13 October 2012

Google Book Scan


HathiTrust Summary Judgment (3)

Suing HathiTrust (in essay form)
Proposed Settlement With Google (in essay form)
Suing Google (in essay form)


The second half of the procedural jungle in the HathiTrust summary judgment decision — which is necessary to understand the decision on the merits — concerns two areas of the merits in which Judge Baer explicitly said he is making no decision of any kind whatsoever. This is an extremely important exclusion, and it's one that I can guarantee various posturing parties and inept commentators will screw up... as they already have (in so many places and ways that I lost count by midday on Thursday).

As mentioned previously, Judge Baer explicitly held that the Authors' Guild has no standing to make any claim concerning orphan works, whether of members or nonmembers of the AG. Remember, the 2006 "definition" of "orphan works" (PDF) concerns whether the actual, definitive holder is found with appropriate effort. It's not a very difficult hypothetical — indeed, it's not hypothetical at all — to posit an AG member who holds a disputed or less-than-majority interest in an otherwise orphaned work, meaning that even though one knows exactly whom one might contact that the contact would be futile.22 In turn, this means that Judge Baer's decision means nothing whatsoever concerning orphan works. He has explicitly carved orphan works out from the scope of his merits decision on fair use. At most, Judge Baer's decision indicates one possible way that facts concerning orphan works might be analyzed in the context of the HathiTrust program. Of course, the point of excluding the orphan works from this decision is that the facts were not before the court and ripe for decision.

And that takes us to the other carve-out in Judge Baer's decision: Foreign holders of copyright who would enforce their domestic rights in US courts. The obvious, knee-jerk reaction is that "US courts decide based on US law, so the German/Japanese/Australian/whomever authors shouldn't be here in the first place." That knee-jerk reaction is, however, blatantly wrong; US courts decide matters from outside their jurisdiction — even outside any US jurisdiction — constantly. Just consider the concept of attachment or arrest of a vessel that appears in Fifth Circuit decisions (reported and unreported) at least two or three times a month. What US law there is explicitly derives from international and UK-based maritime law, meaning that the core of the decision is not US law. Further, to get personal jurisdiction over the HathiTrust defendants, the foreign authors need to come to a US court.

Judge Baer's solution was to invoke the judge-made doctrine of "ripeness" and hold that the foreign-author-asserting-foreign-copyright issue was not ripe for decision. This doctrine asserts, in the abstract, that when the law and facts are not set, a court should not decide a dispute even when requested by the parties. Ripeness is a close cousin of the advisory-opinion doctrine I mentioned earlier, and — for you foreigners who are not from a common-law system — must seem particularly bizarre. All of that said, this particular carve-out on ripeness grounds is legally unnecessary, because it is outside the associational standing of the AG, and Judge Baer could (and in the abstract should) have applied the same reasoning to the foreign authors' organizations that joined the AG. Rhetorically, however, it is necessary to state a different rationale for this particular carve-out than mere associational standing, precisely because we're dealing with foreign parties.23 That's because despite the vigor with which Judge Baer presented his conclusions on associational standing, it's far from a foregone conclusion... and certainly not binding upon any other authors' organization that might sue HathiTrust independently. Consider, for example, an authors' organization whose corporate charter and membership agreement establishes an "opt-out" permission that explicitly grants the authority to proceed in copyright matters to the organization unless the member opts out on a case-by-case basis. (I don't know of such an organization at present, but I do know that the concept has been raised in more than one instance.) In that circumstance, most of Judge Baer's reasoning would fail, because the authors' organization would be the Sierra Club asserting a right that the members individually had specifically granted to the organization... and, therefore, Judge Baer's analysis concerning the absence of statutory authority would fail. There might be prudential reasons to not accept that grant, but that's a different set of facts and different legal reasoning than Judge Baer was concerned with.

Now that we've cleared away much of the procedural underbrush, it will be time — next time, that is — to consider the merits of Judge Baer's decision. The facts and reasoning are not as strong as either commentators have claimed or Judge Baer's opinion makes them seem... and, in the end, reflects what happens when one enters a conflict without a clear objective. Remember my comparison of this morass to Apocalypse Now!? You should be starting to feel the jungle closing in now...

  1. This is not precisely an unconsidered, but rather a neglected, instance in both the Copyright Act and in public discussion. It's not precisely "orphanage" in the sense that no "parent" can be located. I'd call this the "terminated parental rights" variety of copyright orphans, except for the improper implication that the state somehow then has the power to determine who the parent is. Instead, this is much closer to the corporate governance concept of excusing demand on the board when such a demand would be futile... and that's a morass itself! The law is not a seamless web — it's rather seamy indeed; it is, instead, better thought of as a hobbyist's workshop full of tools, and the challenge is the use the right tool for the job.
  2. One should note that those foreign parties would have been better advised to have different lawyers who made all of the necessary arguments explicitly, instead of relying on being carved out.