
in question, and where the allegedly infringing material may 
only comprise a fraction of the databases and CD-ROM 
products as a whole. 

14 

This Court has more recently recognized the 
discretionary nature of injunctive relief in copyright 
infringement cases in Campbell v. Acuff-Rose Music, Inc., 510 
U.S. 569 (1994). The Court stated there: 

[C]ourts may also wish to bear in mind that the 
goals of the copyright law, “to stimulate the 
creation and publication of edifying matter,” 
[Leval, Toward a Fair Use Standard, 103 Harv. 
L. Rev. 1105, 1134 (1990)], are not always best 
served by automatically granting injunctive 
relief when parodists are found to have gone 
beyond the bounds of fair use. See 17 U.S.C. 
§502(a) . . . ; Leval 1132 (while in the “vast 
majority of cases, [an injunctive] remedy is 
justified because most infringements are simple 
piracy,” such cases are “worlds apart from many 
of those raising reasonable contentions of fair 
use” where “there may be a strong public 
interest in the publication of the secondary work 
[and] the copyright owner’s interest may be 
adequately protected by an award of damages 
for whatever infringement is found”); Abend v. 
MCA, Inc., 863 F.2d 1465, 1479 (9 

th Cir. 1988) 
(finding “special circumstances” that would 
cause “great injustice” to defendants and “public 
injury” were injunction to issue), [aff’d sub 
nom. Stewart v. Abend, 495 U.S. 207 (1990)]. 

510 U.S. at 578 n.10. See also New Era Publications Int’l, 
ApS v. Henry Holt, Co., 884 F.2d 659, 661 (2d Cir. 1989) 
(Miner, J., concurring in denial of rehearing in banc) (“All now 
agree that injunction is not the automatic consequence of 
infringement and that equitable considerations always are 
germane to the determination of whether an injunction is 

15 

appropriate.”); see generally 4 Melville B. Nimmer & David 
Nimmer, Nimmer on Copyright §14.06[B] (2000). As these 
cases show, an injunction should not be the “automatic 
consequence” of a finding that commercial electronic database 
publishers have been infringing the copyrights of freelance 
authors. 

B. Special Circumstances Support Payment Of Fair 

Compensation To Authors While Ensuring Public Access 
To Published Works 

There are a number of “special circumstances” present 
in this case, and the public interest militates in favor of courts 
withholding injunctive relief, provided that commercial 
electronic database publishers pay just compensation to 
freelance writers who seek it for past and continuing uses of 
their works. This case is similar to the situation the U.S. Court 
of Appeals for the Ninth Circuit addressed in Abend v. MCA, 
Inc., 863 F.2d 1465 (9 

th Cir. 1988), aff’d sub nom. Stewart v. 
Abend, 495 U.S. 207 (1990). In Abend, the Ninth Circuit 
found that the plaintiff owned the renewal copyright on a story 
underlying the defendants’ allegedly infringing film. The court 
stated that it would be appropriate to withhold injunctive relief 
and award only monetary compensation to the plaintiff in the 
form of actual damages and an apportionment of the 
defendants’ profits. 863 F.2d at 1479-80. The “special 
circumstances” that justified withholding injunctive relief were 
that the success of the defendants’ infringing work “resulted in 
large part from factors completely unrelated to” the plaintiff’s 
work. Id. at 1479. An injunction would have prevented 
defendants from exploiting the new matter that comprised their 
work since it was not feasible for them to separate out the new 
matter from the plaintiff’s work. Id. Moreover, an injunction 
against the defendants’ work would have caused “public injury 
by denying the public the opportunity to view [the defendants’] 
classic film for many years to come.” Id. Finally, the plaintiff 

16 

could be compensated adequately for the infringement by a 
monetary award. Id. 

In the instant case, the success of the Petitioners’ 
commercial electronic databases may well result principally 
from the availability of authorized works, the utility of the 
search engine software, and numerous other factors unrelated 
to the inclusion of freelance articles. It may be extremely 
difficult to separate out the freelance articles from Petitioners’ 
authorized content. The difficulty and transaction costs 
associated with seeking and obtaining permissions from 
freelance authors or their heirs may be high. Removal of the 
freelance articles also has the potential to occasion public 
injury. The number of works in question is unknown, but loss 
of access to any appreciable amount of content harms the 
public. There is great social value in preserving public access 
to these works, particularly in light of the academic and 
research nature of many potential uses. Even though the 
“electronic libraries” and “electronic archives” in question in 
this case are not true libraries or archives, they are useful 
services that are of significant value and utility to numerous 
individuals and institutions. To the extent that their utility is 
diminished or their cost increases, the public interest is 
harmed. 

