Comments, Amicus Briefs, and Other Filings

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Open Access
Memorandum of Understanding Between the League of Women Voters Education Fund and the American Library Association
(2024-04-24)
League of Women Voters Education Fund and ALA will work together under mutually agreed upon timeline, roles, and responsibilities to: 1. Organize, promote, and host a virtual webinar for ALA and LWVEF members to join and learn about the 2024 election, and how local Leagues and libraries can work together to help educate and register voters. 2. Write, format, and distribute and co-branded toolkit to be used by both ALA members and League members to build local partnerships with the goal of registering and educating voters. 3. Promote the partnership at the national level via mutually approved channels and messaging.
Open Access
BRIEF OF AMICI CURIAE ELECTRONIC FRONTIER FOUNDATION, COMPUTER & COMMUNICATIONS INDUSTRY ASSOCIATION, AMERICAN LIBRARY ASSOCIATION, ASSOCIATION OF RESEARCH LIBRARIES, AND AUTHORS ALLIANCE IN SUPPORT OF DEFENDANT-APPELLEE AND AFFIRMANCE
(2024-05-22)
Seventeen years ago, this Court adopted an accurate and practical application of the Copyright Act’s public display right to images on the internet. In Perfect 10, Inc. v. Amazon.com, Inc., the Court held that the owner of a web server that actually transmits an image to users can be directly liable for the public display of that image, while the owner of a server that merely directs users to an image hosted elsewhere is, at most, secondarily liable. 508 F.3d 1146, 1160 (9th Cir. 2007). This rule, known as the server test, is consistent with the text and history of the Copyright Act. The server test remains binding precedent in this Circuit. Hunley v. Instagram, LLC, 73 F.4th 1060, 1062 (9th Cir. 2023). Beyond that, the server test has proved to be a workable rule, relied on by millions of people as they use one of the internet’s basic functions—linking information from multiple sources.
Open Access
BRIEF OF AMICI CURIAE ELECTRONIC FRONTIER FOUNDATION, COMPUTER & COMMUNICATIONS INDUSTRY ASSOCIATION, AMERICAN LIBRARY ASSOCIATION, ASSOCIATION OF RESEARCH LIBRARIES, AND AUTHORS ALLIANCE IN SUPPORT OF DEFENDANT-APPELLEE AND AFFIRMANCE
(2024-05-31)
Seventeen years ago, this Court adopted an accurate and practical application of the Copyright Act’s public display right to images on the internet. In Perfect 10, Inc. v. Amazon.com, Inc., the Court held that the owner of a web server that actually transmits an image to users can be directly liable for the public display of that image, while the owner of a server that merely directs users to an image hosted elsewhere is, at most, secondarily liable. 508 F.3d 1146, 1160 (9th Cir. 2007). This rule, known as the server test, is consistent with the text and history of the Copyright Act. The server test remains binding precedent in this Circuit. Hunley v. Instagram, LLC, 73 F.4th 1060, 1062 (9th Cir. 2023). Beyond that, the server test has proved to be a workable rule, relied on by millions of people as they use one of the internet’s basic functions—linking information from multiple sources.
Open Access
Coalition Letter Regarding E-Rate support for Wi-Fi Hot Spots for Remote Learning, Addressing the Homework Gap Through the E-Rate Program, WC Docket No. 21-31
(2024-04-15) Windhausen, John Jr.; Janicki, Megan
Our organizations strongly support the FCC’s initiative, with one important clarification that we discuss below. The proposal to provide financial support to allow schools and libraries to extend their broadband service from the school or library building to students and library patrons at home is a cost-effective way to bring high-speed internet access to low-income families and students who cannot otherwise afford it.
Open Access
Reply Comments of ALA Regarding the FCC's Schools and Libraries Cybersecurity Pilot Program
(2024-02-26) Janicki, Megan; Bocher, Robert; Clark, Larra; Inouye, Alan
The issue of the E-rate eligibility of cybersecurity tools has been an important topic in the library and school communities for at least the last five years.3 Reflecting the importance of this, we are pleased to see that comments filed in this Notice overwhelmingly support making cybersecurity tools fully eligible for E-rate support. Below we highlight both our agreement and our concerns on some of the comments initially filed. We stated in our initial comments concerns that smaller libraries will lack the staff time and expertise to apply for the pilot program. To address this, we encouraged the FCC to require USAC to reach out and provide support for smaller libraries and schools.
