15 November 2013

Google Books
I've Already Said What I Can

I'm not going to say much about The Hon. Denny Chin's decision on fair use yesterday in the Google Books matter (PDF); I largely already have. I think it was incorrect... but that he was driven to it by fundamental conceptual errors in the suit's structure and theoretical basis, by less-than-optimal lawyering, by both subtle and not-so-subtle institutional arrogance in the Second Circuit bar, and by a variety of other, non-merits factors (such as poor presentation of evidence in the briefs by all parties concerned). His decision is not indefensible — merely incorrect, at least as to some subsets of books at issue.

The actual Google Books litigation was and is the wrong1 theory propounded by the wrong party and the wrong lawyers against an incomplete set of defendants in the wrong court. It shouldn't surprise anyone that an opinion resulting from that set of missteps makes missteps of its own, primarily by downplaying the fact/expression distinction as it relates to three of the four statutory fair use factors. Of course, Judge Chin was invited to do so by the parties... and one can hardly blame him for deciding on the basis of the record before him, however conceptually flawed that record was. Unfortunately, copyright interests probably (not certainly, but probably) do not rise to the "civil rights" level that requires certain sua sponte inquiries; imagine for a moment that this matter directly (instead of indirectly) concerned First Amendment speech rights, with the attendant "no prior restraint" doctrine, and what a judge might have done with that.

Ultimately, Google successfully invited B'rer Fox into the courtroom briar patch and demonstrated both that (a) the Authors' Guild's arrogance in presuming to represent all authors' interests meant that it couldn't represent any coherent set of authors' interests well, and (b) the nonstatutory fifth fair-use factor — administrative convenience — will in practice (and especially in the Second Circuit) overwhelm the others.

And that's it from me on the substance. Next up will be an appeal to the Second Circuit, which I expect to reverse in part... but on Rule 56 grounds, not on copyright-law grounds. That is, this is now a civil procedure case, not a copyright case; the real question in front of the Second Circuit will be whether the record in front of Judge Chin presents undisputed material facts. The briefs in front of Judge Chin did a remarkably poor job of engaging with the factual record (let alone reflecting adequate factual investigation), so there's a lot of room here. Then there's the question of whether the Second Circuit's prior guidance to consider fair use before class certification will stand on Supreme Court review; this is not at all certain, particularly if the Supreme Court's membership changes before this case reaches it (I put the over/under in the 2015 Term, beginning October 2015, for the petition for certiorari).

  1. Not "morally wrong," but "factually and theoretically suboptimal enough to result in unreliable inferences." If that sounds like something coming from some high-falutin' science lab, it is; I may be able to escape the smell of certain thiols, but I can't wash the thought process out so easily once exposed to it.