Finace

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 world's 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 Circuit's decision in this case has major implications for libraries and

librarians and for the public's right of access to information and entertainment. First, the

Court's 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

Page 2

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 Circuit's 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 Appeals's test.

Furthermore, a librarian can neither inquire as to the patron's 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 Appeals's 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 Circuit's construction of Section 108 of the Copyright Revision Act

of 1976, 17 U.S.C. Ð'§ 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

Congress's 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 Circuit's implication that a library's

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. Ð'§ 101 et.

...