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Supreme Court Hears Oral Arguments in Fisher v. University of Texas (Fisher II)

On December 9, 2015, the Supreme Court of the United States heard oral arguments in Fisher v. University of Texas at Austin, a case involving the University of Texas (UT) admissions process which seeks to improve student-body diversity.  The Association of Research Libraries joined with 37 other higher education organizations in an amicus brief supporting the University of Texas.  A number of notable individuals attended oral arguments in the case, including Cecelia Suyat, the wife of the late Thurgood Marshall.

This case was previously heard by the Supreme Court which resulted in a 2013 opinion which in a 7-1 vote (Justice Kagan recused herself), remanded the case to the Fifth Circuit.  In Fisher I, the Supreme Court directed the Fifth Circuit to reconsider the case under the higher threshold of strict scrutiny in determining whether UT’s admission policy comports with the Equal Protection Clause of the Fourteenth Amendment.  On remand, the Fifth Circuit once again upheld UT’s admission policy in which UT accepts the top 10% of graduates from Texas high schools and uses a holistic review for the remaining open spots.  The holistic approach includes many factors, with race being one of the factors.  The admissions process did not have quotas or specific goals in terms of the number of students meeting specific characteristics.

Highlights from Oral Arguments in Fisher II

Oral Arguments by Fisher

During oral arguments in Fisher II, Mr. Rein, representing plaintiff Fisher, argued that the University of Texas did not meet its burden of proving the necessity of the program and that its admission policy was distinguishable from the policy that the Supreme Court upheld in Grutter v. Bollinger (challenging University of Michigan’s law school’s admission policy) in 2003.

Justice Sotomayor challenged Mr. Rein, asking why the University of Texas’ admissions policy was impermissible if need for the program was proven or assumed.  Mr. Rein asserted that individual profiles must be compared against each other to satisfy prior Supreme Court cases.

JUSTICE SOTOMAYOR:  If they had to use race, how are they using it improperly?

MR. REIN:  If you have to use race and you want to use the model that was created in Bakke and Grutter, you would need to build profiles of individuals that would allow you to judge them one against another in the context of the class and the educational experience you are trying to create.

JUSTICE SOTOMAYOR: My God, that sounds like it’s using race more rather than less than this plan does.

MR. REIN:  I ­­- I’m sorry if it sounds that  way.  It is not.  It simply says, in a situation of the Bakke situation where you’re looking at every aspect of an individual and you’re trying to judge whether one or another of individuals for the ­ for places, the last places would most benefit the class, the class as a whole as a learning entity, then you can, as Bakke indicates, take account of the fact that they may have different backgrounds, which would contribute different ideas.

Justice Ginsburg asserted that the top 10% policy, which Fisher was not challenging, was designed to improve racial diversity as well:

JUSTICE GINSBURG: But in Grutter ­­ in both Grutter and what Justice Powell said would be proper in Bakke, race was a factor. Race, itself, was a factor. And that’s why I’m finding it very hard to distinguish what the university is doing, apart from the 10 percent plan. But let – ­­ let me ask you about the 10 percent plan itself, because it seems to me that that is so obviously driven by one thing only, and that thing is race. It’s totally dependent upon having racially segregated neighborhoods, racially segregated schools, and it operates as a disincentive for a minority student to step out of that segregated community and attempt to get an integrated education.

MR. REIN: Justice Ginsburg, let ­­- let me respond to this, with respect, this ­­ this way. The top 10 plan does not classify anybody by race. It addresses only standing within the Texas educational system.

JUSTICE GINSBURG: But it could work only in the background.

MR. REIN: When you say “work,” it works on a number of fronts. It creates geographic diversity. It looks all over Texas. It doesn’t distinguish between high schools. It creates socioeconomic diversity. It does have an effect, a demonstrated effect on race because a number of minorities, the type they care about, are admitted under the top 10 program. It’s not based on race. It’s based on the degree of effort you make relative to the other people with whom you’re being ­­-

JUSTICE GINSBURG: It is created because of race.

MR. REIN: I ­­ I’m not in a position to tell you why it was created. It ­­ it was created ­­

JUSTICE GINSBURG: Is there any doubt that it was created to increase the number of minority students? Was there any other reason for the 10 percent plan?

MR. REIN: Well, I’ve given you other reasons, which are it’s a ­­ it’s kind of a democratic recognition that you want to invite people from all over Texas, regardless of the school they went to. You’re looking for those who are trying the hardest, who are doing the best, who excel in their environment.

When questioned about what would constitute sufficiently concrete criteria to achieve diversity, Mr. Rein conceded that it is difficult but did not offer specific solutions:

JUSTICE KENNEDY: You argue that the University of Texas’ goals and­­ or announced goals are insufficiently concrete. Can you give an example of what, in your view, would be a sufficiently concrete criterion or set of criteria to achieve diversity?

MR. REIN: Well, and ­­ and certainly, the Solicitor General’s attempted to do so by breaking down the abstract goals into concrete objectives. One goal that certainly Grutter respects is, if you have studied your campus and you believe there’s an inadequate exchange of views, and the minorities feel so isolated they cannot properly bring to bear their perspective on the campus, you can look at measures of how successful are we in this kind of dialogue and try to investigate that, and try to say, okay, is there a level ­­you know, when do we reach a level of critical mass, which is the term in Grutter, where that exchange is vibrant and is taking place on our campus. That’s one measure.

CHIEF JUSTICE ROBERTS: Well, but I don’t understand. How do you do that?

MR. REIN: It’s not easy to do, and it’s not our job to do it. I mean, we’re not here to tell them how to do it, but your ­­ if one wanted to endeavor to try to find this kind of concrete level, we’re not saying quota, but we are saying you have to ­-­ you, the university, if you want to use this forbidden tool, this odious classification, you’ve got to find a way to do it. You’ve got to be able to explain what your concrete objective is.

Justices Sotomayor and Breyer discussed how administrators, faculty and students may raise issues highlighting the need for improved diversity on campus.

JUSTICE SOTOMAYOR: You’re saying we can’t they can’t use demographics. So they use a study that shows there’s less classes. There’s less people in classes. They talk to administrators, faculty, and students. They’re having racial incidents on campus where students of color are complaining that they feel isolated, that stereotyping is going on, on campus. What more do they need?

MR. REIN: Let me start with your first concern, which is this classroom study. First thing I would observe about that if I were in their position, and I’m not, is that the second study was done at a time when there were more minorities admitted than the first study, and they claimed it went backwards. So that might tell me right away that the problem ­­ the necessity for using race could not be demonstrated for that, because when you ­­

JUSTICE BREYER: Yeah. Because the ­-­ the necessity is not the necessity you’re talking about. It’s the – ­­ as I read it. I mean, you use words like “critical mass” and so forth. It sounds like a cloud of sort of you don’t know what they’re talking, but as I read further into it, it becomes quite specific, that is, 75 percent of the students are at this university because they were in the top 10 percent of their class. And it doesn’t take long before students and faculty in particular situations know who is who. 25 percent of the students in that class are admitted; they’re good students, not in the top 10 percent on the basis of leadership, activities, awards, work experience, community service, family’s economic statutes, school status, family responsibilities, single­parent home, languages other than English spoken at home, SAT score relative to school’s average and race occasionally, too.

Okay? We’re talking about that 25 percent. And it won’t take long before students in a class see that in that 25 percent, which means you aren’t just in the top 10 percent of your class, in that 25 percent there is hardly anybody who is African­ American or Hispanic. And the -­­ and seven years of experience with that kind of thing led the faculty at meetings, administrators, and others to say, we should do more to see that that 25 percent has occasionally somebody who is a minority.
[. . .]

That’s what their program is. It isn’t something like critical mass, et cetera. And ­­ and ­­ and if you have to say, it seems to me, why is that not a diversity-­related judgment of what is necessary?

MR. REIN: So, Justice Breyer, let me answer that. First of all, one thing your question establishes quite clearly is if one assumes premises from evidence that doesn’t exist, you can draw conclusions that are perhaps invalid. So let me go back to ­­ to where you started. You say these people are admitted on the basis of the various PAI [Personal Achievement Index] factors, which you read. That’s not how they’re admitted. That PAI is only part of the admissions criteria . . . And it’s not truly holistic because in the holistic systems, you look at the person as a whole. Here you could have the most wonderful PAI and never come close to admission, because they use the AI [Academic Index] independently. So they’re not admitted ­­

JUSTICE BREYER: Every school is like that. Every school in the country that’s a college that I’ve ever experienced is a combination of grades, class position, and a lot of other things.Welcome to EditPad.org – your online plain text editor. Enter or paste your text here. To download and save it, click on the button below.

