Evil, that is — if you're Google.
Thanks to yet another complaint by the Authors' Guild claiming to represent authors who cannot qualify for membership in the Authors' Guild under its own rules — this time, against HathiTrust — and the results of this morning's status conference in the GBS matters before Judge Chin, there's a lot to chew over. Rather than do a formal update to the GBS thread, I'm just going to offer a few observations here, as there's more news expected in the next few court days which may well require me to reorganize my GoogleScan presentation. In no particular order:
- OK, I've read the summary by Professor Grimmelmann's students. What does it mean? That we're all in for a good time watching the lawyers pontificate endlessly and largely meaninglessly... and that Google has succeeded in the primary goal of all class-action defendants: Splintering the opposing class so that the small groups can be defeated in detail. Basically, what I expect to happen will look something like this, although not necessarily in this order:
- The publisher-plaintiffs will reach a partial settlement with Google, and will file their own class-certification motion. That motion will, of course, ignore the Rosetta Books issues (whether the publishers have any claim to electronic rights in the books they published for which they did not obtain and retain the entire copyright), because it's not in the publishers' or Google's interest to litigate that issue or have any agreed precedent on it.
- The Authors' Guild will continue to pretend that it represents all authors, and will file another class certification motion... which, in turn, will require more opt-outs and/or opt-ins, even if it is not related to a settlement. It seems highly doubtful that they'll be able to reach a settlement. That, by the way, is a good thing; this litigation has been misconceived and mismanaged from the start, beginning with the selection of counsel and going rapidly downhill from there.
- I suspect that the publishers will continue to rely upon their existing complaint. It's about 50-50 as to whether the Authors' Guild gets its collective head out of its collective post-digestive orifice and issues a new complaint at all... and even if it does, I believe that there's less than a 10% chance that such a complaint would start over and establish a coherent, comprehensive basis for a coherent, comprehensive resolution.
- All of the parties are going to mischaracterize legal arguments as "expert opinions." Sad to say, this is a given, particularly due to who has been identified previously in papers in this matter as appearing as an "expert witness." This is also an explicit and egregious violation of the Federal Rules of Civil Procedure that is not well considered in front of Judge Chin; I've seen judges smack down counsel who tried to use an "expert report" as a way to get a brief longer than allowed by the rules in front of them. Based upon the writing qualities of the proposed settlement agreement, brevity is not one of counsels' greater failings...
- The next truly significant "deadline" for those playing along at home is in early January. There will be things happening before then, but nothing that will require absent authors with claims to do anything before then.
- What's this about suing libraries? No, not all libraries; just a consortium of research libraries. I'll have more to say specifically on this over the weekend. For now, what authors need to know is that the Authors' Guild has, yet again, proclaimed that it represents all authors, and this time has attacked the library-partners of Google from the Google scanning program for their plan to make some of the scanned works available through the library system.
Legally, this is much more complicated and nuanced than it seems. To begin with, libraries are "special" under § 108 of the Copyright Act (now, if the Copyright Act only provided a definition of "library"...). Then there's the specter of State Street Bank that may prevent the suit from being heard at all, along with questions of running of statutes of limitations, proper scope of potential relief, and all kinds of purely civil-procedure stuff that really gets my civil-procedure-geek heart racing. If, that is, I have a heart. Only then can we even begin to consider the merits of the copyright theories, the complaint, etc. In short, this is not going to be simple.
Authors do not need to worry about this particular suit now. It certainly establishes no relevant deadlines — not even relevant deadlines for intervention, as there has as yet been no responsive pleading or motion for class certification. At least this is not the same lawyers as are running the GBS action for the AG... or not on the caption, anyway.
- What's up with this "orphan books" thingy and the Authors' Guild's "refutation" of it? In the end, the HathiTrust (anti-library-consortium) suit is about the fifth fair-use factor — the one that is not in the statute. It's not about the purpose of the use, nature of the works, the amount of copying, or the effect on the market; it's about administrative convenience. The unstated case in favor of HathiTrust's action is that there is a limit x to how much investigation a republisher has to do. Although the Copyright Act is founded on strict liability, one must remember that "fair use" — even in the statute — is an equitable doctrine that developed over time as judges determined what seemed a fair/unfair result for particular kinds of "copying", particularly in light of the fact/expression dichotomy and the First Amendment. That's basically a longwinded way of saying that the very nature of the "fair use" defense is at odds with the absolute protection at the core of the Copyright Act.
And it gets better. This is why Rosetta Books matters. In this particular context, the libraries do not want to search down individual authors; they want to search down print publishers, at most. Finding the print publisher provides protection to the electronic republisher, though, if and only if the print publisher had the right to deal with an electronic republication at all. And, thus, Rosetta Books... in which the trial court found that the word "book" in pre-1992 Random House contracts did not include electronic texts. (Admittedly, there was a later settlement that Random House will no doubt claim wiped this off the books as precedent of any kind, puns intended.)
Authors who have fought e-piranhas on the Big Brazilian River — pirate e-editions of their works — will recognize this problem. Amazon has a policy — which they will not admit to in their statutorily required takedown policy, but becomes both very apparent and explicit when one actually issues a takedown notice — of dealing with publishers in preference to (and often to the exclusion of) the actual copyright holders in the works. Once again, "administrative convenience": Dealing the the publisher provides an administratively convenient single point of contact for a larger basket of works, and further allows Amazon to point to that publisher as the source of any damages/revenues due for an infringing edition. It's the equivalent of the pawnshop owner saying that he need not turn the proceeds he got for grandmother's wedding ring over to the rightful owner of the wedding ring, because Amazon was supposedly a bona fide purchaser for value; instead, one must find the thief and get the money back from him/her.
What this all implies is that the only administrative convenience that matters is that of the exploiter(s), whether or not they is/are infringing. Again, this is inconsistent with the entire basis of the Copyright Act. On the other hand, so are contemporary publishing contracts that try to treat an author's agreement for a particular work as a sale of rights, and not a mere license that transfers a right and not an ownership interest.