GBS: HathiTrust Moves to Knock Out Orphan Works Claims

Over the holidays while I wasn’t paying attention, there were some interesting filings in the HathiTrust case.

First, the Authors Guild and HathiTrust reached an agreement on how to litigate, given the state universities’ sovereign immunity. Under the stipulation, all of the individual regents named in the lawsuit are out. In their places, the presidents of the universities involved have agreed to be defendants. If they lose, they agree that they have the authority to order their libraries and HathiTrust to knock off whatever activities the court orders them to knock off.

Second, HathiTrust filed a motion for “judgment on the pleadings.” As usual, the motion itself is boring; all the action is in the associated brief. HathiTrust claims that the Authors Guild and other authors groups’ don’t have standing to sue on behalf of their members, and that none of the plaintiffs have standing to sue to stop the use of orphan works. In both cases the basic argument is the same: you’re not allowed to sue for infringement of a copyright owned by someone else. This doesn’t go to the part of the lawsuit over the HathiTrust database itself: the motion would narrow the lawsuit, not block it entirely.

And finally, Judge Baer entered a new scheduling order. He gave the plaintiffs until January 31 to respond, and the defendants until February 17 to reply to the response. Oral argument will be held on March 2.