Scrivener's Error

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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.

19 October 2012

link to: 11:46 [GMT-8]

Google Book Scan

HathiTrust Summary Judgment (7)

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

Factor Two: Nature of the Copyrighted Work

Taking this factor at face value, the works listed on Exhibit A do not have much in common other than "appeared in printed volumes in the English language." Most are U.S. works, some are not; some are fiction, some are nonfiction; a few have some serious (albeit not scholarly) aspects, virtually everything else does not; some are in print at this time and/or at the time of filing and/or at the time the initial GBS lawsuit was filed in 2005, some are not; some are the first publication of the respective material, some include previously published material; and so on. This is a relatively common problem with fair-use inquiries in non-work-specific litigation: Counsel (either purposely or otherwise) tends to make the panoply of works at issue as broad as possible. In turn, this results in decisions that are unfortunately taken as general statements of general principles that apply to all works, rather than concerned with the works actually at issue. Rhetorically, at least, that certainly happened in this matter!³⁹

Turning to what Judge Baer actually said on the nature-of-the-copyrighted-work factor — and remembering that as a matter of law, he is considering only the works on Exhibit A, no matter how lofty his rhetoric — we find this:

"[S]ome works are closer to the core of intended copyright protection than others." Copying factual works is more likely fair use than copying creative works. However, where a use is transformative, the nature of the copyrighted works is not likely to "separate the fair use sheep from the infringing goats." Here, Plaintiffs identify 116 works that they allege were unlawfully digitized by Defendants as part of the [massive digitization program]. Approximately 76 percent of the identified works are fiction. In the [HathiTrust Digital Library] as a whole, approximately 9 percent consists of prose fiction, poetry, and drama. Because the use is transformative, intended to facilitate key-word searches or access for print-disabled individuals, the second factor is not dispositive ("[T]he second factor may be of limited usefulness where the creative work of art is being used for a transformative purpose.").

Slip op. at 18 (internal citations omitted). And that is the entire discussion.

In this instance, Judge Baer has been put in a bit of a bind by the Second Circuit. Remember, as a District Court judge sitting in the Second Circuit, he must treat interpretations of the underlying statute by the Second Circuit as the definitive ones, unless/until they are overturned by either changes to the statute or a Supreme Court decision. In this particular instance, the Second Circuit has incorrectly interpreted § 107's second factor as depending upon the resolution of the first factor. There's simply no way to defend this position based upon either reading the statute itself or reading the statute together with the legislative history of § 107, stretching all the way back to the initial study-group submission in the 1950s. The only way one reaches this result is by accepting the judge-made doctrine of fair use under the 1909 Act as not merely persuasive, but binding, interpretations of a doctrine codified anew in the 1976 Act.⁴⁰

All of that said, this is by far the most unsatisfactory aspect of Judge Baer's opinion; it is the miracle on the chalkboard. Judge Baer has already (and, IMNSHO, correctly from both legal and policy perspectives) carved out a large number of works from consideration with his considerations on standing. The nature of the works at issue in the binding precedent deserved considerably greater discussion, particularly as compared to the works actually in front of him. Of the entire fair use discussion, this factor is the one that most clearly falls into the concluding-beyond-the-warrant trap. A better decision would have emphasized the distinctive natures of the individual works at issue. In the end, though, I'm not sure that would have led to a different result, particularly when considering the other four factors.

Wait a minute; if § 107 has four clearly numbered factors, and this is one of them, how are there four factors other than "nature of the copyrighted work"? We'll see that fifth, nonstatutory, and ultimately determinative factor more clearly when discussing the third statutory factor, and certainly when discussing the fourth one. For now, though, consider this a pathetic attempt at a cliff-hanger... all too appropriate given some of the particular works of fiction at issue...

