In three of the four pending Google Books lawsuits—the authors’ and visual artists’ suits against Google and the authors’ suit against HathiTrust—the defendants have objected to standing. That is, these are lawsuits being brought by organizations on behalf of their members; Google and its library partners are arguing that the members themselves should be in court, not the organizations. Briefing is complete on these motions, so I thought I’d summarize briefly what the main arguments being thrown back and forth are. I’ll be focusing on the copyright-specific issues, rather than on associational standing in general.

The first major argument raised by the Google side is that the Copyright Act specifically prohibits associational standing. The key provision here is Section 501(b), which says that the “legal or beneficial owner of an exclusive right under a copyright is entitled” to sue. Google reads this at face value: an association isn’t the “owner” of its members’ copyrights, so can’t bring suit. The caselaw here is best described as “vague”: the most recent precedent, AIME v. UCLA, agrees with Google’s view, but isn’t binding on the federal courts in New York.

That’s a categorical argument. It would apply to all copyright cases. There are also a few arguments that these particular associations don’t have standing in these particular copyright cases. Each focuses on some piece of the case that allegedly requires “individual participation” by the copyright owners.

First, there’s the fair use issue. Fair use is famously “case by case” and “highly individualized.” Google claims that it necessarily raises factual issues that vary from book to book. Some books are highly factual, and some are more creative: fair use is easier to show for the former than the latter. Similarly, some books are in print, and others out of print, and this will affect the consideration of how Google Books is affecting the market for them. I’m skeptical of this objection—even if the fair-use case varies from book to book, it’s quite possible that some broad lumping (e.g. books in print and books out of print) will suffice. You don’t necessarily need to bring every author individually into court to decide whether, say, snippet display of fiction is or isn’t fair use.

Next, there’s ownership. Google’s argument here is that proving which copyrights are owned by the associations’ members will require detailed case-by-case inquiry, given the huge diversity of publishing arrangements. (Google very effectively uses copyright guides published by the associations themselves to illustrate how complex book copyright licensing is.) This requires both inspection of particular contracts and complex legal interpretaion of various provisions. Whether or not this argument is sufficient to defeat standing, it’s worth reading pages 14 to 19 of Google’s brief, which is a good snapshot of just how tangled the e-rights situation for books has become. This is the best-argued part of Google’s briefs, but it also depends on some contestable claims about licensing practices in the publishing industry.

And finally, in the HathiTrust lawsuit, the libraries argue that any claims directed to the Orphan Works Project are premature. Because (so say the libraries) none of the plaintiffs are at any risk of having their books displayed, none of them have standing to object to it. Here, I think that HathiTrust’s sloppiness about orphan candidates will have real legal consequence for it. The past near-misses make it more plausible that other non-orphans owned by Authors Guild members will slip through. HathiTrust is probably right when it argues that it’s premature to object to any revised orphan works plan, whose details it hasn’t even settled on. But that shouldn’t stop the associations from getting a ruling on the legality of the original Orphan Works Project (assuming they pass the other standing hurdles).

These issues are on a relatively quick track in the HathiTrust lawsuit, with oral argument currently scheduled for March 2 before Judge Baer. It’s unclear whether they’ll be on an equally fast track in the lawsuits against Google, but my guess is not. Instead, Judge Chin will want to wait to finish the briefing on the authors’ motion to certify a class action before ruling on the standing and class certification motions together.

I don’t quite agree with characterizing the best of these arguments — the uncertainty of licensure — as a standing argument. Remember, standing is judged on the pleadings, not on the facts after discovery. The pleadings themselves do not raise this issue.

It is, instead, an example of one of those merits inquiries that is so intertwined with class certification that it must be considered during class certification. Uncertainty of licensure goes to three of the four Rule 23(a) factors: commonality, typicality, and adequacy of representation. (Arguably, failure to adequately consider it also goes to the propriety of class certification under Rule 23(g)… but that’s another issue entirely, and I’ve never seen it used standing alone to deny class certification.) As Google’s own submission demonstrates, it requires discovery to determine, and results in what is at best an indeterminate result for the jury to evaluate; by definition, that’s good enough for standing ab initio.

The reason that Google “wants” to have this thrown out as a standing issue is that a finding against standing will be a greater deterrant to someone else coming along and filing a similar suit than will a mere failure of class certification. That is, this is a strategic rhetorical overreaching. Unfortunately, it’s one that the federal courts have been all too ready to accept, specifically since Rehnquist’s elevation to Chief Justice. As a parallel issue, take a look at Muchnick and the mischaracterization of “jurisdiction”; it’s a similar strategic/pragmatic rationale.

If I post enough on the lawsuits, will you eventually respond with the full contents of your long-delayed Scrivener’s Error post? I hope so.