Open Access
Motion Of Amici Curiae Authors Alliance, Electronic Frontier Foundation, American Library Association, And Association Of Research Libraries, And Public Knowledge For Leave To File Amicus Brief In Support Of Defendants-Appellees’ Limited Petition For Partial Panel Rehearing And Rehearing En Banc Pursuant To Fed. R. APP. P. 29(B)(3)
(2024-05-02) Stoltz, Mitchell; Hansen, Dave
Pursuant to Fed. R. App. P. 29(b)(3) and Fed. R. App. P. 29(a)(3), amici curiae Authors Alliance, the Electronic Frontier Foundation (EFF), American Library Association, Association of Research Libraries, and Public Knowledge seek leave to file an amicus brief in support of Defendants-Appellees Limited Motion for Partial Rehearing and Rehearing En Banc in the above-captioned case.
Open Access
Reply Comments of the Library copyright Alliance and Software Preservation Network Regarding a Proposed Exemption Under 17 U.S.C. § 1201 Class 6(b)
(2024) Band, Johnathan
There are two major points of contention in front of the Copyright Office in this subclass. The first disagreement is over whether the restrictions proposed by the Software Preservation Network and Library Copyright Alliance2 are sufficient to ensure that uses of preserved video games are non-infringing. They are. The second disagreement is over whether, and if so, to what degree, the market for rereleased video games is harmed by access to historical games. The Entertainment Software Association as well as the other organizations that oppose this exemption (“Opponents”) contend that remote access to historical video games, enabled by the proposed exemption, will threaten the ability of companies to re-release and market their works.
Open Access
Reply Comments of the Library copyright Alliance and Software Preservation Network Regarding a Proposed Exemption Under 17 U.S.C. § 1201
(2024)
The opposition comments filed in the 6(a) filing from the Entertainment Software Association (“ESA”), Motion Picture Association (“MPA”), Recording Industry Association of America (“RIAA”) (collectively, the “Joint Creators”) and the DVD Copy Control Association (“DVD-CCA”) (the Joint Creators and the DVD-CCA, collectively, the “Opponents”) have provided no significant rebuttals to the arguments for our proposed modification of the software preservation exemption. Many of the objections raised are to issues that the Copyright Office has previously settled, such as the applicability of section 107 and the limitations on the types of institutions that can claim the exemption.2 Indeed, Opponents appear to concede that the uses in question are fair, 3 as they should, since the Copyright Office already found that the uses were non-infringing in 2018 and again in 2021. The removal of the single user requirement is supported by case law and is in response to the adverse impact of the restrictions on the relevant preservation communities.
Open Access
Reply Comments of Public Interest Organizations, Including the Schools, Health and Libraries Broadband Coalition and ALA, on Unlicensed Use of 6 GHz Band and Expanding Flexible Use in Mid-Band Spectrum Between 3.7 and 24 GHz
(2024-04-26) Calabrese, Michael
The Open Technology Institute at New America, the American Library Association, the Benton Institute for Broadband and Society, Public Knowledge, Access Humboldt, and the Schools Health & Libraries Broadband (SHLB) Coalition (“Public Interest Organizations” or “PIOs”) respectfully file these Reply Comments in response to the Second Further Notice of Proposed Rulemaking in the above-captioned proceeding. Public interest organizations endorse the widespread support for the Commission’s proposal to expand unlicensed use of very low power (VLP) devices to the U-NII-6 and U-NII-8 bands without geofencing and under the same technical rules as those for the U-NII-5 and U-NII-7. Extending VLP authorization across the entire 6 GHz band will benefit consumers and promote innovation in several ways. It will greatly benefit all consumers by allowing high-bandwidth VLP devices such as virtual reality goggles to operate with higher throughput and reduced latency. This opens up opportunities for more robust VLP operation in challenging but important high-data-traffic environments such as schools, libraries, airports, train stations, workplaces and other public and private venues.