Procedurally, there's a simple solution to this. If for political and strategic reasons it's considered necessary to join otherwise-dissimilar works in the same lawsuit, there's little good reason to not have subclaims for relief based on subclasses of similar works. In the HathiTrust complaint, there is only one count and claim for relief. It would have been better to have additional counts for each of the coherent subsets by nature of the work at issue; for example, a Count II dealing with the commercial category fiction (primarily Ms Weldon's works), a Count III dealing with the general-reader nonfiction, and so on. In turn, this would have forced both the parties and Judge Baer to grapple with the differing natures of the works when it came time to deal with fair use. Had counsel utterly failed to anticipate that a fair use defense was going to be raised, that would amount to legal malpractice so egregious that it implicates N.Y.R. Prof. Conduct 1.1, codified at 22 N.Y.R.C.C. Part 1200 (PDF), particularly in light of half a decade of GBS litigation raising such a defense; perhaps there was a conscious decision made to simplify in this instance, but if so it was ill-considered.
Cf., e.g., Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006) and the cases cited therein. That this acceptance of an outdated common-law conception is logically inconsistent with the emphasis on statutory standing deserves more attention... in another forum entirely.

Labels: copyright, intellectual property, internet, jurisprudence, publishing

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Links of Interest

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Writer Beware and the Writer Beware Blog provide essential knowledge for writers who don't want to be ripped off
Writing-World.com published by the former managing editor of the now-defunct Inklings
Agent Research & Evaluation provides both free and paid analyses of literary agents
US Copyright Office, including both registration forms and records and quite a bit of other helpful information
Trademark Electronic Search System (TESS) allows searches of granted, pending, and some rejected trademark registrations
US Supreme Court Opinions from the current and past couple of terms
Law Library of Congress includes statutes for free
The Public Library of Law can help you find the law... but not use it in court, as many of its resources are not in proper form and do not provide all of the citation information needed in court papers
Legal, free e-books are available through Online Books (University of Pennsylvania) and Shakespeare (MIT)
Legal, free music is available through
- ClassicCat.net (what kind of music do you think you'll find here?)
- Music.Download.com (long-awaited successor to MP3.com)
- Janis Ian (artist)
- John McCutcheon (artist)

Other Blawgs, Blogs, and Journals

These may be of interest; I do not necessarily agree with opinions expressed in them, although the reasoning and writing are almost always first-rate (and represent a standard seldom, if ever, achieved in "mainstream" journalism). I'm picky, and have eclectic tastes, so don't expect a comprehensive listing.

A blawg is sort of like a blog on legal issues, but usually has a lot more links to outside resources (other than other blogs) than does a typical blog. Scrivener's Error is a blawg, not just a blog. You can find other blawgs at < ? law blogs # >.

How Appealing is aimed at appellate lawyers and legal news in general. If you care about the state of the law, start here — Howard's commentary is far better balanced, better informed, and better considered than any of the media outlets. To concentrate on the Supreme Court, don't forget SCOTUSBlog.
Some academics' blawgs with a variety of political (and doctrinal) viewpoints:
- Professor Anthony Arend (Georgetown Law)
- Professor Stephen Bainbridge (UCLA Law) (aka "The Perfesser")
- Professor Jack Balkin (Yale Law)
- Professor Dennis Crouch (Missouri Law) (better known as Patently-O)
- Professor Michael Froomkin (University of Miami Law)
- Professor Eric Goldman (Santa Clara University Law)
- Professor Rick Hasen (UC-Irvine)
- Professor Brian Leiter (U of Chicago Law/Philosophy)
- Professor Michael Madison (Pitt Law)
- Professor Rebecca Tushnet (Georgetown Law)
BoingBoing, by speculative fiction writer (and 'net activist) Cory Doctorow, is quite hostile to copyright enforcement efforts, particularly regarding file-sharing
The main European IP blawg of interest remains the UK-based IPKat, on a variety of intellectual property issues, with some overlap (with a less Eurocentric view) at IPFinance
Cyberlaw (Stanford) has its agenda grounded firmly in the so-called "digital commons," which might make a bit more sense if any of the advocates of that viewpoint understood diddly-squat about population ecology
The American Constitution Society blawg is a purportedly "liberal" counterweight to the so-called "Federalist Society" (which, despite its claims, should be called "Tory Society") that has yet to establish much coherence... but maybe that's all to the good.

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