|Scrivener's Error||Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.|
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HathiTrust Summary Judgment (4)
At last, we turn to the merits. If you look at the essay form of "Suing HathiTrust" (link at the top of this post), you'll notice that I never actually posted the discussion of the merits last year; that's because a formal consult came in as I was ready to post, making a public statement inappropriate. (Although the legal ethics rules don't require silence from attorneys and other professionals involved in a filed-and-live matter, mine do.) Thus, this is the first time I've actually commented on the merits madness without method in the Authors' Guild's attack on HathiTrust. It's actually much easier to understand Judge Baer's grant of summary judgment to the library parties on their affirmative defense of fair use if one understands the not-quite-fatal-by-themselves-but-utterly-insane-nonetheless flaws in the complaint that HathiTrust filed. Thus, that's where I'll start, in very abbreviated form; only then will I get to Judge Baer's flawed (but consistent with Second Circuit law) discussion of fair use as a defense, and how that insane complaint made that defense both a complete defense and a possible one.
You're about to read a story about lawyers and an organizational client who didn't understand what they had; who wrote badly in support of what they thought they had; and who ultimately ended up making things much harder for the actual — not associational — clients: The authors and actual creators of works protected by copyright. This insanity reflects very, very poorly on the fitness of both the Authors' Guild (and its sockpuppet individual representatives) and its counsel to serve as class representatives and class counsel in the other Google Book Scan litigation... but nobody is going to pay a lot of attention to that, I'm afraid.
Judge Baer also decided a critical merits question, and it's one that has wags wagging with WAGS on what it really means. Ironically, it also exposes a jurisprudential error in reasoning by Judge Posner, ratified by the Federal Circuit, in an entirely separate matter, that on its own demonstrates why courts are so ill-suited for dealing with what is rather ineptly called "intellectual property." Unfortunately, the courts are what we've got; so it makes a lot of sense to see what was actually in front of the court for Judge Baer to decide first, before completely flying off to theory-land.
Rhetorically, the biggest problem with the AG complaint against HathiTrust26 is that it leads off the factual allegations and theory of the causes of action not by stating what was done to wrong the plaintiffs, but by spending nearly three pages making a ridiculous, purely legal argument about restrictions on libraries. This is just plain bad writing, even aside from the legalese. As upsetting as that is in the abstract, there's no excuse for it when the client is a trade organization of commercial authors.27 Sadly, the writing and clarity of presentation don't get much, if any, better as the complaint proceeds toward its conclusion. This is perhaps inevitable, because the theory of the complaint is so poorly considered that better writing would only have exposed its substantive flaws. Fortunately for everyone involved, elegant and clear writing is not the standard of decision in legal disputes. Perhaps, in the best of all worlds, it would be; this not being the best of all worlds, we'll just have to put up with reality.
Reorganizing it to make the kind of sense that is necessary, the complaint alleges:
Of course, these are only allegations, not facts. The Answer29 responds in substance to these broad allegations as follows:
So that's what is at issue. As an initial, substantive matter, the key thing to note is the horrible idiocy of having filed this suit separatedly against HathiTrust in the first place... because it prevented the best possible underlying theory from being presented: Conspiracy. Because Google is not a defendant in this lawsuit itself, the plaintiffs cannot assert the best policy assertion. Even if individual actors' actions might have been lawful, that those actions were in furtherance of an unlawful action makes them unlawful in hindsight. That, for example, is why the getaway driver who never enters a bank is potentially liable for felony murder if one of the robbers shoots a teller (or even one of the other robbers!) during the robbery. It is also why the bookkeeper who arranges for a series of otherwise legal withdrawals and funds transfers of $9,900 each, so as to evade IRS reporting requirements,31 is liable for his part in a reporting/evasion scheme. In short, this particular screwup goes back seven years, to the ineptness of the initial complaint by the Authors' Guild against Google itself. It's the converse of the divide-and-conquer strategy: Sometimes it's strategically unwise to seek to defeat an enemy "in detail."
Next time, we'll see how Judge Baer ruled on the defenses, then we'll backtrack into the actual arguments presented on the defenses. After that, I'll deal with Judge Posner's mistake in the patent lawsuit that exposes the jurisprudential problem that invited everyone to go past the bridge at Do Lung.
There's a darned good reason that a complaint begins with the facts and ends with the legal statement of why those facts entitle the plaintiff to relief: Law is bound by context. Further, in this particular instance the "attack the defense and the character of the defendants first" organization is a subtle signal to the judge that the plaintiffs, and plaintiffs' counsel, don't think the judge is sophisticated enough to wait for the defendants to actually present their defense. In short, the complaint is subtly a putdown of not just the defendants, but of the judge; and anyone who thinks an implicit accusation that any federal judge (let alone one in the Southern District of New York) is unsophisticated and will be fooled by the purported "good character" of a party is him/herself rather unsophisticated.
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Now live at the new site. I have arranged some of
infamous threads that have appeared here
by unravelling them from the blawg tapestry (and hopefully eliminating some
of the sillier typos). Sometimes, the threads have been slightly reordered for clarity.
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