Professional Documents
Culture Documents
Jennifer L. Barry
LATHAM & WATKINS LLP
12670 High Bluff Drive
San Diego, CA 92130
Telephone: (858) 523-5400
Facsimile: (858) 523-5450
COMES NOW amicus curiae Ralph Oman, by and through his attorneys,
and moves this honorable Court pursuant to Fourth Circuit Local Rule 28(b) for
leave of Court to file additional materials cited in Mr. Omans amicus brief. In
Mr. Omans brief cites several comment letters that Mr. Oman and the U.S.
Mr. Omans amicus brief, these comments came from numerous sources in a
variety of industries, and they demonstrated to Mr. Oman and the Copyright Office
he led that Congress needed to act to create an effective remedy against states
Counsel for both parties have been informed of Mr. Omans motion.
Counsel for Appellees consent to the motion, and Counsel for Appellants are
evaluating the motion and have not taken a position on whether it should be
granted.
s/ Andrew M. Gass
Perry J. Viscounty Andrew M. Gass
Allison S. Blanco Patrick K. OBrien
LATHAM & WATKINS LLP LATHAM & WATKINS LLP
650 Town Center Drive 505 Montgomery Street, Suite 2000
20th Floor San Francisco, CA 94111
Costa Mesa, CA 92626 Telephone: (415) 391-0600
Phone: (415) 391-0600 Facsimile: (415) 395-8095
Fax: (415) 395-8095 andrew.gass@lw.com
Jennifer L. Barry
LATHAM & WATKINS LLP
12670 High Bluff Drive
San Diego, CA 92130
Telephone: (858) 523-5400
Facsimile: (858) 523-5450
2
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ADDENDUM
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TABLE OF CONTENTS
ADD-1 Comment Letter No. 5 (Jan. 27, 1988) (comment letter of The
Foundation Press, Inc.)
ADD-3 Comment Letter No. 10 (Jan. 28, 1988) (comment letter of Data
Retrieval Corporation)
ADD-29 Comment Letter No. 26 (Jan. 28, 1988) (comment letter of American
Journal of Nursing Company)
ROBERT C CLARK
OWEN M. FISS
YALE
JEFFERSON a FORDHAM
UNIVERSITY OF UTAH
GERALD GUNTHER
STAN FORO
HARRY W. JONES
COLUMBIA
PAGE KEETON
UNIVERSITY 0~=' TEXAS
ROBERT L. RABIN
STANFOPO
JOHN RITCHIE
UNIVERSITY OF VtRGJN!A
CAROL M. ROSE
NORTHWESTERN
SAMUEL D. THURMAN
H.4.ST!NGS
ADD-1
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PAGE TWO
Sincerely,
HRE/hb
~tfi~
President
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Kenneth Zeigler
Executive Vice President
Room 407
James Madison Memorial Building
First Street and Independence Ave. S.E.
Washington, D.C. 20540
Needless to say, if States were able to copy and use our software with
impunity from copyright infringement damages, our business would be in big
trouble. Our business and the substantial investment of time, effort and money
we've made in our software was based on the understanding that such software
would be protected from infringement by anyone, including States. The availa-
bility of injunctive relief is simply not enough of a remedy to provide practi-
cal protection for a small company such as ours from States with relatively un-
limited legal resources who may wish to use our software products without pay-
ing license fees. The recent cases granting States protection under the Elev-
enth Amendment against what would otherwise be copyright infringement damages
are thus very troubling to us. If these cases are not corrected on appeal, we
hope that the Copyright Office and Congress will take action to make States li-
able to copyright damages suits. ,
~;~~~ l
KIZ/lh
ADD-3
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ADD-4
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PRG&M
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PRG&l\1
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Boards of such universitiesl/
State "cabinet" agencies,!/ and
State officials2/
The "practical problem" posed by this immunity is substantial,
and potentially immense. AAP estimates, for example, that in
1986, publishers in the United States sold $1.4 billion worth of
college and university textbooks.6/ According to the Department
of Education, 77.4 per cent of the university and graduate
students in this country attend state-run institutions.Z/ This
means, assuming that book usage is the same at public and private
institutions, that $1.1 billion, at a minimum, is a fair estimate
of the partial volume of book sales to entities with potential
Eleventh Amendment immunity, who, by photocopying or otherwise,
may severely erode that market.
Additional sales to state entities of non-textbook materials, and
sales to such entities outside this limited college/university
market, are also most substantial, but difficult to estimate.