Justice Kennedy seemed interested in the possibility of remanding the case to the District Court level and questioned Mr. Rein’s opposition to remand.  Justice Scalia, however, opposed remand to the District Court, arguing that the University of Texas is not entitled to a second chance to develop the record.

JUSTICE KENNEDY: May I begin with almost a procedural point: Did you object to the University’s request that this case be remanded to the district court?

MR. REIN: We did in ­­ in the Fifth Circuit.

JUSTICE KENNEDY: In the Fifth Circuit. It does seem to me, as Justice Alito’s question, and frankly some of the other questions have indicated, that the litigants, and frankly this Court, have been denied the advantage and the perspective that would be gained if there would be additional fact­finding under the instructions that Fisher sought to give. And that just ­­ we’re just arguing the same case . . . It’s as if nothing had happened . . .­­ it seems to me that Justice Alito’s question indicates that this is the kind of thing that we should know but we don’t know.

MR. REIN: Well, let -­­ let me point out that the ­­ the purpose of strict scrutiny is not just to adjudicate. It is to instruct the University that before you use the odious classification, before you employ race, you ought to know these things. If you’re going to depend on them, you ought to study them and know them. So the failure to do that so there is no evidence is not just because they didn’t put it in ­­

JUSTICE KENNEDY: But they weren’t given the chance to add additional evidence in order to meet that standard.

MR. REIN: Well, they can’t go back and recreate the past. They can’t ­­ they have put in all the evidence available to them about ­­

JUSTICE KENNEDY: But they could answer some of the questions as ­­ like the ones Justice Alito added. And I think it’s a very important point.

MR. REIN: They could -­­ I mean, but they’d have to go back and study the conditions at the time they made the decision. And I think that the failure to do that kind of thing indicates that the retreat to race was reflexive; was done on the day Grutter came down.

JUSTICE SCALIA: Not only that. Also the failure to put it in. It was their burden to put it in, wasn’t it? . . . So we’re going to say, oh, they failed to put it in. Let’s give them another chance. Let’s do a do-­over. Send it back down so they can now put in what they should have put in in order to prevail the first time around.

MR. REIN: And that I -­­ I entirely agree with that. And in ­­ in fairness, they knew that the standard was strict scrutiny. Grutter had said strict scrutiny. Bakke said strict scrutiny. It was no surprise. And Justice Alito, more directly, the evidence we did find in the record indicated that where the most selective schools were concerned, which would then lead you to the smaller classes, more of the top ten minorities enrolled in that than the added minorities that they derived ­­

JUSTICE ALITO: Well, the issue in this case is not whether the University can have holistic review . . . The issue is whether they can have as a component of holistic review after they have taken into account other characteristics that are not dependent on race; they can add race as an additional characteristic. And so if it were ­­is there ­ would there be any way of determining, if there were a remand, which of the non­-top 10 admittees were admitted solely because of race? In other words, these students would not have been admitted taking into account leadership and family, education and socioeconomic background and hardship and everything else.

Mr. Rein asserted that the holistic review using race as a factor produced only a marginal increase in diversity.  When Justice Sotomayor disputed this point pointing out to a larger rate of admissions offers granted to minority students, Mr. Rein argued that the University of Texas has not fully measured the effect of using race as a factor.

Justice Sotomayor raised the concern that “If you’re reading proof a compelling need . . . will any holistic review ever survive? Because as I’m reading your answer, to narrowly tailor, schools have to use nonracial means of doing it.  And if the 10 percent plan is the only thing that achieves a greater number of minorities, won’t every school have to use a 10 percent plan?”

Justices Breyer and Ginsburg then questioned Mr. Rein on his views on how race could be used as a factor in the holistic approach.

JUSTICE BREYER: No, but that’s exactly the question, I think. I would ­­= I can put the same question ­­ or suppose we do send it back to the district court and, put in more evidence, we tell them. Suppose we did that. And suppose they start with the basic plan where we want to use race is in the 25 percent of the holistic area. We want to do that. Now, they’re using the chart ­­ and I’ve seen the chart ­­ of the factors that are one, two, three, four, five, six, seven, eight, nine, ten, eleven, twelve. You know, using that chart. I’ve seen the chart. And at the bottom of the chart in my list is the word “race.” It says “race,” r-a-­c-­e. Okay? What kind of evidence, in your opinion, could they or anyone else with any roughly similar plan put in that would show, in your view, that this is constitutional?

MR. REIN: Well, I mean, you have the example of Justice Powell’s opinion in Bakke. And that says that if you’re looking at the whole person and you’re comparing individuals one to another to say who will best suit the educational need of the class, then you take account of a person’s race. It’s part of the -­­ the exercise . . .

[. . .]

JUSTICE BREYER: What you’re saying is you should look at the two folders, and as a kind of tiebreaker, use race. That, to you, is okay. Now, is there ­­ you said there is several others? It would be helpful if you ­­ if you can summarize them in a sentence, so I get an idea of what the others are.

MR. REIN: You could ­­ you could give more emphasis to the socioeconomic factors in the school.

JUSTICE BREYER: That’s not to use race. I’m saying r-­a-­c-­e, race. I want to know which are the things they could do that, in your view, would be okay. Because I’m really trying to find out. Not fatal in fact, we’ve said. Okay? Not fatal in fact. Fine. What are the things, in your view, that they could do so it is not fatal in fact?

MR. REIN: And what I’ve said first is they could shape their system more toward the Bakke system, and move toward individualized consideration. That’s one thing. That’s not fatal in fact, because this Court endorsed the ­ the view that Justice Powell took of the Harvard system in Bakke. So that’s one. They could expand the top 10. That’s another alternative. That’s ­­ that’s available. They could,­­ as I said, they could re-score some of this ­­

JUSTICE GINSBURG: But the top 10, you said it doesn’t use race. Justice Breyer is asking, you say yes, race can be a factor. It was a factor in Bakke. It was a factor in Grutter. And so far, you’re saying that now it can be a factor only if what? I mean, we’re not talking about so­-called neutral factors. We’re talking about ­­-

MR. REIN: Well, I mean, the first question is, you know, why are you using it? The why. Therefore, it can be a factor. You have to clarify the objective, you have to show the necessity, and you have to show that, if you, as ­­ as they do, live with and accept, over time, a very small increment in a very small segment of the class, that you can’t get it done any other way . . . Because race is not the baseline. It’s an odious classification. That’s where we differ.

As Mr. Rein’s time expired, Justice Ginsburg questioned what relief the plaintiff, Ms. Fisher, was seeking.  She pointed out that injunctive relief was not possible due to the fact that Ms. Fisher graduated from another institution already and that there was no class action.  Mr. Rein indicated that they would seek damages, including a refund of Ms. Fisher’s admission fees.

Oral Arguments by the University of Texas

Mr. Garre represented UT and opened his argument by summarizing that the record supports a need for the holistic plan, that the holistic policy has had a meaningful impact on diversity, and that the policy did not adopt a quota.

Justice Alito questioned how many students were admitted with race as a factor who would not have otherwise been admitted.  He also raised concerns that requiring a holistic review raised stereotyping issues regarding minority students admitted under the top 10% policy.

JUSTICE ALITO: Well, on that point, can you determine which of the holistic admittees would not have been admitted if race was not added to the ­­ to the determination?

MR. GARRE: Okay. This goes to the meaningful impact point, and I think there are several ways to address it, Justice Alito. First, what you can do is you can look in the increase in African-­American and Hispanic holistic admissions after the consideration of race was added. And what you find is, is that in each year, 2005, 2006, 2007, the percentage of African­-American and Hispanics admitted and enrolled under the holistic plan grew. In fact, there was a 70 percent ­­-

JUSTICE ALITO: That’s not really my question. My question was if you look at an individual person, can you tell whether that person was admitted because ­­ solely because of race? Whether that person would not have been admitted were it not for the fact that the person was an African­-American or Hispanic?

MR. GARRE: Your Honor, I think, given the contextualized and individualized nature of that inquiry, that’s going to be difficult. But I think the record nevertheless answers your question because you can show a marked increase in diversity under the plan at issue. I just ­­ I’ve just explained to you how the record confirms that holistic admissions of African-­Americans and Hispanics increased markedly in each year. If you look at student body diversity overall, African­-American enrollment increased by two, doubled from 2002 to 2008 from about 3 percent to about 6 percent.

