Penguin Group Inc. vs. American Buddha

Penguin Group Inc. vs. American Buddha

Postby admin » Fri Jul 17, 2015 4:22 am

Table of Contents

American Buddha


• Second Unopposed Ex Parte Application Pursuant to F.R.Civ.P. 6(b) to Extend Time to File Opposition to Motion for Summary Judgment; Declaration of John W. Sullivan in Support of Renewed Unopposed Ex Parte Application Pursuant to F.R.Civ.P. 6(b) To Extend Time to Respond to Motion for Summary Judgment; [Proposed] Order Granting Renewed Request for Extension of Time to File Opposition to Motion for Summary Judgment (Jan 13, 2015) [
• Memorandum of Points and Authorities of Defendant American Buddha in Opposition to Motion for Summary Judgment (January, 2015)
• Declaration of Nicholas Mueller in Opposition to Motion for Summary Judgment (January, 2015)
• Declaration of Tara Lyn Carreon in Opposition to Motion for Summary Judgment (January, 2015)
• Notice of Appeal (May, 2015)

Court

• Order (May, 2015)
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Re: Penguin Group Inc. vs. American Buddha

Postby admin » Fri Jul 17, 2015 4:22 am

JOHN W. SULLIVAN (CSB # 204648)
Attorney at Law
10857 Kling Street
North Hollywood, CA 91602
Tel: 818-769-7236
Fax: 818-301-2175
Email: sullivan.john84@gmail.com
Attorney pro hac vice for Defendant American Buddha

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Penguin Group (USA) Inc.,
Plaintiff,
vs.
American Buddha,
Defendant

Case No.: CV-13-02075-TUC- JGZ

To the Court, and to all parties and their counsel of record, please take notice that defendant American Buddha hereby applies to the Court ex parte pursuant to Rule 6(b)(1) for a one-week extension of time to file opposition to the motion for summary judgment served by Plaintiff Penguin Group (USA) Inc. (“Penguin”) on December 16, 2014 (Docket # 160).

The grounds for the application are that it is timely made prior to the expiration of the time for responding to the subject motion, that no prior extensions have been requested, and for the additional grounds set forth in the Declaration of Tara Lyn Carreon submitted herewith.

The application is further based on this Memorandum of Points and Authorities, the Declaration of John W. Sullivan submitted herewith, the evidence attached thereto, and the files and records of the action.

DATED: January 13, 2015

/s/ John W. Sullivan
John W. Sullivan (Cal. Bar No. 204648)
Attorney for Defendant American Buddha, admitted pro hac vice

MEMORANDUM OF POINTS AND AUTHORITIES

1. This Ex Parte Application Is To Deal With A Family Emergency


This ex parte application is statutorily authorized under F.R.Civ.P. 6(b)(1), timely filed prior to the expiration of the deadline as to which relief is requested. This application is made to obtain relief from the Court to adapt the procedural requirements of the case to the circumstances of what constitutes a genuine family emergency. (Carreon Dec. ¶¶ 3, 4, 8 – 11.) Unbeknownst to undersigned counsel (Sullivan Dec. ¶ 5), the Director of American Buddha will be receiving a rare visit from her two grown daughters from January 15th through January 25th, during which time she will be mostly unavailable to work on her declaration and on revising the brief in opposition to the motion for summary judgment. (Carreon Dec. ¶¶ 8 and 11.)

2. New Law on the Subject of Non-commercial Library Use as Fair Use Must Be Addressed in the Briefs and in the Director’s Declaration

An important new case on the Fair Use Factors applicable under 17 U.S.C. § 107 to a case of non-commercial use of digital Library materials has been handed down by the Eleventh Circuit in Cambridge University Press v. Becker, et al., Case Nos. 12-14676 & 12-15147 (Exhibit C, the “GSU Opinion”). Given the small amount of time left between now and the 15th, when Mrs. Carreon’s younger daughter will arrive in Tucson and Mrs. Carreon’s availability to work on the litigation will markedly diminish, an extension is needed for the defendant to give enough attention to the opposition and consult with counsel to complete the opposition. (Sullivan Dec. ¶¶ 6 – 8.) The importance of the GSU Opinion to the Library community cannot be overstated, and the guidance it will provide to this Court will aid in rendering a fair, reviewable decision. However, it also substantially increases the work for counsel and client, and thus the extension is required. (Sullivan Dec., at id.)

Mrs. Carreon cannot juggle her affection for her children, whom she has not seen for eighteen months, against the exigencies of litigation scheduling (Carreon Dec. 11), and she should not, in reason and humanity, be asked to do so. No prejudice to the timely progress of the action will result from the unopposed requested extension. Thus, under the authorities set forth below, good cause is readily established to grant this application for an unopposed extension of one week to file the opposition of defendant to the pending motion for summary judgment.

3. Under Rule 6(b)(1), Good Cause Exists To Grant the Application

This application is directed to this Court's sound discretion, [1] the Ninth Circuit directs the District Courts to apply that discretion with liberality, such that, "in the absence of bad faith," this application should be granted.

"A motion for extension of time filed before a deadline has passed should 'normally . . . be granted in the absence of bad faith on the part of the party seeking relief or prejudice to the adverse party.'"

Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1259 (9th Cir. 2010).


When discussing the meanings of the "good cause" standard in various procedural situations, the Ninth Circuit gave Rule 6(b) as an example for how lenient the standard can be:

"Federal Rule of Civil Procedure 6(b) provides that courts 'for good cause' may extend the time limits imposed by the rules of civil procedure. Interpreting this language, courts have said that the good cause standard and an extension 'normally will be granted in the absence of bad faith on the part of the party seeking relief or prejudice to the adverse party.'" Fed. R. Civ. P. 6(b)(2).

California Trout v. F.E.R.C., 572 F.3d 1003, 1027, n. 1 (9th Cir. 2009),quoting 4B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 1154 (3d ed. 1998)(emphasis added).


American Buddha seeks only a brief extension for good cause that is clearly in good faith.

4. The Application is Unopposed

Counsel for American Buddha has secured the non-opposition of plaintiff’s counsel to this application.

5. Fairness Favors Granting the Extension

It goes without saying that procedural fairness is essential to substantive fairness. The fairness of granting a first extension to American Buddha, after plaintiff has received two extensions of time to file the motion for summary judgment, can hardly be doubted. And it is worth noting that it was those two extensions to plaintiff that caused American Buddha’s response date to land precisely in the middle of the two Carreon daughters’ trip to visit their mother this week and next. Accordingly, procedural fairness strongly favors granting the requested extension of one week.

6. Conclusion

The facts set forth in the Declarations of Tara Lyn Carreon of John W. Sullivan establish good cause for this Court to grant the requested extension of time for defendant to file opposition to the pending Motion for Summary Judgment (Docket # 160), filed on December 16, 2014, from January 20, 2015 until January 27, 2015. Accordingly, the Court is respectfully requested to an issue an Order in the form submitted herewith, granting the said requested relief.

DATED: January 13, 2015

/s/ John W. Sullivan
John W. Sullivan Cal. Bar No. 204648
Attorney for Defendant American Buddha

_______________

Notes:

1. In re Veritas Software Corp. Sec. Litig., 496 F.3d 962, 974 (9th Cir. 2007).

________________________________________

JOHN SULLIVAN (CAL. BAR # 204648)
10857 KLING STREET
NORTH HOLLYWOOD, CALIFORNIA 91602
(818)769-7236
(818)301-2175(FAX)
SULLIVAN.JOHN84@GMAIL.COM

ATTORNEY IN PRO HAC VICE FOR AMERICAN BUDDHA

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Penguin Group (USA) Inc.,
Plaintiff,
vs.
American Buddha,
Defendant

Case No.: CV-13-02075-TUC- JGZ

DECLARATION OF JOHN W. SULLIVAN IN SUPPORT OF RENEWED UNOPPOSED EX PARTE APPLICATION PURSUANT TO F.R.Civ.P. 6(b) TO EXTEND TIME TO RESPOND TO MOTION FOR SUMMARY JUDGMENT

DECLARATION OF JOHN W. SULLIVAN

John W. Sullivan declares and affirms:

I am an attorney licensed to practice in the State of California, admitted pro hac vice as counsel of record for defendant American Buddha.

1. This declaration is made in support of American Buddha’s renewed request for an extension of time to file its opposition to the motion for pending Motion for Summary Judgment (Docket # 160), filed on December 16, 2014, from January 20, 2015 until January 27, 2015.

2. The grounds presented for the motion were “that the Christian holidays and the New Year holiday occur during the time period for filing opposition, and granting the requested extension will allow undersigned counsel and defendant’s representatives to file timely opposition without taking time away from their families and friends during the Christmas season.”

3. Notice of intent to seek an extension of time to file opposition to the motion for summary judgment was timely provided to opposing counsel, who had courteously responded to my inquiry requesting a one week extension of time: “Penguin would not object to a one week extension, from January 20, 2015, until January 27, 2015, for American Buddha to file its opposition to Penguin’s pending motion for summary judgment, which was filed on December 16, 2014.”

4. I mistakenly believed that the foregoing would establish good cause both to grant the extension, and to establish ex parte grounds for the submission. Based on the Court’s denial of the ex parte application without prejudice, I am refiling with the additional factual support provided by the Declaration of Tara Lyn Carreon, Director of Defendant American Buddha.

5. I did not know about the circumstances described in Mrs. Carreon’s declaration submitted herewith, i.e., the travel plans of her daughters to spend the second week of January with their mother in Tucson. I simply received a request to obtain a one-week extension, and believed I had done everything necessary to secure the Court’s approval when I submitted the ex parte application. Had I realized that the Court would find the facts set forth in paragraphs 2 and 3 above insufficient evidence to establish good cause for the requested extension, within the meaning of the precedents cited, I would certainly have submitted them to the Court. If this was neglect on my part, it is herewith disclosed, and I request that it be excused. I further request that my client be relieved of unfavorable consequences resulting from my excusable neglect.

6. As Mrs. Carreon notes, she has sent me a lengthy draft of a declaration, and a copy of Cambridge University Press v. Becker, et al., Case Nos. 12-14676 & 12-15147 (the “GSU Opinion”) attached as Exhibit C. Given the particularity of the facts that the GSU Opinion indicates the District Court must have in its possession to adequately adjudicate a fair use defense under 17 U.S.C. § 107, it will not be possible to complete her declaration in support of the opposition to the motion for summary judgment by January 20th without spending many hours in close communication with her, going over successive revisions, during the time period from January 15 – 20, when she says she will be unavailable due to the visits of her daughters.

7. If Mrs. Carreon and I are unable to communicate closely and extensively during this time period, it will definitely reduce the quality of presentation of the opposition to the pending motion for summary judgment.

8. If this Court is so kind as to grant the requested one week extension, it will secure a higher quality of work upon which to base its own decision, and the result will be that justice is done more fairly, if not quite so quickly.

9. This application is made solely for the good faith reasons set forth above, and not to delay. No trial date has been set, thus this brief extension will not alter the trial scheduling. Accordingly, the Court is respectfully requested to issue an Order in the form submitted herewith.

I hereby declare, pursuant to the provisions of 28 U.S.C. § 1746 (2), under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.

Executed at Los Angeles, California on January 13, 2015.

______/s/ John W. Sullivan_______

John W. Sullivan, Declarant

________________________________________

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Penguin Group (USA) Inc.,
Plaintiff,
vs.
American Buddha,
Defendant

Case No.: CV-13-02075-TUC- JGZ

[PROPOSED] ORDER GRANTING RENEWED REQUEST FOR EXTENSION OF TIME TO FILE OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

ORDER

Good cause exists to grant defendant’s request for an extension of time to and until January 27, 2015 to file opposition to plaintiff’s Motion for Summary Judgment (Docket # 160), filed on December 16, 2014; accordingly, IT IS SO ORDERED. Defendant shall file opposition to plaintiff’s Motion for Summary Judgment (Docket # 160) on or before January 27, 2015.

[signature block omitted per LRCiv 7.1(b)(3).
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Re: Penguin Group Inc. vs. American Buddha

Postby admin » Fri Jul 17, 2015 4:27 am

JOHN W. SULLIVAN (CSB # 204648)
Attorney at Law
10857 Kling Street
North Hollywood, CA 91602
Tel: 818-769-7236
Fax: 818-301-2175
Email: sullivan.john84@gmail.com
Attorney pro hac vice for Defendant American Buddha

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Penguin Group (USA) Inc.,
Plaintiff,
vs.
American Buddha,
Defendant

Case No.: CV-13-02075-TUC- JGZ

MEMORANDUM OF POINTS AND AUTHORITIES OF DEFENDANT AMERICAN BUDDHA IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

Defendant American Buddha, a corporation sole, hereby opposes the motion for summary judgment of plaintiff on the grounds that defendant has carried its burden of establishing that it is entitled to present a defense of fair use pursuant to 17 U.S.C. § 107, and that material disputed facts exist precluding the entry of judgment as a matter of law; wherefore, the motion should be denied.

