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Amicus Briefs

An amicus brief, also known as an amicus curiae brief, is a legal document filed in a specific court case for the purpose of persuading or educating the court on a legal issue before the court in the case. Amicus briefs are submitted by a person or entity that is not involved in a court case but who has an interest in the legal issues at stake. In determining whether to file an amicus brief, we consider how the court’s ruling could impact not only the particular parties involved, but also the impact the ruling may have on copyright law as a whole and the creative community more broadly. This is just another way in which we advocate for strong copyright laws that effectively protect the rights of creators and copyright owners.

October 28, 2022

American Society for Testing and Materials, et al. v. Public.Resource.Org, Inc.

Summary:

The Copyright Alliance filed a brief in support of Plaintiffs-Appellants American Society for Testing Materials (ASTM) and other standards development organizations in an appeal challenging Public.Resource.Org’s unauthorized reproduction and distribution of their copyrighted works. The brief urges the court to reject Appellee’s manufactured carve-out for copyright protection that it advances in defense of its actions, while explaining that only Congress has the power to decide whether and under what circumstances to expand exceptions to copyright law. Ultimately, the brief warns that no private entity, including Appellee, should be allowed to rewrite the law in a way that would strip copyright owners of their rights surrounding valuable standards and codes that Congress has deemed worthy of protection.

August 12, 2022

Hachette Book Group, Inc., et al. v. Internet Archive

Summary:

The Copyright Alliance filed an amicus brief in support of Hachette Book Group and other publishers in their suit against the Internet Archive (IA) challenging its so-called “Controlled Digital Lending” practice. The brief explains that the IA’s unauthorized scanning and distribution of massive amounts of copyright protected works does not qualify as fair use, nor is it covered by the first sale doctrine. Differentiating the IA from libraries engaged in legitimate archival activity, the brief explains that the limitations on liability found in section §108 of the Copyright Act does not apply to its wholesale copying and digital distributions. The brief goes on to detail the substantial efforts of the creative industries to digitize and make their works available and warns of the devastating results that would result from the Internet Archive’s practice expanding to other types of works. Finally, the brief reminds the court that only Congress has the authority to expand copyright’s limitations.

June 17, 2022

The Andy Warhol Foundation for the Visual Arts, Inc. v. Lynn Goldsmith

Summary:

The Copyright Alliance filed an amicus brief in support of neither party, taking no position on the ultimate resolution of Petitioner’s fair use defense and addressing only the narrow transformative use standard proposed in the question presented. The brief focuses on the importance of interpreting the Copyright Act in a manner that draws a clear line between transformative uses and uses that violate a copyright holder’s exclusive right to prepare derivative works under Section 106(2). Further, the brief cautions against the increasingly elevated weight courts have afforded to transformative use analyses and emphasizes the continued importance of the other three factors of the fair use test. After describing the harm Petitioner’s overbroad transformative use standard would have on the creative community, the brief articulates a set of guidelines it urges the Court to take into account when considering what standard should govern a transformative use analysis.

April 20, 2022

Capitol Records, LLC v. Vimeo, Inc.

Summary:

The Copyright Alliance joined an amicus brief filed by the National Music Publishers’ Association (NMPA) and the Recording Industry Association of America (RIAA) in support of plaintiffs-appellants Capitol Records and other record labels and music publishing companies against the video sharing service Vimeo. Arguing that the knowledge and activity of Vimeo’s employees should disqualify it from safe harbor protection under Section 512 of the Digital Millennium Copyright Act (DMCA), the brief explains that music licensing is far too complex for a reasonable employee who understands the concept to assume that a user who posted a video including a hit song had obtained the many needed licenses to legitimately make use of a copyrighted song. Further, the brief explains that Vimeo’s employees’ detailed review and hands-on curation of users’ content is precisely the type of activity that constitutes substantial influence and a right and ability to control under the DMCA.

April 4, 2022

In re DMCA § 512(h) Subpoena to Twitter, Inc.

Summary:

The Copyright Alliance filed a neutral amicus brief (in support of neither party), urging the U.S. District Court for the Northern District of California to adopt a magistrate judge’s ruling denying Twitter’s motion to quash a 512(h) subpoena on free speech grounds. The brief explains the legal framework behind Section 512(h) and the importance of the provision to copyright owners who seek to identify alleged infringers. In response to Twitter and its amici supporter’s claim that the burden of establishing an absence of fair use rests with the copyright owner, the brief explains that the burden is always on its proponent and that Twitter cannot raise a fair use defense on behalf of a user who declined to assert it themselves. The brief concludes by warning that if Twitter and its amici’s arguments are adopted, it would erect unnecessary and even insurmountable barriers to U.S. copyright owners who need to enforce their copyrights against anonymous infringers and leave them without effective protection for their valuable intellectual property.

