HathiTrust Summary Judgment (6)
Factor 1: Purpose and Character of the Use
Judge Baer held that the first factor favors the defendant libraries. Unfortunately, his reasoning skips over too many intermediate steps, rather like this cartoon, primarily because he improperly conflates the purpose of the end-user(s) with that of the copier(s). On balance, for the limited number of works actually at issue and properly identified in Exhibit A, his analysis mostly works. The ultimate problem is that his rhetoric — admittedly, as constrained by questionable decisions of the Second Circuit — states a helluva lot more as a conclusion than the demonstrated warrant justifies. Judge Baer's analysis of the first factor itself divides into three considerations:
- The ultimate goal is research, which can satisfy a "propriety of use" subfactor created by the Second Circuit34 to help demonstrate a fair use defense. The real problem here is whether this defensible goal is that of the defendants, or of the patrons (who are not before this court), or of the defendant's agent Google (again, not before this court). Unfortunately, Judge Baer's decision — and, for that matter, the rather unsatisfactory briefs from both sides — improperly conflates all three actors, even though two of them are not before the court. This is inconsistent with the concept of inducing infringement35... but nobody raised that issue in the briefs.
- A transformative use can qualify as a "pro-defendant" result for this factor, and creating an indexing system is such a transformative use. This largely depends upon what one means by "index." In the context of this case — at least as presented by the parties — an index is merely a key-word-in-context ("KWIC") finding device, similar in scope to doing a "find" for an exact phrase in a word processor over the entire universe of documents. Those experienced in creating indices actually found in books — and used for academic research — would not agree; to them, a true index is seldom for literal expression, but is instead for implications and concept analysis. For example, consider a useful-to-scholars index of Parliament's records concerning the Statute of Anne. A KWIC index of the debates prior to expiration of the Licensing Act in the 1690s would not include many references to "John Locke"... but he was the architect of, and indeed ghostwrote, many speeches in opposition to renewing the Licensing Act. This illustration points out that a KWIC index probably is not transformative, or is only minimally transformative... and that is all that the copying alleged to infringe the rights that are at issue before the court could be. Instead, the actual transformation would be by the end user, not HathiTrust.36
- Making works available to the visually impaired is also a transformative use that can qualify as a "pro-defendant" result for this factor. Here, I must respectfully disagree with Judge Baer's analysis. I fully understand the impetus to decide this matter based upon a single legal theory. The problem is that the citation to Sony is not only inapposite to his point... but it contradicts the requirements of the Copyright Act itself. Provision of access to the visually impaired is not a fair use defense,37 and must be considered separately.
Another problem with Judge Baer's analysis is that it is not tied directly back to the works in front of him. The question before him is not the purpose and character of use for the "massive digitization program"; it is, instead, the purpose and character of use for the seventy-odd works in front of him.38 And there, one must note that a "research purpose" is much less clear from the nature of those works... but that gets into the second factor, and provides a good transition.
- See, e.g., NXIVM Corp. v. Ross Inst. Corp., 364 F.3d 471, 47778 (2d Cir. 2004) ("to the extent that [defendants] knew that [their] access to the manuscript was unauthorized or was derived from a violation of law or breach of duty, this consideration weighs in favor of plaintiffs"); (cited in slip op. at 1516). Without going too deeply into a secondary decision that binds Judge Baer, I think this interpretation wrong as a matter of law, both in the context of the the HathiTrust action and in NXIVM itself. That said, my goal in this essay is to explain what is going on in HathiTrust, its limits, and what opportunities there are on appeal; arguing that the Second Circuit's law on fair use continues to derive from inconsistent common-law interpretations under the 1909 Act that ignore the statutory imposition of an entirely different framework in the 1976 Act, and that such a continuation essentially acts as an improper judicial amendment of — not merely a proper judicial interpretation of — a statutory scheme that was part of a treaty-compliance effort is for another time. I am disclosing my deep skepticism of the data, as a lab-trained scientist tends to do when the data and the theory don't seem to be entirely consistent (instead of merely assuming that prior theory means I should ignore the data that doesn't fit...).
- See generally Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005). It's worth noting that Grokster postdates all of the Second Circuit law cited in Judge Baer's decision on this factor...
- The implications of calling an index of one kind an index of another kind also have truly disturbing implications for fair-use analysis in the visual arts. Again, analysis is beyond the scope of this essay, but a quick reference to the ceiling of the Sistine Chapel should suffice. Remember, that's a curved surface... and virtually every reproduction is flat, and at best an "index" to the original in the same way that a KWIC index is a reference to its original.
- 17 U.S.C. § 121 (explicitly providing a separate defense sharing no factors in common with fair use).
- Slip op. at 14 n.18. Because the ownership of the works not found on Exhibit A is contested, those works are not properly subjects for summary judgment. See Fed. R. Civ. Proc. 56(a) (summary judgment proper only if "there is no genuine dispute as to any material fact").