Even though injunctive relief should not be ordered, 
past and continued use of freelance authors’ works has 
generated and will generate income streams that now flow 
solely to the commercial electronic database publishers. It is 
fair for courts to afford monetary relief to freelance authors 
who come forward to seek payment for uses of their works that 
are not privileged or otherwise authorized. Although they 
overstate their function as “archives” and “libraries,” 
Petitioners and their supporting amici understate the extent to 
which this case is ultimately about money. The case is 
fundamentally about the allocation between freelance authors 

17 

and commercial electronic database publishers of income 
streams generated by useful -- and lucrative -- products that 
contain the works of freelance authors. The reproduction of 
these freelance articles into electronic databases enhances the 
value of the databases as a whole. Even if they are only listed 
as citations containing responsive search results, they give the 
end-user confidence in the completeness of the search. This, in 
turn, enhances the goodwill of the commercial electronic 
database publisher. The distribution of articles on an 
individual basis is also undoubtedly valuable to such entities. 

The system of remuneration for these uses should be 
fair to freelance authors and not administratively burdensome 
for commercial electronic database publishers if such a system 
is to satisfy the public’s concern with access.9 The particulars 
of such a system are surely within the abilities of the courts and 
interested parties to develop. But as an example of how such 
relief could be structured, commercial electronic database 
publishers could be required to pay for works on a group basis, 
such as is done with the voluntary system of blanket 
performance licenses of musical compositions administered by 
ASCAP and BMI. Proceeds could be placed into a trust 
account and distributed to freelance authors or their 
representatives according to agreed upon criteria. 

10 It may also 

9 The authors would certainly appear to have incentives to assist in devising 
a fair system of remuneration. As noted in the Publishers’ Brief, “the vast 
majority of freelancers might prefer continued inclusion in electronic libraries or on 
CD-ROM” in order to obtain the “intangible benefits of continued electronic 
publication and the ‘free publicity’ and boost to personal reputation it offers.” 
(Publishers’ Brief at 9.) (See also SIAA Brief at 25.) This may not be sufficient 
inducement for some writers, however. Many writers may prefer instead to license 
their works and make them broadly available to the public in exchange for the same 
type of financial rewards that have induced the nation’s commercial electronic 
database publishers to make these works available heretofore. 

10Copyright law has been amenable to various legislative solutions that do not 

require users of works to engage in excessively burdensome clearance procedures. 
For example, Sections 111 and 119 were fashioned as solutions permitting 

Footnote continued on next page . . . . 

18 

be appropriate to develop criteria for freelance authors to “opt 
out” of the system under certain conditions. But regardless of 
the specific structure of relief, there are ways around the “all or 
nothing” dilemma envisioned by Petitioners and their 
supporting amici. 

III. THE WORKS WILL REMAIN OR BECOME 
AVAILABLE THROUGH OTHER AVENUES 

If the Court affirms the Second Circuit’s ruling with the 
result that certain works were to be removed from commercial 
electronic databases, these works would remain available 
through other avenues, as other commentators have 
acknowledged. (See Historians’ Brief at 12.) Hard copies and 
microform copies of these works will not cease to exist, and 
there is no credible suggestion that such copies would need to 
be pulled from library shelves or microfilm collections and 
destroyed. 

Moreover, publicly accessible, non-commercial 
libraries and archives are entitled, under circumstances 
described in Sections 107 and 108 of the Copyright Act, to 
reproduce and distribute works that are not otherwise available 
on the market. Section 108, in particular, provides a “safe 

Footnote continued from previous page: 
retransmission of broadcast signals to cable and satellite subscribers when the cable 
and satellite systems pay fees to compensate program owners. See 17 U.S.C. §§111 
and 119. Section 114 contains a compulsory licensing mechanism for the use of 
sound recordings in the digital environment, provided that the sound recording 
copyright owners are compensated for these uses. See 17 U.S.C. §114. The 
ASCAP consent decree cases in the U.S. District Court for the Southern District of 
New York demonstrate that the courts are equipped to supervise the reasonableness 
of royalty rates charged to end-users of copyrighted material. See generally, 
Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U.S. 1, 10-12 
(1979) (discussing history of ASCAP consent decrees and rate-setting provisions 
thereof); Buffalo Broadcasting Co., Inc. v. American Society of Composers, Authors 

and Publishers, 744 F.2d 917, 922-23 (2d Cir. 1984) (same). 

