Yesterday, Judge Baer held an hour-long hearing in the HathiTrust case. Although most of the time was spent on procedural matters, the Authors Guild’s lead attorney, Edward Rosenthal did a very effective job leveraging them into substantive points.

The first problem for the court was a discovery dispute. Some of the plaintiffs live far from New York and have objected to having their depositions taken there, and a fourth, J.R. Salamanca, is in ill health and bedridden. After some discussion not worth recounting, the defendants’ attorneys agreed to take the deposition of Salamanca’s literary agent instead, and the two sides agreed on logistical arrangements for the others.

The most significant consequence of the deposition skirmish is that the close of discovery has been effectively pushed back. It had been scheduled to be finished by May 20, which is self-evidently impractical now that some depositions won’t even happen until next week. Instead, it now appears that discovery will last until June 8. This fact puts pressure on the schedule for summary judgment. Judge Baer had asked for the motions for summary judgment to be fully briefed by July 20. But allowing the necessary time for each side to respond to the other’s papers means that the actual motions would need to be filed in mid-June, i.e. uncomfortably close to the end of discovery. Judge Baer at one point asked parties if they could finish their briefing by the start of July so he could “put it under his pillow” when he goes away for the month. They agreed to go off and discuss the schedule, but I’d be quite surprised if the summary judgement deadlines were moved up.

And this scheduling tempest will spill over beyond its teapot: it seems likely to shape how the case will be argued. Joseph Petersen, appearing for the HathiTrust, tried to suggest that a quick ruling from Judge Baer on the motions for partial judgment on the pleadings (HathiTrust’s on associational standing and the Authors Guild’s on the applicability of copyright defenses) would help winnow the issues in the case, making for more narrowly focused summary judgment motions. Judge Baer wasn’t buying. He said, gruffly, that he was inclined to hold over these issues and decide them together with the summary judgment motions. This isn’t good news for HathiTrust, for reasons shortly to become apparent.

The first phase of the substantive oral argument dealt with HathiTrust’s motion to have the Authors Guild and other associations removed from the case for lack of standing (leaving only the individual plaintiffs). W. Andrew Pequignot delivered the argument in a style familiar to anyone who’s watched a moot court. He give a clear, but completely wooden, summary of HathiTrust’s argument against the associations, focusing on the argument that each copyright plaintiff must prove individual ownership of the works on which they sue, so that an association would need to present individual facts for every one of its members. The judge tried to ask him what practical difference associational versus individual standing would make if HathiTrust ended up losing on the merits, a question which raises subtle questions about the scope of a possible injunction, but Pequignot didn’t engage with the question.

Ed Rosenthal then gave the Authors’ Guild reply, and showed why he’s the chair of his firm’s IP and litigation groups. The defendants copied ten million books, he said, in an act of “preemptive mass digitization,” and now they want to look at individual books in evaluating standing. The response to Rosenthal’s point, if there is one, is that the Copyright Act really does require proof of individual ownership, a requirement that has nothing to do with whether the infringer is accused of copying one book or a million. Rosenthal could have replied by saying that this would leave copyright owners without a way to challenge mass infringement, and the defendants’ natural surreply would have been that individual lawsuits would be more appropriate. But that last point was precisely the question Pequignot ducked—thereby not only ceding much of the standing issue but also the rhetorically intuitive high ground.

That mattered, because Rosehtnal used the standing issue as a pivot to his argument that HathiTrust’s copying was substantively impermissible under the Copyright Act. Having set up the issue as a mass challenge to mass digitization, he was ready to roll with his argument that Section 108 provides the only relevant permission for copying here, permission that HathiTrust has far exceeded in copying books wholesale rather than retail. Thus, he claimed, the associations were the perfect plaintiffs to mount a program-wide challenge.

HathiTrust’s next moot court argument came from Allison Roach, who argued that no one had standing to challenge the Orphan Works Program since no identifiable books with copyrights owned by any of the plaintiffs had been made available or were in imminent likelihood of being made available through the OWP. Judge Baer was skeptical, saying that he was bothered that the libraries did “all of this” before there was an opportunity for plaintiffs to complain. Roach said was that no books had been made available, only a list of candidates, and that the plaintiffs were asking for an injunction against the entire Orphan Works Project without concrete facts about specific books it would infringe.

