08 November 2011

Google Book Scan

Authors' Guild v. HathiTrust
II(c) The Imaginary Component of Complex Litigation

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

There is one other purely civil-procedure aspect of this mess that remains underappreciated... and is going to turn around and bite somebody on the butt (my money is on Google as the bitee, for reasons that I will explain in detail after we've plowed through the merits). If nothing else, the Google Book Scan litigation, with its multiple suits and failed attempts at class certification, constitutes complex litigation.18 Just look at what we have:

  • The original Authors' Guild v. Google suit, which was consolidated with
  • A publishers' counterpart (McGraw-Hill v. Google) in the hopes of settlement, which has now failed
  • A parallel suit involving illustrations in scanned books from the American Society of Media Photographers, which is not consolidated with the two preceding suits

And that's just in the Southern District of New York, which I have maintained from the beginning is the wrong venue. It does not consider any of two dozen or so (that I have found without doing an expensive customized search) individual suits that disclaimed class status that have been filed against one or more of the guilty parties — including publishers that improperly approved scanning when they did not have the authority to do so. Neither does it consider potential suits that might be filed against other guilty parties, such as cooperating libraries outside of the HathiTrust structure (and you know who you are). Perhaps most disturbingly, it fails to consider the web of conflicts among those appearing across the v. from Google. The obvious author-publisher (and illustrator-publisher) conflicts are bad enough... but as Judge Chin pointed out in his 22 March 2011 rejection of the proposed class settlement, the conflicts within the classes of plaintiffs are so severe that it was inappropriate to accept the settlement as fair.19

Managing discovery in this kind of a nightmare is going to be a challenge in itself. That will be a particular problem when dealing with orphan works and with fair-use defenses. A little farther down the road, both sides will undoubtedly be filing motions for summary judgment. Unfortunately, the Southern District of New York does not have rules as clean as those in the Northern District of Illinois for handling the way the parties present the facts and evidence, so we're going to have inconsistent presentations there on the same side of the v., which will in turn make things very interesting indeed for the judge.

Finally for now, there's the potential estoppel arguments... for each significant issue. Let's consider just a fair use defense for a moment. Ordinarily, if Google were to lose the fair use defense against any of these defendants, the other defendants would (and could) hold that finding against Google in their own proceedings.20 The problem is that the four statutory fair-use factors21 (not to mention that overriding fifth fair-use factor, administrative convenience) are claimant-specific, because the third and fourth factors are substantially different for the intermediate licensee-distributor (the publisher) than they are for the licensor-creator (the author, or the photographer).

Last, though, there's the converse problem. Judge Chin properly called for legislative action, particularly in dealing with the orphan works problem. That, however, can only concern itself with future conduct; it is improper for Congress to insert itself so far into a pending matter that it directs the outcome of that matter. Thus, the longer that Congress waits to do something, the less it can actually do (which is not much of a surprise, is it?). In the meantime, the judiciary is stuck with not just the possibility, but the high probability, of inconsistent judgments and results in these actions. If nothing else, this points out an aspect of antitrust doctrine that was carefully neglected in the various public discussions of the proposed settlement.

  1. See, e.g., Federal Judicial Center, Manual for Complex Litig. (4th) (2004) (PDF). Ironically, the MCL is just about due for a decennial revision...
  2. There's one conflict that was not discussed in that opinion that is not quite an elephant in the room — perhaps it is only a hippopotamus, or a very angry rhinoceros. And that is the Bankruptcy Code. All it would take to torpedo this entire litigation is for one of the many named plaintiffs to enter bankruptcy; given the ill health of the publishing world, that's a more than trivial possibility. Hell, all it would take would be for one of the named-plaintiff authors to become seriously ill outside of his/her health insurance coverage! Or, worse yet, for one of the named plaintiffs to be a successor in interest to a debtor that had been discharged in bankruptcy.
  3. See Parklane Hosiery v. Shore, 439 U.S. 322 (1979).
  4. 17 U.S.C. § 107.