JUSTICE ALITO: What ­­ one of the things I find troubling about your argument is the suggestion that there is something deficient about the African­-American students and the Hispanic students who are admitted under the top 10 percent plan. They’re not dynamic. They’re not leaders. They’re not change agents. And I don’t know what the basis for that is . . . It’s ­­ really it’s based on a terrible stereotyping that ­­. . . What is the basis for that? ­­

MR. GARRE: It’s exactly the opposite. This Court has said time and again that you can’t assume that minorities think alike just because they have the same skin color. What the University of Texas does is it considers ­ it takes into account the fact that people who come from different experiences, different backgrounds are going to have different contributions to the class. If you had the situation where all the out-of-­State admits or most of the out-­of­State admits were coming predominantly from western States, then the University of Texas and any university would try to get out-­of-­State admits from other parts of the country because it would want the ­­ both perspectives. . . What stereotyping, Your Honor, is saying, that just because you get a sufficient number of blacks or Hispanics under the 10 percent plan means that you can’t look at the class holistically and say, we’re not getting a variety of perspectives among African-­Americans or Hispanics.

JUSTICE ALITO: Yeah. But what is the basis for saying that? That’s what I don’t understand. It’s kind of the assumption that if the ­­- if a student -­ if a black student or a Hispanic student is admitted as part of the top 10 percent plan, it has to be because that student didn’t have to compete against very many whites and -­ and Asians. In -­­ in the high school class, it’s a really pernicious stereotype.

MR. GARRE: It’s ­­ it’s not a stereotype at all, Your Honor. It’s based on the undeniable fact about the manner in which the top 10 percent plan operates. The Top 10 Percent Law was enacted in response to Hopwood, and there’s nothing ­­ there’s no challenge to the law in this case that admits many well-­deserving students. But the fact is, is that -­­ that the way that the Top 10 Percent Law admits minority students is by admitting those students from the lower­performing, racially identifiable schools. And the way ­­ the reason we know that is because if you look at the bill analysis decided by Justice Ginsburg in her descent the last time we were here, that analysis specifically says on page 4, “Because of the persistence of segregation in this State, minority students will be admitted under the top 10 percent plan.”

JUSTICE ALITO: I don’t doubt that that is one of the things that it does, and I would have thought that that would be something that you would regard as beneficial . . . Wasn’t that the ­­- the reason for adopting affirmative action in the first place because there are people who have been severely disadvantaged through discrimination and ­­ and lack of wealth, and they should be given a benefit in admission . . .­ but that’s one -­­ one of the things that it does, but it’s not the only thing that it does.

MR. GARRE: Your Honor, the University of Texas applauds those students. It wants those students. Those students are admitted through holistic review as well. Nevertheless, the University can look at an incoming class and determine that not all the perspectives among a particular class of students is being represented. This is straight out of the Harvard plan in Bakke.

In defending the need for the policy, Mr. Garre pointed out that UT was pursuing educational benefits of diversity that have been recognized by the Supreme Court.  UT also noted that the top-10 percent plan was compromising its educational objectives.  Additionally, UT found that there was a decrease in student body diversity under race-neutral policies and that it therefore needed to change its policies to improve diversity.  Mr. Garre noted that in reviewing the policy, UT looks to “classroom diversity.  We look at feedback from students; from faculty . . .the racial climate, including incidents.”

Chief Justice Roberts pointed out that the Court in Grutter opined that the type of policies at issue would only be needed for the next 25 years, but that 12 years had already passed since the Court’s decision.  He asked Mr. Garre when UT would no longer need such policies:

CHIEF JUSTICE ROBERTS: Well, you’re talking about the time ­­ Grutter said that we did not expect these sort of programs to be around in 25 years, and that was 12 -­­ 12 years ago. Are ­­ are we going to hit the deadline? Is this going to be done on in your view in 12 years?

MR. GARRE: Your Honor, I’m not here to give you a date, but what I would say is this: There are systematic problems that these problems ­­ that these policies are attempting to address, including the test score gap between ­­ between African­Americans and Hispanics. And ­­ and the record in this case overwhelmingly shows that without the addition of race, student body diversity suffered, particularly among
African-­Americans.

CHIEF JUSTICE ROBERTS: I understand. I don’t know whether that’s a yes or no. But it was important in the Grutter court that these were a temporary ­­ as necessary, temporary expedience because we’re talking about giving you the extraordinary power to consider race in making important decisions. And we don’t do that as a matter of ­­. . .­ course. And so it was important in Grutter to say, look, this can’t go on forever, 25 years. And when do you think your program will be done?

MR. GARRE: Your Honor, as soon as we ­­- we can achieve the same ­­ sufficient numbers for the educational benefits of diversity without taking race into account, we will no longer take race into account.

In further advancing his argument for the need to use race as a factor, Mr. Garre pointed out to the small number of African-American students enrolled under a race-neutral approach.  He also noted evidence then that “90 percent of our classrooms of the most common size was zero or one African-American.”  Chief Justice Roberts, however, interjected, questioning the value of racial diversity in a physics class. Justice Scalia asserted that the Court has not accepted the need for diversity in a class-by-class basis.

Justice Kennedy returned to the possibility of remand to the district court and asked what evidence UT would have submitted to supplement the record.  Mr. Garre suggested they would have put in additional evidence regarding standing and could also supplement the record as to how those admitted through the holistic approach contributed meaningfully to the student body.  Ultimately, Justice Kennedy suggested that “if you had a remand, you would not have put in much different or much more evidence than we have in the record right now.”  Mr. Garre disputed this characterization and pointed out that the record was only based on the motion for summary judgment and did not include a full trial.

Justice Scalia asserted that diversity may not serve minority students well:

JUSTICE SCALIA: There are – there are those who contend that it does not benefit African-Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, a less slower-track school where they do well.  One of the briefs pointed out that – that most of the black scientists in this country don’t come from schools like the University of Texas . . . They come from lesser schools where they do not feel that they’re that – they’re being pushed ahead in – in classes that are too fast for them.  I’m just not impressed by the fact that the University of Texas may have fewer.  Maybe it ought to have fewer.  And maybe some – you now, when you take more, the number of blacks, really competent blacks admitted to lesser schools, turns out to be less.  And – and I- I don’t think it – it stands to reason that it’s a a good thing for the University of Texas to admit as many blacks as possible.  I just don’t think –

MR. GARRE:  This Court heard and rejected that argument, with respect, Justice Scalia, in the Grutter case . . . If you look at the academic performance of holistic minority admits versus the top 10 percent admits, over time, they fare better.  And, frankly, I don’t think the solution to the problems with student body diversity can be to set up a system in which not only are minorities going to separate schools, they’re going to inferior schools.  I think what experience shows, at Texas, California and Michigan, is that now is not the time and this is not the case to roll back student body diversity in America.

Oral Arguments by Amicus Curiae the United States of America

Solicitor General Verrilli argued on behalf of the United States and pointed to a compelling interest in improving diversity. He noted that “the University has got to articulate a reasoned, principled explanation for its decision to consider the educational benefits of diversity in a matter that this Court has found to be constitutional and substantial.  The University of Texas has met that standard, has articulated exactly the same educational benefits of diversity at exactly the same level of specificity that this Court held constituted a compelling interest in the Grutter case at page 330.  It’s exactly the same.”

Justice Breyer asked whether sending the case back for more evidence for the record might be beneficial.  General Verrilli responded that the record seemed complete for the purpose of affirming the case, but that “if there is doubt, I do think the additional kind of information that might be developed in this case would be to look at the kinds of questions that the Chief Justice was actually asking about, how did the  – how has the program worked in practice over the period of time in which it’s been implemented.  And I think that would be additional relevant information that might help make the judgment.”

General Verrilli also asserted the importance of diversity because

our military leaders believe that it is imperative that we have officer corps that are not only diverse but capable of leading a diverse military, not only for effectiveness but for the very legitimacy of sending our troops in harm’s way.

[ . . . ]

The interest in having law enforcement officers who are not just diverse but who can operate effectively within every racial and ethnic community in highly charged situations is critically important.

Corporate America has told you that having a workforce that is able to function effectively in diverse situations is critical.

And what I would just say in conclusion is that these are the considered judgments of people who actually have the responsibility to ensure that the vital functions of the government protecting the country with the military and with law enforcement and the vital functions of commerce — these are the people who actually have to make sure that these functions are carried out. And this is their considered judgment, and I submit it’s – it’s worth considerable weight in your analysis.