DATED: January 20, 2015

/s/ John W. Sullivan
John W. Sullivan Cal. Bar No. 204648
Attorney pro hac vice for Defendant American Buddha

TABLE OF CONTENTS

1. SUMMARY OF ARGUMENT AND FACTS.............................................................................................2
2. THE APPLICABLE LAW ...........................................................................................................................2
2.1 FAIR USE ANALYSIS UNDER 17 U.S.C. § 107 IS A JUDICIALLY-CREATED AFFIRMATIVE DEFENSE THAT REQUIRES THE COURT TO AVOID RIGID APPLICATION OF THE COPYRIGHT STATUTE WHEN IT WOULD STIFLE THE VERY CREATIVITY THE LAW IS DESIGNED TO FOSTER.......................................2
2.2 THE GEORGIA STATE UNIVERSITY OPINION PROVIDES A ROADMAP FOR HOLISTIC FAIR USE ANALYSIS UNDER 17 U.S.C. § 107 UNDER FACTS LIKE THOSE OF THE INSTANT CASE .....................4
2.3 THE EQUITABLE NATURE OF FAIR USE ANALYSIS. ............................................................................4
3. EVIDENCE ESSENTIAL TO HOLISTIC FAIR USE ANALYSIS.........................................................5
3.1 THE NATURE OF AMERICAN BUDDHA’S MISSION AND ITS PURPOSE FOR PLACING THE FOUR TITLES IN THE ABOL ARCHIVE. ....................................................................................................................5
3.2 THE TITLES, AUTHORS, AND PUBLISHING STATUS OF THE FOUR TITLES IN ALL MEDIA ....................5
3.3 THE LITERARY CATEGORY INTO WHICH EACH OF THE FOUR TITLES FITS.........................................5
3.4 THE TYPICAL READERS OF THE FOUR TITLES AND THEIR REASONS FOR READING THE WORKS........5
3.5 THE MEDIUM IN WHICH EACH OF THE FOUR TITLES WAS PUBLISHED AND PURCHASED BY AMERICAN BUDDHA ..........................................................................................................................6
3.6 THE TRANSFORMATIVE PROCESS AND FEATURES OF AMERICAN BUDDHA’S USE..............................6
3.7 TRANSFORMATIVE USES FOR HTML CHAPTERS OF THE FOUR TITLES ..............................................6
3.8 THE TOTAL AMOUNT OF COPYING BY SECONDARY USERS, I.E., LIBRARY PATRONS .........................6
3.9 THE LEVEL OF DIGITAL EXPLOITATION AND AVAILABILITY OF LICENSING OF THE TITLE DURING THE PERIOD OF ALLEGED INFRINGEMENT. .........................................................................................7
3.10 WHETHER AMERICAN BUDDHA’S USE HAS CAUSED PLAINTIFF ECONOMIC INJURY..........................7
3.11 WHETHER ANY OF THE FOUR TITLES ARE OTHERWISE AVAILABLE ON THE INTERNET .....................7
4. AMERICAN BUDDHA MAKES FAIR USE OF THE FOUR TITLES..................................................7
4.1 THE PURPOSE AND CHARACTER OF THE USE FACTOR FAVORS AMERICAN BUDDHA.........................7
4.1.1 American Buddha’s Use is Highly Transformative. ..........................................................7
4.1.2. American Buddha Has Placed Each of the Four Titles in the ABOL Archive for Noncommercial Reasons. .........................................................................................................8
4.2. THE NATURE OF THE WORK FACTOR FAVORS AMERICAN BUDDHA ..................................................9
4.2.1 The Latham Translation of On the Nature of the Universe .............................................10
4.2.2. The Kenney Translation of The Golden Ass ....................................................................10
4.2.3. Oil! by Upton Sinclair .....................................................................................................11
4.2.4. It Can’t Happen Here by Sinclair Lewis..........................................................................11
4.3. THE AMOUNT OF THE WORK TAKEN FACTOR FAVORS AMERICAN BUDDHA ...................................12
4.4. THE EFFECT ON THE VALUE OF AND MARKET FOR THE ORIGINALS FACTOR FAVORS AMERICAN BUDDHA 13
5. CONCLUSION...........................................................................................................................................16

1. Summary of Argument and Facts

American Buddha is an Oregon religious nonprofit corporation that operates an online library at two websites, American-Buddha.com and NaderLibrary.com (the “Websites”). (Declaration of Tara Lyn Carreon “TLC Dec.” ¶¶ 2, 13 - 28, and 50.) Penguin Group (USA), Inc. (“Penguin”) alleges that four books on which it holds registered copyrights (the “Four Titles”) are accessible through the Websites, and that American Buddha’s action in making the Four Titles available through the Websites is copyright infringement. American Buddha contends that its placement of the Four Titles in the American Buddha Online Library Archive (the “ABOL Archive”) is fair use, because American Buddha is a non-commercial user that has transformed the Four Titles from paper books into HTML Chapters that are individually accessible via unique URLs, allowing many new, transformative uses for the works, and serving a different purpose than the paper books. American Buddha’s fair use causes no financial negative consequences for Penguin, and is the type of fair use that in equity should be permitted. When the Four Factor equitable balancing test of 17 U.S.C. § 107 is applied to the facts at bar, sufficient facts exist to establish that American Buddha’s use of the Four Titles is fair use, not infringement.

2. The Applicable Law

2.1 Fair Use Analysis Under 17 U.S.C. § 107 Is A Judicially-Created Affirmative Defense That Requires the Court to Avoid Rigid Application of the Copyright Statute When It Would Stifle the Very Creativity the Law Is Designed to Foster


In the case that arose out of the rap group 2 Live Crew’s commercial parody of the venerable Roy Orbison rock ballad, “Pretty Woman,” the Supreme Court articulated the origin and purpose of the doctrine of copyright fair use. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 576 (1994). The District Court granted summary judgment for 2 Live Crew on fair use grounds, and the Sixth Circuit reversed. Campbell, 510 U.S. at 574-575. In a unanimous decision written by Justice Souter, the Court reversed the Sixth Circuit because the “fair use doctrine … “permits [and requires] [1] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.” Campbell, 510 U.S. at 574, quoting Stewart v. Abend, 495 U.S. 207, 236 (1990).

The Court began its analysis by observing that the doctrine of fair use originated from a judicially-created exception to the application of the Statute of Anne of 1710, in which “English courts held that in some instances ‘fair abridgements’ would not infringe an author’s rights….” Campbell, 510 U.S. at 576 (citation omitted). The Court explained how the courts had limited the power of statutory copyrights in order to achieve the statutory purpose:

From the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright's very purpose, "[t]o promote the Progress of Science and useful Arts. . . ." U. S. Const., Art. I, § 8, cl. 8. *** [A]lthough the First Congress enacted our initial copyright statute, Act of May 31, 1790, 1 Stat. 124, without any explicit reference to "fair use," as it later came to be known,[7] the doctrine was recognized by the American courts nonetheless.

In Folsom v. Marsh, 9 F. Cas. 342 (No. 4,901) (CCD Mass. 1841), Justice Story distilled the essence of law and methodology from the earlier cases: "look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work." [Citations.]


Campbell, 510 U.S. at 575-576.

“Fair use remained exclusively judge-made doctrine until the passage of the 1976 Copyright Act,” when Congress enacted the operative statutory formulation of the doctrine set forth in Section 107. Justice Souter notes that the statute still bears the essential outline of “Justice Story’s summary,” and that Congress "intended that courts continue the common-law tradition of fair use adjudication.” Campbell, 510 U.S. at 576-577, quoting legislative history. [2] That tradition requires that the adjudicative task “not be simplified with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by-case analysis.” Campbell, 510 U.S. at 576, citing Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 560 (1985).

2.2 The Georgia State University Opinion Provides A Roadmap For Holistic Fair Use Analysis Under 17 U.S.C. § 107 Under Facts Like Those of the Instant Case

A recently-decided case from the Eleventh Circuit decided the following issue: “Here, we are called upon to determine whether the unpaid copying of scholarly works by a university for use by students—facilitated by the development of systems for digital delivery over the Internet—should be excused under the doctrine of fair use.” Cambridge University Press v. Patton, Case Nos. 12-14676 & 12-15147 (Oct. 17, 2014), (the “GSU Opinion” attached as Exhibit 1, page 5. The District Court [3] had concluded that “there is no precedent on all fours for how the factors should be applied where excerpts of copyrighted works are copied by a nonprofit college or university for a nonprofit educational purpose,” and thus it had to fashion an approach to adjudicate the fair use defense as to 75 infringements on which the parties went to trial. [4] The Ninth Circuit has no comparable precedent on point; thus, the argument set forth below closely tracks the analysis set forth in the GSU Opinion.

2.3 The Equitable Nature of Fair Use Analysis.

“To prevail on a claim of fair use,” that “can excuse what would otherwise be an infringing use,” a copyright defendant asserting the fair use defense “must convince the Court that allowing his or her use of copyrighted material would be equitable and consonant with the purposes of copyright.” GSU Op. 4. That will be the case when a defendant’s use of the work, even if it became widespread, would not “frustrate the purposes of copyright by materially impairing the publisher’s incentive to publish.” GSU Op. 92. A finding of fair use recognizes an implied license for reasonable non-commercial use that does not impose excessive transaction costs on the copyright holder. GSU Op.50-51. In performing the equitable calculus essential to holistic fair use analysis, the Court should "conjure up a hypothetical market for the work in question," and "determine how much implied-license-fair-users can capture before the remaining value of the market is so diminished that it no longer makes economic sense for the author – or a subsequent holder of the copyright, to propagate the work." GSU Op. 51. This is so because, if granting the defendant an “implied license” to make “unpaid use” of a work for non-commercial purposes is simply a “low transaction cost” of being a copyright owner, it is reasonable that such an implied license for unpaid non-commercial use be permitted. GSU Op. 50-51.

3. Evidence Essential To Holistic Fair Use Analysis.

In the GSU Opinion, the Eleventh Circuit approved the District Court’s making findings about plaintiff’s operations, the market for plaintiff’s books, and whether licensing was available for those book-excerpts that plaintiffs claimed had been infringed by being uploaded to the Internet-based “EReserve” and “uLearn” systems. [5] Cambridge University Press, et al. v. Becker, 863 F.Supp.2d 1190, 1213-1214 (N.D. Georgia 2013). In this case, similar facts are relevant.

3.1 The Nature of American Buddha’s Mission and Its Purpose for Placing the Four Titles in the ABOL Archive.

“[A] court’s focus should be on the use of the copyrighted material and not simply on the user, [although] it is overly simplistic to suggest that the ‘purpose and character of the use’ can be fully discerned without considering the nature and objectives of the user.” GSU Op. 67, quoting American Geophysical Union v. Texaco, Inc., 66 F3d 913, 921-22 (2nd Cir. 1994).

3.2 The Titles, Authors, and Publishing Status of the Four Titles in All Media

Published status favors fair use because unpublished works receive greater protection. Arica Institute, Inc. v. Palmer, 970 F.2d 1067, 1078 (2nd Cir. 1992.)

3.3 The Literary Category Into Which Each of the Four Titles Fits

Books are classed according to literary categories. On the Nature of the Universe and The Golden Ass are English translations of ancient Latin works. (TLC Dec. ¶ 29.) The other two are classics of American literature. (TLC Dec. ¶ 29.)

3.4 The Typical Readers of the Four Titles and Their Reasons for Reading the Works

To understand the nature of any work of linguistic expression, one must not only look at what is expressed, but at how that work is used by the typical reader. In this case, all Four Titles are typically read for educational purposes by students. (TLC Dec. ¶ 29.)

3.5 The Medium In Which Each of the Four Titles Was Published and Purchased by American Buddha

Each of the Four Titles were purchased by American Buddha as bound paper books. (TLC Dec. ¶ 31.)

3.6 The Transformative Process and Features of American Buddha’s Use

How and to what effect American Buddha has transformed paper books of the Four Titles into HTML Chapters of the Four Titles accessible to Patrons via individual URLS is relevant to the fair use calculus. “[W]e conclude that the creation of a full-text searchable database is a quintessentially transformative use.” Authors Guild, Inc. v. HathiTrust, 755 F.3d 87, 97 (2nd Cir. 2014.) The manner and purpose of achieving the transformative use is set forth in the Librarian’s declaration. (TLC Dec. ¶¶ 24 - 27.) Provision of digital text to the blind by way of screen-reader technology is one of American Buddha’s goals, and the standard NVDA screenreader reads the HTML Chapters without technical difficult. (TLC Dec. ¶ 33.) The intent to implement transformative use beneficial to the blind is additionally protected under the Chaffee Amendment, 17 U.S.C. § 121. Authors Guild, Inc. v. HathiTrust, 755 F.3d at 97.

3.7 Transformative Uses for HTML Chapters of the Four Titles

For scholarly purposes, American Buddha’s HTML Chapters of the Four Titles provide the opportunity to practice modern scholarship with the full arsenal of digital searching and textmining techniques. (N.Mueller Dec. ¶ 4; TLC Dec. ¶ 32.) The transformative features of American Buddha’s use also include making the Four Titles readable by the blind, using features available on a standard iPhone,6 or on a desktop computer, using “screen reader” technology like NonVisual Desktop Access (“NVDA”)7 that “reads the text on the screen in a computerized voice.” (TLC Dec. ¶ 32.)

3.8 The Total Amount of Copying by Secondary Users, i.e., Library Patrons

As is discussed further infra at section 4.3, the only copying relevant to the Fair Use calculus is that made by individual Library Patrons on their computers when they click on a URL for one of the HTML Chapters. (TLC Dec. ¶ 47.)

3.9 The Level of Digital Exploitation and Availability of Licensing of the Title During the Period of Alleged Infringement.

In this case, the infringement is alleged to have begun in December 2008. (Second Amended Complaint ¶ 10.) During that time, Penguin’s eBook marketing strategy was to engage in price-fixing, for which Penguin and five other publishers were sued by the Department of Justice, and settled by agreeing to disband their admitted price-fixing agreement. See, M. Wolfe, The Apple E-Book Agreement and Ruinous Competition: Are E-Goods Different for Antitrust Purposes? Duke Law and Technology Review (2014). [8] While it was pursuing its EBook price fixing strategy, Penguin was not giving out any E-book licenses to libraries at all. (Section 4.4, infra; TLC Dec. ¶ 49.)

3.10 Whether American Buddha’s Use Has Caused Plaintiff Economic Injury

Evidence of plaintiff’s lack of lost sales of paper books or eBook licensing revenue for each of the Four Titles is relevant. GSU 27-28. As is discussed further infra at Section 4.4, the burden is on plaintiff to produce evidence of economic harm that is of course in its possession.

3.11 Whether Any of the Four Titles Are Otherwise Available on the Internet

Evidence that a work is available elsewhere on the Internet for download or online reading is relevant to the Fourth Factor. Evidence shows that the Four Titles have all been scanned into Google Books, are available as “snippets” through the Google Books search engine, and are available elsewhere on the Internet as HTML pages and downloads. (TLC Dec. ¶ 35.) Penguin sued Google over the Google Books project in the Southern District of New York, but dismissed the action after it was transferred to Judge Chin. (TLC Dec. ¶ 35; Exhibit 1.)

4. American Buddha Makes Fair Use of the Four Titles.

4.1 The Purpose and Character of the Use Factor Favors American Buddha


To decide this First Factor, the Court must determine whether American Buddha’s use is (a) transformative, and (b) non-commercial. GSU Op. 60.

