On Friday, the parties filed their motions for summary judgment in the HathiTrust case, along with thousands of pages of supporting documents. I’m still making my way through the filings. The heavy redactions make it easier: there’s one document consisting entirely of five pages of solid black, save only the cryptic document number UM004282. Even its title is redacted. But there are still piles of depositions and interrogatories to get through. It doesn’t help that the Public Index is being gradually nursed back to health from a bad malware infection, so I’ve been unable to post the documents there yet, either.
I thought, however, that I would summarize the arguments in the briefs themselves, to give readers a sense of how the case is developing. There are three briefs in: the Authors Guild (and other authors and groups) on the plaintiff side, and HathiTrust and the National Federation of the Blind (and individual blind students) on the defendant side. Interestingly, the three briefs take on slightly different issues. Today, I’ll discuss the prima facie case of infringement and Section 108; fair use will follow later in the week.
The Authors Guild first presents the elements of copyright infringement: ownership of the copyright by the plaintiff and copying by the defendant. While the defendants have their own pending motions about whether the Authors Guild and other groups are entitled to sue on behalf of their members, they don’t otherwise contest the prima facie case of infringement. Nor would they. This case has never been about whether the copying happened; it’s always been about whether the copying that happened is legal.
What the defendants do contest, however, is the plaintiffs’ characterization of which conduct requires legal justification. The Authors Guild focuses on the digitization itself, on the distribution of digitized copies to multiple HathiTrust sites, and on the now-cancelled Orphan Works Project. The defendants admit that they engaged in all of these activities, of course, but they focus on the purposes to which the digitized copies are put: full-text search, preservation, and access for the print-disabled. It’s a little anomalous to have the defendants detailing more conduct than the plaintiffs, but it makes sense given the structure of the case. The plaintiffs are focusing on the mass copying; the defendants on the socially productive uses to which those copies can be put.
The Authors Guild argues that HathiTrust does not qualify for Section 108’s copyright exemptions for libraries. This is a revamped version of its February motion for judgment on the pleadings, which argued that Section 108 couldn’t possibly apply to any of HathiTrust’s uses. The court hasn’t ruled on the first motion, leaving the Section 108 issue hanging over the case.
I’m trying to decide whether it’s strange that the defendants haven’t now argued that Section 108 does apply. At the judgment on the pleadings stage, the threshold is extremely high, because the facts of the case haven’t been developed yet. At the summary judgment stage, the threshold is lower, because there are more facts in evidence, and hence fewer uncertainties weighing on the question. Back in December, the defendants filed vigorous oppositions, arguing that Section 108 could apply to many particular uses. But most of the arguments they made were of the form, “Section 108 could_ apply to some uses of some books,” not of the form, “Section 108 does apply to these uses of these books.”
I was expecting to see this latter form of argument in the defendants’ summary judgment motions, but it isn’t there. There’s very little on Section 108 at all. I can think of three possible reasons why:
- They’re waiting for their responses to the Authors Guild’s summary judgment motion. That doesn’t help them much, though, because Section 108 is an affirmative defense that the defendants ultimately need to put in play if they hope to prevail on. They can’t play defense forever; they have to go on offense on this one.
- They’re waiting to make these arguments at trial, rather than on summary judgment. This is more plausible, but I can’t figure out what they’d be waiting for. They have evidence about specific books; that’s the kind of information that could have been presented as part of the documentation of the summary judgment motion.
- They’re giving up on the Section 108 argument because they think it’s unlikely to work, and so are saving their pages for the fair use arguments. But this raises the question of why they were previously litigating the legal aspects of Section 108 so vigorously.
In any event, here are the key questions in the parties’ Section 108 arguments:
Section 108(a) has a threshold condition that “the reproduction or distribution is made without any purpose of direct or indirect commercial advantage.” The Authors Guild argued previously that Google’s participation renders the entire HathiTrust project inherently commercial, because it gives the libraries the free use of “digital book conversion services, valued in the hundreds of millions of dollars” (MJP 13) and “provided enormous commercial and competitive benefits to Google.” (MSJ 12). The libraries challenged the first of these back in the spring, citing legislative history for the claim that “commercial advantage” means making money, not just saving it. The Authors Guild is now arguing primarily the second claim, that the cooperation serves Google’s commercial interests; I expect to see this position contested in HathiTrust’s response.
Section 108(c) permits the creation of three copies “solely for the purpose of replacement of a copy or phonorecord that is damaged, deteriorating, lost, or stolen” on two conditions: (1) the library “has, after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price”” and (2) any digital copies aren’t “made available to the public in that format outside the premises of the library or archives.” Whether specific books are deteriorating is a question of fact; the libraries have yet to come forward and argue that any specific books were indeed in need of replacement. Until they do, this defense has a hypothetical quality; it’s not actually in contention and anything the court says about it would be dictum. (The same goes for the question of whether the libraries investigated the condition of the books: maybe they did for some, but until they say so with support in the record, the issue isn’t really in play.)
