In the comments to my post on Google’s motion to dismiss, Frances Grimble and Karen Coyle have asked excellent questions. Both of them pointed out the apparent contrast between positions Google has previously taken and positions it’s taking now. Here’s Frances:
Google thought the Author’s Guild was sufficiently representative to try to bind millions of copyright holders who are not members into two versions of a proposed settlement on an opt-out basis. So why, after several years of litigation, is Google now saying the AG is not representative?
And here’s Karen:
Doesn’t the argument that fair use (and other rights) have to be determined on a case-by-case basis speak directly against Google’s plans for mass digitization?
There are plausible “doctrinal” responses to both of these questions. By this I mean that I could put on my lawyer’s hat and argue that in each case, the two positions aren’t actually in conflict, because they’re answers to different questions. To Frances’s question about the Authors Guild’s representativeness, one could argue that the Guild itself was never going to be a class representative, and that associational standing and class certification have different legal standards. To Karen’s question about fair use, Google could perhaps argue that a finding of fair use could be entered on a blanket basis but that a finding of no fair use would require case-by-case examination.
Leaving aside their doctrinal merits, these responses are bound to seem somewhat unsatisfying. In part, this is due to the usual skepticism that arises whenever lawyers make apparently inconsistent arguments. “The vase was either already broken when you gave it to me, or I returned it in perfect condition” never goes over well — even though it may be the safest response a lawyer can give before the other side has informed her which vase her client is accused of breaking. But in part, I think that Karen and Frances are asking a question that goes beyond what our legal system can conceptualize.
There is a substantive issue here: what is legal to do with books? The legal system is capable of coming with answers to substantive questions. It channels them through one or another procedural form: legislation by Congress, private contracts, individual litigation, class actions, associational lawsuits, stare decisis, private collecting societies, statutory licenses, and so on. Each of these forms has its own rules, and asks particular questions. Class actions ask about adequacy of representation and the typicality of class representatives. Private collecting societies have a more stringent rule about participation, but there is no requirement that any of their clients be typical of the rest. Associational standing turns on whether the “claim asserted or the relief requested requires the participation of individual members.” And so on. In order to get at this single substantive question, each different legal form asks different procedural questions.
But really there is only a single procedural question that matters: who is entitled to speak for copyright owners? The ins and outs of standing doctrine, preclusion, the scope of injunctions, and all the other ins and outs of procedure must seem like so much madness. There are reasons — quite often very good reasons — for all of these ins and outs. But in terms of the question of who speaks for whom, these doctrines are all trees and no forest.
I believe this is what Frances and Karen are driving at. Frances’s question asks how Google could claim that the Authors Guild both can and cannot speak for all authors. Karen’s question asks how Google could claim that fair use both can and cannot be resolved in a single court case. In both cases, the different procedural forms drive the answers apart. So I would like to peel away the unimportant bits of procedure and focus on the real procedural question: who will sit down and with what authority to figure out the rules of copyright for digital books?
One answer that doesn’t work is “only individual copyright owners can speak for themselves.” This falls short in at least three ways. First, we don’t know what the law is on all sorts of issues. A copyright statute written without computers clearly in mind, and with digitization clearly not in mind, simply doesn’t explain clearly what the rights of owners and readers are in many cases. Fair use’s boundary is intentionally fuzzy; the scope of library rights has become unintentionally so. The uncertainty that Congress has left us can only be cleared up by further acts of Congress or by litigation — both of which involve decisions that will shape copyright collectively.
Second, as the frequently dismissed prospect of individual author lawsuits against Google demonstrates, individual owners would be at a severe disadvantage trying to sort out their rights if they were entirely on their own. They need something better than the right to sue Google seriatim, each running up million-dollar legal bills. That something could be class actions, it could be suits by publishers who hold large portfolios of rights, it could be setting precedents that other copyright owners could use — but there has to be something. The possibility of mass infringement requires some possibility of mass response.
