The Authors Guild’s lawsuit against Google over book scanning is grinding on into its eighth year. After a settlement, an amended settlement, a rejection of the settlement, and a protracted procedural fight over certifying the case as a class action, it has made almost no substantive progress in front of Judge Chin. Meanwhile, the Authors Guild’s lawsuit against Google’s HathiTrust library partners has produced a definitive ruling from Judge Baer in little more than a year. What started as a sideshow has become the main event.
And what an event it is! The mainstream media were all over last week’s ho-hum settlement between Google and the AAP but have mostly kept quiet about yesterday’s ruling. In contrast, the Twitterverse exploded with news of the HathiTrust opinion and hasn’t quieted down yet. The Twitterers have it right: this decision is a big deal. There are so many winners from the decision, it’s hard to count them all:
Search engines: Judge Baer added another brick to the wall of precedents holding that search engine indexing is a fair use. This proposition is crossing over from tentative to firmly established; another few more decisions like this one and it will be hard to remember why there was ever any doubt. The Authors Guild had argued that the right to index only extends to material that was already online. By rejecting that argument, the decision gives search engines a green light to seek out other untapped reservoirs of information. Perhaps it will also give other search engines the confidence to start scanning books in copyright and challenge Google.
Digitizers: The opinion is chock-full of quotable lines recognizing the social value of digitized texts. It cites with approval the arguments of the digital humanities scholars who described their statistical research in an amicus brief. And once we have digital copies of books, we should keep them and put them to good use, Judge Baer explains, writing that “it would be a tremendous waste of resources to destroy the electronic copies once they had been made.” The opinion describes the HathiTrust corpus as an “invaluable contribution to the progress of science and cultivation of the arts,” a summary that vindicates the vision of HathiTrust’s stewards.
Google: The HathiTrust opinion does not technically dispose of the case against Google. Google is a commercial company, and it shows snippets of books in its search results. But neither of these factors seems crucial to the opinion, which rests more on his conclusion that digitization for search transforms the underlying books without cutting into the market for them. Not only will Judge Baer’s opinion be a persuasive precedent on this point, it also creates an awkward situation for his colleague Judge Chin, who will naturally be reluctant to reach a conflicting decision in what is essentially the same case.
The disabled: The decision by the National Federation of the Blind to intervene in the case now looks prescient. Judge Baer singled out NFB attorney Daniel Goldstein’s “eloquent oral argument” for praise and gave the print-disabled a trio of powerful holdings. First, the Americans with Disabilities Act affirmatively requires “equal access to copyrighted information.” Second, this now-mandatory access is a fair use under copyright law. And third, the University of Michigan is also authorized under the Chafee Amendment to provide accessible books to the print-disabled. Expect these points to be cited repeatedly by advocates for the disabled in other educational and online settings. And consider the possibility that the HathiTrust libraries might start partnering with other universities to provide access to their print-disabled students.
Educational institutions: The last year has been a very good one for universities putting copyrighted materials online for their students. Last October, UCLA won a case challenging its practice of copying DVDs to make them available via streaming. In May, Georgia state won a case challenging its e-reserves system. And now the HathiTrust universities have won a case challenging their book digitization. Professor Michael Madison says that these educational uses of computer technology are “becoming the new copyright normal.” Courts seem highly sympathetic to the idea that universities ought to be allowed to translate their traditional research and teaching models to use digital delivery technologies. Their new duties to print-disabled students come with significant benefits, as well.
The clear loser in the case: The Authors Guild. Not only did it strike out on its theories of copyright law, it also lost a crucial procedural issue that could haunt it in the future. Judge Baer held that the Copyright Act does not grant associations “standing” to sue on behalf of their members for copyright infringement. Other associations can try to convince other judges that Judge Baer’s reasoning was wrong. But unless the Authors Guild can get this decision reversed on appeal, it will be “precluded” from challenging it in other cases. The Guild is now in effect permanently barred from bringing copyright lawsuits on behalf of its members. This is a real blow to its institutional status as a legal advocate for copyright owners.
Also notable about the decision is what was missing from it: orphan books. None of its conclusions about harm to book sales depend on whether the books are orphan or owned, in or out of print. It does refer to the inordinate expense of negotiating permissions for millions of books and drops an aside that it is “a tenuous assumption to say the least” that all copyright owners could be found. But this is a point about books overall, not about any specific book: the point is that there are orphan books in the collection, not that all or even most of the books in the collection are orphans. The opinion applies equally to all books.
Indeed, neither does the opinion mention Google’s opt-out option for copyright owners to exclude books from being scanned, a key part of the publishers recent settlement with Google. The natural implication is that this fact is completely immaterial to the fair use holding. If so, then presumably the opt-out offered by Google is purely a matter of courtesy, rather than being required by copyright law.
The HathiTrust ruling could well become a landmark in copyright. The case is not yet over, and future cases could reinterpret or limit it in important ways. But it landed with a big splash, and its ripples could reach far indeed.