4.1.1 American Buddha’s Use is Highly Transformative.

American Buddha takes paper books that it owns, and transforms them into digital text by scanning them into Adobe Acrobat PDF, running Optical Character Recognition (“OCR”) on the PDF, cutting and pasting the rough digitized text into Microsoft Front Page HTML Editor, removing all the formatting, correcting the typography, adding footnotes and images, and hyperlinking the page to related materials. (TLC Dec. ¶ 36.) Then, one chapter of each title is copied and pasted into an individual HTML web page to create “HTML Chapters,” each with its unique URL, that are uploaded to the ABOL Archive on a web-server. (TLC Dec. ¶ 36.)

A paper book thus processed and placed in the ABOL Archive has been thoroughly transformed. First, each HTML Chapter has become part of a curated collection of carefully chosen philosophical, political, and literary books, that can be digitally searched to reveal references to the same word in all of the works within the collection, thus generating highly significant search results for scholars, and the works will be used by the Librarian as reference material for other, related works in the collection. Second, the original text, that was readable only by human eyes, has now been transformed into digital text in the body portion of the HTML code that can be: (a) transmitted via web servers, (b) analyzed by search engines, (c) processed with analytical programs that perform textual analysis and text mining, (d) read by screen readers for the blind and other disabled persons, (e) used by scholars to look up quotes, check student papers for accuracy, provide a URL citation so other scholars can find reference works, perform a site-specific search of the ABOL Archive as described above, or perform textual analysis and data mining. (Mueller Dec. ¶ 4; TLC Dec. ¶ 37; Exhibit 2, Testimony of Scott LaBarre.)

Although the HTML Chapters are linked one to the next, Library Patrons cannot download a file of an entire chapter, much less a full copy of any of the Four Titles from the Websites. (TLC Dec. ¶ 40.) Library Patrons are restricted to browsing the HTML Chapters, and are notified that unnecessary copying is unlawful. (TLC Dec. ¶ 40.) The HTML Chapters do not substitute for paper books and do not make good raw material for illicit copying. (TLC Dec. ¶ 40.) In sum, the transformation of a chapter of a book written on paper into an HTML Chapter makes substantial changes to the function of the material, and thus American Buddha’s use of the Four Titles meets the test of transformative use. "Even verbatim copying 'may be transformative so long as the copy serves a different function than the original work.'" GSU Op. 61, quoting Perfect 10 v. Amazon.com, Inc., 508F.3d 1146, 1165 (9th Cir. 2007). See also Kelly v. Arriba Soft, 280 F.3d 934 (9th Cir. 2003).

4.1.2. American Buddha Has Placed Each of the Four Titles in the ABOL Archive for Non-commercial Reasons.

In Sony Corporation of America v. Universal City Studios, Inc., 464 U.S. 417 (1984), the United States Supreme Court held:

A challenge to a non-commercial use of a copyrighted work requires proof either that the particular use is harmful, or that if it would become widespread, it would adversely affect the potential market for the copyrighted work. *** If the intended use is for commercial gain, that likelihood [of harm] may be presumed. But if it is for a non-commercial purpose, the likelihood must be demonstrated.


Sony Corporation, 464 U.S. at 451 (emphasis added).

Non-commercial use that benefits the “broader public interest” should get more weight than whether the use is “transformative” when weighing it as a fair use factor. GSU opt. 72-73.9 American Buddha performs its activities for the sake of public benefit, with the Librarian providing all labor and funding for the American Buddha Online Library. (TLC Dec. ¶ 41.) American Buddha spends money on its operations that it does not even hope to recoup in donations. Hosting costs, estimated for 2013 and 2014, currently $250.00 a month against total pay pal revenues of less than $300.00 during the same time period. (TLC Dec. ¶ 41.) The purposes of American Buddha are to fulfill political, social and religious goals that require the education and edification of humanity. (TLC Dec. ¶¶ 12 - 18.) The library nature of the Websites is announced to all new visitors via a First Page Popup announcement and by a large legend at the top of each page of the Four Titles. (TLC Dec. ¶ 40; Exhibits 4 and 5.) [10]

4.2. The Nature of the Work Factor Favors American Buddha

The Court must take evidence as to each of the Four Titles with respect to the second factor, “the nature of the copyrighted work.” Section 107(2). This of course means ascertaining the name of the work, the author’s name, determining whether the work is a translation of a foreign work, and establishing whether it has been published, when and in what mediums. While it is clearly traditional to ask questions about the factual/creative distinction, a task the GSU court essentially honored in the breach, [11] American Buddha submits that the Court must, more importantly, inquire regarding the scholarly uses for each of the Four Titles, and whether American Buddha is using the works in a manner consistent with their scholarly nature. The following three questions should certainly be asked as to each of the Four Titles:

1. Is the work primarily used for entertainment or educational purposes?

2. Is readership of the work composed primarily of students, who read the book because it is assigned by teachers?

3. Is the work likely to be cited bibliographically in a term paper or other scholarly work?

4.2.1 The Latham Translation of On the Nature of the Universe

On the Nature of the Universe, “De rerum natura” in Latin, is a poetic work on Epicurean philosophy by Lucretius, a Roman philosopher who lived in the first century B.C. (TLC Dec. ¶ 42.) The Latin original is of course in the public domain, but Penguin owns the copyright on an English prose translation by Ronald E. Latham first published in 1950. Translation of the classics from Latin is basic scholarly work, and Latin translation is available commercially at budget rates. [12] (N. Mueller Dec. ¶ 7.) Thirty-six other Latin scholars, [13] and Latham, have translated Lucretius’ novel ideas [14] into English. Penguin owns the copyright on a factual reference work that tells scholars what Lucretius’ work says. De rerum natura has a Wikipedia page at http://en.wikipedia.org/wiki/De_rerum_natura. The Latham translation of On the Nature of the Universe is downloadable in PDF from Scribd.com at https://www.scribd.com/doc/85550506/The ... -Lucretius. (TLC Dec. ¶ 42.)

4.2.2. The Kenney Translation of The Golden Ass

The Roman author Apuleius wrote The Golden Ass in the second half of the second century A.D. Modern scholars consider The Golden Ass the first Latin novel of which we have a surviving copy. Apuleius tells the story of Lucius, a foolish man turned to a donkey by meddling in sorcery, who suffers greatly in a series of misadventures until he is restored to human form by a goddess’ divine intervention. The book is a scholarly staple, with its own Wikipedia page with a full summary of the plot that leaves no mystery as to its twists, turns, and outcome. [15] The novel is stuffed with bizarre, salacious tales involving torture and cruelty to women. [16] While the original was certainly creative, the work copyrighted by Penguin is a translation by E.J. Kenney.

Kenney’s translation is a reference work used by students reading books assigned by their teachers, who usually must buy a paper book as a class requirement. (TLC Dec. ¶ 44.) Students find digitally-transformed versions of the paper book they already own uniquely useful, as do teachers checking student term papers, bibliographies or quotations for accuracy. (N. Mueller Dec. ¶ 6.) Virtually all sales of a work like The Golden Ass are inferrably compulsory purchases made by students fulfilling educational reading requirements. Thus, American Buddha’s provision of such works to students in digital form, as in the GSU case, is for an educational, non-commercial purpose. The Kenney translation of The Golden Ass is available for download in three formats (.epub, .jpg, and .mobi) at http://kickass.filesoup.com/apuleius-the-golden-assor- metamorphoses-3-translations-t9846510.html#. (TLC Dec. ¶ 4; Exhibit 10.)

4.2.3. Oil! by Upton Sinclair

In Oil!, Upton Sinclair, whose career was ignited by the publication of The Jungle, a shocking expose of the Chicago stockyards, depicted the personal and commercial machinations of Southern California oil tycoons. The book is the subject of a Wikipedia page at http://en.wikipedia.org/wiki/Oil! that spells out the characters and plot in detail. (TLC Dec. ¶ 45). Oil! is inferrably most often purchased by students in fulfillment of course reading requirements, and used primarily as educational material in literature and social studies classes. Oil! is available for download at several locations on the Internet. [17]

4.2.4. It Can’t Happen Here by Sinclair Lewis

It Can’t Happen Here was written by Sinclair Lewis, the author of Arrowsmith, Elmer Gantry, Babbitt, and Main Street. It Can’t Happen Here tells the story of a homegrown fascist takeover of America, seen through the eyes of a small town newspaperman. It is a necessary companion work to Orwell’s 1984 and Huxley’s Brave New World [18], an essential tome for social studies and literature classes in high school and college. (TLC Dec. ¶ 46.) It Can’t Happen Here has primarily educational value, is mostly read by students when assigned by teachers, and is consulted in its online form for performance of those scholarly tasks that are best done with a digital copy of the work that can be digitally searched and otherwise handled in transformative fashion. It Can’t Happen Here is available at no less than four locations on the Internet at no charge. [19]

4.3. The Amount of the Work Taken Factor Favors American Buddha

The only portion of the work that can be deemed “taken” by American Buddha is that which has been accessed by secondary users, i.e., Library Patrons. [20] The Librarian has the right to scan works that she owns to use text magnification features of digital text to overcome a visual disability. See, Sony Corporation, 464 U.S. at 417, 448 (1984) (time-shifting of television programs by home copying of entire programs was fair use because television audience already had the right to view the program gratis at original viewing time). Thus, American Buddha cannot be held liable simply for scanning its own books into a digital format. [21] Any evidence of infringement in this case would have to arise from secondary users, i.e., Library Patrons accessing the HTML Chapters by finding and clicking a URL. The evidence shows that Library Patrons access the Four Titles rarely, if at all. (TLC Dec. ¶ 47; Exhibits 6, 7 and 8.) When the URL for an HTML Chapter is clicked by a Library Patron, it generates a separate page request, and the total number of page requests in any given month for any of the Four Titles is virtually negligible. (TLC Dec. ¶ 47.) Accordingly, the “amount taken” of the Four Titles is “only as much as Library Patrons need to perform scholarly use by accessing discrete HTML chapters over the course of a few minutes.” (TLC Dec. ¶ 47.) Such use does not equate to the taking of the entire work, because, like the Google Books system of providing “snippets” of scanned works found lawful in Author’s Guild, American Buddha’s division of the works into HTML Chapters restricts access to that portion of the material necessary to accomplish scholarly use. (TLC Dec. ¶ 47.) The available evidence shows that Library Patrons have no interest in making excessive use any of the Four Titles. (TLC Dec. ¶ 48.) Accordingly, this is transformative is fair use. Authors Guild, 954 F.Supp.2d 282, 293-294.

The Google Books method of blocking out some portions of search results to expose only “snippets” is one way to “meter” access and thus prevent excessive copying that has been presumed necessary to block. But the American Buddha method of providing access only to HTML Chapters via discrete URLS, and simply asking people not to infringe, also works, as the statistics show. (TLC Dec. 48; Exhibit 6.)

Even if American Buddha were deemed to have engaged in copying of the entirety of the Four Titles work, that copying was fair use. The entirety of a work can be copied if the taking accomplishes broad public benefit, like Arriba’s copying of entire photos to create search results composed of “thumbnail” images, because the creation of thumbnails served a new use that the originals could not (appearing as search results in a search engine), and because the “thumbnails” would not adequately replace the original due to the small image size. Kelly v. Arriba Soft, 336F. 3d 811, 812 (9th Circuit 2003) [22]. See, Authors’ Guild, Inc. et al. v. Google, Inc., 954 F. S. 2d 282 (S.D.N.Y. 11/14/13). [23]

4.4. The Effect on the Value of and Market for the Originals Factor Favors American Buddha

Fourth Factor analysis requires extracting the factually verifiable economic impacts, if any, caused by defendant’s use of the plaintiff’s works. Thus the Court "must consider two inquiries” -- the extent of the market harm caused by the particular actions of the user of the works, and whether widespread use of the works in that manner “would result in a substantially adverse impact on the potential market." GSU Op. 92. Because “the goal of copyright is to stimulate the creation of new works, not to furnish copyright holders with control over all markets,” a plaintiff’s failure to grant paid licenses for the type of use that defendant is making of the copied work reflects the decision of a rational economic actor. [24] The Eleventh Circuit opined that “the greater the demand for the work . . . the more the publisher will endeavor to make the work widely available,” so a publisher’s failure to license a literary work for particular uses warrants the inference that the “publisher has likely made a reasoned decision . . . that the value of that market is minimal.” GSU Op. 98.

In the GSU Opinion, the Eleventh Circuit approved of the District Court's Fourth Factor analysis that resulted in the conclusion that all but five instances of the alleged infringements were fair use, essentially because they caused no financial injury to plaintiffs. GSU 99-104. Since the only fact distinguishing those five instances from the other seventy-one instances of alleged infringement was that they had given rise to some small actual damages, a bright line rule is discernible here: Penguin cannot prevail on the Fourth Factor, or on the analysis as a whole, without showing financial harm from American Buddha’s use of the Four Titles. As in the GSU case, Penguin has "offered no testimony or evidence that they lost book sales," thus, no book sales have been lost. GSU Op. 28. Like the excerpts in GSU, the HTML Chapters in this case do "not substitute for the full books from which they were drawn." GSU Op. 94.

Although Penguin has the burden of producing evidence under the Fourth Factor, [25] defendant has submitted evidence that, during the time when Penguin alleges infringement by American Buddha, it appears that did not allow licensing of the Four Titles at all. Apparently Penguin had licensed some of its works prior to November, 2011, but it is unknown whether Penguin offered library licenses for digital versions of any of the Four Titles before November 2011, when it announced that it would “no longer allow library lending of new Ebook titles.” (TLC Dec. ¶ 49; Exhibit 9.) That was followed by a January 2012 announcement that put further limitations on library lending of audiobooks, and was followed by a February 2012 announcement that Penguin had stopped licensing Ebooks altogether through digital library service provider OverDrive. (TLC Dec. ¶ 49; Exhibit 9.) Penguin Ebooks did not become available on OverDrive until September 25, 2013, and even then, only with a crippling limitation for the most popular Ebook platform – the Amazon Kindle. The Kindle device’s revolutionary wireless download system wouldn’t work for Penguin books, so libraries could only lend the works by physically transferring the media via the Kindle side-loading USB port. (TLC Dec. ¶ 49; Exhibit 9.) After an outcry, Penguin stopped using the “crippleware” that prevented wireless delivery, and allowed libraries to transfer works over the air, as Amazon intended. (Id.) No licenses were available for American Buddha to license any of the Four Titles, just as GSU had no way to license downloadable versions of many of the allegedly-infringed works. GSU Op. 31 and 36.26 Penguin has suffered no losses of digital licensing revenue on the Four Titles whatsoever, which counts against it on the Fourth Factor. GSU Op. 27-28. Penguin’s “reluctance” to make digital content licenses available for the Four Titles to libraries is relevant, and counts against Penguin on the Fourth Factor. GSU Op. 106.

