27 October 2012

Google Book Scan


HathiTrust Summary Judgment (12)

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


The Horror

... or why, after we've made our way through the jungle, we're left confronting Colonel Kurtz and trying desperately to figure out who wins. If anyone.57

Let's begin with the defendants' strategic blunder. Whether this is 20–80 hindsight or something else, we need to remember the exact scope of what Judge Baer held after considering all of the rulings at issue.

HathiTrust has validated a fair-use defense regarding the seventy-eight works on Exhibit A of the First Amended Complaint in this matter for the transformative use of creating an electronic index of the text of the seventy-eight works, and allowing that index to form a basis for scholarly and other uses falling within Judge Baer's analysis. HathiTrust has not, however, validated a fair-use defense outside of those seventy-eight works, or for using those seventy-eight works for nonscholarly purposes, or for making those seventy-eight works available to the public58 for general circulation.

And there is the defendants' strategic blunder: They never should have filed a motion for summary judgment before Judge Baer ruled on the associational standing and ripeness issues. They were under no obligation to do so (and so far as I've been able to determine, there was no looming deadline in the case management order). They used their "best defense" against a gnat... and, as I've noted above, the factual record focusing on the universe of scanned works — and not those few actually at issue — could well allow that gnat to revivify on appeal. I know it's close to Halloween, but the thought of zombie copyright gnats is more pathetic than frightening...

So, as a matter of civil procedure and strategy, this ruling does almost nothing to advance the resolution of the underlying dispute. It does not bind other authors. It does not bind other circuits. It provides at most persuasive material to introduce as part of a legislative record, and not very good persuasive material for that purpose. More crucially, it does not even begin to untangle the cooperative mess between the various libraries and their subcontractor. For example, one critical question that § 108 does not resolve — and wasn't even considered when § 108 was drafted and passed — is whether a subcontractor for a library legitimately covered under § 108 that is not itself covered by § 108 can nonetheless claim the protection of § 108. Put another way, can Google stand in the libraries' shoes? Can anyone else? That, of course, just invokes the serious civil-procedure and strategic errors of the plaintiffs when they put this mess together, stretching back to 2005.

At most, this decision called in the airstrike on Colonel Kurtz. We'll be left wondering who Colonel Kurtz was in this little corner of the war for a very, very long time.

  1. I suppose I should get one other aspect of this mess out of the way. The defendants — and Judge Baer — tacked on a discussion concerning the right of those with visual disabilities to access the texts. See slip op. at 22–23, citing 17 U.S.C. § 121. This is both entirely irrelevant to the conduct at issue (nobody — and I'm not making a literary judgment here — is going to convert Fay Weldon's works that are already available in large-type and Braille printed editions to electronic texts for the sole purpose of making them available to the visually impaired) and a vast overreading of the statutory language. Then, too, there's the untrustworthiness and post hoc rationalizations of some of the individuals involved. Admittedly, that last is my personal evaluation after dealing with them personally.

    Then, too, there's the problem that merely because use X arises from defense X, that does nothing — nothing — to even persuade, let alone foreclose, a case for infringement from use Y or to validate defense Y.

  2. Cf. Berne Conv. on Copyright Art. 3(3).