Open Access
Comments of the ALA to the FCC Addressing the Homework Gap through the E-Rate Program
(2024-01-01) Clark, Larra; Inouye, Alan; Bocher, Robert; Visser, Marijke; Janicki, Megan
The American Library Association (ALA) welcomes the opportunity to comment on how libraries may leverage the strengths of the E-rate program to address still-persistent connectivity gaps through sustainable funding for Wi-Fi hotspots and other off-campus connectivity solutions. ALA is committed to promoting and improving the E-rate program, demonstrated by our ongoing advocacy with the FCC and other stakeholders and comments filed throughout the history of the program. New technologies continue to emerge, shaping modern life. With these shifts, the needs of library patrons and students evolve, as well, to rely more heavily on access to virtual and/or hybrid learning. Increasingly, library services occur outside the walls of the library building with e-books and other e-material, online author talks, virtual discussion groups, and more; therefore, internet access is essential to accessing the services libraries provide. We commend the Commission for recognizing these technology changes and taking a fresh look at how the E-rate program might best support diverse communities with these educational goals and connectivity needs. Lessons learned from the recent Emergency Connectivity Fund (ECF) program, as well as other library lending models, can be leveraged to support this needed expansion of the E-rate program. Over the last three years, more than a thousand libraries2 provided Wi-Fi hotspots to connect patrons, including students, through more than $248 million of ECF funding. Wi-Fi hotspot lending has been an increasingly important tool for libraries to address both persistent and intermittent digital gaps in our communities.
Open Access
Brief Of Amici Curiae Authors Alliance, Electronic Frontier Foundation, American Library Association, et al. In Support Of Defendants-Appellees Limited Petition For Partial Panel Rehearing And Rehearing En Banc
(2024-05-02) Stoltz, Mitchell
WHYTE MONKEE PRODUCTIONS, LLC; TIMOTHY SEPI, PLAINTIFFS-APPELLANTS, V. NETFLIX, INC.; ROYAL GOODE PRODUCTIONS, LLC, DEFENDANTS-APPELLEES. This case merits rehearing or rehearing en banc because the panel’s opinion erred in misreading recent Supreme Court precedent to dramatically narrow the scope of fair use. This misreading threatens many important, established lawful uses of copyrighted works for scholarship, news reporting, and other forms of expression.
Open Access
Amici Curiae filed on behalf of the American Library Association, ARL, Public Knowledge, Electronic Frontier Foundation, and Library Futures in support of appellants' petition for rehearing en banc in the case of Sony Music Entertainment, et al v. Cox Communications, Inc.
(2024-03-03) Monday, Monica
The panel’s holding concerning contributory infringement, when combined with its holding concerning willful infringement, will have an adverse effect on innocent Internet users. For this reason, this Court should grant rehearing en banc. Every use of the Internet, be it for access to government services, healthcare, commerce, education, political organizing, finding community, or simply entertainment, requires the services of an Internet service provider. Terminating that service means withdrawing an essential tool for participation in daily life. Moreover, terminating an ISP account doesn’t just cut off an allegedly infringing subscriber. It potentially cuts off every household member or – in the case of a school, library, or business – every student, faculty member, patron, and employee who shares the Internet connection. With little or no competition among broadband ISPs in many areas of the country, those users may have no other way to connect.
Open Access
Comments of the American Library Association in support of expanding the E-rate program to cover cyersuecurity tools
(2024-01-29) Janicki, Megan; Bocher, Robert; Clark, Larra; Inouye, Alan
We appreciate the opportunity to submit these comments on the Commission’s Cybersecurity Pilot Program. The issue of comprehensive cybersecurity tools being eligible for E-rate support has been a very active topic in the library and school communities for at least the last five years. Since 2019, the association has been on record with the Commission encouraging it to expand the E-rate program to include network security tools. We look forward to its implementation and working with the Commission to ensure it will have a good cross-section of library applicants from a variety of urban and rural communities. Ultimately, we hope the results of the Pilot Program will point to the need for the Commission to make robust cybersecurity tools fully eligible for E-rate support.
Open Access
Comments of the Library Copyright Alliance, American Association of University Professors, and Authors Alliance to the US Copyright Office In Support of Expanding the Text and Data Mining Exemption
(2024-03-19) Band, Johnathan
The proposed expansion of the current exemption for text and data mining (“TDM”) is straightforward. Digital humanities scholars are using the current exemption to generate new insights about our culture. But as they have gained experience with the exemption, they have encountered hurdles that impose significant and unnecessary limitations on the value that the exemption can provide to the public. Specifically, the lack of a provision for sharing corpora imposes major limitations on the knowledge that can be generated because different researchers, who could bring new questions to the material and employ new methods for answering those questions, are foreclosed from doing so unless they start anew. Petitioners have thus requested that the Copyright Office (the “Office”) allow digital humanities scholars to avoid the significant, redundant, and unnecessary expenditure of time and resources needed to re-circumvent, re-clean, and re-process data in a research corpus that has already been assembled for text and data mining research conducted under the exemption.2 That obstacle adversely affects both individual researchers and the discipline of digital humanities as a whole.
