Essay About American Library Association And Ninth Circuits Decision

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INTEREST OF THE AMICUS CURIAE
The American Library Association (“ALA”), by its attorneys, respectfully files this
brief Amicus Curiae in support of petitioner Sony Corporation of America. *
* Consent of the parties has been granted and is on file with the Court.
The ALA is the worlds oldest and largest library association. Its 39,000 members
include libraries, librarians, library trustees and friends and patrons of libraries,
representing a wide spectrum of users of copyrighted materials. A principal mission of
the ALA and of libraries is to insure that all in our society have access to information
under terms that are fair both to copyright owners and users of copyrighted works. For
this reason, the ALA throughout its history, has been in the forefront of copyright law
revision. In particular, the ALA was one of the major consultants to the architects of the
Copyright Revision Act of 1976. *
* The Association has worked with coalitions of publishers, other copyright owners
and copyright users in general to establish voluntary guidelines governing photocopying
of library materials for classroom use, educational uses of music, and off-air taping.
The Ninth Circuits decision in this case has major implications for libraries and
librarians and for the publics right of access to information and entertainment. First, the
Courts holding below that “intrinsic” uses of copyrighted materials cannot be “fair” uses
will profoundly affect the ability of librarians to serve their patrons effectively. Libraries
are the critical link in bringing new information technologies to the public at large.
Libraries permit the masses to use such technologies otherwise available only to the
affluent. Thus, many libraries now, and in the future most libraries will, provide patrons
with access to video recorders for “in-library” use. An increasing number of libraries
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provide off-air tapes of news and other programming for in-library viewing for patrons
who, for financial reasons, may be unable to purchase their own recorders, and who
otherwise would be denied access to broadcast programming. If the decision of the Court
of Appeals is not reversed, libraries could be accused of making, or of aiding and
abetting, unfair “intrinsic” uses of copyrighted materials.
Second, the Ninth Circuits holding that “intrinsic” uses of copyrighted materials must
be justified by a substantial countervailing social benefit will seriously affect public
access to information and severely constrict the traditional role of libraries. For example,
libraries frequently are asked to photocopy articles from journals for patrons when such
copying has no significant market impact. Upon receiving such a request, a librarian can,
however, neither predict nor know with any degree of certainty whether such
reproductions bestow a benefit to society sufficient to satisfy the Court of Appealss test.
Furthermore, a librarian can neither inquire as to the patrons need for and planned use of
the requested material nor judge its educational or scientific value without violating long-
established ethical principles of librarianship.
Accordingly, the Court of Appealss holding effectively creates a dichotomy between
entertainment and education. This dichotomy will restrict public access to information
and constrict the judicially recognized role of libraries as “a mighty resource in the free
market place of ideas.” Minarcini v. Strongville City School District, 541 F.2d 577, 582
(6th Cir. 1976).
Finally, the Ninth Circuits construction of Section 108 of the Copyright Revision Act
of 1976, 17 U.S.C. Ч 101 et seq. (1976), threatens the fair use rights of libraries and
librarians under Section 107. The Ninth Circuit stated that Section 108 clearly manifests
Congresss intent not to create a blanket home video recording exemption. Section 108,
however, grants certain rights to libraries over and above those available under the fair
use provisions of Section 107. Thus, the Ninth Circuits implication that a librarys
reproduction rights are limited to those available under Section 108 contradicts the
manifest intent of Congress.
In sum, the issues raised by this case are of great national importance to libraries,
librarians and users of libraries. For this reason, and because the ALA believes its
analysis of those issues may assist this Court in resolving them, the ALA respectfully
submits this brief as Amicus Curiae.
ARGUMENT
SUMMARY OF ARGUMENT
The Ninth Circuit held that only “productive” uses of copyrighted materials could be
fair uses under the Copyright Revision Act of 1976, 17 U.S.C. Ч 101 et.