It is thus apparent that American Buddha’s practices, even if widely practiced by libraries, would not harm book sales or digital sales so substantially "that it would frustrate the purpose of copyright by materially impairing its incentive to publish the Four Titles." GSU Op. 92. This may reasonably be inferred from the very modest number of visits, if any, that HTML Chapters of the Four Titles receive. (TLC Dec. ¶ 47.) One might presume that more online availability would increase media quantity consumption, but that is not the case, because each HTML Chapter’s unique URL can satisfy the needs of the small number of users, and until usage spikes unforeseeably, multiple access points are redundant, or at least useful only for addressing different readerships, as American Buddha’s two Websites do. (TLC Dec. ¶ 50.) Speculative predictions are not probative of market injury under the Fourth Factor. [27] Penguin cannot carry its burden of production under the Fourth Factor merely by proffering speculation as to what sales might be lost, or what licenses it might someday choose to grant for the Four Titles to library institutions, because it is "the availability of licensing at the time of an alleged infringement – not at some undefined time in the future, is the relevant evidence." GSU Op. 99, note 33. Nor is evidence "that a license to copy an excerpt … would cost a particular amount … a substitute for evidence that a license was actually available." GSU Op. 105.

Reviewing all of the evidence relevant to the Fourth Factor, it is apparent that Penguin can show no negative effects whatsoever from American Buddha's use of the Four Titles in the ABOL Archive. Accordingly, the Fourth Factor goes to American Buddha.

5. CONCLUSION

American Buddha has submitted evidence on all four fair use factors, raising disputed issues of material fact that cannot be resolved on summary judgment. Accordingly, the Court is respectfully requested to deny the motion of plaintiffs.

DATED: January 20, 2015

/s/ John W. Sullivan

John W. Sullivan
Cal. Bar No. 204648
Attorney pro hac vice for Defendant American Buddha

_______________

Notes:

1. Bracketed language in original opinion.

2 H. R. Rep. No. 94-1476, p. 66 (1976) and S. Rep. No. 94-473, p. 62 (1975) of Copyright Act of 1976.

3 “The original Complaint was filed on April 15, 2008. It alleged that Defendants, officials of Georgia State University in Atlanta, Georgia, had infringed copyrights held by Plaintiffs, publishing houses, by allowing unlicensed portions of Plaintiffs' copyrighted books to be posted electronically and made available electronically to students.” Cambridge University Press, et al. v. Becker, 863 F.Supp.2d 1190, 1201 (N.D. Georgia 2013).

4 “The Court believes that the best way to proceed is first to decide how the four fair use factors should be applied in a case such as this one (unpaid copying of excerpts of copyrighted material by a nonprofit college or university for nonprofit educational use in graduate or upper level college courses). Once this decision is made, each of the 75 claimed infringements will be addressed individually….” Id., 863 F.Supp.2d at 1210-1211.

5 These were the systems from which students were able to download scans of book excerpts in lieu of placing books “on reserve” at the library reserve book room or buying licensed paper “coursepacks” of excerpted writings.

6 https://www.apple.com/accessibility/ios/#vision

7 The software is described at http://www.nvaccess.org/ and is available for download and desktop installation at http://www.nvaccess.org/download/.

8 http://scholarship.law.duke.edu/cgi/vie ... ntext=dltr

9 GSU’s system for providing ERes and uLearn materials were not in HTML pages that could be searched with Google, read by screen-readers and otherwise used transformatively.

10 The popup requires a click from the user that confirms, before going further, that they have read the American Buddha Online Library Copyright Notice at http://american-buddha.com/abol.toc.htm or the Ralph Nader Library Copyright Notice at http://naderlibrary.com/naderlibrarymemberinfo.htm. Because the Library Patron’s computer is a copying machine, the notice includes the language from 37 C.F.R. 201.14 that is posted by library copying machines.

11 The Eleventh Circuit considers the Second Factor to be relatively unimportant in the fact situation presented by GSU’s use of the EReserve and uLearn systems, and avoided bright-line distinctions between “factual” and “creative” work, noting that even books about salesmanship and cake decorating have creative elements. GSU Op. 78, 80-81 and Note 28.

12 Eg.: “A swift and reliable translation service is available for all those who seek to obtain an accurate rendering of phrases or passages of English into Classical Latin or Ancient Greek, or require services for Greek or Latin translation into English, for purposes that range from serious academic research or the production of official documents to the creation of simple mottoes or phrases for private or commercial use.” <http://www.classicalturns.com/>

13 For a complete list of translations, see http://en.wikipedia.org/wiki/De_rerum_natura.

14 Take for a first example Lucretius’ theory of how our minds are constructed of tiny particles and are sent in motion by the senses, just as a pile of poppy seeds is set in motion by a passing breeze. For a second, consider the ancient Roman’s theory of vision, that explains how the eye, a physical object, perceives other physical objects by way of delicate films that fly across space, bridging the gap between seer and seen.

15 http://en.wikipedia.org/wiki/The_Golden_Ass

16 Among other ideas somewhat shocking to modern sensibilities, Apuleius offered readers the notion that it would be enjoyable to sew a woman alive into the corpse of an animal, leaving her to die of starvation while entombed in putrefaction.

17 Oil! in ePub or Mobi formats: https://libcom.org/library/oil-upton-sinclair. (TLC Dec. ¶ 45.)

18 Both 1984 and Brave New World are in the ABOL Archive.

19 (1) From Project Gutenberg Australia in HTML format at http://gutenberg.net.au/ebooks03/0301001h.html, in TXT format at http://gutenberg.net.au/ebooks03/0301001.txt, gutenberg.net.au/ebooks03/0301001.zip. (2) http://www.feffibooks.com/book/3659/it-can-t -happen-here. (3) http://www.goodrl.ads.com/ebooks/downlo ... appen_Herl. (4) http://www.1..-booksdirl.ctory.com/dl..tails .php?ebook- 3722 (TLC Dec. ¶ 46.)

20 In the GSU Opinion, infringement was found not to have occurred with respect to excerpts of books (a) that students had never downloaded, or (b) that students already owned because they had bought the book. GSU Op. 34. Only when a student downloaded a scanned work that she didn’t already own could a concrete infringement emerge from the cloud of allegations. E.g., GSU Op. 34.

21 Pursuant to the Google Library Project, many university libraries have allowed Google to scan their archives and received a digital copy of the transformed books in exchange for being allowed to scan their archive. Authors Guild v . Google, Inc., 954 F.Supp.2d 282, 285-286 (S.D.N.Y. 2013), currently on appeal to the 2nd Circuit.

22 Arriba used search “spider” to locate and copy thousands of photos from website operators without authorization, and reduced the size of the images to thumbnails that linked to the full size image on the website from the spider that had copied it. Plaintiff Kelly sued for infringement of his photos and Arriba prevailed under a §107 fair use defense.

23 Author’s Guild v. Google is currently on appeal to the Second Circuit.

24 Google Books software engineer has stated that there are 129,864,880 books in the world. Of those, the “vast majority are out of print.” J.Jackson, Google: 129 Million Different Books Have Been Published. http://www.pcworld.com/article/202803/g ... ished.html

25 The District Court properly put the burden on the plaintiffs to produce "evidence as to the availability of licenses for their own works" GSU Op. 101-102. The Eleventh Circuit approved because the District Court kept "the overall burden on defendant to show that 'no substantial damage to the potential market'" had been caused by defendant's use, but placed "on plaintiffs the burden of going forward with evidence on this question." GSU Op. 101-102.

26 The importance of the third finding above can hardly be overstressed, because it led to the Eleventh Circuit's conclusion that the lack of available licenses laid reasonable grounds to infer that the "publisher has likely made a reasoned decision … that the value of that market is minimal." GSU Op. 98.

27 “Most of plaintiffs’ predictions of harm hinge on specification about audience viewing patterns and ratings, a measurement system which Sidney Sheinberg, MCA’s president, calls a ‘black art’ because of the significant level of imprecision involved in the calculations.” Sony Corporation, 464 U.S. at 452. And, as in the case at bar, the plaintiffs in Sony Corporation “failed to demonstrate that time-shifting would cause any likelihood of non-minimal harm to the potential market for, or the value of, their copyrighted works.” Sony Corporation, 464 U.S. at 456.
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Re: Penguin Group Inc. vs. American Buddha

Postby admin » Fri Jul 17, 2015 4:29 am

JOHN W. SULLIVAN (CSB # 204648)
Attorney at Law
10857 Kling Street
North Hollywood, CA 91602
Tel: 818-769-7236
Fax: 818-301-2175
Email: sullivan.john84@gmail.com
Attorney pro hac vice for Defendant American Buddha

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Penguin Group (USA) Inc.,
Plaintiff,
vs.
American Buddha,
Defendant

Case No.: CV-13-02075-TUC- JGZ

DECLARATION OF NICHOLAS MUELLER IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

DECLARATION OF NICHOLAS MUELLER

Nicholas Mueller states and declares as follows:

1. I am a scholar by profession, and a declared witness of American Buddha in this action. The matters stated in this Declaration are true based on personal knowledge, and as to those matters of opinion, they are true to the best of my understanding and belief.

2. When I define myself as a professional scholar, I mean that intellectual study and research is my full-time occupation, and I earn a living by tutoring students preparing to take various educational qualification tests such as the SAT, the GRE, TOEFL, etc.

2.1. In addition to scholarly pursuits, I am a published author. I won first place for poetry in the 2013 Society of Southwest Authors’ (SSA) Writing Competition. This resulted in a monetary award as well as publication in the SSA publication, The Storyteller. In the same year and in the same competition I received a commendation in the memoir category for “My Father’s Angers.”

3. I became acquainted with the Nader Library by attending one of the many "open mic events" Nader Library has been holding since at least the winter of 2008, when I first began attending, according to my best recollection. For a long time, well over a year, the open mics occurred every Saturday at Nader Library, and attendees were numerous. Nader Library provides a large comfortable music performance area, with a screen for displaying videos, an accommodation that has clearly been provided for the public, and which is quite comfortable. Nader Library always serves complimentary refreshments at open mics, and encouraged visitors to browse the Library, get a membership card, and check books out of the Library. I myself have checked out books on more than one occasion, and acting as a Library volunteer, have issued Library cards and assisted new users to check out a book.

4. In addition to my visiting Nader Library, I have used the resources at American-Buddha.com and Naderlibrary.com on numerous occasions. For a scholar, the advantages of using the Online Library at American-Buddha.com or NaderLibrary.com are numerous. A few of the advantages are:

(1) Content within the site will usually show up on Google, because it is text-searchable by the Google bots.

(2) There is a setup for an internal search engine that will search only the works within American-Buddha.com or NaderLibrary.com, thus generating focused results from all the works on the website regarding a single keyword.

(3) The works are in a format that can easily be "cut-and-pasted" so that excerpts can quickly be taken.

(4) The literary works are divided by chapter, which makes it easy to place the discovered quote in context and provide a chapter-specific citation by URL.

(5) The URLs are "static URLs", which is to say they are the same for the content every time, and therefore provide a reasonably reliable citation format.

(6) As a tutor, a website like American-Buddha.com or NaderLibrary.com provides a handy source ofmany classics of literature, science and philosophy.

(7) I am familiar with ebook formats. I have owned an iPad for several years, and it is very easy to read the web pages of American-Buddha.com and NaderLibrary.com on the iPad. This makes it very handy to consult and quickly queue material for reading, for example, at open mic.


5. Because of the above-described features of books that have been processed into HTML Chapters, the digitized literary works in the American Buddha collection provide the opportunity to practice modem scholarship, deploying the full arsenal of digital searching and text-mining techniques.

6. Students find digitally-transformed versions of the paper book they already own uniquely useful, as do teachers and tutors like myself, who are checking student term papers, bibliographies or quotations for accuracy.

7. Translation of the classics from Latin is basic scholarly work, and Latin translation is available commercially on the Internet from scholars who sell translation services, such as http://www.classicalturns.com/. that offers:

"A swift and reliable translation service is available for all those who seek to obtain an accurate rendering of phrases or passages of English into Classical Latin or Ancient Greek, or require services for Greek or Latin translation into English, for purposes that range from serious academic research or the production of official documents to the creation of simple mottoes or phrases for private or commercial use."


8. The entire operation of American Buddha and its Library activities is non-commercial. No solicitation of funds ever occurs at live events, and in my experience of the last several years, there are never any fees or charges involved with Library services or activities.

I hereby declare, pursuant to the provisions of28 U.S.C. § 1746 (2), under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed at Tucson, Arizona on January 19, 2015

Nicholas Mueller, Declarant
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Re: Penguin Group Inc. vs. American Buddha

Postby admin » Fri Jul 17, 2015 4:38 am

JOHN W. SULLIVAN (CSB # 204648)
Attorney at Law
10857 Kling Street
North Hollywood, CA 91602
Tel: 818-769-7236
Fax: 818-301-2175
Email: sullivan.john84@gmail.com
Attorney pro hac vice for Defendant American Buddha

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Penguin Group (USA) Inc.,
Plaintiff,
vs.
American Buddha,
Defendant

Case No.: CV-13-02075-TUC- JGZ

DECLARATION OF TARA LYN CARREON IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

DECLARATION OF TARA LYN CARREON

1. I make this Declaration in opposition to the Motion for Summary Judgment of Penguin Group (USA), Inc. ("Plaintiff"), based on personal knowledge and matters of opinion that will be of assistance to the Court as finder of fact, as to matters within lay knowledge, and within my professional experience as the Director of American Buddha and the Librarian of the American Buddha Online Library (“ABOL”). If called as a witness, I could and would so competently testify.

