To begin with, McGraw-Hill's19 counsel at Debevoise & Plimpton wisely evaded the question of class certification by not filing as a class. Not only does this avoid my initial criticisms of the particular problems with the AG class definition—and, sadly, these are problems that would also necessarily occur in any class of publishers—but the AAP suit explicitly requests "declaratory and preliminary and permanent injunctive relief" (Cmplt. ¶ 1), but not damages. By doing so, AAP would fashion a remedy that could be relied upon by any potential class member through offensive collateral estoppel20 without the sideshow of class certification.
The substance of the complaint is also much better conceived. Early on, it acknowledges the possible library privilege under 17 U.S.C. § 108, and properly distinguishes that privilege from Google's program (Cmplt. ¶¶ 6–7). Most importantly, the AAP complaint properly characterizes the opt-in/opt-out controversy concerning whole-work (what I have called "primary") copying.
33. Both the Google Library Project and Google's pronouncement that publishers must provide to Google detailed lists of books that they wish to be excluded are contrary to the black letter requirements of the Copyright Act. The exclusive rights enjoyed by copyright owners to reproduce, publicly distribute[,] and publicly display their works, and to authorize others to engage in such acts, 17 U.S.C. § 106, squarely put the burden on Google either to obtain the permission from the copyright owners to copy and make use of copyrighted books or exclude them from the Google Library Project. [remainder of paragraph redacted]
This is the real core of the controversy. The key point is that the Supreme Court has already spoken on this subject:
More to the point, even if the dissent is correct that some authors, in the long run, are helped, not hurt, by Database reproductions, the fact remains that the Authors who brought the case now before us have asserted their rights under § 201(c). We may not invoke our conception of their interests to diminish those rights.
New York Times Co. v. Tasini, 533 U.S. 483, 498 (2001).21
The AAP complaint is also quite a bit shorter than is the AG complaint. Overall, it is a much cleaner statement of what is really at issue. That this "cleaner" statement comes from parties whose exclusive right is often far from clear (or clean)22 seems rather ironic—but all too typical in the murky world of copyright and the Internet.
- For parallelism, I'll refer to this as the "AAP" complaint. Even though the Association of American Publishers is not the lead plaintiff in this suit—that's McGraw-Hill—the complaint is tailored to serve organizational interests more than those of any of the three publishers named individually. The Author's Guild suit then becomes "AG", both by obvious abbreviation and because the Author's Guild is trying to act as a private attorney general.
- Offensive collateral estoppel (a variety of what used to be called res judicata) allows a nonparty to a lawsuit to use the results of that suit against the losing party in a later lawsuit of its own. For example, if A v B results in a finding of liability against B, C could use that finding to foreclose a defense by B in C v B on the same operative facts. See Parklane Hosiery v. Shore, 439 U.S. 322 (1979).
- Some might object that Tasini explicitly did not decide any questions based upon fair use. Although this is a correct statement as to the appellate opinions, the defendants below did raise fair use as an affirmative defense. Further, even giving Campbell the broadest possible scope, a verbatim reproduction of a complete book cannot qualify as fair use under the standards put forth in Nation Enterprises—particularly not in the face of objection to that reproduction.
- Cf. Rosetta Books, which I'll discuss in detail infra.