02 October 2005

Author's Guild v. Google (3) Still More Procedural Grumbling

My remaining procedural grumble in this matter comes from some particularly inelegant drafting in the complaint.

7. This copyright infringement action arises under 17 U.S.C. § 101 et seq. This Court has jurisdiction over this action under 28 U.S.C. § 1331 federal question, and 28 U.S.C. § 1338 (acts of Congress related to copyright).

8. Venue is proper in this district pursuant to 28 U.S.C. §§ 1391(b) and 1400(a) because one of the named plaintiffs resides in this district and because defendant conducts business in this district.

To begin with, I suppose two out of three isn't bad; unfortunately, "isn't bad" isn't good enough. Note that there is no specific allegation of personal jurisdiction over the defendant! That's an easily fixable problem, but it shouldn't need to be fixed at all—especially as the theory of venue expressed in the complaint is that same as the theory that would give personal jurisdiction.1

The more-subtle problem, though, is the question of exactly what business is being conducted in the Southern District of New York that might give rise to jurisdiction. The complaint and class definition limit themselves to scanning taking place at the University of Michigan—which is not, by any reasonable definition, in Manhattan. So, then, the only "business" that might be taking place in the Southern District of New York must be the dissemination of the final materials—an event that has not yet taken place. This is where we get into the interplay between the procedural posture of the matter and the substance, for two reasons.

First, a large portion of the case depends upon treating this as a declaratory judgment matter, requesting an injunction preventing the scanning from beginning. Leaving aside the logical problems with this issue, what we've really got is a court being asked to order a party not ordinarily found in the district (the reliance on "does business in") to not "do business" in another district. This is not the most obvious way to bring parties before the court, let alone make an enforceable remedy possible!

Second, this needlessly conflates the copyright problems. Google's program actually involves three distinct potential copyright violations (and I emphasize potential):

  1. The scanning, copying, and storage of the works at the University of Michigan library;
  2. The creation and dissemination of indices and/or search mechanisms from point 1; and
  3. The retrieval of undefined portions of the underlying works after a "hit" from point 2 by a person or persons who have neither purchased nor otherwise obtained a license to do so

There is some case law on both sides of each of these issues, and the statute really isn't all that clear. To say the least, I think it was an incredibly silly decision to conflate the three violations into a single cause of action, because that encourages misapplication of analyses and privileges from one of the three into the others. For example, the argument that "Arriba Soft says this is fair use" can logically apply only to violation 2. The facts in Arriba Soft explicitly deny application to violation 3, and really don't apply to violation 1 at all.2

So, in the end, the Author's Guild's complaint forfeits some of its most powerful arguments for the sake of maintaining class uniformity (that, as I've already noted, is fatally flawed in any event). The public statements have focussed almost entirely on violation 2; that's where I'll start analyzing the substance, but I can guarantee that's not where I'll end up.

  1. I make no judgment, at least as of yet, on the validity of this theory. In this particular case, I think it makes little difference; I think Google would have a great deal of difficulty claiming that its attempts at worldwide dominance of English-language searching somehow do not result in "doing business" in Manhattan. However, the exact scope of Internet-activity-based personal jurisdiction has yet to be studied carefully, either in federal court or in the literature, with much persuasive finality.
  2. Remember that Arriba Soft does not involve any "data acquisition" from the originals at all; instead, the search engine sought material already on the web, which (according to all of the opinions) had been either placed there by Kelly (the photographer) or was placed there with his permission or acquiescence. The Ninth Circuit, and more explicitly the District Court, made no attempt to consider unauthorized acquisition of the material.