15 October 2012

Google Book Scan

HathiTrust Summary Judgment (5)

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

Judge Baer made a number of findings concerning the merits of the HathiTrust suit. Several are unremarkable, such as his compelled-by-the-statute finding that § 108 does not limit other rights and obligations of libraries found elsewhere after § 106A, but instead supplements them. The real problem with Judge Baer's opinion is the meat of the substance: The analysis of fair use. In one sense — a sense that is being entirely ignored, and is unfortunately implicated by some less than ideal rhetoric in the opinion itself — Judge Baer's analysis is quite unremarkable and quite correct. In a broader sense, though, its lofty statements of principle do not stand up to analysis... and ultimately, Judge Baer falls into the nonstatutory-fair-use-factor trap in his analysis.

Too many commentators (including some who should know better) have completely neglected the civil-procedure prologue to the juicy stuff. Judge Baer's opinion, by its own terms, does not apply to mass digitization programs... because there was no one with standing before him to object to mass digitization programs. Instead, Judge Baer's opinion applies only to the seventy-odd works (by only a dozen authors) listed on Exhibit A to the First Amended Complaint. After throwing out the associational standing assertions, Exhibit A is all that is left of the case.32 Unfortunately, Judge Baer's rhetoric is not so limited; neither is his fair use analysis.

Just as is copyright itself, fair use is a matter of statute. Too often, bloviation on fair use neglects the statutory structure:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
   (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
   (2) the nature of the copyrighted work;
   (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
   (4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.33

Leaving aside the particularly suspect logic and inelegant wording of the statute (a complete defense based on a balancing test among "factors to be considered [which] shall include"... implying that there are others?), the stated factors reflect a rather disturbing ignorance of the nature of evidence in copyright suits. The overlap in evidence actually presented for the first and fourth factors is immense; the overlap in evidence actually presented concerning the first and second factors is usually substantial, if not quite so severe. Meanwhile, the third factor is the one that matters the most from a nonlegal perspective, and certainly bears the closest relationship to the nonlegal concepts of "copying" and "plagiarism." Regardless, § 107 is what we (and Judge Baer) have to work with, concerning those seventy-odd works that remain at issue in this mess.

  1. Interestingly, although it goes largely unremarked, some of the works in Exhibit A are US works, but the Exhibit does not disclose registration numbers. This was a defense that should have been raised in the answer, and pressed; however, it was not. See Doc. 23 at 24 ¶ U.
  2. 17 U.S.C. § 107.