2. I am the Director of American Buddha, an Oregon non-profit religious corporation, lawfully formed as a corporation sole pursuant to ORS § 65.067, that provides in subsection (1):

An individual may, in conformity with the constitution, canons, rules, regulations and disciplines of a church or religious denomination, form a corporation under this section to be a corporation sole. The corporation sole is a form of religious corporation and differs from other religious corporations organized under this chapter only in that the corporation sole does not have a board of directors, does not need to have officers and is managed by a single director who is the individual who constitutes the corporation and is the corporation soles incorporator or the successor of the incorporator.


3. My background in scholarly and spiritual endeavors begins with childhood. My mother was an educator who rose to become the first female elementary school principal in the state of Arizona, and inspired the devotion of students and faculty at a series of elementary schools in Mesa, culminating in her final position at Crismon Elementary School, where she worked energetically to provide students, teachers and administrators with the essential tools for educating the next generation.

4. My own career trajectory, and some of my primary interests relative to the operation ABOL, were shaped in large part by an unexpected exposure to the war in the Middle East as a young woman on a Brigham Young University semester abroad program at Hebrew University in Jerusalem. Our studies into Middle Eastern history, and my fascinated exploration of the Arab quarters of Jerusalem, came to a sudden halt when the Yom Kippur War began. Some of our teachers were mobilized into the Israeli Defense Forces, and I was shocked at their transformation from reasoned individuals into impassioned zealots eager to kill an enemy. As war was launched against the Arabs, I was also appalled by the foolish excitement displayed by my fellow-BYU school colleagues. Before we had gone to Israel, the group had travelled in Germany and Auschwitz. Perhaps intended to induce sympathy for the Israelis, the effect on me was somewhat paradoxical, because upon arrival in Israel, I was struck by the similarity between the barracks and barbed-wire structures of the concentration camp and the caged conditions of the Palestinian refugees. How, I asked myself, could today's Israelis not see that, to some extent, they were inflicting upon the Palestinians sufferings that had been inflicted upon them? My consideration of this conundrum led to the conclusion that in a further irony, religion, that had always been presented to me as a force for peace and creativity in our sheltered Mormon community, could actually provide justifications to set people against each other, condemning generations to mindless warfare over grievances with purportedly ancient roots that have no relevance to life today. Accordingly, I became an atheist, because the deletion of "God" from my philosophical vocabulary seemed essential to living a moral life. This conclusion, suddenly and deeply reached, left me feeling alienated from my friends, and during the remainder of the trip until my return to Arizona, I spent most of the time by myself, ruminating on these serious questions.

5. I resumed my college studies at Arizona State University in 1974. I pursued studies in biology, life sciences, and was interested in obtaining a degree in agriculture, aspiring to move to the country and start a farm in what was then known as the "back to the land movement." It was in 1974 that I met my future spouse, Charles Carreon, in a freshman humanities class. We immediately became very attached to each other, and after a whirlwind romance that included a hitchhiking trip from Denver to Florida to Michigan and back to Mesa, Arizona, Charles proposed to me, and as soon as he turned 18, we were married by a local Justice of the Peace in Tempe, Arizona, my mother being the only witness.

6. During 1976, following the trail of the mystics, Charles and I took a 7-month trip overland to India. Departing from New York, we landed in Luxembourg, trained to Istanbul, and rode buses from Istanbul, Turkey, to Tehran, Iran, to Kabul, Afghanistan, to Lahore, Pakistan, and thence to Amritsar, India. In India, we travelled from Jammu to Benares and Bodh Gaya, the holy Hindu and Buddhist cities of India, respectively. I was fascinated by the culture of India, that we experienced first-hand, spending a full month living on a houseboat in Benares, moored on the Ganges, where the ancient rituals were still conducted all around us. While in Benares, I studied the Indian tabla instrument, which is the drum on which the sitar and other instruments are accompanied. It was in Bodh Gaya that I first received instruction in Buddhist meditation, and would mark that as the point of my conversion to Buddhism that later blossomed into taking refuge with the Tibetan lama Gyatrul Rinpoche. In India, I attended a 10-day retreat at the very large Thai temple, rooming with other women in segregated sleeping accommodations, while Charles kept to the men's quarters. The experience was very interesting and educational, and gave me a first experience of spirituality without "God" whom I had not been moved to let back into my life.

7. In 1978, after the birth of our first child, Joshua, we moved to Ashland, Oregon, the focus of back-to-the-land activity all through the 60's and 70's. Charles obtained work as a union grocery clerk, we were able to establish ourselves in the community, and were invited to join the Rainbow Star commune by its founder, Walter Von Finck. The commune was loosely organized, and communal more in name than substance. Nevertheless, it was there in Colestine Valley, Oregon, that we began our back-to-the-land experiment, that eventually led to our family becoming the first residents on what is now the Tashi Choling Buddhist Retreat Center in Southern Oregon, site of some of the largest Buddha statues in the United States, built under the auspices of the Venerable Gyatrul Rinpoche in his capacity as the holder of both the Dudjom Tersar and Payul lineages of Nyingmapa ("Ancient Ones") lineage of Tibetan Buddhism, of which Charles and I were members starting in 1978, when we took the Buddhist vows of refuge with Gyatrul Rinpoche.

8. After giving birth to my second child, Maria, and living in a one-room circular cabin called a "yurt", I decided to resume my college education at Southern Oregon State College (now Southern Oregon University "SOU"). When I resumed my studies at SOU, I did not continue in the field of agriculture, because SOU had no agriculture program. I had developed an interest in human behavior and social structuring, however, and was fortunate to have as my faculty advisor Leon Schwartzberg, a man so devoted to Indian culture that eventually he married a woman from India and brought her to Oregon. Although SOU is not a particularly prestigious institution, fortunate students may find dedicated teachers like Professor Schwartzberg, who inspired me to academic excellence. I graduated with a major in Sociology and a minor in Anthropology Summa Cum Laude in 1983, also receiving the Birge Memorial Award for sociology that same year, an award that was presented at graduation and included a senior stipend.

9. I have provided the foregoing recapitulation of the various events that resulted in my adoption as Buddhism as my philosophy and framework of ethical beliefs. The features of Buddhism that attracted me to become a follower of "the Dharma," were (a) The duty of the Buddhist aspirant to ascertain the truth of existence personally and directly just as the Buddha did himself; (b) Buddhism’s well-known rejection of killing of human beings and animals as "non-virtue," to be avoided by all Buddhists without exceptions for “just” wars or other such dogmatic conveniences; and, (c) the absence of a Deity. These features remain important and fundamental to me to this day, and were of central importance to me in the year 2000, when I formed American Buddha as a single Director Oregon non-profit religious corporation sole under the statute quoted supra. I selected the corporation sole form consciously, because the purpose of that statute was clearly to endow any individual with the opportunity to establish a "congregation of one."

10. The year after I resumed my studies at SOU, so did my husband, and thus we both graduated from SOU in 1983. Immediately after we graduated, we moved to Los Angeles, to an apartment in Brentwood, so that Charles could attend UCLA Law School.

11. Before Charles had attended his first law school class, I had obtained a job as a legal secretary, primarily on the basis of a skill I had acquired as a Buddhist -- transcribing cassette tapes. It was, however, the first time I had ever used a word processor. All of my prior transcription work, transcribing the oral, translated lectures delivered by Gyatrul Rinpoche and other Tibetan Buddhist lamas, had been hammered out on an old B-model IBM, although paper was so dear I often typed on two sides of the typewriter paper. I became deeply devoted to the process of making knowledge accessible to others for their knowledge and education. In Buddhism, Tibetan Buddhism particularly, knowledge is an actual specific focus of veneration, and the Buddha of learning is known as Manjushri. We were specifically exhorted by Gyatrul Rinpoche and other lamas, and I seriously took it to heart, that it is a source of inconceivable merit to copy, reproduce, and distribute Dharma literature. The Buddhist concept of "Dharma literature" extends far beyond the enormous liturgical and doctrinal canon that was painstakingly passed down from printing on carved wooded blocks for over a thousand years. It extends to all wholesome works that enable human beings to live positive lives, especially works on medicine, law, the useful handicrafts, astronomy, mathematics, grammar, etc.

12. My work as an archivist and Librarian arose out of my duties as the secretary of Los Angeles Yeshe Nyingpo. As noted above, from 1983 through 1994, the Yeshe Nyingpo Los Angeles Buddhist Center was located in my home, first at 16th and Bay Street in Santa Monica, and then at 914 5th Street, Santa Monica, California. The congregation numbered approximately 30 members, and we hosted gatherings of scores of Buddhist students at the 914 5th Street address, including major ceremonies and teachings lasting over multiple days. As the secretary, it was my duty to maintain ready copies of liturgies and teachings for the use of students and teachers, many of which were rare and difficult to obtain, but essential to the practice of the Tibetan Buddhism as taught in the Nyingmapa lineage.

13. In April of 1994, Charles and I moved our family back to Ashland, Oregon. I continued to practice Tibetan Buddhism, and in 1999, traveled to Kathmandu, Nepal, to accompany my younger daughter, then 17 years old, to study Tibetan Language and Buddhist doctrine at the Rangjung Yeshe Institute. We remained there for four months. During this time I was reading the book, "Illusion's Game," by the Venerable Chogyam Trungpa Rinpoche, while my husband was working in the United States on an important case involving this new thing called the Internet. Additionally, the techies had the world on edge about the "Y2K" bug. Thus, both Buddhism and the Internet were on my mind during my time in Kathmandu. When I read Chogyam Trungpa's exhortation in "Illusion's Game" to develop ourselves as "American Buddhas," I was deeply moved, and sensed I had found a mission -- to help Americans like myself, who had fervently embraced Buddhism, to become genuine "American Buddhas." I figured I needed a website to do that. Because I didn’t know how to register an Internet domain name in the year 2000, I asked Charles to register "AmericanBuddha.com," and he registered American-Buddha.com as the nearest available option.

14. When I returned from Kathmandu, I joined the plaintiff's legal team as head paralegal in the Internet case that Charles was working on, Kremen v. Cohen. [1] As a result, I learned quite a bit more about the Internet. My involvement in the case ended shortly after the November 27, 2000 permanent injunction was granted. At that point, I retired from working on the case, and generally from employment as a legal secretary, and began devoting myself to further studies in the field of American Buddhism.

15. At the end of year 2000, or early 2001, I launched the first iteration of a website at american-buddha.bigstep.com. Sometime in early 2001, I transferred the existing website content to american-buddha.com, using commercial webhosting services, and authoring my own web pages using the Microsoft HTML editor, FrontPage to publish to the rented web server.

16. The Internet in 2001 was quaintly small-townish, and generally quite friendly. Promoting the website was never a concern for me, because being discovered as a new Buddhist website in those days was not difficult. There was very little "clutter" in the Google search engine, at least for Buddhist-related terms, and shortly after publishing the first iteration of the website I received comments, criticisms, and kudos from fellow-Buddhist net-heads. My goal for the website, at the outset, was to share ideas with other Buddhists, particularly devout Tibetan Buddhists like myself. Over 20 years of practicing Tibetan Buddhism, I had completed the entire course of esoteric "preliminary practices," and received initiation into very elevated teachings and practices. Nevertheless, I was disturbed by what I had discovered over the years -- namely, that Tibetan Buddhism was in fact a patriarchal, theocratic, feudal system in which rational thinking is oftentimes honored only in the breach, and women were generally presumed to be less "spiritually endowed" than men. Accordingly, the view I wished to share with my fellow devout Tibetan Buddhists was that, to respond fully to Trungpa Rinpoche's exhortation to become American Buddhas, we had to appreciate the philosophical tradition of the Western world, including the empirical philosophies of the Western Enlightenment, with its gifts of scientific inquiry and reasoned analyses. I also wanted to communicate a second, fundamentally political idea, because I felt many Tibetan Buddhists were cheerfully abdicating principles of equality and democratic values in a search for the comforts of received authority as expressed in the persons of the lamas. I wanted to urge my fellow Tibetan Buddhists to remember that our nation is founded on principles of democratic freedom essential to all our cherished civil rights. Our civil rights should not be taken lightly by blindly adopting the foreign cultural traditions of our new eastern religion. Tibet happened to be the world's most long-lasting theocracy, with early Western accounts of the Dalai Lama routinely referring to him as "The God-King." I did not see theocracy as an improvement over democracy, and wished to counter ideas such as those of Robert Thurman, the father of the famous actress and friend of the Dalai Lama, whose book, Inner Revolution, I analyzed and critiqued for its anti-democratic notions and theocratic cant.
<http://www.american-buddha.com/inner.revol.thurman.htm>

17. These issues were burning issues for me, and I condensed the substance of my analysis into an essay entitled "Another View on Whether Tibetan Buddhism is Working in the West." <http://www.american-buddha.com/tib.bud.working.htm> For several years, this individual essay was one of the primary drivers of site visits from site visitors who were looking for Buddhist-related information. The article became a frequent source of student inquiry, and several well-known Buddhist lamas published responses to "Another View" on the Internet. Dharma is Independent of Culture <http://www.purifymind.com/IV5.htm>; East-West, West-East by Dzongsar Khyentse Rinpoche, 6/12/2009 http://gomde-dk-sangha.blogspot.com/200 ... ngsar.HTML. My argument shifted the debate toward an attitude of rational self-scrutiny by Tibetan Buddhist students, as the citation to "Another View" in several scholarly Buddhist papers regarding the evolution of American Buddhism have indicated. See, B. Dawei, Conversion to Tibetan Buddhism: Some Reflections http://www.bhutanstudies.org.bt/publica ... m2012.pdf; see also, M. Restrepo, Transmission, Legitimation, and Adaptation: A Study of Western Lamas in the Construction of ‘American Tibetan Buddhism’ <http://digitalcommons.fiu.edu/cgi/viewcontent.cgi?article=1934&context=etd

18. After having formulated my thesis in "Another View," I felt it necessary to support it with facts and scholarly evidence. I began conducting Internet research into various topics that were essential to supporting my thesis: (1) The Western philosophy of rational inquiry; (2) The evils of cultism; (3) The role of mythology in deranging the minds of human individuals and the political bodies we form; (4) The power of corporations to control individuals through media, symbols, and mythology; (5) The aggregation of occult power in the hands of civil authorities; and (6) The influence of spiritual groups and cults on the course of human history.

