C. The Underbrush
The Second Circuit also dealt with two other theories of fair use in the HathiTrust opinion. One of them it got outright incorrect, but to no effect: There was an alternate, specific, statutory privilege. The other one... not so much. Of anything.
The easy discard is the Second Circuit's analysis of "access to the print-disabled" as a fair use. The Court makes the following admission of an "oopsie" right up front: "In light of our holding, we need not consider whether the disability-access use is protected under the Chafee Amendment, 17 U.S.C. § 121."71 Unfortunately, this error opens the door for further review, because the Court (and the parties) ignore the legal interpretation lemma that a specific term overrides general ones — that the specific privilege accorded by the Chafee Amendment would have been relevant, and thus needed to be considered, regardless of the fair use decision. Indeed, this decision would have been more helpful to everyone had this aspect been founded on the specific statutory provision regarding blind and disabled access. Unfortunately, the parties — probably because they were afraid of diving into the seldom-interpreted waters of the Chafee Amendment, an area seriously undermined because nowhere does the Copyright Act define what, or who, qualifies as a "library" — blew it and never squarely presented the issue below, meaning that it wasn't directly ruled upon by the trial court.
Then, on top of that, the Second Circuit's fair-use analysis of access to the print disabled is rather dodgy... and I say that even though I think that it (narrowly) reaches a the right result. The primary problem appears in its analysis of the first fair use factor, in which it backs away from "transformative use" as the paradigmatic instance of fair use.72 The analysis essentially skips the second and third factors and discounts potential markets for the fourth factor without examining why the market appears so limited: Primarily problems with the distribution system, not with anything else. And lurking behind is the fifth fair-use factor. As the Court of Appeals acknowledges, the problem is not with whether the authors make the material available; it is whether the publishers do... and if the experience this century with electronic books demonstrates nothing else, it is that publishers are remarkably poor at anticipating and filling actual market needs.73
Turning to the last area, the Second Circuit quite rightly punts the "preservation of works" argument as not ripe. Bluntly, the parties did such a poor job of investigating this issue — let alone presenting admissible evidence on this issue — that even if it was ready for decision and not merely speculative, it would not justify summary judgment. We'll leave aside, for the moment, that it's a bad theory to start with: There is no realistic probability, given print runs for the works at issue, that a library will neither have in its own collection nor be unable to borrow from another library copies of these works for the span of their copyrights. There are editions of these works either still in print now, or having been printed since the advent of low-acid papers, that will outlast their copyright terms; indeed, even those printed on older paper will still last until expiration of US copyright (at latest, approximately 2055 thanks to the changes in printing technology and practices).
- Slip op. at 31 n.7 (hypertext added).
- Slip op. at 27–28.
We'll leave aside for the moment that if this analysis were to be applied to the text-search issue discussed in the slip opinion at 18–19 (and part B above), one would reach a different result: Not a result that rejects fair use, but one that denies summary judgment on fair use for an ill-defined, nonrepresentative subset of all literary works. That is, we're back to civil procedure again. Summary judgment may be granted only if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law". Fed. R. Civ. Proc. 56; see also, e.g., Celotex Corp. v. Catrett, 477 U.S. 317 (1986); see generally Suja A. Thomas, Summary Judgment and the Reasonable Jury Standard: A Proxy for a Judge's Own View of the Sufficiency of the Evidence? 97 Judicature 222 (2014). Indeed, Professor Thomas's analysis exposes the reality of what appears to be going on here: A group of judges — and lawyers — evaluating evidence and imposing their own preferences without first-hand knowledge of how the creative process for broad categories of copyrightable works actually works, consistent with any of the Constitutional mandate, treaty duty under the Berne Convention, or implementing statute. In short, while charged with (perhaps) deciding, they're not competent to do so. Bleistein v. Donaldson Litho. Co., 188 U.S. 239, 251 (1903) ("It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits").
- Then, too, the publishers are not parties for this suit. We have no idea whether the reason that the publishers have not made more works available for the visually disabled relates to the market for those works... or internal publisher evaluation of the profitability of its particular means of meeting that market. (Well, we do, but it's not in the record.) Then, too, the parties and Court do a remarkably poor job of determining whether the 78 works at issue are so available from the publishers (hint: a substantial proportion are), relying upon grandiose general statements made with little factual backup... or acknowledgement of the Library of Congress's own parallel programs.