In December, HathiTrust moved for “partial judgment on the pleadings” on the issue of associational standing in the parallel case against Google’s library partners. Judgment on the pleadings is an early pretrial tactic: the party asking for it, in essence, says that there’s no need to move to the fact stage of the lawsuit. Even if every single thing the other side alleges turns out to be true, it wouldn’t make a difference: the law still favors the moving party.
Well, two can play at that game. The Authors Guild and its allies filed their own motion on Tuesday for partial judgment on the pleadings. And this one is a doozy: it asks the court “to hold that Defendants’ mass digitization and orphan works projects are not protected by any defense recognized by copyright law.” If they win this motion, the case is all but over, and the libraries will almost certainly need to suspend their cooperation with Google and give up their digital copies of the books.
The motion deals with two sections of the 1976 Copyright Act that are expected to play leading roles in the libraries’ defenses: Section 107 on fair use and Section 108 on library copying. In many respects, the sections couldn’t be more different. Fair use is a standard: broadly and vaguely phrased, inherently case-specific, requiring elaboration by the courts. The library privileges are rules: narrowly and tightly phrased, far more mechanical in their application. And their interaction is … disputed.
Before the 1976 Act, there was no provision on library privileges in the Copyright Act. Instead, libraries relied on fair use when they photocopied materials for their patrons. The scope of that fair use defense, though, wasn’t determined by rulings from the courts. It was a mixture of custom, forbearance, confusion, and several sets of guidelines promulgated by different groups at different times, most notably a “Gentlemen’s Agreement” from 1935 that allowed individual reproductions for research purposes only. (For more on this pre-1976 history, see this background paper by Mary Rasenberger and Chris Weston and this paper on the Gentlemen’s Agreement by Peter Hirtle.)
This detente came under severe strain in the 1960s and 1970s under the influence of much better copying technologies. Patrons came to value the convenience of photocopying; libraries came to appreciate photocopying’s value in preservation; authors and publishers worried that photocopying would cut severely into their sales. There were proposals to codify library reproductions into hard-and-fast fair use rules in the Copyright Act, but libraries and copyright owners were enormously far apart on what those rules ought to say. Meanwhile, a lawsuit by the publisher Williams and Wilkins against the National Institutes of Health and the National Library of Medicine resulted in a single-judge ruling that library photocopying was not fair use, then a 4-3 ruling in the Court of Claims that it was, and then a 4-4 Supreme Court split decision, which had the effect of leaving the NIH’s victory intact while taking the Court of Claims’s opinion off the books as binding precedent. Uncertainty and more uncertainty.
As ultimately enacted, the 1976 Copyright Act punted on the question of what the general law of library copying under fair use ought to be. Section 108, with its detailed and narrow rules governing allowing certain types of archival copies and certain distributions of copies to patrons, was in the Act. But it contained two clauses whose meaning was never the subject of clear agreement among the various interest groups pushing and prodding Congress. First, there was the “systematic” exception:
(g) The rights of reproduction and distribution under this section extend to the isolated and unrelated reproduction or distribution of a single copy or phonorecord of the same material on separate occasions, but do not extend to cases where the library or archives, or its employee … (2) engages in the systematic reproduction or distribution of single or multiple copies or phonorecords of material described in subsection (d) [i.e., using the Section 108 privileges] …
And second, there was the fair use savings clause:
(f) Nothing in this section … (4) in any way affects the right of fair use as provided by section 107 …
The libraries took these to mean that library photocopying programs had been a fair use before the 1976 Act and would continue to be a fair use. On the other hand, copyright owners read these provisions to codify a few specific photocopying practices as being legal, while rendering the others categorically off-limits.
The Authors Guild’s new motion falls definitively in the latter camp. It repeatedly refers to the libraries’ actions as “violations” of Section 108, with the implication that to fall outside of its protections is to infringe. And it makes a detailed argument that the libraries fall outside each subsection of Section 108 that could possibly apply. This is the core of what the Authors Guild is going for: a judicial declaration that Section 108’s threshold conditions haven’t been met, taking it off the table as a possible defense early on. (I’ll discuss the details in a future post, once HathiTrust’s response brief is in.)
The part of the brief that drew the most attention last week—the fair use argument—is also the briefest. The Section 108 arguments take up twelve pages; the fair use arguments only three. But the Authors Guild’s argument here is aggressive and more than a little breathtaking:
Defendants will undoubtedly seek to defend themselves by arguing that their activities constitute fair use … However, rules of statutory construction, case law and legislative history definitively establish that Section 107 is unavailable to Defendants under these circumstances.
