Hello CKG,

Here's the second draft brief I mentioned.

________________________________

From: Michelle Wu <[log in to unmask]>

Sent: Wednesday, December 13, 2023 5:10 AM

To: Katie Fortney <[log in to unmask]>

Subject: Re: Hachette amicus brief update





CAUTION: EXTERNAL EMAIL



Thanks, Katie, and please feel free to forward to any of the people/groups you name! (Though could you please use the attached PDF instead? It's only slightly different from the one I sent yesterday, but the changes are meaningful one.)



Please note that we're aware that the brief isn't as polished yet as the other briefs out for signature, but we thought it would be useful for allies to be aware of the range of arguments that the amici are making before deciding whether to sign onto one.







On Tue, Dec 12, 2023 at 6:46 PM Katie Fortney <[log in to unmask]<mailto:[log in to unmask]>> wrote:

Hi Michelle,

I definitely remember you - I'm a big fan of your work!

I checked in with Günter Waibel (CDL's Executive Director) last week, and it sounds like he and the UC University Librarians are currently planning on signing on to the brief that HathiTrust is working on. After talking to counsel, we're definitely in an "in our individual capacities" timeframe; there won't be time to get approval for anyone to sign as CDL or as a library.

But I'm happy to take a look at this tomorrow. Would you like me to share it with anyone else at UC (e.g. Günter, the group of scholarly communication librarians I'm in, or the legal working group for Project LEND*)? Or would you rather just reach out to individuals you're familiar with?

*Project LEND = the grant funded project at UC that Becky Chambers is the legal fellow for - she was on the call in October.



Best,

Katie

________________________________

From: Michelle Wu <[log in to unmask]<mailto:[log in to unmask]>>

Sent: Tuesday, December 12, 2023 2:49 PM

To: Katie Fortney <[log in to unmask]<mailto:[log in to unmask]>>

Subject: Fwd: Hachette amicus brief update





CAUTION: EXTERNAL EMAIL



Dear Katie,



I'm hoping that you remember me from the Hachette amici call in October so that this email won't seem to be completely out of the blue.



Since you had mentioned that the UC campus libraries weren't likely to file anything unless the other amici did not make the arguments that the UCs felt needed to be made, I'm just writing to share a draft of our brief in case it helps in your assessment.



If CDL decides not to file a brief, if it (or if you in your individual capacity) are interested in co-signing this one, co-signers are welcome!



Happy holidays,

Michelle



---------- Forwarded message ---------

From: Michelle Wu <[log in to unmask]<mailto:[log in to unmask]>>

Date: Tue, Dec 12, 2023 at 5:43 PM

Subject: Hachette amicus brief update

To: Michelle Wu <[log in to unmask]<mailto:[log in to unmask]>>





Good afternoon, everyone.



Thank you for your interest in our amicus brief. The current draft is attached, and while we're still fiddling with some language, the core arguments will remain unchanged. As a reminder, since page count is limited, amici are asked not to repeat legal arguments that the parties themselves will make, so this brief does not focus on criticizing the district court's substantive fair use analysis (the parties are expected to do that) but rather on broader arguments that librarians are uniquely situated to make.



As a quick reminder, these are the arguments we are making:



  *   The district court inappropriately conflated over a dozen uses, violating the requirement to analyze fair use on a case by case basis;

  *   Because it has conflated uses, its definition of commerciality now would make many common library activities "commercial" and infringing;

  *   By relying entirely on the economic theory of copyright, the court ignores the history of copyright and its core purpose to encourage the spread of knowledge.



FYI-The section describing amici will change as people or organizations co-sign. If you have any other questions or comments, please do not hesitate to reach out.



If you are interested in co-signing, please email me by Dec 19. Note: Courts will not allow org/individuals to sign onto multiple briefs, so if you are interested in more than one of the amici briefs being circulated, please choose only one to sign onto. There are three potential ways to sign:



  1.   If you're signing for your organization, please let me know the title of your organization as you want it to be displayed as a co-signer.

  2.  If you're signing in your official capacity, please provide your title and your library/organization.

  3.  If you're signing as an individual, please let me know in which type of library you work (e.g., general public library, university library, law library, medical library). This will just help us summarize co-signers' interests in the intro section of the brief.



Feel free to forward this to other librarians you know, but since the document is still in draft form, we ask that you not post it on any public site.



A huge thanks to Carla Wale and Max Rodriguez, without whose assistance this brief would not have been possible.



You will receive only one more email from me in the form of an FYI with a copy of the final brief  (around Dec 22nd).



Thanks again to all of you for your time and interest, and I wish you all a happy holiday season!



Best,

Michelle