19. Inquiring into these topics, I quickly discovered how limited my education had been. Primarily, it was composed of gaps, and I thought to fill those gaps by reading books, of course. But I had a problem. I didn't find it easy to read. Although I had had flawless vision throughout childhood and early adulthood, in my late 40's, I had a hard time reading due to blurry vision that reading glasses did not seem to remedy. I was therefore pleased to find that the fonts on the Internet could usually be scaled up, and so I could read virtually any book easily. The screen provided all of the illumination I needed, and typesize could generally be manipulated until it was readable. So I began to study everything I could find on the Internet in my chosen areas of inquiry. Of course I consumed a great deal of public domain materials -- much of the core material that I published about American politics and the great patriots, like Thomas Paine, was obtainable in public domain due to the relatively ancient nature of the material.

20. However, I quickly discovered there was a limit to what I could achieve in terms of intellectual growth by relying exclusively on public domain sources.

21. Due to the Sonny Bono Copyright Extension Act of 1978, the 56-year maximum term of copyright was extended to 95 years for corporate works-for-hire. Thus, the central creative works of my childhood will not come into the public domain until I and most other baby boomers are in our graves. Thus, I discovered much to my disappointment, that the public domain was a vital, but inherently limited and insufficient resource for scholarship. Within the public domain, there are great numbers of valuable materials that are difficult to find or have "format" problems that make the content invisible to Google. This is a common problem with the scanned PDFs of typewritten transcripts, for example, of Congressional hearings, and court proceedings. My work as a librarian has probably focused as much on getting valuable public domain documents out of their PDF "prisons," and into digitally searchable HTML script. For example, ABOL was among the first websites to publish the infamous Northwoods Joint Chiefs of Staff document detailing plans to create a phony casus belli to justify a United States invasion of Cuba. And ABOL was the first to pull the full text of the Northwoods document out of PDF and put it on the website in HTML, thus allowing interested persons to find the document more easily on Google. ABOL performed the same public service, transforming PDFs to HTML with respect to many important government documents.

22. The American Buddha website grew organically from my own studies, and is a bit of a homespun creation. I grew up sewing -- quilts, among other things, and my websites are like quilts, stitched together with hyperlinks to create relationships between topics that my studies have shown me are related. Sometimes, I have discovered connections between topics that some scholars and many media outlets don’t connect, assuming they cover the topics at all; accordingly, to enhance the transformative value of the Library's work, the Library uses hyperlinks to make novel, accurate connections between topics whose relations are ignored.

23. American Buddha is dedicated to providing politically-relevant information to Library Patrons, and the scope of that information is focused on various scholarly inquiries I have conducted into numerous topics. Over the years, I have condensed the substance of my investigations into essays that are presented on the first page and the Site Map of the website. As I study new areas, I create new site tabs and site maps and new front pages to record where I have been, and share my insights with the reading public and library patrons. Over the years, the American-Buddha.com website has had several new front pages added, and they are collected and viewable at:



24. These front pages were composed retrospectively and placed hyperlinks to recently added content in a context of meaning that reflects both serious and fanciful themes. For me, these new pages were an opportunity to review the new reading and research that had driven the last wave of web-site creation, and bring Library Patrons up to date on new additions to the digital archive of works that I am developing for the public benefit (the “ABOL Archive”).

25. Because I came to enjoy reading off the computer screen much more than I ever had when reading off the page, I started scanning more books simply to be able to read them. Initially, I photocopied books and fed the sheets through a sheet-feed scanner. Now, unless the book is very costly, I usually destroy it to scan it, slicing the pages out of the book and feeding them through a two-sided scanner. Once processed like this, a paper volume is no longer physically loaned out, because it has no binding. Only the digital copy has real utility, and that utility is much greater than that of a paper book.

26. Initially, I would read every book simultaneously with posting it to the Internet, but as I became more devoted to providing Library Patrons with material, the process moved beyond being a vehicle for personal study, and became a project to share my discoveries with scholars worldwide. Thus, sometimes I am only able to skim a book while converting it to HTML Chapters, but even then, I try to add transformative elements such as quotes from related materials, photographs that are illustrative of ideas expressed in writing, and hyperlinks to related materials.

27. My decisions about what to read next are driven by my intention to grow the ABOL Archive in a way that enriches the existing collection by providing backup research materials and increasing informational density about the topics that the Websites explore. When I read and convert a new book to HTML, I always reproduce copyright and author information, and I am particularly attentive to proofread the notes and bibliography, so bibliographic information transfers to the web version accurately and completely. I then review the bibliography and notes carefully, considering whether I can hyperlink to such content because it is already in the ABOL Archive, or whether I should consider acquiring a new work to make the collection more comprehensive. Growing the ABOL Archive in this way enhances its utility for scholars as a transformational resource to enhance scholarship by tapping the richness of digital resources.

28. One of the Four Titles that is the subject of this litigation is a good example of how challenging and valuable footnotes and bibliography can be. On the Nature of the Universe, at http://www.american-buddha.com/on.nature.toc.htm. The process of converting scanned PDFs of a book with such a complex set of notes and bibliography is very time-consuming. I now have the task streamlined. Suffice it to say that a scholarly book of 300 pages in length can easily consume well over 12 hours of time in the process of converting it to HTML script. When works that include many charts or graphs or images are involved, the task becomes much more complex. Thus, the notion that it is "easy" to create an Internet library from scans of paper books is facile and entirely erroneous. If I had been paid $30 per hour for all the work I have done to create the Library archive from paper documents and locked-up PDFs, it would be worth well over $1 million. This is completely without considering the expenses of operating the website, that currently pencil out to approximately $300 per month just for a rented server and ancillary expenses, not including the budget for new book purchases.

29. Librarians class books according to literary categories. On the Nature of the Universe and The Golden Ass are English translations of ancient Latin works. Oil! by Upton Sinclair and It Can’t Happen Here by Sinclair Lewis are classics of American literature.

30. To understand the nature of any work of linguistic expression, one must not only look at what is expressed, but at how that work is used by the typical reader. In this case, based on my professional experience and study, all Four Titles are typically read for educational purposes by students. The Golden Ass is a Latin work that was brought to my attention by my daughter, who was a Classics major at Stanford during the early years when I was building American-Buddha.com. On the Nature of the Universe, another Latin work was familiar to me from college studies in philosophy and the humanities. Beyond the student market, it is my opinion that translations of Latin classics are not popular reading material. Oil! and It Can’t Happen Here are of course modern classics that have appeal beyond the student market, but based on what I have learned about visitors to the American Buddha Websites over the years, it is my opinion that most of the people coming to read the philosophical and literary work are high school and college students and serious scholars.

31. I bought each of the Four Titles for American Buddha as bound paper books.

32. For scholarly purposes, American Buddha’s HTML Chapters of the Four Titles provide the opportunity to practice modern scholarship with the full arsenal of digital searching and text-mining techniques.

33. The transformative features of American Buddha’s use also include making the Four Titles readable by the blind, using features available on a standard iPhone, or on a desktop computer, using “screen reader” technology like NonVisual Desktop Access (“NVDA”) that “reads the text on the screen in a computerized voice.”

34. Because I own each of the Four Titles in a paper book form, I have all of the rights that accrue to an owner of a paper copy of a purchased copyrighted work, including the right to scan the books to magnify them on a computer screen. I also have the right to store my scans on my own web-server in HTML Chapters, where I can access them via URL. Infringement could only arise if someone other than myself, who lacks the rights of ownership I possess, accessed my books in a way that infringes Penguin’s rights. To my knowledge, based on reviews of and discussions about the web traffic for the Four Titles, there has never been any infringing use by a Library visitor of any of the Four Titles.

35. The Four Titles have all been scanned into Google Books, are available as “snippets” through the Google Books search engine, and are available elsewhere on the Internet as HTML pages and downloads. Penguin sued Google over the Google Books project in the Southern District of New York, but dismissed the action after it was transferred to Judge Chin. (Dismissal and Complaint jointly attached as Exhibit 1.)

36. American Buddha takes paper books that it owns, and transforms them into digital text by scanning them into Adobe Acrobat PDF, running Optical Character Recognition (“OCR”) on the PDF, cutting and pasting the rough digitized text into Microsoft Front Page HTML Editor, removing all the formatting, correcting the typography, adding footnotes and images, and hyperlinking the page to related materials. Then, one chapter of each title is copied and pasted into an individual HTML web page to create “HTML Chapters,” each with its unique URL, that are uploaded to the ABOL Archive on a web-server.

37. A paper book thus processed and placed in the ABOL Archive has been thoroughly transformed. First, each HTML Chapter has become part of a curated collection of carefully chosen philosophical, political, and literary books, that can be digitally searched to reveal references to the same word in all of the works within the collection, and the works serve as reference material for related works in the collection. Second, the original text, that was readable only by human eyes, has now been transformed into digital text in the body portion of the HTML code that can be: (a) transmitted via web servers, (b) analyzed by search engines, (c) processed with analytical programs that perform textual analysis and text mining, (d) read by screen readers for the blind and other disabled persons, (e) used by scholars to look up quotes, check student papers for accuracy, provide a URL citation so other scholars can find reference works, perform a site-specific search of the ABOL Archive as described above, or perform textual analysis and data mining.

38. I became aware of the value of websites that work well with screen readers after this litigation began, and am now familiar with the technology that is discussed in the Testimony of Scott LaBarre, the President for the National Association of Blind Lawyers attached as Exhibit 2, and the Declaration of George Kerscher submitted in Author’s Guild v. HathiTrust, Case No. 11-cv-6351 (S.D.N.Y. 2012), attached as Exhibit 3. Mr. LaBarre’s testimony argues that transforming text from paper to digital format will increase access to everyone and eliminate much of the need for special accommodations to the blind. Mr. Kerscher’s testimony was apparently quite influential in the decision of the HathiTrust case, and certainly enlightened me to the value of digitizing text from paper formats:

“Today, blind readers access digital books with a screen reader or built-in text-to-speech software, both of which can output information either as a computerized vocalization of the text or as braille, through a refreshable braille pad. Unlike books narrated by human readers, accessible digital books can be read as quickly as the reader wants, or even skimmed. Further, they provide significant search and navigation capabilities, allowing readers to jump from chapter to chapter, paragraph to paragraph, and sentence to sentence, as well as to discern spelling. This allows blind readers to re-read certain sections of a work they might not grasp on the first pass, just as a sighted reader may re-read a complicated passage.”

(Exhibit 3, Kescher Dec. ¶ 21.)


39. Mr. Kerscher also explains why scanning and OCR are necessary, and how providing additional metadata is very helpful for the blind. (Exhibit 3, Kescher Dec. ¶¶ 22 - 24.) Mr. Kerscher explains that not only the blind, but also disabled “low vision readers” can use screen-readers to “use print and sound at the same time,” by “visually discern[ing] paragraphs or chapters while using sound to read characters and words.” (Exhibit 3, Kescher Dec. ¶ 25.) I respectfully request the Court to take judicial notice of these documents pursuant to F.R.E. 201.

40. Although the HTML Chapters are linked one to the next, Library Patrons cannot download a “local file” of an entire chapter, much less a full copy of any of the Four Titles from the Websites. Patrons are restricted to browsing the HTML Chapters, and are notified that unnecessary copying is unlawful by the Copyright Notice that is made required reading by the First-visit Popup (Exhibit 4), and is reiterated in a highlighted box that appears at the top of each of the Four Titles. (Exhibit 4.) HTML Chapters do not supplant paper books because, for one thing, they disappear off your computer as soon as you close the browser. If the teacher requires that you “buy the book,” access to the HTML Chapters via URL cannot substitute for the purchase. Nor are the HTML Chapters good raw material for illicit copying, because compiling all of the HTML Chapters to create a single file of a single book is so time-consuming that in my opinion, no one would bother to do it. Nor would anyone create such a file to print a paper copy, because the cost of printing out an entire book with a desktop printer would be counterproductive, in time and materials. American Buddha’s HTML Chapters are good for digital scholarship, not for fulfilling the reading requirements or relaxing with a good book.

41. American Buddha performs all of its activities for the sake of public benefit, with the Librarian providing all of the labor and funding for the American Buddha Online Library. American Buddha spends money on its operations that it does not even hope to recoup in donations. Hosting costs, estimated for 2013 and 2014, are currently $250.00 a month against total pay pal revenues of less than $300.00 during the same time period. The purposes of American Buddha are to fulfill political, social and religious goals that require the education and edification of humanity. The library nature of the Websites is announced to all new visitors via a pop-up announcement.

42. On the Nature of the Universe, “De rerum natura” in Latin, is a poetic work on Epicurean philosophy by Lucretius, a Roman philosopher who lived in the first century B.C. The Latin original is of course in the public domain, but Penguin owns the copyright on an English prose translation by Ronald E. Latham first published in 1950. Translation of the classics from Latin is basic scholarly work, and Latin translation is available commercially at budget rates. Thirty-six other Latin scholars, and Latham, have translated Lucretius’ novel ideas into English. De rerum natura has a Wikipedia page at http://en.wikipedia.org/wiki/De_rerum_natura. The Latham translation of On the Nature of the Universe is downloadable in PDF from Scribd.com at https://www.scribd.com/doc/85550506/The ... -Lucretius.

43. The Roman author Apuleius wrote The Golden Ass in the second half of the second century A.D. Modern scholars consider The Golden Ass the first Latin novel of which we have a surviving copy. Apuleius tells the story of Lucius, a foolish man turned to a donkey by meddling in sorcery, who suffers greatly in a series of misadventures until he is restored to human form by a goddess’ divine intervention. The book is a scholarly staple, with its own Wikipedia page with a full summary of the plot that leaves no mystery as to its twists, turns, and outcome. The novel is stuffed with bizarre, salacious tales involving torture and cruelty to women. While the original was certainly creative, the work copyrighted by Penguin is a translation by E.J. Kenney.