Moreover, states could structure the ways in which local,
municipal, and other subordinate units of government (e.g.,
school districts) are created, funded, or do business so as to
cloak them with "state" authority and immunize them from
liability for copyright damages, even if that immunity is not in
place today. At all events, state-related markets are
unquestionably large and substantially jeopardized by recent
Eleventh Amendment-copyright developments.
That several state Attorneys General have issued copyright
guidelines does, indeed, "suggest that these states recognized
their liability under the federal copyright statutes." 52 Fed.
Reg. at 42046. But this is small comfort, since almost all of
the opinions cited by the Copyright Office antedate the Supreme
Court's decision in Atascadero State Hospital v. Scanlon, 473
u.s. 234 (1985). Indeed, the quoted effect of the pre-Atascadero
!/ Richard Anderson Photography, supra1 BV Engineering v. UCLA, 3
O.S.P.Q. 2d 1054 (D. Cal. 1987); Cardinal Industries v. Anderson
Parrish Assocs., 811 F.2d 609 (11th Cir. 1987), cert. den.
u.s. {1987).
if Mihalek Corp. v. Michigan, 595 F.Supp. 903 (E.D. Mich. 1984),
aff'd on other grounds, 814 F.2d 290 (6th Cir. 1987), cert. den.
___ u.s. ___ (1988); Woelffer v. Happy States of America, Inc.,
626 F.Supp. 499 (N.D. Ill. 1985).
2/ Mihalek, supra; Woelffer, supra.
~ This estimate includes data from AAP members and estimates
concerning non-AAP publishers.
1/ Department of Education Bulletin, February 1987.
ADD-6
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PRG&M
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ADD-7
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PRG&M
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ADD-8
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PRG&l\1
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ADD-9
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PRG&M
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ADD-10
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GENERAl COUNS~
( ' ' :R !GHT
Before the Comment Let ter
LIBRARY OF CONGRESS
FEB 0 1 1988
Washington, D.C. 20559
I RM 8 7 -- 5
I No.~~
.............._
t ____ CEIVEO
FiE _ _ _ _-J
In the Matter of
Eleventh Amendment
p. 42046).
ADD-11
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ENFORCEMENT PROBLEMS
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North Carolina
In a Memorandum dated February 24, 1987, Kaye R. Webb,
Assistant Attorney General, concluded that video cassettes rented
from video outlets "[c]annot be shown to a large group such as
the inmate population of a prison facility without some type of
permission from the copyright owner." The Memorandum did not
refer to the Eleventh Amendment.
In a subsequent Memorandum dated March 16, 1987, Lucian
Capone, III, Special Deputy Attorney General, relied upon the
Eleventh Amendment to bar liability, stating:
However, there is another point which may be more important
to the issue of liability. Several courts have recently
held that the Eleventh Amendment bars suit in federal court
against the States for alleged violation of the copyright
laws. (citations ommitted)
He then concluded "[t]he showing of video tapes to prison
inmates will not subject the State to liability under the federal
copyright laws."
Wisconsin
The State of Wisconsin maintains a correctional facility at
Waupun, Wisconsin. Officials of that facility rented video
cassettes from local retail stores and publicly performed them
without authorization by transmitting them over a closed circuit
system for reception by television sets in inmates' cells. After
fruitless requests that the Waupun correctional facility cease
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ADD-14
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ADD-16
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CONCLUSION
Respectfully submitted,
Attaway, Esq
President & Cou
Motion Picture Assoc
America, Inc.
1600 Eye Street, N.W.
Washington, D.C. 20006
(202) 293-1966
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ADD-17
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RICHARD UDELL
February 1, 1988
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ADD-19
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ADD-21
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Before the
UNITED STATES COPYRIGHT OFFICE
No . .2~---
Washington, D.C.
)
In the Matter of: )
)
)
REQUEST FOR INFORMATION, ) Docket No. RI 87-5
_____________________________________ )
ELEVENTH AMENDMENT )
COMMENTS OF THE
AMERICAN SOCIETY OF COMPOSERS,
AUTHORS AND PUBLISHERS
(November 2, 1987).
INTRODUCTION
1
We recognize, of course, that the 1976 Copyright Act contains
exemptions and compulsory licenses for certain state uses of
copyrighted works. See, e.g., 17 u.s.c. 110(6) (exemption for
state fairs); 118 (compulsory license for public broadcasting
(footnote continued)
ADD-22
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all uses by PBS, NPR and their member stations (the fee for the
broadcasting entities.
