Google Book Scan

HathiTrust Summary Judgment (4)

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

At last, we turn to the merits. If you look at the essay form of "Suing HathiTrust" (link at the top of this post), you'll notice that I never actually posted the discussion of the merits last year; that's because a formal consult came in as I was ready to post, making a public statement inappropriate. (Although the legal ethics rules don't require silence from attorneys and other professionals involved in a filed-and-live matter, mine do.) Thus, this is the first time I've actually commented on the merits madness without method in the Authors' Guild's attack on HathiTrust. It's actually much easier to understand Judge Baer's grant of summary judgment to the library parties on their affirmative defense of fair use if one understands the not-quite-fatal-by-themselves-but-utterly-insane-nonetheless flaws in the complaint that HathiTrust filed. Thus, that's where I'll start, in very abbreviated form; only then will I get to Judge Baer's flawed (but consistent with Second Circuit law) discussion of fair use as a defense, and how that insane complaint made that defense both a complete defense and a possible one.

You're about to read a story about lawyers and an organizational client who didn't understand what they had; who wrote badly in support of what they thought they had; and who ultimately ended up making things much harder for the actual — not associational — clients: The authors and actual creators of works protected by copyright. This insanity reflects very, very poorly on the fitness of both the Authors' Guild (and its sockpuppet individual representatives) and its counsel to serve as class representatives and class counsel in the other Google Book Scan litigation... but nobody is going to pay a lot of attention to that, I'm afraid.

Judge Baer also decided a critical merits question, and it's one that has wags wagging with WAGS on what it really means. Ironically, it also exposes a jurisprudential error in reasoning by Judge Posner, ratified by the Federal Circuit, in an entirely separate matter, that on its own demonstrates why courts are so ill-suited for dealing with what is rather ineptly called "intellectual property." Unfortunately, the courts are what we've got; so it makes a lot of sense to see what was actually in front of the court for Judge Baer to decide first, before completely flying off to theory-land.

Rhetorically, the biggest problem with the AG complaint against HathiTrust²⁶ is that it leads off the factual allegations and theory of the causes of action not by stating what was done to wrong the plaintiffs, but by spending nearly three pages making a ridiculous, purely legal argument about restrictions on libraries. This is just plain bad writing, even aside from the legalese. As upsetting as that is in the abstract, there's no excuse for it when the client is a trade organization of commercial authors.²⁷ Sadly, the writing and clarity of presentation don't get much, if any, better as the complaint proceeds toward its conclusion. This is perhaps inevitable, because the theory of the complaint is so poorly considered that better writing would only have exposed its substantive flaws. Fortunately for everyone involved, elegant and clear writing is not the standard of decision in legal disputes. Perhaps, in the best of all worlds, it would be; this not being the best of all worlds, we'll just have to put up with reality.

Reorganizing it to make the kind of sense that is necessary, the complaint alleges:

• The libraries engaged in, and authorized Google as their agent to engage in, massive digitization of works found in the libraries' collections (¶¶ 48–54);²⁸
• The libraries did not seek, and did not in fact have, permission to engage in the massive digitization effort (¶ 55)
• The libraries facilitated or made digital copies of a number of specific works protected by copyright (¶¶ 13, 21–33, and Exhibit A)
• The libraries cooperate to make digital copies available to each other, even for works not in the collection of the particular library (¶¶ 62–67)
• The libraries cooperate to make (either now or in the future) digital copies available to library patrons, even for works not in the collection of the particular lending library (¶¶ 68–72)
• The libraries' functions have extra impetus regarding orphan works (¶¶ 73–79) and due to the pending litigation against the libraries' agent, Google (¶¶ 56–61)
• Libraries have certain limited privileges to make works available for preservation of their content and for research and related creative purposes under § 108 of the Copyright Act (¶¶ 40–47, 82)...
• ...but those privileges do not extend to systematic enlargement of their collections without regard to rights under § 106 (¶ 82), particularly when the digitization effort may be worth money (¶ 53)
• The libraries must therefore be enjoined from digitizing works en masse, and from benefitting from past digitizations, and from authorizing others to do what they, themselves, might be allowed to do on an individual-work basis (¶¶ 40–47, 83–86)

Of course, these are only allegations, not facts. The Answer²⁹ responds in substance to these broad allegations as follows:

