24 October 2012

Google Book Scan


HathiTrust Summary Judgment (10)

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


Factor 5: Administrative Efficiency and Convenience

And here, I am afraid, Judge Baer really does go outside the scope of the statute... but he does so in a way that is consistent with the rather incoherent way that the law of fair use has developed over the last thirty-odd years, and in particular in the Second Circuit and related to the internet. Although he does not explicitly state that this is a fifth factor that is being weighed along with the four found in § 107 itself — indeed, he folds explicit acknowledgement of this factor into his discussions of the first, third, and fourth factors — the actual discussion implies otherwise.

Defendants offer substantial evidence that it would be prohibitively expensive to develop a market to license the use of works for search purposes, access for print-disabled individuals, or preservation purposes. Waldfogel Decl. ¶¶ 7, 22–24 (estimating that the costs of such a license as to the works in the HDL would be in the neighborhood of $569 million and that the potential revenue generated would not cover these costs so it was not a "commercially viable endeavor"). This also assumes that the holder of each copyright could be identified, id. ¶ 24, a tenuous assumption to say the least. Plaintiffs characterize this as an argument that “it is permissible tosteal the goods if it is too expensive to buy them.” Pls.’ MSJ 15. However, Defendants argue that the high costs will prohibit the formation of a viable market in the first place, and as a consequence there will be no one to buy the goods from. Although Plaintiffs assert that the Copyright Clearance Center ("CCC") could eventually develop a license for the uses to which Defendants put the works, see Gervais Decl., the CCC has no plans to provide for or develop such a license. Petersen Opp’n Decl. ¶ 9. Even if Congress will eventually find a way to regulate this area of the law, "it is not the [court's] job to apply laws that have not yet been written."50

To say the least, this is a startling statement that goes well beyond the justification in the record, or indeed at the core of copyright law itself. It is nonetheless entirely consistent with the disdain apparent in the Second Circuit for authors who do not wish either themselves or their works to be treated as either just like all the others... or as having no discretion themselves.51

As an initial note, on this fifth factor there is not, in fact, sufficient, uncontroverted evidence before the court to make any finding. (That would leave Judge Baer deciding the matter on just the four statutory factors.) The evidence he cites from the record concerns the entire universe of works in the Hathi Digital Library... but Judge Baer has already properly narrowed that universe down to a Mars-like planet with a couple of small moons orbiting a rather dim star. Once he has denied standing and ripeness concerning the works not listed on Exhibit A, evidence related to those other works is irrelevant. Whether one credits the inflated and unrealistic cost estimate in the Waldfogel Declaration52 as to the entire HDL is immaterial. The redacted Waldfogel Declaration is concerned entirely with the entire universe, and presents no data or conclusions as to subsets of works. Indeed, examination of Exhibit C — the listing of data sources — should have led counsel for plaintiffs to object to both the Waldfogel Declaration in its entirety and to producing a persuasive counterdeclaration. That they didn't does not make things any better for anyone.53

Turning to the merits of the fifth factor, I must respectfully disagree with a critical aspect of Judge Baer's analysis. Section 107 is drafted — as the underlying structure of the Copyright Act requires — from the perspective of the copyright holder's rights. This particular explanation of the fifth factor, however, is from the perspective of the potential costs to an alleged infringer of complying with the statute's requirements. However much one might want cost-benefit analysis to be part of the Copyright Act, it is simply is not.54 If it was, the registration system would disappear so fast that the pages of the Registry would spontaneously combust! The evidence is not there; neither is the rationale, particularly related to any of the four factors that are stated in § 107. If the case itself turned on this fifth factor, Judge Baer's analysis would be persuasive grounds... for reversal. Fortunately for the libraries, however, it does not.

Fair use is a defense — an "exception to the statute" and its grant of exclusive rights to authors that must ordinarily be construed "narrowly in order to preserve the primary operation" of the statute.55 Judge Baer's invocation of the fifth, nonstatutory fair use factor fails to recognize this; of course, it has a lot of company in so doing. Unfortunately for the authors of the 78 works before him, though, on balance — on this record — Judge Baer's balancing of the factors is defensible, even after removing the considerations that he should have entirely excluded from his evaluation. But that's for next time.

  1. Slip op. at 20–21 (record citations in original, citations to authority omitted).
  2. The Second Circuit's fate in front of the Supreme Court on this type of issue is disturbingly instructive. Compare In re Literary Works in Electronic Databases Copyright Litig., 509 F.3d 116 (2d Cir. 2007) (holding that individual authors have no right to object to a settlement because there is no subject-matter jurisdiction over unregistered copyright interests) with Reed Elsevier, Inc. v. Muchnick, 130 S.Ct. 1237 (2010) (reversing and holding that individual authors do have the right to be properly represented, even absent registration of copyright interests, because registration is only a procedural element and not a jurisdictional requirement); see also New York Times Co. v. Tasini 533 U.S. 483 (2001) (holding especially at 497–98 n.6 that individual authors have an absolute right to determine the treatment of their own copyrighted works, independent of any purported benefit to otherwise licensed users).
  3. Doc. 119 ¶¶ 17–25 (redacted; however, the redactions appear immaterial).
  4. n.b. I have been personally responsible for clearing permissions and establishing budgets for doing so on a number of works, and conversely for granting permissions on a number of others. Bluntly, Mr Waldfogel's declaration does not even begin to approach comparability to my experiences, demonstrating yet again that there is no monolithic/unitary publishing industry — just the bastard offspring of a three-century-long orgy among thirteen distinct and independent industries.
  5. Cf., e.g., Entergy Corp. v. Riverkeeper, Inc., 129 S. Ct. 1498 (2009) (underlying statute explicitly allows, or indeed requires, a cost-benefit analysis in certain circumstances).
  6. C.I.R. v. Clark, 489 U.S. 726, 739 (1989).