28 October 2012

Google Book Scan


HathiTrust Summary Judgment (13)

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


On the Meaning of Meaning

At last, the end — for the moment. The obvious next step for the plaintiffs is an appeal, which is due on or before 09 November 2012. Unfortunately, that's going to mean several more years of litigation; Judge Baer's decision is so consistent with Second Circuit law that the plaintiffs cannot win unless (and until) they get a hearing in front of the Supreme Court. The earliest that this could result in a final decision — unless a court directs an accelerated briefing schedule somewhere along the way, which is extraordinarily unlikely — is some time in early-to-mid 2014, and that finality would come from the Supreme Court refusing to hear the matter. If the Supreme Court were to take the case, and the Second Circuit takes more than a month after submission of the briefs to decide its own position, the most-likely (but by no means certain) final decision would be in the 2016 Term of the Supreme Court, which ends in June 2017... and would almost certainly result in sending the matter back for further consideration in the courts below. That's over a decade after this mess first hit the courts.

But what would be at issue on appeal? They divide nicely into two sets of issues: Scope and substance.

  • The scope issues are themselves divided. The obvious one is the problem of associational standing for the Authors' Guild under the Copyright Act. Unless the Second Circuit is willing to change its own law on associational standing,59 this is unlikely to be successful unless the Court of Appeals determines that the statement of facts is incorrect. The foreign-association-standing-under-US-copyright-law issue is just as ripe for appellate consideration as Judge Baer held that it is in the trial court: It's a mess that would require prediction of how foreign courts would rule if they had jurisdiction over these defendants in the first place. Since ripeness is often invoked precisely to avoid answering questions of this nature, this is more than merely a nearly infinite regression: It's the way things are.

    The second scope issue subject to appeal is a bit more subtle, and would not provide complete relief for the Authors' Guild in any event. Much of the rhetoric in Judge Baer's opinion is sweeping, referring to "libraries" in a very general sense and with a very general understanding of what libraries do. This case, however, is not about libraries in general; it is about the current members of HathiTrust. Assume, for the moment, that a consortium of rural public libraries in the southeast hires EBSCO to do much the same thing for their collections that Google did for the university libraries' collections, but this time focusing on commercially published and regional interest works. Not only would that be heard in a different circuit, in all probability — the Eleventh, where it's even harder than in the Second Circuit to overcome "arm of the state" Eleventh Amendment issues60 — but these proceedings before Judge Baer would mean precisely zero. Just as the Authors' Guild does not have associational standing to represent all authors, the HathiTrust members do not have associational standing to represent all libraries. Put another way, there is no preclusion.61

  • The substance issues are also themselves divided, and dependent upon the particular resolution of the scope issues. The obvious question is whether the set of facts before Judge Baer justified summary judgment finding fair use of the 78 works at issue. As I've noted above, there simply doesn't appear to be evidence in the record regarding these 78 works for the fourth fair-use factor. A strict reading of § 107 and of the law concerning summary judgment would note this and send it right back down for further proceedings on at least this point. That said, there's a considerable trend (well beyond the scope of this essay) for courts to try to find a way out of having trials on property disputes that are not, themselves, constitutional issues.62

    It's actually in the plaintiffs' interest to get this resolved independent of the scope issues: At present, there is precious little clarity in the substance of fair use by modification of underlying form without modification of underlying expression, and it's in authors' collective best interests to have some guidance on the issue. For example, under Judge Baer's reasoning, using the lyrics (and lyrics alone) of a published song as chapter headings in a book, divided into relevant parts, is sufficiently transformative that it qualifies as fair use as a matter of law. To say the least, the Nashville-based community of "music publishers" would disagree with that! Thus, even if the Authors' Guild were to lose this case, it might claim a win on a broader, substantial question of fair use and copyright law to the benefit of its members. I question whether the Authors' Guild is thinking about things like this; I expect only a knee-jerk-reaction we-lost-so-we'll-appeal appeal.

    More importantly — and this is an issue that I do not expect the parties to argue, although it will be lurking in the background — is the procedural propriety of deciding a defense that is so entwined with the particular characteristics of both the actual use and the individual works in question in a mass proceeding. Put another way, is it even possible to resolve fair use for classes of works (whether we're talking about 78 works or a larger universe) with a set of uncontested material facts entitling one party or the other to judgment as a matter of law, when the law is a balancing test dependent upon fairly work-specific and use-specific circumstances?

The bottom line is that this decision is not even the beginning of the end. It leaves more, and deeper, questions unresolved than it answers. That is not a criticism of Judge Baer; it is a criticism of the parties. Just as in the wonderful world of BCS standings and World Cup qualification, one must play the opponent one has, and looking ahead to the next match's more-highly-regarded opponent leads to stumbles and unexpected losses.

  1. See ABKO Music Inc. v. Harrisongs Music, Ltd., 944 F.2d 971 (2d Cir. 1991); Eden Toys, Inc. v. Florelee Undergarment Co., 697 F.2d 27 (2d Cir. 1982). On one hand, both of these cases read too much into the statute itself. On the other hand, there is no circuit split — that is, all of the Courts of Appeal that have ruled on this issue are consistent in direction, if not in fine detail, with the Second Circuit, and the fine detail appears rather unlikely to matter on these facts. See, e.g., Silvers v. Sony Pictures Entertainment Inc., 402 F.3d 881 (9th Cir. 2005). Whether this should be the law is largely a matter for legislative, and not judicial, determination; it is arguably inconsistent with both the IP Clause (U.S. Const. Art. I. § 8 cl. 8) and the Berne Convention (see note 58 supra), a treaty that is entitled to substantial deference under Article VI cl. 2 of the Constitution.
  2. See Part I supra; see also, Miccosukee Tribe v. Florida State Athletic Com'n, 226 F. 3d 1226 (11th Cir. 2000); Shands Teaching Hosp. & Clincs v. Beach Street Corp. 208 F. 3d 1308 (11th Cir. 2000).

    Note that the Eleventh Circuit is the origin of the Supreme Court's most illogical (and relevant here) Eleventh Amendment jurisprudence: the self-referential nightmare of Florida Prepaid. College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U.S. 666 (1999); Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U.S. 627 (1999). That "666" is part of the official citation of one of these devilish cases — ironically, the more problematic one — is rather delicious.

  3. See Parklane Hosiery, supra note 20.
  4. See, e.g., Suja A. Thomas, The Fallacy of Dispositive Procedure, 50 Boston Coll. L. Rev. 759 (2009) (PDF); see also John H. Langbein, The Disappearance of Civil Trial in the United States, ___ Yale L.J. ___ (forthcoming 2012) (PDF); Howard M. Wasserman, The Roberts Court and the Civil Procedure Revival, 31 Rev. Litig. 311 (2012) (PDF).

    To me, the more-interesting theoretical question is whether the action of the arm-of-the-state actors might have constituted a "taking" of a property right belonging to the plaintiffs. There is precious little jurisprudence on whether intellectual property is even subject to a Fifth Amendment takings analysis. At first impression, though, it seems no less amenable to such analysis (or, at least, a parallel due process analysis) than are welfare benefits. Cf. Mathews v. Eldridge, 424 U.S. 319 (1976) (emphasizing the property-interest nature of already granted welfare benefits). But then, I'm a nerd, and I'm not sure just how "special" intellectual property is or should be, so I tend to ask questions like this that don't have clear answers.