12 October 2012

Google Book Scan

HathiTrust Summary Judgment (2)

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

It's time to dive into the procedural aspects of this matter, which demonstrate that neither the Author's Guild nor its counsel understand what they're doing... which did not necessarily make the adverse ruling in the HathiTrust segment a foregone conclusion, but certainly made it much easier for Judge Baer to come to that conclusion. In this particular instance, it's actually easier to criticize the AG and its counsel by pointing out the myopia in its 20/80-hindsight post-judgment "press release" issued this morning. The critical language in that post-judgment "press release" is this:

We disagree with nearly every aspect of the court’s ruling. We’re especially disappointed that the court refused to address the universities’ “orphan works” program, which defendants have repeatedly promised to revive. A year ago, the University of Michigan and other defendants were poised to release their first wave of copyright-protected, digitized books to hundreds of thousands of students and faculty members in several states. The universities had deemed the authors of these books to be unfindable. Within two days of filing our lawsuit last September, Authors [sic] Guild members and staff found that the “orphans” included books that were still in print, books by living authors, books whose rights had been left to educational and charitable institutions in the U.S. and abroad, books represented by literary agents, and books by recently deceased authors whose heirs were easily locatable.

(fake paragraphing omitted for clarity, which should never be necessary from an authors' organization!) This reflects three specific types of inexcusable ignorance of how the lawsuit actually was resolved:

  1. Judge Baer held that the Authors' Guild has no associational standing, so of course he didn't reach the issue of orphan works. Under his own reasoning, he couldn't: If the Authors' Guild has no associational standing under the statute, it certainly cannot represent non-AG members who "own" orphans. As I noted upon the initial filing in this lawsuit, "associational standing" is not the same thing as "class representative"; there are a lot of parallels, but the rules are different. (As we'll see below, the precedents essentially gave Judge Baer no choice on this; it's an unfair and unjust result in a way, but it's the law, dammit.)
  2. After Judge Chin's evisceration of the Authors' Guild's ability to represent orphans in the parallel litigation against Google, nobody should have been surprised — let alone disappointed. Ignoring the T. Rex (or, perhaps, T. Lex?) in the room of a prior adverse ruling on the same issue, in the same context, involving the same assertion by the same party, is a mistake that first-year civil procedure is supposed to wash out of every lawyer's hair. See, e.g., Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322 (1979).
  3. There's a huge difference between procedure and merits. They certainly influence each other; however, the AG's statement mixes the two aspects back and forth in a dizzying spiral of illogic.

So, then, what the heck is "associational standing" in the first place, and why did the precedents in the area force Judge Baer's decision (particularly given the paucity of analysis provided by the AG in its own submissions)? In US law, one must have both constitutional and a cause-of-action-based standing, or a lawsuit (even a criminal prosecution) cannot proceed. The underlying principle is that lawsuits are supposed to be decided by and between those affected by it, so that the remedy afforded a winning party reflects the actual interests at stake. Constitutionally, this refers to the "case or controversy" aspect, plus some other "prudential" doctrines. US courts refuse to issue so-called "advisory opinions" (the "declaratory judgment" is not quite the same thing, because it's... well, a pernicious jurisdictional beast, but that's a discussion for another time); instead, there must be an actual, live dispute between the parties before the court. And that leads to the problem with "cause of action" standing: Under U.S. law, one can assert only one's own rights in court unless there's a specific legal exception. For example, if A libels B, C cannot sue on B's behalf. The exceptions are usually statutory; the most obvious one is the one that makes the State a party in criminal proceedings, because criminal matters are offenses against both the actual victim(s) and the peace and order belonging to the State as a whole. Similarly, some statutes give "private attorney-general" powers to litigants, such as the notorious Cal. Bus. & Profs. Code § 17200 et seq. (providing "private attorney general" powers to virtually anyone to attack many unfair trade practices).

As Judge Baer points out in his analysis, the Copyright Act does not have a "private attorney general" provision, meaning that the Authors' Guild cannot rely upon the "associational standing" decisions (usually related to environmental law) that do allow an association — such as the Sierra Club — to stand in the place of its individual members for certain delineated causes of action. This is one place that I wish Judge Baer had been a bit more explicit in distinguishing matters. Under the causes of action in environmental suits, a harm to one member of the Sierra Club, or the Natural Resources Defense Council, or the Audubon Society, is necessarily a cognizable and identical harm (in nature, if not necessarily in extend) to every other member of the voluntary membership organization. Under the Copyright Act, though, that is simply not the case; by definition, an infringement of copyright A is not a harm to copyright B. Indeed, this is merely the mirror image of Justice Ginsburg's well-taken note 6 in Tasini:

The dissenting opinion suggests that a ruling for the Publishers today would maintain, even enhance, authors' "valuable copyright protection." Post, at 521 (opinion of Stevens, J.). We are not so certain. When the reader of an article in a periodical wishes to obtain other works by the article's author, the Databases enable that reader simply to print out the author's articles, without buying a "new anthology... or other collective work," H.R. Rep. 122–123. In years past, books compiling stories by journalists such as Janet Flanner and Ernie Pyle might have sold less well had the individual articles been freely and permanently available on line. In the present, print collections of reviews, commentaries, and reportage may prove less popular because of the Databases. The Register of Copyrights reports that "freelance authors have experienced significant economic loss" due to a "digital revolution that has given publishers [new] opportunities to exploit authors' works." Peters Letter E182.

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, Inc. v. Tasini, 533 U.S. 483, 496 n.6 (2001) (emphasis added). The mirror-image reasoning is compelling, and demonstrates why the law mandates Judge Baer's decision on associational standing: If one author can choose to assert his/her rights, an otherwise similarly situated author can choose not to. And some authors are obstinate in refusing to assert the "rights" that the Authors' Guild would force upon them through associational standing.

As a non-irrelevant aside, I should point out that federal law provides another way to deal with the problem of joint action on behalf of others: The class action. That does provide a statutory basis, under Fed. R. Civ. Proc. 23 (authorized, in turn, by the Rules Enabling Act), for persons and organizations to represent the interests of absent parties. As I noted above, though, Judge Chin already shot down the AG's ability to represent orphan works in a class action, and noted — quite properly — that it is for Congress to fill the hole in the statute, not the courts and certainly not private parties seeking to obtain a long-term revenue stream resulting from administrative fees for the remedy.

In any event, that's enough for now on associational standing. Judge Baer correctly held that the statute as it stands does not provide the Authors' Guild with associational standing to assert the rights of orphan works' authors. The AG's discussion of the inept way that HathiTrust set up its orphan works program is, therefore, entirely irrelevant. There's plenty of blame to go around concerning HathiTrust's program. Judge Baer's decision means that the Authors' Guild is not the correct party to be pointing the finger of blame concerning orphan works.