March 14, 2022

Evox Productions LLC v. Verizon Media Inc. et al

Summary:

The Copyright Alliance filed an amicus brief in support of plaintiff-appellant, Evox Productions, arguing that the Ninth Circuit should reverse a district court’s dismissal of copyright infringement claims against Yahoo! related to the unauthorized use of Evox’s digital photographs. The brief explains that the district court erred in dismissing the copyright claims, relying on an interpretation of the reproduction, distribution, and display rights that directly contradicts Ninth Circuit precedent. If left to stand, the brief warns that the district court’s decision to demand more proof at the pleadings stage than required by law would create an insurmountable burden for copyright owners and allow alleged infringers to have cases thrown out at an alarming rate. Further, the brief explains that licensing agreements—similar to the one that Evox and Yahoo! entered into prior to the infringing activity—would be rendered meaningless and the entire creative economy would suffer if the decision was left to stand.

August 10, 2021

Unicolors, Inc v. H&M Hennes & Mauritz, LP

Summary:

The Copyright Alliance filed an amicus brief in support of petitioner Unicolors, Inc., arguing that the Supreme Court should reverse a Ninth Circuit judgement that the plain language of Section 411(b) of the Copyright Act does not contain an “intent-to-defraud” requirement for invalidation of a copyright registration. The brief explains that the Ninth Circuit broke from years of case law precedent and the legislative history of the PRO IP Act of 2008 by lowering the knowledge standard required for invalidation, and in doing so, ignored the fact that the copyright registration system is designed to allow for unknowing errors on behalf of registrants. If left to stand, the decision would harm copyright owners by allowing culpable defendants to substantially delay or dismiss copyright litigation and by denying plaintiffs vital remedies such as statutory damages and attorneys’ fees.

July 30, 2021

Sony Music Entertainment v. Cox Communications, Inc.

Summary:

The Copyright Alliance filed an amicus brief in support of plaintiff-appellee Sony Music Entertainment, arguing that the Fourth Circuit should affirm a district court decision finding internet service provider (ISP) Cox secondarily liable for facilitating infringement by its subscribers. The brief argues that Cox and its amici devalue copyright and copyright owners by urging the court to elevate internet access above all else and relegating copyright law to an inconsequential afterthought. The brief also explains that Cox failed to implement a DMCA-compliant repeat infringer policy that would have shielded it from liability, and that a ruling for Cox would provide a road map for other ISPs to flout the law. Finally, the brief explains that a ruling for Sony would not result in the dire consequences for internet users that Cox claims, and that copyright owners and ISPs can continue to operate within the boundaries set by Congress in the DMCA.

May 21, 2021

SAS Institute Inc. v World Programming Ltd.

Summary:

On May 21, the Copyright Alliance filed an amicus brief in support of plaintiff-appellant SAS Institute, urging the Fifth Circuit Court of Appeals to vacate and remand a district court’s dismissal of SAS’s copyright claims due to its finding that the works asserted had not been shown to be copyrightable. The brief argues that the district court erred by improperly shifting the burden to the copyright holder to prove that its registered copyright contained protected elements rather than requiring the defendant to prove that those elements were unprotected. Focusing on the importance and benefits of registration and the well-established protectability of software, the brief emphasizes how the procedures employed by the district court were inconsistent with the copyright regime that Congress created. If the district court’s holding is allowed to stand, the brief explains that it would compromise the protection that copyright affords software and the incentives to register that Congress intended.

January 27, 2021

Canada Hockey LLC v. Texas A&M University

Summary:

On January 27, The Copyright Alliance filed an amicus brief in support of plaintiff-appellant Michael J. Bynum and Canada Hockey LLC, urging the Fifth Circuit Court of Appeals to reverse and remand a district court’s dismissal on sovereign immunity grounds of copyright claims against Texas A&M, in the Canada Hockey LLC v. Texas A&M University case. The brief argues that the district court erred by closing the courthouse door on constitutional violations that stem from copyright infringement, and that United States v. Georgia provides a framework by which the Court may consider copyright claims against a state actor that also rise to a constitution violation. Additionally, the brief explains that intentional copyright infringement by state actors is a growing problem that threatens the balance of copyright law, as detailed in the Copyright Alliance’s comments in response to the U.S. Copyright Office’s ongoing sovereign immunity study. Also filing amicus briefs in support of plaintiff-appellant were the Association of American Publishers (AAP) and Professor Adam Mossoff.