Rosenthal’s response here was a little less vivid. He emphasized that the University of Michigan had set up a mechanism for its orphan works. Some plaintiffs found their books on the list; the University suspended the program. If, he argued, this meant there was no right to object because there was currently no program, then there would never be a circumstance in which the program’s legality could be addressed. Any copyright owner who tried to object would be defined out of the class of copyright owners with standing to object, and this couldn’t be. (His point illustrates why the standing argument may be too clever by half when it comes to the Orphan Works Program, and why suspending the program might end up being ineffective in insulating it from judicial review.)

This brought the court to the plaintiffs’ motion for judgment on the pleadings that the libraries couldn’t raise fair use, Section 108, or other Copyright Act defenses. Here, Rosenthal led off by arguing that Congress passed a specific statute with directions for libraries, which the defendants disregarded. He then acted annoyed that the defendants, in their responses (see the bottom of our page on the case) characterized this as a broader attempt to stop libraries from claiming fair use, ever. No, Rosenthal said, the plaintiffs don’t argue against other library uses, just that they can’t digitize every book. They chose to scan in a large project, and the burden should be on them to justify that project. Once again, it was an oral advocacy gem.

Joseph Petersen then gave a rebuttal that ran through HathiTrust’s brief. The plaintiffs, he said, tried to argue that libraries have no fair use rights, but only the specific rights granted in Section 108. When shown how absurd it would be to claim that libraries alone in society have no fair use rights, the plaintiffs changed course and argued that the case isn’t about library copying in general, but only about this program. And this, he said, showed why this issue wasn’t appropriate for the “rule 12” context (i.e. a motion for judgment on the pleadings): it obviously depends on specific facts about the libraries and what they’re doing. He then recounted, quickly, some of the libraries’ arguments about the symbiosis between Section 108 and fair use, about the noncommerciality of the project, and about the text of Section 108.

He was followed by Daniel Goldstein, on behalf of the National Federation of the Blind. He ran through some of the history of accessibility of books to the blind, and emphasized that digitizing books brings the number of accessible titles from tends of thousands to tens of millions. Now, blind and visually disabled students can access HathiTrust’s digital database (when they provide appropriate certification of their disability). They’re the only group that has access to the database, but now they have equal access to the books themselves as sighted students would. He used this to argue that the plaintiffs’ assertions about categorical exclusions from fair use and other copyright defenses would tell libraries that they can’t make the copies for the print-disabled that they need to to comply with the Americans with Disabilities Act and the Rehabilitation Act.

All in all, yesterday’s skirmish was a minor one in the arc of the case. The discovery disputes were sorted out, and the schedule will be. Because Judge Baer strongly signaled that he’ll put the immediate motions off until he considers the summary judgment motions, that just puts the interesting and important issues off until the even more interesting and important summary judgment ruling.

Still, the skirmish was a clear win for the Authors Guild and its co-plaintiffs. Rosenthal made common-sense arguments about standing that—from the audience at least—seemed like they were persuasive to Judge Baer. He leveraged his responses to the defendants’ motions on standing to bolster his own argument on the applicability of fair use. And because Judge Baer is likely to hold the present motions over, he put the defendants in the difficult position of arguing that they are entitled to a blanket fair use defense at the same time as they argue that fair use is a fact-specific inquiry requiring individual participation.

The defendants’ decision to press the standing issues, at least in the way they did, now appears like a mistake. Both at the hearing and in the case overall, the plaintiffs have been able to use their responses to the standing motion to wrong-foot HathiTrust and take control of the case’s timing. As readers of this blog know, I don’t think much of the plaintiffs’ own judgment on the pleadings motion, but I have to give them and their lawyers credit for using it at the hearing to define the narrative of the case on their terms. They chose their counsel well.

The other matter on display yesterday is how different Judge Baer is from Judge Chin. Where Chin’s attitude is generally thoughtful and gentle, Baer tends more towards the gruff and the impatient. (It may not have helped that the hearing was sandwiched between three criminal matters and an afternoon of conferences, and that Judge Baer’s, schedule as he announced, had no room for lunch.) His fast-track schedule for the case is an indication of where Baer’s priorities lie, and my sense is that he saw the hearing more as a way to keep the case moving properly than as an occasion for deep reflection on the issues.

Assuming no curveballs, the next major dates in these cases will be in mid-June, when a variety of major motions will fall due. Motions for summary judgement will be due June 14 in Authors Guild, the visual artists’ motion for class certification will be due June 13, and summary judgment motions in the HathiTrust case will arrive somewhere around then, too, depending on what the parties agree to.