44. In my opinion, Kenney’s translation is a reference work used by students reading books assigned by their teachers, who usually must buy a paper book as a class requirement. In my opinion, virtually all sales of a work like The Golden Ass are compulsory purchases made by students fulfilling educational reading requirements. Thus, American Buddha’s provision of such works to students in digital form, as in the GSU case, is for an educational, non-commercial purpose. The Kenney translation of The Golden Ass is available for download in three formats (.epub, .jpg, and .mobi) at http://kickass.filesoup.com/apuleius-th ... 6510.HTML#. (Exhibit 10.)

45. In Oil!, Upton Sinclair, whose career was ignited by the publication of The Jungle, a shocking expose of the Chicago stockyards, depicted the personal and commercial machinations of Southern California oil tycoons. The book is the subject of a Wikipedia page at http://en.wikipedia.org/wiki/Oil! that spells out the characters and plot in detail. In my opinion, Oil! is most often purchased by students in fulfillment of course reading requirements, and used primarily as educational material in literature and social studies classes. Oil! is available online in ePub or Mobi formats at no charge from https://libcom.org/library/oil-upton-sinclair

46. It Can’t Happen Here was written by Sinclair Lewis, the author of Arrowsmith, Elmer Gantry, Babbitt, and Main Street. It Can’t Happen Here tells the story of a homegrown fascist takeover of America, seen through the eyes of a small town newspaperman. It is a necessary companion work to Orwell’s 1984 and Huxley’s Brave New World, an essential tome for social studies and literature classes in high school and college. In my opinion, It Can’t Happen Here has primarily educational value, is mostly read by students when assigned by teachers, and is consulted in its online form for performance of those scholarly tasks that are best done with a digital copy of the work that can be digitally searched and otherwise handled in transformative fashion. It Can’t Happen Here is available at no less than six locations on the Internet at no charge from the following online locations.

(1) Project Gutenberg Australia

• in HTML format at http://gutenberg.net.au/ebooks03/0301001h.HTML,
• in TXT format at http://gutenberg.net.au/ebooks03/0301001.txt,
• in ZIP file at gutenberg.net.au/ebooks03/0301001.zip.

(2) www.feffibooks.com/book/3659/it-can-t -happen-here.

(3) www.goodrl.ads.com/ebooks/download/1137 ... appen_Herl.

(4) www.1..-booksdirl.ctory.com/dl..tails .php?ebook- 3722


47. When the URL for an HTML Chapter is clicked by a Library Patron, it generates a separate page request, and the total number of page requests in any given month for any of the Four Titles is essentially nonexistent. (Exhibits 6, 7 and 8.) Indeed, aside from Oil!, I don’t believe anyone is looking at the Four Titles, because the vast majority of the hundreds of visits to The Golden Ass at American-Buddha.com and NaderLibrary.com during the last several months have all been caused by my visits, because I am preparing a new version of the presentation, and have been referencing the existing pages. Accordingly, the amount taken of the Four Titles is only as much as Library Patrons need to perform scholarly use by accessing discrete HTML chapters, and at present, is entirely nonexistent. Such use does not equate to the taking of the entire work, because, like the Google Books system of providing “snippets” of scanned works found lawful in Author’s Guild, American Buddha’s division of the works into HTML Chapters restricts access to that portion of the material necessary to accomplish scholarly use.

48. The American Buddha method of providing access only to HTML Chapters via discrete URLS, and simply asking people not to infringe, works. The statistics show that Library Patrons have no interest in reading the entire text of any of the Four Titles.

49. Apparently Penguin had licensed some of its works prior to November, 2011, but it is unknown whether Penguin offered library licenses for digital versions of any of the Four Titles before November 2011, when it announced that it would “no longer allow library lending of new Ebook titles.” (Exhibit 9.) That was followed by a January 2012 announcement that put further limitations on library lending of audiobooks, and was followed by a February 2012 announcement that Penguin had stopped licensing Ebooks altogether through digital library service provider OverDrive. (Exhibit 9.) Penguin Ebooks did not become available on OverDrive until September 25, 2013, and even then, only with a crippling limitation for the most popular Ebook platform – the Amazon Kindle. The Kindle device’s revolutionary wireless download system wouldn’t work for Penguin books, so libraries could only lend the works by physically transferring the media via the Kindle side-loading USB port. (Exhibit 9.) After an outcry, Penguin stopped using the “crippleware” that prevented wireless delivery, and allowed libraries to transfer works over the air, as Amazon intended. (Exhibit 9.)

50. In my opinion, American Buddha’s practices, even if widely practiced by libraries, would not harm book sales or digital sales. I reasonably infer this from the very modest number of visits, if any, that HTML Chapters of the Four Titles receive. One might presume that more online availability would increase media quantity consumption, but that is not the case, because each HTML Chapter’s unique URL can satisfy the needs of the small number of users, and until usage spikes unforeseeably, multiple access points are redundant, or at least useful only for addressing different readerships, as American Buddha’s two Websites do. American-Buddha.com had the personal religious genesis described above, and NaderLibrary.com developed from the desire to make Library-sponsored knowledge available in a secular context.

51. For all of the above reasons, I submit that the placement of the Four Titles in the ABOL Archive for the purposes described hereinabove is fair use, and should be held to be lawful, non-infringing, non-commercial, educational activity, and accordingly request the Court to deny the plaintiff’s motion for summary judgment.

I hereby declare, pursuant to the provisions of 28 U.S.C. § 1746 (2), under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.

Executed at Tucson, Arizona on January 20, 2015

____________________________
Tara Lyn Carreon, Declarant

_______________

Notes:

1. Kremen v. Cohen, 337 F.3d 1024 (9th Cir. 2003).
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Re: Penguin Group Inc. vs. American Buddha

Postby admin » Fri Jul 17, 2015 4:42 am

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Penguin Group (USA) Inc.,
Plaintiff,
vs.
American Buddha,
Defendant

Case No.: CV-13-02075-TUC- JGZ

ORDER

Pending before the Court is a Motion for Summary Judgment filed by Plaintiff Penguin Group (USA) Incorporated (“Penguin”) on December 16, 2014. (Doc. 160.) Defendant American Buddha filed a response to the Motion on January 20, 2015 and Penguin timely replied. (Docs. 168, 169.) Penguin seeks summary judgment on the single claim alleged in its Second Amended Complaint: that American Buddha engaged in copyright infringement in violation of 17 U.S.C. § 501 by electronically reproducing four literary works copyrighted by Penguin. For the reasons stated herein, the Court will grant the Motion. [1]

FACTUAL AND PROCEDURAL BACKGROUND

Penguin owns publication rights to and currently publishes the four works (“the Works”) at issue in this case: Oil! by Upton Sinclair (“Oil!”); It Can’t Happen Here, by Sinclair Lewis (“It Can’t Happen Here”); E.J. Kinney’s translation of The Golden Ass, by Apuleius (“The Golden Ass”); and R.E. Lantham’s translation of On the Nature of Things, by Lucretius (“On the Nature of Things”). (PSOF 1-4, 7, 36.)2 Penguin actively markets and sells each of the Works. (PSOF 7.) American Buddha does not have permission to publish the Works. (PSOF 8.)

American Buddha makes complete copies of the Works and publishes them on two websites: www.americanbuddha.com and www.naderlibrary.com (“the Websites”). (PSOF 9.) In order to post the Works on its Websites, American Buddha removes pages from the binding of the physical Works and processes them electronically into a .htm file. (PSOF 13.) The resulting text on the Websites is identical to the text in the physical copies of the Works, but includes formatting alterations such as bold print, links and images. (PSOF 14, 21.) American Buddha publishes the entirety of the Works. (PSOF 15.) It creates one page on the Websites for every chapter of each Work, each linked by “go to next page” prompts, through the entirety of the Work. (PSOF 15.) In addition to the files on the Websites, American Buddha has made at least six copies of the files on multiple computers and backup media, including laptops and hard drives. (PSOF 24.)

American Buddha publishes the Works for the specific purpose of providing them to the public. (PSOF 16.) The Websites are available to anyone with an internet connection. (PSOF 10.) Each of the Works posted on American Buddha’s Websites are accessible via search engines such as Google and Bing. (PSOF 19.) Visitors to the Websites may read the entire content of the Works online, save the Works in their entirety, or print the Works in their entirety. (PSOF 20, 22.) With one exception, the Works have been available on the Websites continuously since March 2013. (PSOF 26.) American Buddha does not know, and has no way of knowing, how many people have accessed the Works on the Websites since March 2013. (PSOF 29.) American Buddha solicits and receives donations from the public on both Websites. (PSOF 23.)

Elda Rotor, the Associate Publisher and Editorial Director of Penguin Classics at Penguin Random House, testified that the availability of the Works on American Buddha’s Websites jeopardizes Penguin’s business because it robs Penguin of the ability to control the quality distribution of its works and harms Penguin’s reputation as a publisher. (PSOF 37.) According to Rotor, the Works as reproduced on American Buddha’s Websites “fall far below Penguin’s standards for readability for publication.” (Doc. 162, pg. 4.) American Buddha’s Websites also provide -- for free -- content that customers and distributors have purchased from Penguin. (PSOF 38, 43.) As a result, Rotor testified, the presence of the Works on American Buddha’s Websites harms Penguin’s reputation for excellence as well as its relationships with customers, educators, students, authors, and distributors. (PSOF 37-43.)

This case has a long and complicated procedural history, not all of which is relevant to the Court’s resolution of the pending Motion. Penguin initiated this action against American Buddha in the United States District Court for the District of Oregon on March 22, 2013. (Doc. 1.) On December 6, 2013, the case was transferred to this Court. (Docs. 84, 85.) On July 28, 2014, this Court granted Penguin’s Motion for Leave to Amend its First Amended Complaint; Penguin filed a Second Amended Complaint on July 29, 2014. (Docs. 124, 125.) In its Second Amended Complaint, Penguin alleges one count of copyright infringement in violation of 17 U.S.C. § 501 arising from American Buddha’s online publication of the Works. (Doc. 125.) Penguin seeks injunctive relief prohibiting American Buddha from directly or indirectly infringing on Penguin’s copyright rights in the Works. (Doc. 125.) Penguin now moves for summary judgment on that claim.

STANDARD OF REVIEW

In deciding a motion for summary judgment, the Court views the evidence and all reasonable inferences in the light most favorable to the party opposing the motion. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Eisenberg v. Insurance Co. of North America, 815 F.2d 1285, 1289 (9th Cir. 1987). Summary judgment is appropriate if the pleadings and supporting documents “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Material facts are those “that might affect the outcome of the suit under the governing law.” Anderson, 477 U.S. at 248. A genuine issue exists if “the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Id.

ANALYSIS

Pursuant to 17 U.S.C. § 106, the owner of a copyright has the exclusive rights to reproduce, distribute and display its copyrighted works. 17 U.S.C. § 107 creates an “fair use” exception to copyright protection for the “fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” Here, it is undisputed that American Buddha has infringed on Penguin’s copyright by publishing the Works on its Websites. (Doc. 168, pg. 4; Doc. 169, pg. 1.) The parties agree that the issue before the Court is whether, as a matter of law, American Buddha’s reproduction of Penguin’s copyrighted works fell within the “fair use” exception of the Copyright Act.

a. American Buddha’s use of the Works does not fall within the fair use exception

In determining whether the fair use exception applies, the Court considers four factors: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. See 17 U.S.C. § 107. Because the fair use exception is an affirmative defense, American Buddha bears the burden of proving that its publication of the Works falls within the exception. Monge v. Maya Magazines, Inc., 688 F.3d 1164, 1170 (9th Cir. 2012). Reviewing these four factors in the light most favorable to American Buddha, the Court concludes that American Buddha’s publication of the Works does not constitute a fair use as a matter of law and that Penguin is entitled to summary judgment on its copyright infringement claim.

1. The purpose and character of American Buddha’s use is nontransformative

In evaluating the purpose and the character of the use, the Court examines whether the use is for “criticism, or comment, or news reporting . . . whether the new work merely supersedes … the original creation … or instead adds something new … in other words, whether and to what extent the new work is transformative.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578-79 (1994) (citations and quotations omitted). “The goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works.” Id. at 579. A use is transformative if it does something more than repackage or republish the original copyrighted work. Authors Guild, Inc. v. HathiTrust, 755 F.3d 87, 96 (2d Cir. 2014). The inquiry is whether the work “adds something new, with a further purpose or different character, altering the first with new expression, meaning or message....” Campbell, 510 U.S. at 579. Another element of the first factor analysis is whether the work's “purpose” is commercial or has a non-profit aim. See Mattel, Inc. v. Walking Mountain Productions, 353 F.3d 792, 803 (9th Cir. 2003) (citing Campbell, 510 U.S. at 584). The more transformative the new work, the less the commercialism of the use may weigh against a finding of fair use. Campbell, 510 U.S. at 579. The commercial-noncommercial distinction “centers not on whether a user intends to line his own pockets, but rather on ‘whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.’” Society of Holy Transfiguration Monastery, Inc. v. Gregory, 689 F.3d 29, 61 (1st Cir. 2012) (citing Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 562 (1985)).

Here, American Buddha reproduces the Works in their entirety. The version of the Work posted on American Buddha’s Websites differs from Penguin’s printed version only in that American Buddha includes formatting alterations such as bold print, includes links and images, and converts the text to .htm format. Where a “substantial portion” of the infringing work is copied verbatim from the copyrighted work, it is not transformative: “a work composed primarily of an original, particularly its heart, with little added or changed, is more likely to be a merely superseding use, fulfilling demand for the original.” Campbell, 510 U.S. at 587-88. There is little transformative about copying the entirety or large portions of a work verbatim. See Los Angeles Times v. Free Republic, 2000 WL 565200, *6 (C.D. Cal. 2000) (collecting cases). Thus, this factor does not support American Buddha’s claim of fair use.