What’s Next?

With Justice Kagan recusing herself, only eight justices will decide the case.  Based on prior opinions, concurrences and dissents, it appears clear that Justices Scalia and Thomas would not uphold the University of Texas’ admission policy with Justices Ginsburg, Breyer and Sotomayor would.  While it can be difficult to predict the actual outcomes of the case, it does not appear that Justice Alito was particularly sympathetic to the University of Texas, leaving Justices Roberts and Kennedy.

Aside from a majority ruling either way, If the Court splits 4-4, the Fifth Circuit’s ruling will stand.  Additionally, the Court could remand the case once again, this time back to the District Court level in order to develop a more complete record.  It seems that there could be some support for this approach from Justices Breyer and Kennedy.

The Court is expected to rule before it concludes its 2015-2016 term in June, though an opinion could be released sooner.

 

D.C. Circuit Court to Hear Net Neutrality Arguments on December 4

On Friday, December 4, 2015, the Court of Appeals for the D.C. Circuit will hear oral arguments in United States Telecom Ass’n v. Federal Communications Comm’n.  The case comes to the D.C. Circuit after a number of telecommunications associations and companies filed petitions asking for review of the Federal Communications Commission’s (FCC) Open Internet Order governing net neutrality.  The FCC drafted and implemented its 2015 Open Internet Order after months of consultation following a January 2014 decision by the D.C. Circuit overturning the FCC’s 2010 net neutrality order.  The FCC’s 2015 Order, which reclassifies broadband Internet as a Title II common carrier and imposes bright line rules as well prohibiting unreasonable interference, was approved in February and went into effect in June.

ARL, together with the American Library Association (ALA), Association of College and Research Libraries (ACRL), and the Chief Officers of State Library Agencies (COSLA) filed an amicus brief in September 2015 supporting the FCC’s Open Internet Order and explaining the importance of net neutrality for the library community.

The case will be heard by Judge Tatel, who authored the the 2014 Verizon v. FCC opinion striking down the FCC’s 2010 Open Internet Order, as well as Judge Williams and Judge Srinivasan.

YouTube Announces It Will Defend Some Creators’ Fair Use Claims

YouTube recently announced that it will protect “some of the best examples of fair use on YouTube” by defending some creators in copyright litigation.  Under this initiative, YouTube “indemnifies creators whose fair use videos have been subject to takedown notices for up to $1 million of legal costs in the event that takedown results in a lawsuit for copyright infringement.”

The announcement notes:

We’re doing this because we recognize that creators can be intimidated by the DMCA’s counter notification process, and the potential for litigation that comes with it . . . In addition to protecting the individual creator, this program could, over time, create a “demo reel” that will help the YouTube community and copyright owners alike better understand what fair use looks like online and develop best practices as a community.

Fair use is a critical right under United States copyright law that accommodates the First Amendment, is flexible and responsive to change, and supports the constitutional purpose of copyright: to “promote the progress of science and the useful arts.”  Fair use allows for creators to use copyrighted works in transformative ways, including for purposes of parody, commentary and criticism, and innovation.  Many videos on YouTube rely on fair use, incorporating other copyrighted works, but using them in transformative ways and we applaud YouTube’s decision to defend some creators who rely on this important doctrine.

Second Circuit Affirms Fair Use in Google Books Case

*This blog post is now available in a PDF version as an issue brief here*

On October 16, 2015, the U.S. Court of Appeals for the Second Circuit unanimously affirmed the lower court’s fair use decision in Authors Guild v. Google, also known as the “Google Books” case. Google, through its Library Project, made digital copies of tens of millions of books submitted to it by libraries. It then included these copies in a search index that displayed “snippets” in response to search queries. The Second Circuit held that the copying of the books and the display of snippets is transformative and a fair use. Furthermore, Google’s provision of digital copies to its partner libraries that submitted the particular work is not an infringement.

This decision follows directly from last year’s positive fair use decision in Authors Guild v. HathiTrust. There were two main differences between the two cases. Google is a commercial party, while HathiTrust is non-profit; and Google displays snippets, while HathiTrust just provides page numbers. Judge Leval, the federal judiciary’s foremost expert on fair use who developed the concept of transformative use, carefully explained why these differences did not affect the fair use analysis.

Background

In 2004, Google initiated its Library Project where it partnered with major research libraries. These libraries submitted books from their collections to Google, which then scanned, indexed and made them machine-readable. Since 2004, Google has scanned and indexed more than 20 million books, most of which are non-fiction and out-of-print. The public can perform searches on the Google Books database, which in response to a query lists books containing the search term. Sometimes links are provided to where a particular book can be purchased or a library where the book can be located. No advertising is displayed to the user of the search function.

If a user clicked on a specific book, Google Books displays a maximum of three “snippets” containing the search term. It does not allow a user to increase the number of snippets through the same search term and also “blacklists” snippets and portions of the book from view. It disabled snippet view for works where the snippet would satisfy the need for the book and, since 2005, excluded the use of snippet view at the request of a rightsholder.

Google allowed its participating libraries to download the digital image and machine-readable versions of the books that a particular library submitted for scanning. The agreements with the libraries required libraries to abide by copyright law in using the downloaded copies and to prevent dissemination to the public at large.

The Authors Guild and several authors sued Google, asserting that the project infringed their copyright. Google filed for summary judgment, arguing that its use was a fair use and in 2013, the district court ruled in favor of Google.

The Plaintiffs, which include three authors (the Second Circuit previously held in Authors Guild v. HathiTrust that the Authors Guild did not have standing to sue on behalf of its members) appealed to the Second Circuit, contending that 1) Google’s copying of entire books and providing snippet views provided a substitute for Plaintiffs’ works and was not transformative; 2) Google’s status as a commercial entity precludes a finding of fair use; 3) Google Books infringes on the Plaintiffs’ derivative rights in search and deprives them of the ability to license their works in search markets; 4) Google’s storage of digital copies expose a risk that Plaintiffs’ books will be made freely or cheaply available on the Internet; and 5) distribution of the digital copies to its library partners could cause Plaintiffs to lose copyright revenues if libraries make these copies available.

Fair Use Analysis

The Second Circuit begins its analysis by examining the purpose of copyright:

The ultimate goal of copyright is to expand public knowledge and understanding, which copyright seeks to achieve by giving potential creators exclusive control over copying of their works, thus giving them a financial incentive to create informative, intellectually enriching works for public consumption. This objective is clearly reflected in the Constitution’s empowerment of Congress “To promote the Progress of Science . . . by securing for limited Times to Authors . . . the exclusive Right to their respective Writings.” U.S. Const. Art. I, §8, cl. 8. Thus, while authors are undoubtedly important intended beneficiaries of copyright, the ultimate primary intended beneficiary is the public, whose access to knowledge copyright seeks to advance by providing rewards for authorship.  

The court notes that the fair use doctrine was developed in order to support this purpose of supporting progress and that this doctrine was eventually codified under Section 107 of the Copyright Act of 1976. However, as confirmed by the Supreme Court, this statutory codification did not change the judicial doctrine of fair use.

Courts look at four fair use factors in evaluating whether a use is fair: 1) purpose and character of the use; 2) nature of the copyrighted work; 3) amount and substantiality of the portion used in relation to the whole; and 4) effect on the potential market.

First Factor: Purpose and Character

Turning to the first factor, the court focuses on determining whether the use is transformative while noting that a finding against transformativeness does not preclude a fair use finding. However, “transformative uses tend to favor a fair use finding because a transformative use is one that communicates something new and different from the original or expands its utility, thus serving copyright’s overall objective of contributing to public knowledge.”

The Second Circuit first examined whether the search function has a transformative purpose, quickly noting that in HathiTrust, it found that “the creation of a full-text searchable database is a quintessentially transformative use.” (As noted above, Judge Leval wrote the court’s decision. Judge Leval first coined the phrase “transformative use” in a law review article in 1990. Some have argued that the recent fair use jurisprudence strays from Judge Leval’s vision of transformative use because it has permitted the copying of entire works without transforming the works themselves. Judge Leval’s conclusion that Google’s creation of a full text database lays this criticism to rest.)

Turning to the differences between the Google Books search and HathiTrust, the Second Circuit considered whether the snippet view is also transformative. The court finds that

Snippet view adds important value to the basic transformative search function, which tells only whether and how often the searched term appears in the book. Merely knowing that a term of interest appears in a book does not necessarily tell the searcher whether she needs to obtain the book, because it does not reveal whether the term is discussed in a manner or context falling within the scope of the searcher’s interest.