There’s a reason, though, why this sweeping argument—failure to qualify for Section 108 automatically disqualifies a library from claiming fair use—is relegated to the tail of the brief. It’s just not very strong, and the brief’s authors know it. Part I does an excellent job knocking down some of the specific Section 108 defenses, but Part II on fair use is tactical. It could wrong-foot HathiTrust’s legal team and force them to litigate fair use before they have developed sympathetic facts. It could dispose the judge to regard the fair use claims with suspicion from the start. It could fire up the Tea Party anti-library faction of the author community. All of these are part of a good litigator’s toolkit: confuse your opponents, sway the judge, please your client. But they shouldn’t be mistaken for an argument that the litigator expects to prevail.
The first problem is that judgment on the pleadings is far too early in the case for a fair use ruling. Fair use requires case-by-case balancing, which requires developing the facts that make that balancing possible. If there is any plausible set of facts consistent with the libraries’ arguments that would support a fair use claim, the Authors Guild’s motion must be denied. For purposes of the motion, everything the libraries allege—absolutely no effect on the market, perfect quality control in the Orphan Works Program, etc.—must be taken as true.
The only way the Authors Guild can get around the enormously high factual burden facing it at this procedural stage is to make a purely legal argument: that failure to comply with Section 108 categorically prevents reliance on fair use, across the board, no factual questions asked. But here, even its own sources betray it. The 1983 Copyright Office report the Authors Guild quotes on the relationship between Section 108 and fair use says only that fair use is “often clearly unavailable as a basis for photocopying not authorized by section 108.” Read that again: “often” unavailable, not “always” unavailable. This is not judgment-on-the-pleadings material.
The brief also features some creative but unpersuasive arguments about the fair use savings clause. First, it gives a standard specific-controls-the-general argument:
The savings clause cannot be permitted to supplant the specific limitations on library copying contained in Section 108. Further, the general language of a statutory provision, although broad enough to include it, will not be held to apply to a matter specifically dealt with in another part of the same enactment. (citations omitted)
But this gets the structure of the statute wrong: Section 108 contains additional defenses for libraries, not additional limitations on what they may do. The savings clause, therefore, doesn’t derogate from the specific statements of Section 108 in the slightest: nothing it does takes away from any of the library privileges that Section 108 creates.
Nor does the savings clause render the rest of Section 108 redundant, as the brief argues. Section 108 provides a clear and unambiguous but tightly circumscribed safe harbor for libraries: none of that is at all redundant with the usual case-by-case balancing tests of fair use. But to read Section 108 and fair use as incompatible, as the brief all but argues, would in effect read the savings clause out of the statute.
And then there is the brief’s discussion of another Copyright Act fair use saving clause, in Section 1201 of the DMCA:
Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.
In the famous DeCSS case Universal City Studios v. Corley the Second Circuit held that fair use was no defense to DMCA anti-circumvention liability. But—as the Second Circuit explained but the Authors Guild doesn’t—that was because the DMCA creates an independent form of circumvention liability that is different from infringement liability:
In the first place, the Appellants do not claim to be making fair use of any copyrighted materials, and nothing in the injunction prohibits them from making such fair use. They are barred from trafficking in a decryption code that enables unauthorized access to copyrighted materials.
That is, fair use as a defense to copyright infringement remains completely intact under the DMCA. Unlike the DMCA, however, Section 108 does not create new forms of liability, so that “violation” of it is not some new exotic action to which fair use does not apply. Failure to qualify for Section 108, per the text of the savings clause, simply kicks one back into the usual fair use balancing test.
The actual application of that test will be interesting and contested. It will also take place in the shadow of Section 108, which both sides are likely to point to as making the libraries’ uses more fair or less fair. But that’s a matter for a later date in the case; for now, the action, if it’s anywhere, is in associational standing and the scope of Section 108.
(Jonathan Band also has some discussion of the relationship between Section 108 and fair use in the context of the HathiTrust Orphan Works Program.)
UPDATE: I changed “Tea Party anti-library faction of the Authors Guild’s base” to “Tea Party anti-library faction of the author community” to make clearer that this is a statement about the beliefs of some authors, not the position of the Authors Guild itself.