GBS: Related Cases

While we wait to see the class certification motion due today in the principal Google Books case, I thought I’d take a moment to check in on the other litigation burbling around it.

In the visual artists’ case against Google, American Society of Media Photographers v. Google, Google started the machinery to move to dismiss the case on procedural grounds: that neither the individual artists nor their associations were proper plaintiffs with standing to sue. The plaintiffs asked for and were given a chance to amend their complaint, and they filed the revised version a few weeks ago. Judge Chin then put them on the same schedule as the main case: Google’s motion to dismiss is due on December 23, with responses and replies in the new year.

Meanwhile, in the case against Google’s library partners, Authors Guild v. HathiTrust, the National Federation for the Blind made a surprise motion to intervene as a defendant, along with two visually disabled college students and a visually disabled professor. They argued that the scans can and will be used by the libraries to make their books more accessible to the blind, and that this is an interest the libraries themselves won’t necessarily defend adequately. Copyright scholar Peter Jaszi is one of the lawyers on the brief. That motion was filed today, so there hasn’t been much reaction to it yet.

We’ve uploaded all of the relevant documents to The Public Index as usual, and we’ve broken out separate pages for the visual artists’ and HathiTrust suits.

As per the NFB Memorandum for Intervention above:

‘The libraries and disabilities services offices of the University Defendants qualify as “authorized entit[ies]” under what Senator Chafee referred to as the “narrow definition” of eligibility when first offering the amendment.’ (Memo page 15.)

Dr. Marc Maurer, Esq. — President of the NFB and Member of the Bar of the Supreme Court of the US — wrote in 2009 US Copyright Office Testimony:

‘Likewise, Sec. 121 permits production and distribution of texts in specialized formats only by an “authorized entity,” defined as a “nonprofit organization or government agency that has a primary mission” to promote accessibility. The crux here is the phrase “primary mission.” Publishers and others have taken the position that only specialized agencies can qualify under the Chafee Amendment, while the NFB and others are convinced that the proper interpretation is one under which (for example) the Disability Services Office of a university, or the accessibility service of a public library system, would be eligible as well.

Again, (authoritative) support for that reading of the provision would be welcome.’ at page 5.

The esteemed Memorandum Counsel apparently knows something the esteemed Client does not.