The court notes that the snippet provides “just enough context” for a user to evaluate whether the book is responsive to her interests, but does not reveal enough to threaten the copyright interest.

Additionally, the court examines the case in light of Google’s status as a commercial entity, which also distinguishes this case from HathiTrust. While the Plaintiffs rely on dicta in a Supreme Court case that commercial uses are presumptively unfair, the Second Circuit states “while the commercial motivation of the secondary use can undoubtedly weigh against a finding of fair use in some circumstances, the Supreme Court, our court, and others have eventually recognized that the Sony dictum was enormously overstated.” The Supreme Court later ruled that Congress could not have intended a rule finding such a presumption and the Second Circuit has “rejected the contention that commercial motivation should outweigh a convincing transformative purpose and absence of significant substitutive competition with the original.” Ultimately, the Second Circuit concludes:

We see no reason in this case why Google’s overall profit motivation should prevail as a reason for denying fair use over its highly convincing transformative purpose, together with the absence of significant substitutive competition, as reasons for granting fair use. Many of the most universally accepted forms of fair use, such as news reporting and commentary, quotation in historical or analytic books, reviews of books, and performances, as well as parody, are all normally done commercially for profit.

Second Factor: Nature of the Work

The Second Circuit notes that the second factor “has rarely played a significant role” in a fair use determination. While courts have suggested that uses of factual works may be more favored than fictional ones, the court finds that the distinction between factual and fictional works is not dispositive in a fair use determination:

While each of the three Plaintiffs’ books in this case is factual, we do not consider that as a boost to Google’s claim of fair use. If one (or all) of the plaintiff works were fiction, we do not think that would change in any way our appraisal. Nothing in this case influences us one way or the other with respect to the second factor considered in isolation.

The court also notes that, in relation to the first factor, “the second factor favors fair use not because Plaintiffs’ works are factual, but because the secondary use transformatively provides valuable information about the original, rather than replicating protected expression in a manner that provides a meaningful substitute for the original.”

Factor Three: Amount and Substantiality Used

As in its decision in HathiTrust, the Second Circuit finds that the amount used was appropriate for the creation of a search database. Here, the court notes that,

Notwithstanding the reasonable implication of Factor Three that fair use is more likely to be favored by the copying of smaller, rather than larger, portions of the original, courts have rejected any categorical rule that a copying of the entirety cannot be a fair use. Complete unchanged copying has repeatedly been found justified as fair use when the copying was appropriate to achieve the copier’s transformative purpose and was done in such a manner that it did not offer a competing substitute for the original.

Thus, “[a]s with HathiTrust, not only is the copying of the totality of the original reasonably appropriate to Google’s transformative purpose, it is literally necessary to achieve that purpose.”

With respect to the amount used with respect to the snippet view, the court acknowledges that “enabling searchers to see portions of the copied texts could have determinative effect on the fair use analysis.” However, Google’s snippet view “does not reveal matter that offers the marketplace a significantly competing substitute for the copyrighted work.” The snippet view contains significant protections including limiting the size of the snippet to one-eight of a page, blacklisting of one snippet per page and one out of every page, providing no more than three snippets for each term searched and excluding certain books, such as dictionaries and cookbooks, from snippet eligibility. As a result, “a searcher cannot succeed, even after long extended effort to multiply what can be revealed, in revealing through a snippet search that could usefully serve as a competing substitute for the original.”

Furthermore,

The blacklisting, which permanently blocks about 22% of a book’s text from snippet view, is by no means the most important of the obstacles Google has designed. While it is true that the blacklisting of 22% leaves 78% of a book theoretically accessible to a searcher, it does not follow that any large part of that 78% is in fact accessible. The other restrictions built into the program work together to ensure that, even after protracted effort over a substantial period of time, only small and randomly scattered portions of a book will be accessible. In an effort to show what large portions of text searchers can read through persistently augmented snippets searches, Plaintiffs’ counsel employed researchers over a period of weeks to do multiple word searches on Plaintiff’s book. In no case were they able to access as much as 16% of the text, and the snippets collected were usually not sequential but scattered randomly throughout the book. 

[. . .] The fragmentary and scattered nature of the snippets revealed, even after a determined, assiduous, time-consuming search, results in a revelation that is not “substantial,” even if it includes an aggregate 16% of the text of a book. If snippet view could be used to reveal a coherent block amounting to 16% of a book, that would raise a very different question beyond the scope of our inquiry.

Thus, the amount used for both the search function and snippet view is appropriate.

Fourth Factor: Effect on the Market

The Second Circuit notes the importance of the fourth fair use factor which “focuses on whether the copy brings to the marketplace a competing substitute for the original, or its derivative, so as to deprive the rights holder of significant revenues because of the likelihood that potential purchasers may opt to acquire in preference to the original.”

With respect to the creation of a search database, the court again references its decision in HathiTrust, which found that search does not serve as a substitute for the original work.

With respect to the snippet views, the court found that this feature of Google Books does not harm the value of the original, due to the fact that snippets provide tiny fragments that are not continuous and, in the aggregate, amount to no more than 16% of a book. Thus, the snippet view “does not threaten the rights holders with any significant harm to the value of their copyrights or diminish their harvest of copyright revenue.” The Second Circuit acknowledges:

We recognize that the snippet function can cause some loss of sales. There are surely instances in which a searcher’s need for access to a text will be satisfied by the snippet view, resulting in either the loss of a sale to that searcher, or reduction of demand on libraries for that title, which might have resulted in libraries purchasing additional copies. But the possibility, or even the probability or certainty, of some loss of sales does not suffice to make the copy an effectively competing substitute that would tilt the weighty fourth factor in favor of the rights holder in the original. There must be a meaningful or significant effect “upon the potential market for or value of the copyrighted work.” 17 U.S.C. § 107(4).

Furthermore, the type of loss of sale envisioned above will generally occur in relation to interests that are not protected by the copyright. A snippet’s capacity to satisfy a searcher’s need for access to a copyrighted book will at times be because the snippet conveys a historical fact that the searcher needs to ascertain. For example, a student writing a paper on Franklin D. Roosevelt might need to learn the year Roosevelt was stricken with polio. By entering “Roosevelt polio” in a Google Books search, the student would be taken to (among numerous sites) a snippet from page 31 of Richard Thayer Goldberg’s The Making of Franklin D. Roosevelt (1981), telling that the polio attack occurred in 1921. This would satisfy the searcher’s need for the book, eliminating any need to purchase it or acquire it from a library. But what the searcher derived from the snippet was a historical fact. Author Goldberg’s copyright does not extend to the facts communicated by his book. It protects only the author’s manner of expression. Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 974 (2d Cir. 1980) (“A grant of copyright in a published work secures for its author a limited monopoly over the expression it contains.”) (emphasis added). Google would be entitled, without infringement of Goldberg’s copyright, to answer the student’s query about the year Roosevelt was afflicted, taking the information from Goldberg’s book. The fact that, in the case of the student’s snippet search, the information came embedded in three lines of Goldberg’s writing, which were superfluous to the searcher’s needs, would not change the taking of an unprotected fact into a copyright infringement.

Even if the snippet reveals some authorial expression, because of the brevity of a single snippet and the cumbersome, disjointed, and incomplete nature of the aggregation of snippets made available through snippet view, we think it would be a rare case in which the searcher’s interest in the protected aspect of the author’s work would be satisfied by what is available from snippet view, and rarer still—because of the cumbersome, disjointed, and incomplete nature of the aggregation of snippets made available through snippet view—that snippet view could provide a significant substitute for the purchase of the author’s book.

Thus, the Second Circuit concludes after evaluating all four fair use factors that Google’s creation of a searchable database and providing the public with snippet views is fair use and not an infringement.

Derivative Works

The Second Circuit rejects the argument that Plaintiffs have a derivative right over the search and snippet view functions, stating that “there is no merit to this argument.” The court points out that copyright “does not include an exclusive right to furnish the kind of information about the works that Google’s programs provide to the public. For substantially the same reasons, the copyright that protects Plaintiffs’ works does not include an exclusive derivative right to supply such information through query of a digitized copy.”

The court similarly dismisses the argument that Google Books harms the existence or potential for paid licensing schemes. While the Plaintiffs cite the Google Books Settlement agreement that was eventually rejected by the district court as evidence for a licensing market, the Second Circuit notes that the settlement would have allowed users to read substantial portions of the books and therefore distinguishable from the current project which “in a non-infringing manner, allow the public to obtain limited data about the content of the book, without allowing any substantial reading of its text.”

