When USC Gould School of Law recessed for winter break in December 2023, two students in the Intellectual Property & Technology Law Clinic (IPTLC) kept working.
Their task: Finalize a 28-page amicus curiae brief, developed over the course of the semester, and file it with the United States Court of Appeals for the Second Circuit.
The brief was filed in Hachette Book Group v. Internet Archive on behalf of Wikimedia Foundation, Project Gutenberg Literary Archive Foundation, and Creative Commons. Its focus was protecting the ability of nonprofit organizations to make unlicensed, fair uses of copyrighted works under 17 U.S.C. § 107.
Learning Experience
The legal research and writing that went into the brief was challenging, say IPTLC students Anna Higgins and Zachary Hardy, but it was also rewarding and has helped prepare them for their future careers as intellectual property attorneys.
“The brief writing process was a great experience and I look forward to applying the skills I’ve developed,” says Hardy, a third-year law student and former president of USC Gould’s Intellectual Property and Technology Law Society.
Says Higgins, a second-year law student: “It took a lot of time, but it was a fun and very interesting and great experience.”Hardy and Higgins are two of eight students in IPTLC for the 2023-2024 academic year. The clinic, which is run by Clinical Associate Professor of Law Jef Pearlman, offers pro bono legal services to clients and provides an opportunity for students to gain hands-on experience.
“I’m proud of the team’s work on the brief and the excellent service they provided to our clients,” Pearlman says of Hardyand Higgins.
Case On Appeal
The case centers on the Internet Archive’s Open Library project, which operates using controlled digital lending to digitize print copies of books — simulating a traditional library online. Because Internet Archive includes fundraising messages on its web pages, a New York district court determined that the program constituted “willful mass copyright infringement,” and was not protected by fair use. The case remains pending before the Second Circuit.
Typically, the clinic works on only one or two such amicus briefs each year, and they are among the most involved projects that the clinic students tackle.
In this case, “The lower court said, ‘Look, you’re a nonprofit and you do fundraising, and because of this, this use is commercial,’” Pearlman explains. “If the appellate court adopts that approach, that would mean all nonprofits are commercial all the time for copyright purposes, and that would be a real problem. That’s the core of the brief.”
Higgins and Hardy engaged in a lot of back-and-forth with clients, meeting directly with the Wikimedia Foundation’s in-house counsel and communicating directly with counsel for all three clients.
“I’ve been extremely grateful to be a part of the Intellectual Property and Technology Law Clinic,” Hardy says. “I came to law school wanting to participate in the clinic, and it has been a great experience working on a broad range of matters for a wide variety of clients.”
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