But there are also legal questions here with some significant implications. For one, the Authors Guild argued that the HathiTrust process makes at least ten copies of each book—images and OCR text held in each of five places: at Google, on two HathiTrust server farms, and on two HathiTrust tape backups. HathiTrust responded by claiming that every “technical digital copy of a work” should count against the limit, since viewing a book on a computer creates a copy in memory, an argument that strikes me as beside the point, as the HathiTrust copies are hardly “technical” in the same sense as transitory copies in memory. They’re intended to be stable and enduring: that’s the point of preservation. HathiTrust may be right that the creation of more than three copies “was dictated by the medium and standards for preserving works in digital form,” but that’s a tough argument to make in the face of a statute that says “three.”
And for another, the Authors Guild challenged HathiTrust member libraries’ farming of digital copies out to Google and HathiTrust HQ, arguing that Section 108(c) requires that “digital copies will not be distributed, and will stay in the physical library.” But the statute doesn’t say “distributed”; it says “made available to the public.” So unless the Authors Guild is prepared to argue that HathiTrust is “the public” — which so far it hasn’t clearly done — the statutory text is on HathiTrust’s side here.
Section 108(d) lets libraries make copies of an “article or other contribution to a copyrighted collection or periodical issue” for patrons. The Authors Guild gave an argument that Section 108(d) didn’t apply because the digitization was en masse rather than in response to user requests. HathiTrust does not appear to be challenging this argument because it doesn’t appear to be relying on Section 108(d) at all. Section 108(d) is about copies of parts, not copies of wholes.
Private Study, Scholarship, or Research
Section 108(e) is worth quoting at length:
(e) The rights of reproduction and distribution under this section apply to the entire work, or to a substantial part of it, made from the collection of a library or archives where the user makes his or her request or from that of another library or archives, if the library or archives has first determined, on the basis of a reasonable investigation, that a copy or phonorecord of the copyrighted work cannot be obtained at a fair price, if-
(1) the copy or phonorecord becomes the property of the user, and the library or archives has had no notice that the copy or phonorecord would be used for any purpose other than private study, scholarship, or research; …
The Authors Guild challenges the applicability of this section on three grounds, which are really the same. First, the digitization is not at the “request” of a user because it involves complete collections; second, HathiTrust’s digital copies are not “the property” of library users; and third, the libraries haven’t investigated the availability of the books. These are all just objections to the bulk scanning.
HathiTrust’s response is very interesting. It has not attempted to claim that Section 108(e) eo ipso applies to the bulk scanning: instead, it argues that the Orphan Works Program would be protected under it. Thus, in effect, HathiTrust needs some other defense for the bulk scanning, but once it has the copies, claims it could use them to help satisfy patron requests. (Of course, the Authors Guild disagrees.) But arguments have a way of folding in on themselves: the claim that Section 108(e) might protect downstream uses of the digital corpus, in turn, becomes an argument that could help justify its upstream creation, say under fair use.
Section 108(g) sets another threshold condition: Section 108 applies only to “the isolated and unrelated reproduction or distribution of a single copy or phonorecord of the same material on separate occasions” but not “the related or concerted reproduction or distribution of multiple copies or phonorecords of the same material.” The Authors Guild argues that this is precisely what’s happening with HathiTrust’s wholesale scanning. (It also makes an argument that the scanning is a prohibited “systematic reproduction” under Section 108(g)(2), but that language is qualified to apply only to Section 108(d) reproductions, and as noted above, HathiTrust doesn’t appear to be relying on Section 108(d).)
HathiTrust has two counterarguments here. One is that “isolated and unrelated” applies only to multiple copies of “the same material”—i.e., repeated copying of a single book. The Authors Guild replies by emphasizing the words “single copy” in the first quoted phrase, but HathiTrust’s emphasis on the words “same material” in the second quoted phrase is textually cleaner. I’d have to say the statutory text here is genuinely ambiguous, which leads us to legislative history and HathiTrust’s second argument: that the meaning of “multiple” and “systemic” is tied to the risk that extensive copying will serve as a substitute for library purchases. But that itself is a disputed issue—more on that next time.
Finally, Section 108(h) permits libraries to make copies of commercially unavailable works and distribute them to patrons in the final twenty years of their copyright terms. The Authors Guild argues that the Orphan Works Project falls out of Section 108(h)’s quite narrow scope. But since HathiTrust hasn’t (yet) argued that the Orphan Works Project, or any other particular uses of any particular books, are protected by Section 108(h), it’s again something of an abstract question.
Some of the Section 108 issues are not really before the court, because the defendants have yet to argue that Section 108 actually does apply to any identified activities. But even leaving that aside, I have trouble seeing how HathiTrust can make a pure Section 108 argument in its defense. Some of its copies might ultimately end up being protected, but if it has a defense that will win this lawsuit across the board, that defense is fair use, not Section 108. The statutory library privileges matter because of how they frame and inflect the fair use issue.