The court also finds that there is no unpaid licensing market because the snippets displayed are “arbitrarily selected snippet[s] of text . . . the snippet function does not provide searchers with any meaningful experience of the expressive content of the book. Its purpose is not to communicate copyrighted expression, but rather, by revealing to the searcher a tiny segment surrounding the searched term, to give some minimal contextual information to help the searcher learn whether the book’s use of that term will be of interest to her.” Thus, the court rejects the Plaintiffs’ arguments that Google Books infringes on their derivative rights.

Exposure/Security Risks

Although the Plaintiff’s assertions that Google’s stored digital copies could pose risks if hackers accessed them is “theoretically sound, it is not supported by the evidence.” The court points out that Google’s scans “are stored on computers walled off from public Internet access and protected by the same impressive security measures used by Google to guard its own confidential information. As Google notes, Plaintiffs’ own security expert praised these security systems.”

Distribution to Partner Libraries

The Second Circuit also rejects the notion that Google’s distribution of digital copies to the participant libraries that submitted the particular work is infringement, pointing out that the library is only permitted to use the copy in a non-infringing fair use manner.

The libraries propose to use their digital copies to enable the very kinds of searches that we here hold to be fair uses in connection with Google’s offer of such searches to the Internet public, and which we held in HathiTrust to be fair uses when offered by HathiTrust to its users. The contract between Google and each of the participating libraries commits the library to use its digital copy only in a manner consistent with the copyright law, and to take precautions to prevent dissemination of their digital copies to the public at large.

In these circumstances, Google’s creation for each library of a digital copy of that library’s already owned book in order to permit that library to make fair use through provision of digital searches is not an infringement. If the library had created its own digital copy to enable its provision of fair use digital searches, the making of the digital copy would not have been infringement. Nor does it become an infringement because, instead of making its own digital copy, the library contracted with Google that Google would use its expertise and resources to make the digital conversion for the library’s benefit.

The court acknowledged that while libraries could make infringing uses of these copies, this outcome is “sheer speculation” and there is no evidence on the present record to hold Google liable as a contributory infringer based on such speculation.

Conclusion

The Second Circuit’s decision in the Google Books case is a strong affirmation of fair use and demonstrates the importance of the fair use doctrine in responding to new technological developments. The search and snippet function of Google Books allows for important research, including through text-and-data mining to allow researchers to conduct research that would not be possible without the large searchable database created by Google. Additionally, Google’s digitization of certain works from library collections demonstrates an important partnership, which has allowed libraries to make fair uses of these copies, including to provide access for those who are visually impaired.

The Authors Guild plans to appeal the case to the Supreme Court of the United States, though it is far from clear whether the Supreme Court would grant certiorari in this case. In its litigation with HathiTrust, the Authors Guild decided to settle the preservation issue (the sole outstanding issue after the Second Circuit’s ruling in favor of fair use for the creation of a full-text searchable database and creation of accessible formats for those who are visually impaired or print disabled) and declined to pursue an appeal.

New Advocacy and Policy Update Available

The latest ARL Advocacy and Policy Update (covering mid-August to the beginning of October) is now available.  Previous Advocacy and Policy Updates can be found here.

From the current update’s summary:

With its return from an August recess, the US Congress faces several controversial must-pass bills and other divisive issues with little time to spare prior to the passage of a short-term funding measure for the US Government as the Government’s fiscal year ended on September 30. A short-term funding bill that will fund the Government through mid-December was approved in lieu of another Government shutdown.

The US Senate continues to press ahead for passage of the Fair Access to Science and Technology Research Act (FASTR), a bill to codify the Office of Science and Technology Policy’s 2013 memorandum regarding public access to federally funded research.

The White House is building a pool of prospective candidates for the Librarian of Congress position. With James Billington’s retirement at the end of September, the White House has been reaching out to stakeholders, including ARL, for their input and recommendations. Legislation has been introduced in the Senate to limit the term of the Librarian of Congress to 10 years.

Copyright has been an active area over the past six weeks. Members of the House Judiciary Committee are poised to introduce several bills regarding the future of the US Copyright Office— determining the office’s authority and whether it will remain in the Library of Congress. This may be the first issue that the House considers as it continues its review of the Copyright Act for possible reform. A court ruled that Warner/Chappell Music does not hold a valid copyright to the “Happy Birthday” song lyrics, and there were two positive fair use decisions in Lenz v. Universal and Katz v. Google. The Library Copyright Alliance filed comments on the Copyright Office Notice of Inquiry on Extended Collective Licensing, and the 1201 Digital Millennium Copyright Act rulemaking is still underway.

ARL participated in a number of amicus briefs on a variety of issues. ARL, the American Library Association, Association of College and Research Libraries, and Chief Officers of State Library Agencies filed an amicus brief in support of the Federal Communications Commission’s Open Internet Order protecting network neutrality. ARL also joined in an amicus brief in the case Wikimedia v. National Security Agency (NSA), challenging warrantless surveillance and invoking the First Amendment’s protection of privacy.

Congress continues to consider reform of the Electronic Communications Privacy Act, or ECPA and there is widespread support in the House for such reform.

The US Supreme Court has agreed to rehear Fisher v. University of Texas at Austin, a case involving the University of Texas (UT) admissions process, which seeks to improve student body diversity.

On the international front, several additional countries have ratified the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled, with Canada moving closer to ratification of the treaty. Another meeting took place in late September–early October to finalize the Trans-Pacific Partnership Agreement, a large, regional, trade agreement among 12 countries including Canada and the US. Finally, the “right to be forgotten” online has been upheld in Europe, and French regulators declared that search engines must apply the right to be forgotten across all domains, not just in France or Europe.

Court Finds Warner Does Not Hold Rights to “Happy Birthday” Song

In the Marya v. Warner/Chappel Music dispute over the copyright status of the song “Happy Birthday,” the District Court for the Central District of California found in its September 22, 2015 opinion that Warner does not hold a valid copyright over the lyrics.

The ruling went through the history of publication of the melody and lyrics to “Happy Birthday,” which uses the same melody and similar lyrics to a children’s song, “Good Morning,” written prior to 1893.  The exact date of the lyrics to “Happy Birthday” were unclear, though references were made to the song since 1901.  While the parties agreed that the melody entered the public domain long ago, they disagree on the status of the copyright of the lyrics to “Happy Birthday.”

The Plaintiffs in the case sought declaratory judgment, arguing the Defendants did not hold the valid copyright on several grounds: the lyrics were written by someone else, the common law copyright in the lyrics were lost due to general publication or abandonment, and that the rights were never transferred to the company Summy Co.  In determining where the burden of proof lies, the district court relied on the Supreme Court’s 2014 decision in Medtronic, Inc. v. Mirowski Family Ventures which placed the burden of proof on the patent holder in the case.  Thus, the district court noted “just as in Medtronic, there is no reason to relieve the alleged owners of the intellectual property of the usual burden of proof just because they are nominally the defendants in this declaratory judgment.”

The Defendants argued that evidence of registration entitled them to a presumption of validity.  The district court rejected this argument because “Even assuming that the lyrics were printed in the deposit copy for E51990, it is unclear whether those lyrics were being registered, and therefore it is unclear with the Copyright Office determined the validity of Summy Co.’s alleged interest in the lyrics in 1935” because the registration covered a piano arrangement purportedly a derivative version of another melody.  The registration did not make clear that the lyrics were being registered.  The court also found that the question of who wrote the lyrics and whether the lyrics had been divested or abandoned were open ones that would require a trial.

The court did, however, find that a lawsuit between the purported authors (the Hill sisters) of the lyrics and Summy Co. in 1942 revealed evidence that the Hill sisters transferred only the melodies to Summy and did not transfer the lyrics.  Both parties in the 1942 litigation described the transfer agreement as transferring the rights to “piano arrangements,” and the district court in the present case therefore found “it is not logical to infer that rights to ‘piano arrangements’ would include rights to any lyrics or words as well.”  Thus, “Summy Co. never acquired the rights to the Happy Birthday lyrics, Defendants, as Summy Co.’s purported successors-in-interest do not own a valid copyright in the Happy Birthday lyrics.”