• The libraries admit that they engaged in, and authorized Google as their agent to engage in, massive digitization of works found in the libraries' collections
• The libraries did not seek, and did not in fact have, explicit permission to engage in the massive digitization effort... because they're libraries, and § 108 among other provisions allows them to serve patrons first and deal with copyright matters second
• The libraries admit that they, or their agent, made digital copies of a number of specific works protected by copyright, but deny that they did so unlawfully
• The libraries cooperate to make digital copies available to each other, even for works not in the collection of the particular library
• The libraries cooperate to make (either now or in the future) digital copies available to library patrons, even for works not in the collection of the particular lending library
• The plaintiffs have no standing to complain about orphan works, which (ironically) form the core of libraries' functions under § 108 — and in any event the plaintiffs' descriptions are inaccurate³⁰ — and the pending litigation against Google concerns the actions and intentions of a nonparty to this suit of which the defendants do not have legally attributable knowledge
• Libraries have certain limited privileges to make works available for preservation of their content and for research and related creative purposes under § 108 of the Copyright Act...
• ...but the plaintiffs' statement of purported "restrictions" in § 108 misstates the law, which speaks for itself
• Enjoining the libraries would serve no good purpose, particularly since the libraries' actions were not unlawful in the first instance...
• ...and, as an affirmative defense, were authorized under the fair use provision of the Copyright Act found in § 107 (Ans. at 23 ¶ J)
• A virtual smorgasbord of other affirmative defenses (Ans. at 22–24) also make the relief the plaintiffs request inappropriate and/or unauthorized

So that's what is at issue. As an initial, substantive matter, the key thing to note is the horrible idiocy of having filed this suit separatedly against HathiTrust in the first place... because it prevented the best possible underlying theory from being presented: Conspiracy. Because Google is not a defendant in this lawsuit itself, the plaintiffs cannot assert the best policy assertion. Even if individual actors' actions might have been lawful, that those actions were in furtherance of an unlawful action makes them unlawful in hindsight. That, for example, is why the getaway driver who never enters a bank is potentially liable for felony murder if one of the robbers shoots a teller (or even one of the other robbers!) during the robbery. It is also why the bookkeeper who arranges for a series of otherwise legal withdrawals and funds transfers of $9,900 each, so as to evade IRS reporting requirements,³¹ is liable for his part in a reporting/evasion scheme. In short, this particular screwup goes back seven years, to the ineptness of the initial complaint by the Authors' Guild against Google itself. It's the converse of the divide-and-conquer strategy: Sometimes it's strategically unwise to seek to defeat an enemy "in detail."

Next time, we'll see how Judge Baer ruled on the defenses, then we'll backtrack into the actual arguments presented on the defenses. After that, I'll deal with Judge Posner's mistake in the patent lawsuit that exposes the jurisprudential problem that invited everyone to go past the bridge at Do Lung.

---

26. See Doc. 4 (first amended complaint). Because the First Amended Complaint was filed before any response by any defendant, and is largely an amendment concerned with housekeeping matters cause by some ridiculous mistakes in the initial complaint, I'm going to refer to this as the "complaint" for the remainder of this discussion.
27. Doc. 4 at ¶¶ 40–47. There's even less excuse in this instance, as the president of the AG at the time this monstrosity was filed is an experienced lawyer... and litigator. Mr Turow would never have let a criminal complaint be filed under his signature, when he was an Assistant US Attorney, that made the panoply of rhetorical errors apparent in this one.

    There's a darned good reason that a complaint begins with the facts and ends with the legal statement of why those facts entitle the plaintiff to relief: Law is bound by context. Further, in this particular instance the "attack the defense and the character of the defendants first" organization is a subtle signal to the judge that the plaintiffs, and plaintiffs' counsel, don't think the judge is sophisticated enough to wait for the defendants to actually present their defense. In short, the complaint is subtly a putdown of not just the defendants, but of the judge; and anyone who thinks an implicit accusation that any federal judge (let alone one in the Southern District of New York) is unsophisticated and will be fooled by the purported "good character" of a party is him/herself rather unsophisticated.

28. Doc. 4 at ¶¶ 48–54. All other references to bare paragraph numbers will be to this first amended complaint.
29. Doc. 23.
30. Sadly, this denial later turned out to be itself false, or at least misleading, due to the inept implementation of an orphan works program by HathiTrust and its members. For our purposes, though, this is a flaw that doesn't really matter to the result.
31. 26 U.S.C. § 6050I, 31 U.S.C. § 5331; see also, e.g., Man Pleads Guilty to Currency Structuring to Evade IRS Reporting Requirements (19 Dec 2011) (describing guilty plea, but neglecting to identify a whistleblower).