14 October 2005

Author's Guild v. Google (7): The Way Things Are

Most of my discussion of the merits thus far has assumed that the complaint asserted what it should have—three distinct, clear theories of copyright infringement, each sufficiently fact-bound to avoid a motion to dismiss (and probably summary judgment). Of course, that's not what will emerge from this fiasco; instead, we'll ultimately get an opinion founded on the complaint.16 So, then, what does the complaint actually allege?

39. Google has made and reproduced for its own commercial use a copy of some of the literary works contained in the University of Michigan Library, which contains the Works that are the subject of this action, and intends to copy most of the literary works in the collection of that library.

40. Google's conduct is in violation of the copyrights held by the Named Plaintiffs and other members of the Class.

41. Google's infringement of the copyrights of the works was willful.

Author's Guild, Inc. v. Google, Inc., No. 05cv8136 (S.D.N.Y.), complaint (Dkt. 1, Sep. 20, 2005).17

Admittedly, this isn't as bad as it could be. The real problems are twofold. First, it implies that only the copying itself (what I have labelled violation 1) is potentially at issue, although that conclusion is inconsistent with the factual allegations preceding it, particularly paragraphs 29, 31, and 33, each of which asserts that Google intends to display the copied works (violation 3). That this is only an implication, though, is not binding on anyone; under controlling law, the complaint is to be read broadly to include all theories and causes of action for which the defendant is fairly upon notice. Since the complaint alleges facts that would (or at least might) allow relief for violation 3, violation 3 has been plead—but only by implication, and inelegantly at that.18

More damagingly, though, the complaint includes five unnecessary words that sharply limit the scope of any potential relief: "for its own commercial use". Remember, "commercial use" is just one possible conclusion concerning one of the four fair use factors. As a hypothetical, would it be a violation if the University of Michigan did exactly the same thing as Google is doing/is proposing to do? If so, what if the contract between Google and the University of Michigan et al. characterizes Google as a subcontractor, doing something that the universities therefore could do on their own? Would that transform Google's behavior into a commercial, as opposed to scholarly, use? Licenses, after all, can have transitive properties: Absent a specific prohibition, one can ordinarily sublicense an action one is authorized to do through a license from a third party. And, of course, this gets vastly more complex in light of the special privileges accorded libraries under 17 U.S.C. § 108.

So, through some poor drafting, the complaint leaves itself open to serious problems both in substance and in rhetoric. A case of this nature must be won in the court of law and in the court of public opinion; winning in only one of those courts isn't enough. The language of the complaint sabotages the legal prong and subtly undermines the public prong (which I'll explore in the next entry).

  1. Or, more probably, an amended complaint filed down the road after the first round of motion practice. That, however, must remain theoretical. I seriously doubt that the lawyers involved are paying any attention to what I have to say, so I hold out no hope that the complaint will actually be better on the substance of copyright; it will merely conform better to whatever facts emerge during discovery.
  2. Although Milberg Weiss has developed a reputation for suing those who would copy its complaint, I claim fair use in this copy of a small extract of the complaint, which is fully attributed and is being used for purposes of commentary on a matter of public concern. That's right—sometimes I do support fair use.
  3. This is a corollary of my diatribe on lawyers and shopping lists. The communication rule is basically this: If you don't ask for something clearly, the court is unlikely to give it to you clearly.