Ultimately, the court holds only that Warner does not hold a valid copyright in “Happy Birthday,” not necessarily that the work is in the public domain (a full trial or appeal could find the work to be in the public domain, given that the district court denied motions for summary judgment on the basis that there were other triable issues).  While this ruling is certainly a cause for celebration because the song “Happy Birthday” is free from Warner’s licensing requirements, it also highlights a problem with the extensive copyright terms in the United States.  It can be extremely difficult to determine who holds the copyright — or even if a valid one still exists — given the extremely long copyright terms that last for seventy years beyond the life of the author, or ninety-five years for corporate works.  Copyright terms lasting well beyond the life of the author clearly exacerbates the orphan works problem.

 

Libraries File Amicus Brief Supporting Net Neutrality

On September 21, 2015, ARL joined the American Library Association, Association of College and Research Libraries, and Chief Officers of State Library Agencies in filing an amicus brief in the Court of Appeals for the D.C. Circuit supporting the FCC’s Open Internet Order establishing rules protecting net neutrality.

The brief focuses on the importance of net neutrality for libraries and their patrons, pointing out that

As broadband subscribers, providers of Internet access points to patrons, and providers of digital content and services, libraries rely on the open character of the Internet to achieve their missions of providing equitable access to information, enhancing education and promoting life-long learning, supporting democracy and informed citizenry, and protecting intellectual freedom.

The brief points out that the FCC’s rulemaking process provided ample notice of its proposed rules, as evidenced by the extensive participation of libraries and other participants in the process.

Additionally, the brief highlights the importance of net neutrality in fulfilling their missions and serving their patrons.  The brief points out that public libraries provide broadband Internet access to their patrons, including to the roughly one-third of the population without Internet access at home.

The brief then points to several areas where libraries serve as creators and providers of content and information, often serving as edge providers.  These examples include the National Library of Medicine (NLM) which provides trillions of bytes of data each day to users; the New York Public Library’s (NYPL) digitization of content from the 1939 New York World’s Fair and creation of a free app that is used in New York public K-12 schools; Ann Arbor Public library’s production and sharing of podcasts and online interviews; the Iowa City Public Library’s digital collection of local music; the Florida Memory Project which provides free online access to archival resources from the State Library and Archives of Florida; the content created by library patrons, such as at the music created by teens at the Albany Public Library; and the Digital Public Library of America’s (DPLA) creation of a portal that delivers millions of materials from archives, libraries, museums and cultural heritage institutions to students, teachers, scholars and the public.  The brief continues:

All of these examples—which range from medical information, historical documents, cultural materials including video and audio works, and educational resources—demonstrate a clear need for an open Internet. Without bright-line rules and more general policies to preserve the open character of the Internet, access to these services and content provided by libraries may be slowed and impeded, resulting in reduced access to information and frustration for users.

The brief then turns to the issue of paid prioritization, noting that without bright-line rules banning paid prioritization, libraries and other institutions serving the public interest may not be able to pay extra fees for enhanced transmission of their content.  Prioritization risks that network operators would give priority to entertainment or other commercial content over education, civic engagement, access to information or other services.

Additionally, the brief supports the General Conduct Rule as a necessary tool to ensure that the Internet remains open and neutral.  The General Conduct Rule protects against future harms, including those made possible by technological innovations and advances.  The brief that the General Conduct Rule is supported under Title II reclassification as well as the FCC’s Section 706 authority.  The brief notes that the factors set forth by the FCC’s General Conduct Rule are sufficient to provide notice as to what conduct is not permitted.

The full brief is available for download here.

 

ARL Joins Amicus Brief in Mavrix Photographs v. LiveJournal

On June 22, 2015, ARL joined an amicus brief of the Computer & Communications Industry Association, the American Library Association, the Association of College and Research Libraries and the Electronic Frontier Foundation in the case Mavrix Photographs v. LiveJournal, currently pending in the Court of Appeals for the Ninth Circuit, supporting the respondent, LiveJournal.

The case involves a LiveJournal blog, Oh No They Didn’t!, a community blog involving reader submissions about celebrity gossip and pop culture.  These submissions include celebrity photos, including sets of photos from Mavrix.  Mavrix sued LiveJournal (without first sending any takedown notices) and LiveJournal responded by removing the photos and terminating two users as repeat infringers.  In the district court, LiveJournal prevailed under the Digital Millennium Copyright Act (DMCA) safe harbor rules because it did not have actual knowledge of infringement, nor did it have “red flag” knowledge of infringement (that LiveJournal should have known).  Mavrix appealed the case to the Ninth Circuit.

The amicus brief points out the importance of the DMCA safe harbors for the amici parties, including for libraries specifically:

The DMCA safe harbors have also been extremely helpful to the library amici in fulfilling their mission of providing their users with access to information.  Libraries act as “service providers” within the meaning of 17 U.S.C. 512(k)(1)(A).  Libraries are the only source for real Internet connectivity and Internet-ready computer terminals for many Americans . . . The Section 512(a) safe harbor for “mere conduits” has enabled libraries to provide Internet access without the specter of liability for onerous copyright damages because of infringing user activity.

Libraries also operate websites that host user-generated content and prepare directories that link users to other websites.  The safe harbors in Section 512(c) and (d) shelter libraries from liability for infringing activity by third parties.  Any new restrictions on the availability of the DMCA safe harbors could have an adverse effect on the ability of libraries to deliver a critical service to underserved and other user communities.

The brief points out that that while service providers do not have an obligation to look through user-submitted content for infringements, the DMCA also does not discourage monitoring. Many service providers review content for illegal or objectionable material that violates the terms of service agreements.  Such moderation does not result in the loss of safe harbor under Section 512(c) which addresses safe harbors for “Information Residing on Systems or Networks At Direction of Users.”

The brief also notes that, absent actual knowledge of infringement, “red flag” knowledge is a high bar.  It notes that just because a user submits content, such as a photograph, that exists elsewhere online does not constitute a “red flag” that the content is infringing.  Additionally, “Holding online service providers unexpectedly liable for the acts of their users, in contrast to the legal clarity Congress deliberately and presciently provided in Section 512, would be deleterious not only to Internet commerce, but also to free speech online.”  The full brief is available for download here.

Court of Appeals Issues Landmark Ruling Against NSA Bulk Collection Practices

On May 7, 2015, the Court of Appeals for the Second Circuit ruled on the legality of the National Security Agency’s (NSA) bulk collection of telephone metadata. In a unanimous opinion, the court ruled that the NSA’s bulk collection of telephone records exceeds the authority granted under Section 215 of the USA PATRIOT Act, also known as the “library records” or “business records” provision.

The Second Circuit begins by recognizing that while telephone metadata does not reveal the content of the calls, this fact “does not vitiate the privacy concerns arising out of the government’s bulk collection of such data’ which can reveal a “startling amount of detailed information.” Telephone metadata

might reveal that an individual is: a victim of domestic violence or rape; a veteran; suffering from an addition of one type or another; contemplating suicide; or reporting a crime. Metadata can reveal civil, political, or religious affiliations; they can also reveal an individual’s social status, or whether and when he or she is involved in intimate relationships.

The court also notes that the more metadata collected, the more it can reveal private information.

The court then turned to the facts of the case and summarized the background of the NSA’s bulk collection practices. The NSA has conducted bulk collection of telephone metadata under Section 215 since at least May 2006. The government had collected the data and made “queries” on particular phone numbers that it believed to be associated with a foreign terrorist organization, as well as three “hops,” meaning that the contacts of the contacts of contacts of the original number queried were also looked at. In January 2014, the government limited the number of “hops” from three to two. Additionally, the government required a Foreign Intelligence Service Act Court (FISC) to make a determination that a reasonable articulable suspicion standard had been met, rather than allowing designated NSA officials to determine whether this suspicion existed. The Privacy and Civil Liberties Oversight Group concluded in a 2014 report that the NSA’s program “was inconsistent with §215, violated the Electronic Communications Privacy Act, and implicated privacy and First Amendment concerns.”

After finding that the plaintiffs in the case had standing and the court was not precluded from hearing the case, the Second Circuit turned to the merits of the case and focused on the argument that the program exceeded the authority granted to the government by Section 215.

Section 215 permits the government to apply for “an order requiring the production of any tangible things” provided that they are “relevant to an authorized investigation (other than a threat assessment) . . . to protect against international terrorism or clandestine intelligence activities.” The Second Circuit ruled that while Section 215 “sweeps broadly,” the NSA practices ignore the provision’s statutory limits.

