26 October 2012

Google Book Scan


HathiTrust Summary Judgment (11)

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


Balancing the Fair Use Factors

Finally, the result. If one accepts Judge Baer's analysis and pays attention to evidence as actually before him — and, I must regretfully repeat, the plaintiffs' counsel did not do a very good job of building a record with persuasive, nonspeculative factual material — there's little doubt about the balance of the fair use factors. It really does not matter whether there are four or five factors in the balancing pan; on this record, Judge Baer's conclusion that the HathiTrust program is fair use of the 78 works that are at issue is quite defensible.

From a jurisprudential point of view, though, Judge Baer's analysis — and Second Circuit analysis — depends upon a serious flaw in the Copyright Act itself. Because the act does not distinguish among kinds of works, it is far too easy to reach far, far too broad a result based upon dubious analogies between different art forms. Consider, for example, the most-critical case in Judge Baer's analysis: Bill Graham.56 Dorling Kindersley published a book that included reproductions of concert posters from long-ago concerts, many of them promoted by Bill Graham. Of note, the reproductions were considerably smaller; were only part of a larger, integrated work; were not in any fashion suitable as substitutes for the originals. More to the point, they were "transformed" from transient advertising to cultural artifacts and part of a larger, self-sustaining work. But later invocations of Bill Graham have almost never acknowledged that the transformation in that case was far, far more radical in form and in nature that what was at issue. Bill Graham is an easy case;57 it's an easy case that makes bad law, particularly when it is read as making broad pronouncements of law that get misread as applying too far out of context.

Had plaintiffs' counsel done a better job in setting up contested facts demonstrating potential and actual substitution — and done a better job showing how little transformation there is between textual works and a textual database that contains the entirety of that work in a form that is a complete substitution but for not being on paper — perhaps this would have been a closer call for Judge Baer. However, the flaws in the complaint made that a much more difficult task than it already was.

  1. Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006). It's worth reemphasizing that this Second Circuit opinion is — however flawed — binding precedent on Judge Baer, which put him into the position of either agreeing with it or demonstrating that it is not relevant. He's not allowed to merely disagree with it, absent a Supreme Court decision... or a change in the statute. It is beyond the scope of this essay, though, to do more than remark that the Second Circuit has not paid nearly enough attention to the changes in the statute between the 1909 Act and the 1976 Act. Cf., e.g., Warner Bros. v. American B'dcasting Cos., 720 F.2d 231 (2d Cir. 1983) (relying almost entirely on fair use analysis under the 1909 Act for a 1976 Act case). Sadly, this blind spot is not limited to fair use.
  2. Sorry, Professor Patry, but it was. Not for the reasons or under the analysis of the Second Circuit, but easy nonetheless.