American Buddha argues that it transforms the Works because the digital format used by American Buddha can be read by screen-reader technology, making it accessible to sight-impaired readers. (Doc. 168, pg. 8.) American Buddha also argues that its digital reformatting enables readers to engage in digital searching and text-mining techniques, and that American Buddha adds footnotes, hyperlinks and images to further this goal. (Id.; Doc. 168 pgs. 9-10.) As a threshold matter, for the reasons stated in footnote 2 of this Order, American Buddha has failed to properly dispute Penguin’s characterization of the formatting applied to the Works by American Buddha with a reference to a specific, admissible portion of the record supporting American Buddha’s position. [3] Regardless, even if American Buddha’s factual assertions were credited, the Court would still conclude as a matter of law that American Buddha’s use of the Works is not transformative. American Buddha has essentially “repackage[d] or republish[ed] the original copyrighted work.” Author’s Guild, 75 F.3d at 96. The formatting changes applied by American Buddha, even if they make the Works more accessible to sight-impaired readers or researchers, do not imbue the Works with new expression or meaning. [4]

Nor is the Court persuaded by American Buddha’s claim that, because it is a nonprofit institution, its use of the Works is the type of nonprofit educational purpose recognized as fair use. The case cited by American Buddha in support of this assertion -- Cambridge University Press v. Patton, 769 F.3d 1232, 1267 (11th Cir. 2014) – holds that use of excerpts of printed works “for teaching purposes by a nonprofit, educational institution favors a finding of fair use under the first factor, even when the use is nontransformative in nature.” The use at issue in this case differs from that in Cambridge University in two material respects. First, American Buddha re-publishes the Works in their entirety on the internet, whereas the court in Cambridge University repeatedly noted that the copies at issue in that case were excerpts provided to students enrolled in specific courses. Second, American Buddha is not clearly recognized as providing “a broader public benefit-furthering the education of students at a public university,” a fact given significant weight by the Cambridge University court.5 Id. In addition, although American Buddha is a non-profit organization, it solicits and receives donations from the public on its Websites and publishes the Works for the specific purpose of providing them to the public. Thus, American Buddha stands to gain recognition and financial support through its posting of the Works online. See Gregory, 689 F.3d at 62 (finding that first factor weighs against fair use where defendant benefitted by being able to provide the protected works free of cost to members of his faith and stood to gain recognition within his religious community for providing electronic access to the protected works). Accordingly, the Court concludes that the first factor weighs in favor of Penguin.

2. The copyrighted Works are creative in nature

The second statutory factor, the nature of the copyrighted work, “recognizes that creative works are closer to the core of intended copyright protection than informational and functional works, with the consequence that fair use is more difficult to establish when the former works are copied.” Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1402 (9th Cir. 1997) (citations and quotations omitted). This factor is less significant than the other three factors in the overall fair use balancing. Id.

Here, Oil! and It Can’t Happen Here are fictional works and therefore at the core of copyright protection. The Golden Ass and On the Nature of the Universe, as translations of creative works, “fall closer to the creative end of the copyright spectrum than the informational or factual end.” Gregory, 689 F.3d at 62. Accordingly, this factor weighs in favor of Penguin. [6]

3. American Buddha publishes the Works in their entirety

The third factor -- “the amount and substantiality of the portion used in relation to the copyrighted work as a whole” – considers whether the portion of the copyrighted work that is reproduced is reasonable in relation to the purpose of the copying. See Campbell, 510 U.S. at 586. A reproduction that takes “no more [] than necessary” to accomplish its goal is more likely to be considered fair use. Id. at 589. Conversely, “while wholesale copying does not preclude fair use per se, copying an entire work militates against a finding of fair use.” Worldwide Church of God v. Philadelphia Church of God, Inc., 227 F.3d 1110, 1118 (9th Cir. 2000) (quotations omitted).

Here, American Buddha has reproduced the Works in their entirety. That fact, standing alone, tips this factor in favor of Penguin. In addition, American Buddha reproduces the Works in their entirety with the specific purpose of making the Works available to the public. This is presumably the same purpose that Penguin had in mind when it obtained the copyrights for the Works, printed them, marketed them and sold them. See Worldwide Church, 227 F.3d at 1118 (a finding that the alleged infringers copied the material to use it for the same intrinsic purpose for which the copyright owner intended it to be used is strong indicia of no fair use).

American Buddha’s claim that it does not “use” the entirety of the Works because patrons of its Websites may only view the Works one chapter at a time is without merit. The case law cited by American Buddha does not support this construction of the third factor. Contrary to American Buddha’s assertion (Doc. 168 n. 20), the Cambridge decision does not hold that the defendant “used” a copyrighted work only to the extent that students downloaded it. American Buddha also attempts to analogize this case to Author’s Guild, arguing that patrons of its Websites read only snippets of the Works and therefore this case is similar to the searchable database created in Author’s Guild. For the reasons previously stated in footnote 4 of this Order, this Court concludes that this case is factually distinguishable from Author’s Guild. The “portion used,” as the term is used in 17 U.S.C. § 107, refers to the infringer’s use, regardless of the portions reviewed or received by the infringer’s patrons. See, e.g., Los Angeles News Service v. Tullo, 973 F.2d 791, 797 (9th Cir. 1992) (relevant inquiry for purposes of copyright infringement is the material reproduced by the infringer, not the ultimate use to which the infringer’s customers may put that material). Accordingly, this factor weighs in Penguin’s favor.

4. The effect of the use upon the potential market for the Works supports a finding that American Buddha’s use is not a fair use

In evaluating the effect of the infringer’s use upon the potential market for or value of the copyrighted work, courts “consider not only the extent of market harm caused by the particular actions of the alleged infringer, but also whether unrestricted and widespread conduct of the sort engaged in by the defendant ... would result in a substantially adverse impact on the potential market for the original.” Campbell, 510 U.S. at 590 (quotations omitted). The importance of the fourth factor varies with the relative strength of the other factors. See Campbell, 510 U.S. at 590 n. 21.

Here, because the other three factors weigh in favor of Penguin, Penguin’s hurdle with respect to the fourth factor is low. Nevertheless, the Court concludes that the fourth factor weighs in Penguin’s favor. American Buddha argues that Penguin has failed to present financial data regarding the market harm caused by American Buddha’s publication of the Works. Penguin is under no such obligation, however, because “the fourth factor of the fair use inquiry cannot be reduced to strictly monetary terms.” Gregory, 689 F.3d at 64. “The Copyright Act looks beyond monetary or commercial value and considers other forms of compensation for a work.” Id. In this case, the compensation that Penguin derives from its publication of the Works includes the preservation of its reputation for excellence and the strength of its relationships with distributors and customers. American Buddha’s use of the Works jeopardizes Penguin’s business because it robs Penguin of the ability to control the quality distribution of its works and harms Penguin’s reputation as a publisher. It also provides -- for free -- content that customers and distributors have purchased from Penguin, frustrating Penguin’s goals and upsetting purchasers who have paid fair value for the Works.

In addition, unrestricted and widespread conduct of the sort engaged in by American Buddha would essentially gut the potential market for the Works. “If anyone could freely access the Works, electronically or otherwise, the [plaintiff] would have no market in which to try and publish, disseminate, or sell its translations.” Gregory, 689 F.3d at 65. American Buddha is engaged in wholesale reproduction of the Works in their entirety. Because American Buddha’s use “supplants or supersedes” Penguin’s original copyrighted Works, it is likely to cause a substantially adverse impact on the potential market of the original. Sony Computer Entertainment, Inc. v. Connectix Corp., 203 F.3d 596, 607 (9th Cir. 2000) (citations omitted). Because American Buddha “offered identical or near-identical versions of the creative Works on [its] Website for the precise purpose for which [the plaintiff] had created the Works in the first place, thereby harming their potential market value,” Gregory, 689 F.3d at 65, the Court concludes that this factor weighs in favor of Penguin.

b. Penguin is entitled to a permanent injunction enjoining American Buddha from publishing the Works or any other work copyrighted by Penguin

Because American Buddha concedes that it is in violation of Penguin’s copyright and because the Court concludes as a matter of law that American Buddha’s use of the Works does not constitute a fair use, Penguin is entitled to judgment and its requested injunctive relief. See 17 U.S.C. § 502. American Buddha did not address Penguin’s request for injunctive relief in its response to Penguin’s Motion for Summary Judgment; the Court construes American Buddha’s failure to respond as consent to the relief requested. See LRCiv 7.2(i) (failure to file answering memoranda may be deemed a consent to the granting of the motion); see also Pelfresne v. Village of Williams Bay, 917 F.2d 1017, 1023 (7th Cir. 1990) (“A litigant who fails to press a point by supporting it with pertinent authority, or by showing why it is sound despite a lack of supporting authority ... forfeits the point. We will not do his research for him.”). Penguin has demonstrated that American Buddha’s use of the Works has caused and will continue to cause irreparable harm to Penguin in the form of reputational damage, encouraging widespread infringement that cannot be remedied by damages, and by robbing Penguin of the right to control its intellectual property. See Apple Inc. v. Psystar Corp., 658 F.3d 1150 (9th Cir. 2011) ((affirming grant of preliminary injunction because damage to brand, business reputation and goodwill constituted irreparable harm). In addition, American Buddha has indicated that it intends to continue infringing on Penguin’s copyright. The operator of American Buddha’s Websites has testified, with respect to the Works: “I’m not going to take them off. … This is a library. They’re in the -- in the archive, that’s it. You’re not getting them off.” (PSOF 28.) Accordingly, the Court concludes that injunctive relief is appropriate.

Penguin seeks an injunction prohibiting American Buddha from using the Works as well as any other works published and copyrighted by Penguin. Because American Buddha’s liability has been determined, American Buddha has a history of continuing infringement, and a significant threat of future infringement remains, the Court concludes that Penguin is entitled to its requested relief. See Psystar Corp., 658 F.3d at 1161 (citing Walt Disney Co. v. Powell, 897 F.2d 565, 568 (D.C. Cir. 1990) (“Where, as here, liability has been determined adversely to the infringer, there has been a history of continuing infringement and a significant threat of future infringement remains, it is appropriate to permanently enjoin the future infringement of works owned by the plaintiff but not in suit.”).

CONCLUSION

1. Penguin’s Motion for Summary Judgment filed on December 16, 2014 (Doc. 160) is GRANTED;

2. American Buddha is permanently and immediately enjoined from reproducing, distributing and/or displaying the Works, and any other publication for which Penguin holds a copyright, without authorization from Penguin;

3. American Buddha must bring its conduct into compliance with this Court’s injunction within fourteen days of the date this Order is filed;

4. The Court expressly retains jurisdiction to enforce the judgment and permanent injunction pertaining to this action;

5. The Clerk of the Court shall enter judgment and close the file in this matter.

Dated this 8th day of May, 2015.

Jennifer G. Zipps

United States District Judge

_______________

Notes:

1. This case is suitable for decision without oral argument. See L.R. Civ. 7.2(f).

2. Penguin’s Statement of Facts (Doc. 161) is abbreviated herein as “PSOF.” American Buddha did not comply with the Court’s April 9, 2014 Scheduling Order, which instructed the parties to “pay particular attention to LRCiv 56.1(b)” and the requirements for separate statements of fact. (Doc. 104, pgs. 2-3.) Specifically, LRCiv 56.1, provides that “a party opposing a motion for summary judgment shall file a statement that sets forth, for each paragraph of the moving party’s statement, a separately numbered paragraph indicating whether the party disputes that statement and a reference to the specific, admissible portion of the record supporting that party’s position.” (emphasis added). American Buddha did not provide a separate statement of facts in response to PSOF. LRCiv. 56.1 further provides that “each numbered paragraph of the statement of facts set forth in the moving party’s separate statement of facts must, unless otherwise ordered, be deemed admitted for purposes of the motion for summary judgment if not specifically controverted by a correspondingly numbered paragraph in the opposing party’s separate statement of facts.” In addition, the Court’s April 9, 2014, Scheduling Order specifically advised the parties that they were expected to comply with the Court’s Local Rules and that failure to comply with the local rules could result in sanctions up to and including dismissal. (Doc. 104, pg. 2.) Accordingly, the Court has considered all of Penguin’s statements of fact undisputed for purposes of the Motion. See Rule 56(e)(2), Fed. R. Civ. P. Having reviewed American Buddha’s submissions, it does not appear that its allegations would give rise to an issue of material fact. Notably, American Buddha has not identified an issue of material fact in its Opposition. Accordingly, the Court finds that the motion and supporting materials show that movant is entitled to summary judgment. See Rule 56(e)(3), Fed. R. Civ. P.

3. In lieu of the controverting statement of facts required by LRCiv 56.1, American Buddha filed two declarations. (Docs. 168-1, 168-2.) The first is a self-serving declaration from the director of American Buddha. A conclusory, self-serving affidavit is insufficient to create a genuine issue of material fact. See F.T.C. v. Publishing Clearing House, Inc., 104 F.3d 1168 (9th Cir. 1997) (collecting cases). The second is from a witness who was not disclosed by American Buddha until after the deadline for disclosure of witnesses and the deadline for discovery had both run, and is therefore not admissible. See Rule 37(c)(1), Fed. R. Civ. P. (if a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion). In light of American Buddha’s cavalier attitude toward the Court’s rules, orders and deadlines, the Court declines to mine these declarations in search of material issues of fact. As the Ninth Circuit has noted, it is not the job of the district court to scour the record in search of a genuine issue of material fact. Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir.1996). The nonmoving party has the burden of “identify[ing] with reasonable particularity the evidence that precludes summary judgment.” Id. (quoting Richards v. Combined Ins. Co., 55 F.3d 247, 251 (7th Cir.1995)).

4. Contrary to American Buddha’s assertion, its use of the Works is not a “full-text searchable database” akin to the use found to be transformative in Author’s Guild. (Doc. 168, pg. 8.) In Author’s Guild, several educational institutions scanned texts into digital format to create searchable databases that “[do] not allow users to view any portion of the books they are searching. Consequently, in providing this service, the HDL does not add into circulation any new, human-readable copies of any books. Instead, the HDL simply permits users to ‘word search’—that is, to locate where specific words or phrases appear in the digitized books.” 755 F.3d at 97. Conversely, American Buddha concedes that its Websites offer entire copies of the Works online.

5 In addition, as Penguin notes, the educational value of American Buddha’s reproduction of the Works is hindered by American Buddha’s omission of all page numbers from the scanned Works, making actual scholarly citation of the Works impossible.

6 The Court rejects American Buddha’s argument that in evaluating the second factor, the Court should consider whether American Buddha is using the works in a manner consistent with their scholarly nature. (Doc. 168, pgs. 11-12.) That is not the legal standard.
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