19 

harbor” for certain acts of reproduction and distribution of 
copyrighted works by libraries and archives that are open to the 
public or available to all researchers working in a specialized 
field. See 17 U.S.C. §108(a)(2). The copying and distribution 
under this section must be for the purposes specified in the 
statute. These include preservation, security, replacement of 
copies that are damaged, deteriorating, lost, or stolen; 
obsolescence of the existing format in which the work is 
stored; and unavailability of a copy at a fair price. See 17 
U.S.C. §108(b)-(e). These provisions minimize the risk that 
works at issue in this case would disappear completely from 
scholarly and public accessibility. 

11 

Nor should traditional print or microfilm compilations 
of collective works cease to be reproduced and distributed. 
Petitioners and their supporting amici claim that the Second 
Circuit’s decision effectively renders unlawful practices such 
as the reproduction of multiple issues of a periodical onto a 
single roll of microfilm (e.g., a roll of microfilm containing, in 
chronological order, all the issues of Time magazine from 
January through June of 1999) and the distribution of the 
microfilm to the public. (See, e.g., Petitioners’ Brief at 19, 45; 
Publishers’ Brief at 3.) This prediction surely overstates the 
effect of the Second Circuit’s decision. 

11 Section 108 expressly states that nothing therein shall in any way affect “the right 

of fair use as provided by section 107 . . . .” 17 U.S.C. §108(f)(4). Thus, other acts 

of library and archival reproduction and distribution of works may also constitute 
fair use, particularly if they are for purposes of scholarship, are non-commercial in 
nature, and do not usurp the copyright owner’s market for the original. See 17 
U.S.C. §107. Note, however, that Section 108 also does not affect “any contractual 
obligations assumed at any time by the library or archives when it obtained a copy 
or phonorecord of a work in its collections.” 17 U.S.C. §108(f)(4). Thus, if a work 
only exists in a digital format -- like an encrypted CD-ROM subject to a highly 
limiting “click wrap” license purporting to restrict fair use copying -- the CD- 
ROM’s publisher might attempt to prevent the library or archive from exercising the 
rights provided under Section 108. The publisher itself could thereby perhaps defeat 
preservation and public accessibility of the works embodied in the disk. 

20 

It is permissible under Section 201(c) as construed by 
the Second Circuit for the owner of a collective work to 
reproduce an exact facsimile of a complete collective work, 
whether in paper or microform. This would be true even if 
multiple, exact reproductions were combined into a single 
package in which several entire issues of a series of collective 
works would be distributed as a unit (like traditional 
microfilm). When one distributes the constituent works in this 
form, one is both reproducing and distributing them “as part 
of” the original collective works, as provided for in Section 
201(c), including all of the selection, coordination, and 
arrangement of the original collective works. These practices 
are therefore not problematic under the Second Circuit’s 
decision, 

12 and suggestions to the contrary are unfounded. 

CONCLUSION 

For the foregoing reasons, the judgment of the court of 
appeals should be affirmed. 

Respectfully submitted, 

12 By contrast, many works at issue in this case are effectively distributed on an “a la 
carte” basis in the form of custom-ordered (to the specifications of the end-user) 
new anthologies of disaggregated works culled from multiple collective works (like 
the NEXIS online database). In that context, the constituent works are being 
distributed in a manner other than “as part of” a Section 201(c) collective work. 
(This is an issue distinct from whether the initial reproduction of the works onto the 
NEXIS servers was permissible). End-users may be responsible for “manipulation 
of the retrieval system” that allows “articles to be ‘recombined’ with other articles in 
a new anthology or downloaded individually” (Petitioners’ Brief at 48). But end- 
users not having in their possession copies of the works they seek cannot 
“distribute” copies of those works. They can request that works matching certain 
criteria specified in their search be transmitted to their disk drives or printers. It is 
the database provider who publicly distributes to the end-users the copies requested, 
on an article-by-article basis, not “as part of” any qualifying collective work. 

21 

ARNOLD P. LUTZKER 

Counsel of Record 
CARL H. SETTLEMYER, III 
LUTZKER & LUTZKER, LLP 
Suite 450 
1000 Vermont Avenue, N.W. 
Washington, DC 20005 
(202) 408-7600 

PETER JASZI 
Washington College of Law 
American University 
4801 Massachusetts Ave., N.W 
February 16, 2001 Washington, DC 20016