Open Access
Long Comment Regarding a Proposed Exemption Under 17 U.S.C. § 1201
(2023-12-22)
Proponents are submitting a single comment addressing both motion pictures and literary works because the relevant factual and legal issues as to the two classes of works—including the nature of the proposed research activities, the relevant markets for the works, and the lack of available potential alternatives to circumvention—are highly similar. Supporting evidence of adverse effects in the absence of the proposed expansion with respect to both classes is provided below.
Open Access
Initial Comments Regarding Proposed Copyright Exemptions for Software Preservation (B)
(2023-12-22) Albert, Kendra; Gordon, Jaime; Butler, Brandon; Band, Jonathan
Video games in the form of computer programs embodied in physical or downloaded formats that have been lawfully acquired as complete games, that do not require access to an external computer server for gameplay, and that are no longer reasonably available in the commercial marketplace, solely for the purpose of preservation of the game in a playable form by an eligible library, archives, or museum, where such activities are carried out without any purpose of direct or indirect commercial advantage. Any electronic distribution, display, or performance made outside of the physical premises of an eligible library, archives, or museum of works preserved under this paragraph may be made only for a limited time and after the eligible institution acts to ensure that users seeking off-premises access to works are doing so primarily for the purposes of private study, scholarship, teaching, or research by: 1) specifically determining that the user’s interest is private study, scholarship, teaching, or research, 2) instituting access restrictions appropriate to the nature of the use and the material, and 3) notifying users that they are receiving access to copyrighted material subject to adherence with applicable laws.
Open Access
Initial Comments Regarding Proposed Copyright Exemptions for Software Preservation
(2023-12-22) Band, Jonathan; Brandon, Butler
Computer programs, except video games, that have been lawfully acquired and that are no longer reasonably available in the commercial marketplace, solely for the purpose of lawful preservation of a computer program, or of digital materials dependent upon a computer program as a condition of access, by an eligible library, archives, or museum, where such activities are carried out without any purpose of direct or indirect commercial advantage. Any electronic distribution, display, or performance made outside of the physical premises of an eligible library, archives, or museum of works preserved under this paragraph may be made only for a limited time and only where the library, archives, or museum has no notice that the copy would be used for any purpose other than private study, scholarship, or research.
Open Access
Opposition to Motion for Extension of Time Regarding Reinstating Open Internet Rules
(2023-12-08)
The above-captioned Parties (Public Knowledge, ALA, Benton Institute, Center for Rural Strategies, Common Cause, Communications Workers of America, Demand Progress Education Fund, Electronic Frontier Foundation, Electronic Privacy Information Center, Fight for the Future, Future of Music Coalition, New America's Open Technology Institute, United Church of Jesus Christ Media Justice Ministry) write to opposed the unjustified motion 1 of the U.S. Chamber of Commerce (“Chamber”), the National Association of Manufacturers (“NAM”), the Information Technology Industry Council (“ITI”) (“Movants”) to delay implementation of the Commission’s long-anticipated action 2 to restore broadband consumer protections by recognizing that broadband Internet access service (“BIAS”) is a telecommunications service, and to reinstate Open Internet rules.
Open Access
Comments of the American Library Association to the Federal Communications Commission's Notice for Proposed Rulemaking for Safeguarding and Securing the Open Internet
(2023-12-14)
Our nation’s libraries are leaders in creating, fostering, using, extending, and maximizing the potential of the internet for research, education, and the public good. Libraries depend upon an open internet to fulfill their missions and serve their communities. As such, ALA is extremely concerned that there is currently a void in policies to protect the openness of the internet. BIAS providers who offer services to the public currently have the opportunity and financial incentive to block, degrade or discriminate against certain content, services, and applications. We support strong, enforceable policies and rules to safeguard and secure an open internet for everyone.
Open Access
Brief Of Amici Curiae Electronic Frontier Foundation, Authors Alliance, American Library Association And Association Of Research Libraries In Support Of Petitioners
(2023-12-04) Stoltz, Mitchell
Copyright trolling is a burden on website owners and other internet users, and on the courts, and does not advance the purposes of copyright law. The federal courts have frequently interpreted the Copyright Act and rules of procedure to discourage the opportunistic pursuit of nuisance settlements. This Court should do likewise by holding that the statute of limitations limits the recovery of damages in an infringement suit to the three-year window before filing suit, as established by Congress.