Among the many interesting things in the Archive’s letter to the court:
- The Archive is seeking to intervene as a defendant. That makes a certain kind of logical sense, since the Archive is scanning books, too. Some of those books might turn out to be in-copyright rather than public-domain, and thus the Archive is similarly situated to Google. Still, intervening as a defendant is a tricky matter, since ordinarily plaintiffs are masters of their complaint. Indeed, the letter points out that the “existing parties … advise that they will oppose the Archive’s proposed intervention.”
- The Archive is represented by Arnold and Porter. Lawyers’ shoes don’t get much whiter than that. It’s a little striking that such an established law firm is willing to take on both Google and much of the publishing industry on behalf of what I assume is a pro bono client.
- The Archive proposes to intervene without affecting the existing case schedule. That’s a tactical choice that seems designed to improve the chances that the court will grant the request to intervene. It must also mean they’re prepared to turn around their briefing quite quickly.
- The Archive appears to be requesting “the same limitation of potential copyright liability that the proposed Settlement provides Google.” But they don’t appear to be requesting it on a for-everyone basis, which is my preferred solution.
It will be even more interesting to read the Archive’s full argument if the court grants their motion to intervene (or if the court decides to order briefing on the question of whether they should be allowed to).