11 October 2012

Google Book Scan


HathiTrust Summary Judgment (1)

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

And so it ends. For the moment.

Yesterday, Judge Baer ruled in favor of the defendants in the HathiTrust litigation on two distinct grounds. Each of those grounds deserves some substantive analysis. In the end, this particular part of the Authors' Guild's narrow-minded attack is far less about copyright than it is about how copyright matters get overwhelmed by civil procedure concerns when the initial complaint — indeed, the entire theory of the case — is so ineptly stated.

What Judge Baer Actually Held

Judge Baer's generally well-considered opinion — at least, it's a well-considered opinion in the context of what was before him, in terms of both the record and the legal arguments — contains three holdings of import, although it is divided into two parts:

  1. The Author's Guild has constitutional standing to represent its unnamed members (and authors generally), but not statutory standing to do so (see slip op. at 4–10);
  2. The objection to the orphan works project part of HathiTrust is not ripe for consideration by the court; neither is the question of "associational standing" regarding foreign copyrights (see slip op. at 9–12); and
  3. The HathiTrust defendants are entitled to summary judgment, on the record before the Court, that the scanning process actually performed to date within HathiTrust's control — as subcontracted to Google — falls within the fair use doctrine in 17 U.S.C. § 107.

Contrary to bloviation that I've already seen elsewhere, though, Judge Baer did not hold any of the following:

  • That no organization can ever represent its members in a copyright action (contra Fed. R. Civ. P. 23), or
  • That libraries can copy/convert anything in their collections with absolute impunity (contra 17 U.S.C. § 108 (limiting the scope of library copying and reduplication)), or
  • That "orphan works" are free game for copying (contra slip op. at 10–12), or
  • That foreign authors cannot get any relief in US courts (contra slip op. at 9–10), or
  • That the entire Google Books program is entitled, under all circumstances, to a presumption of fair use (contra slip op. at 14–15).

And those are just a few mischaracterizations that I came across without actually searching...

In any event, Judge Baer's decision is at least defensible. I cannot say the same for the plaintiffs' litigation strategy and documents. I find it rather disturbing when Judge Baer notes this:

Plaintiffs barely address the other proposed defenses asserted by Defendants to protect the MDP and OWP. In one paragraph, Plaintiffs argue that Section 108 prevents libraries from asserting other potential rights and defenses besides fair use, including Sections 109 (first sale), 110 (exemptions of certain performances and displays), and 121 (reproductions for the blind) and the First Amendment. Pls.’ Mem. J. Pleadings 23. No case law is cited. Plaintiffs’ motion for judgmenton the pleadings that Defendants have no defenses available to them as a matter of law is denied.

(slip op. at 12, emphasis added) Of course, the reason that "no case law [was] cited" is that the AG's position was wrong... in addition to making a decision-of-convenience to file in the wrong place, as I've argued all the way back to 2005. This matter should have been filed in Michigan; as a consolidated action including both the "authorizing" libraries and Google; by proper parties plaintiff; and by counsel experienced in the nuances of copyright and contested class actions, as well as the speedbumps of settling class actions. In short, the Authors' Guild's handling of this matter was profoundly strategically flawed from the beginning... and that tends to lead to this sort of outcome, in which losses get magnified in their deterrant effect on future — better — efforts.

Next time, I'll go into more detail on the standing issues, then proceed (in several parts) to the copyright issues. That Judge Baer's opinion is defensible does not make it entirely correct (at least not in the abstract sense): He was constrained by a flawed record and litigation strategy, by some dubious precedent, and by the posture in which he heard the matter.