And third, in some cases, too many widely dispersed rights lead to chaos, confusion, and impoverishment. The classic parable here is that if an airplane at 35,000 feet trespassed on each house it flew over, air travel would be impossible. So property rights in land were simply limited, across the board, by Congress and the courts. Similarly, Congress and the courts sometimes take steps for society and for authors in general that individual copyright owners would not have agreed to. We have the mandatory license for cover songs, blanket privileges for some nonprofit performances, collective negotiations over webcasting and jukebox rates, and many other examples. Making the copyright system work well and fairly for all concerned means sometimes taking power away from copyright owners to make every decision for themselves.
But that leaves open the question of when and how to let some people speak for other copyright owners. The Google Books settlement was an extreme example: the Authors Guild, AAP, a handful of authors and publishers, and a handful of lawyers purported to speak for all copyright owners worldwide in setting up a licensing deal. That was far too broad a delegation, although Judge Chin’s opinion left open the question of whether it was the “speaking for all copyright owners” part or the “licensing deal” part that was the source of the problem.
The class action certification that the Authors Guild now seeks would let it speak on behalf of all book authors to stop Google’s book scanning. And that’s actually more or less how the HathiTrust suit against the library partners works, as well. Even though that’s not a class action, the injunction it seeks isn’t limited to the handful of authors who’re suing. Instead, the Authors Guild wants the entire HathiTrust database impounded so no one can access it. In effect, it’s asking, on behalf of all copyright owners, to have the HathiTrust database shut down. Some of them are presumably eager to have their works included.
The Supreme Court dealt with this kind of difference of opinion among copyright owners in Sony v. Universal City Studios. That wasn’t a class action: it pitted one group of copyright owners (movie studios) who disapproved of the VCR’s use to copy their works against another group (Mister Rogers, religious broadcasters) who approved of it. And the Supreme Court emphasized that neither group could speak for the other:
The respondents do not represent a class composed of all copyright holders. Yet a finding of contributory infringement would inevitably frustrate the interests of broadcasters in reaching the portion of their audience that is available only through time-shifting.
Of course, the fact that other copyright holders may welcome the practice of time-shifting does not mean that respondents should be deemed to have granted a license to copy their programs.
It’s actually from this opposition that Sony’s famous significant non-infringing uses test derives. That test effectively means that a copyright owner opposed to a technology “may not prevail unless the relief that he seeks affects only his programs, or unless he speaks for virtually all copyright holders with an interest in the outcome.” (emphasis added)
Of course, Sony didn’t settle the matter. The file-sharing cases were, in large measure, about whether “virtually all” really was the threshold required for a court to prevent the distribution of a technology. The question was posed, but not answered, in MGM v.Grokster, where the Supreme Court instead found the file-sharing networks liable because of their bad acts. Trying to figure out how to balance the wishes of the two groups of copyright owners was more than the Court wanted to take on. This same question is also percolating through the federal courts in the numerous DMCA section 512 lawsuits. Asking what duties a website has to police uploads over and above responding to DMCA requests is in part a way of asking whether copyright owners can speak for each other in trying to block online infringement.
The associational standing argument is a little different. Here, the question is whether the Authors Guild can speak for its own roughly 8,000 members. That’s a much smaller universe, so, intuitively, the law ought to be more willing to find associational standing for 8,000 than to certify a class of millions. Authors Guild members who disagree with the strategy or the goal can resign, as Ursula K. Le Guin did. It seems plausible to believe simultaneously that the Authors Guild can accurately represent the wishes of its membership and that it cannot represent the wishes of all authors (of course, this is the opposite of Google’s legal positions over the last few years).
Many of the other issues that have roiled the public debates and the comments section of this blog come down to similar questions. Collecting societies speak for their members; extended collective licensing lets them speak for non-members, as well. The Registry under the settlement would have had subtle powers to speak for authors and publishers in making a wide range of settlement-related decisions. Pamela Samuelson’s academic-author objections had to do with one specific copyright owner constituency’s fears of being misrepresented; the orphan works debates have to do with another which by its nature is particularly and inherently voiceless.
This is a helpful frame to keep in mind. The next year is likely to be quite eventful in the Google Books litigation, with major motions and perhaps decisions in all four of the cases. In addition to the substantive possibilities for what will happen to books, it will help to think about this one meta-procedural question. At each stage, with each new move, who is seeking to speak for which copyright owners, to do what?
Thanks again for posing such an interesting question.