First, while the Second Circuit agreed that the “relevance” standard is generous and Section 215’s use of the term is analogous with the term “relevance” used in the context of a grand jury subpoena, this term is not without its limits. With the NSA’s current bulk collection practices, “The records demanded are all-encompassing; the government does not even suggest that all of the records sought, or even necessarily any of them, are relevant to any specific defined inquiry.” The government argued that the records are “relevant” because they may allow the NSA to identify information that is relevant in the future, but “such an expansive concept of ‘relevance’ is unprecedented and unwarranted.” The court summarizes the government’s argument that “there is only one enormous ‘anti-terrorism’ investigation and that any records that might ever be of use in developing any aspect of that investigation are relevant to the overall counterterrorism effort.”

The Second Circuit points out that warrants and subpoenas for other programs are limited to particular individuals or corporations under investigation as well as specific time periods in stark contrast to the NSA’s program which do not have similar limits:

The records demanded are not those of suspects under investigation, or of people or businesses that have contact with such subjects, or of people or businesses that have contact with others who are in contact with the subjects – they extend to every record that exists, and indeed to records that do not yet exist, as they impose a continuing obligation on the recipient of the subpoena to provide such records on an ongoing basis as they are created. The government can point to no grand jury subpoena that is remotely comparable to the real-time data collection undertaken under this program.

The Second Circuit further notes that term relevant “does not exist in the abstract” and that “§215 does not permit an investigative demand for any information relevant to fighting the war on terror, or anything relevant to whatever the government might want to know.” Instead, it applies only to documents “relevant to an authorized investigation.” Allowing the NSA’s practices to proceed would “require a drastic expansion of the term ‘relevance.’”

Section 215 not only limits collections to what is relevant to an authorized investigation, but also provides that such investigation must not be a “threat assessment.” Thus, the court states, “Congress clearly meant to prevent §215 orders from being issued where the FBI, without any particular, defined information that would permit the initiation of even a preliminary investigation sought to conduct an inquiry to identify a potential threat in advance.” The NSA’s practices are “‘irreconcilable with the statute’s plain text.’”

Turning to the argument that Congress “ratified” the NSA’s practices by reauthorizing Section 215 in 2010 and 2011, the court noted that “Congressional inaction is already a tenuous basis upon which to infer much at all, even where a court’s or agency’s interpretation is fully accessible to the public . . .But here, far from the ordinarily publicly accessible judicial or administrative opinions that the presumption contemplates, no FISC opinions authorizing the program were made public prior to 2013.” Thus, “Congress cannot reasonably be said to have ratified a program of which many members of Congress – and all members of the public – were not aware.” The Second Circuit rejected the argument that Congress “ratified” the bulk collection practices because “these circumstances would ignore reality . . . it is a far stretch to say that Congress was aware of the FISC’s legal interpretation of §215 when it reauthorized the statute in 2010 and 2011.”

Finding that the program was not permitted under Section 215, the Second Circuit declined to rule on whether the NSA’s bulk collection also violated the Fourth Amendment. The court does, however, point to the “seriousness of the constitutional concerns.” It also notes that Congress has been debating the program and that a new version of the USA FREEDOM Act has been introduced into the U.S. House of Representatives and Senate but, “we do not purport to express any view on the constitutionality of any alternative version of the program.”

 

Rigsby and Adjmi: Two Recent Fair Use Opinions

In March, two district courts issued opinions in cases involving fair use, finding that the facts of both cases supported fair use claims. The first, Rigsby v. Erie Insurance Company involved claims over photographs taken of a car accident. Interestingly, the court raised the issue of fair use, which was an argument either not raised or not developed by the defendants in the case. The second, Adjmi v. DLT Entertainment, concerned a parody of a popular 1970s television show.

Rigsby, et. al. v. Erie Insurance Company, et. al.

On March 16, 2015, the District Court for the Western District of Wisconsin rejected the copyright infringement claims involving photographs taken of an accident and submitted as part of an insurance claim.

The court raised the issue of fair use, noting that a plaintiff’s claims of copyright infringement over photos taken documenting a car accident. Although two defendants did not raise the issue while the other two did mention fair use in their motion to dismiss, but did not develop the fair use argument, the judge nevertheless pointed out that “there is a strong argument that defendants’ alleged conduct qualifies as ‘fair use.’” Likening the use of the copying of photographs-at-issue to copying in the context of litigation, the opinion notes that

the only reasonable inference is that plaintiffs provided the photographs as part of the review of the . . . insurance claim. It is difficult to imagine how it could not be fair use for an insurer to copy or distribute a photograph for the purpose of evaluating an insured’s claim. Under that scenario, defendants would not be seeking to make any money off the photographs, to compete with plaintiffs or to confuse consumers. Further, plaintiffs do not suggest that they were harmed in any way by defendants’ use of the photographs.

The fair use argument in the case was secondary, however, to the issue of whether the photos were even protected by copyright. The district court found that the “plaintiffs do not identify anything original or creative about the photographs.” Rejecting the assertion that the lighting and copyright angles made the photographs original, the court pointed out that “every photograph must be taken at some angle and in some light. Plaintiffs do not identify any conscious choices they made regarding lighting or camera angles of the purpose of being ‘original.’”

Adjmi v. DLT Entertainment

On March 31, 2015, the Southern District of New York affirmed fair use in a parody case where the Adjimi, author of the stage play 3C, parodying the 1970s television series, Three’s Company, sought a declaratory judgment for fair use following a cease-and-desist letter from DLT, the rightholder to Three’s Company.

The court notes that

The animating principle of copyright law is the United States Constitution’s directive “[t]o promote the Progress of Sciences and useful Arts . . .” U.S. Const., Art. I, § 8, cl. 8. In practice, achieving that goal is an exercise in balancing the grant of property rights that incentivizes creative work, and the corresponding limits on the ability of the community to draw upon those ideas.

In determining what similarities exist between 3C and Three’s Company, the opinion points out that the plot premise, sets and certain scenes are copied from Three’s Company. However,

Despite the many similarities between the two, 3C is clearly a transformative use of Three’s Company. 3C conjures up Three’s Company by way of familiar character elements, settings, and plot themes, and uses them to turn Three’s Company’s sunny 1970s Santa Monica into an upside-down, dark version of itself. DLT may not like that transformation, but it is a transformation nonetheless.

[. . .]

[3C] has turned [Three’s Company] into a nightmarish version of itself, using the familiar Three’s Company construct as a vehicle to criticize and comment on the original’s light-hearted, sometimes superficial, treatment of certain topics and phenomena. Take first the cornerstone of Three’s Company, Jack’s false homosexuality: there is the obvious difference that 3C’s analogue, Brad, is actually homosexual: the abusive, demeaning treatment . . . constant homosexual slurs . . . and even rejection from his own family. This is a major departure. . . Three’s Company may have been ground-breaking and heralded in retrospect for raising homosexuality as a theme, but 3C criticizes the happy-go-lucky treatment of that issue.

The opinion notes that other topics, such as “homophobia, sexual aggression, drug use, self-consciousness, and self-esteem” were “merely glossed over” in Three’s Company. 3C, by contrast, criticizes and comments upon Three’s Company by “reimagining a familiar setting in a darker, exceedingly vulgar manner.” Thus, the court finds that the first fair use factor, the purpose and character of the use, “weighs heavily in favor of a finding of fair use.”

With respect to the second fair use factor on the nature of the copyrighted work, the court acknowledges that Three’s Company was a creative work. However, the three characters could be viewed as “stock characters to some extent.” Additionally, “Even granting that this factor weighs somewhat against a finding of fair use, it nevertheless does little to sway the overall determination.”

The third fair use factor evaluates the amount and substantiality of the portion of the copyrighted work used. The court notes that parody requires a “recognizable allusion to the original work.” However, the opinion points out that “3C copied many minor elements of Three’s Company, which had neither a parodic purpose nor were necessary to evoke Three’s Company” and found that “considered on its own, weighs against a finding of fair use.” However, the court continued, the standard for this factor in the parody context sets a floor rather than a ceiling and the minimal effect 3C has on the market “renders the third fair use factor of comparatively lesser importance.”

Finally, turning to the fourth factor of the market harm, the court cites the Supreme Court’s decision in Campbell, noting that while “parody may impair the market for derivative uses by the very effectiveness of its critical commentary is no more relevant under copyright than the like threat to the original market.” The court finds that “there is no cognizable harm under the Copyright Act, and the fourth element weighs in favor of a finding of fair use.”

Evaluating the four factors together, the court determined that “the play is a highly transformative parody” that amounts to fair use. The court concludes, “The law is agnostic between creators and infringers, favoring only creativity and the harvest of knowledge.”