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is, for all intents and purposes, chosen randomly. Thus, when an
formed the basis for the lawsuit had been obtained at a different
performed.
to bring suit in his name, but for the benefit of the entire
revenues the ASCAP membership as a whole has lost. The fact that
-8-
ADD-24
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The fact that particular works have been infringed, while the
basis for the lawsuit, cannot be used to achieve the desired
remedy: the court may award injunctive relief against future
performances of only those particular works, or of only the works
owned by the particular copyright owner, involved in the suit. To
be certain of achieving the result of enjoining future
performances of all works in the ASCAP repertory, a class action
on behalf of all ASCAP members is necessary. ASCAP has, in
appropriate instances, brought such class actions. They are,
obviously, more complex procedurally, and hence more expensive to
maintain.
Assuming that such injunctive relief were granted,
enforcement would be more difficult than enforcing a judgment for
monetary damages. When a judgment for monetary damages is
ignored, execution is a simple matter. When an injunction is
ignored, a motion for contempt would be necessary and would
involve the additional expenses of proving performances after the
injunction was granted.
In addition, it appears that the injunctive relief
granted in such suits would be only against specific individuals,
and not the state itself. There is therefore a further severe
enforcement problem: if those specific individuals do not
participate in further infringements by the state, the injunctive
relief may be meaningless.
In sum, fulfilling Congressional intent in this area is
relatively simple when monetary damages are available, but far
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ADD-25
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successful licensing.
smooth out any differences and take into account the particular
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CONCLUSION
Respectfully submitted,
By:~41
General Counsel
AS CAP
One Lincoln Plaza
New York, NY 10023
(212) 870-7510
-12-
ADD-28
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t: 29
Gentlemen:
AMERICAN JOURNA L OF NURSING I NURSING OUTLOOK I NURSING RESEARCH I INTERNATIONAL NURSING INDEX
MCN, THE AMERICAN JOURNAL OF MATERNAL CHILD NURSING I EDUCATIONAL SERVIC ES DI VI SION
GERIATRIC NURSING . AMERICAN JOURNAL OF CARE FOR THE AGING
ADD-29
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Page 2
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Page 3
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Page 4
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.
SCHWAB GOLDBEF?G PF?tCE 8. DANNAY
ATTORNEYS AT LAW
Dear Ms . Schrader:
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SCHWAB GOLDBERG PRICE 8. 0ANNAY
that states must comply with the Copyright Act, just as all
ADD-34
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SCHWAS GOLDBERG PRICE & 0ANNAY
6
rt is ironic that such conduct by a foreign government
becomes a high trade priority for the U.S., as evidenced by
the Section 301 (Trade Act) proceeding recently brought by
the U.S. Trade Representative against Brazil.
ADD-35
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SCHWAB GOt..06ERG PRICE e.. OANNAY
detect.
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SCHWAB GOLDBERG PRICE 8. 0ANNAY
Recently, ~n
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SCHWAB GOLDBERG PRICE & 0ANNAY
Not only the authors would suffer, but the states them-
return is uncertain.
and solid waste management. State and city managers and '
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SCHWAB GOLDBERG PRICE & 0ANNAY
ADD-39
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SCHWAB GOLDBERG PRICE 8:. 0ANNAY
educational market.
delivering information.
ADD-40
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SCHWAS GOLDBERG PRICE 8.. 0ANNAY
law.
ADD-41
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SCHWAB GOLDBERG PRICE 8:. 0ANNAY
when there is no control over who their users are and when
the company never authorized to use its work and from which
ADD-42
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SCHWAS GOLDBERG PRICE S.. DANNAY
claiming damages for any injury or loss, even though the use
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SCHWAS GOLDBERG PRICE 8. 0ANNAY
and at the same time abuse the rights of other authors with
. . 7
~mpun~ty.
7 h"
T ~s procee d"~ng comes at t h e
.
t~me when state
governments, both legislative and executive branches, are
taking steps toward providing electronic access to state
materials, which adds additional urgency to the need for a
satisfactory clarification of copyright rights.
ADD-44
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SCHWAB GOLDBERG PRICE & 0ANNAY
* * * * *
Sincerely,
MDG:mj
ADD-45
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CERTIFICATE OF SERVICE
Motion for Leave of Court to File Additional Materials Cited in the Brief of
Amicus Curiae Ralph Oman and accompanying Addendum with the Clerk of the
Court for the United States Court of Appeals for the Fourth Circuit by using the
appellate CM/ECF system on October 20, 2017, which will send notice of such
s/ Andrew M. Gass
Andrew M. Gass