Remember how the American Library Association (along with two other library groups, but call them collectively “ALA” for short) and Electronic Frontier Foundation filed an amicus brief in the HathiTrust case, and a group of “Digital Humanities and Law Scholars” filed one too? Well, they also asked to file amicus briefs (ALA et al., scholars) in the main case against Google. But this time, the Authors Guild and the other plaintiffs opposed the filings, arguing that the filers were “friends of Google” rather than “friends of the court.”
The move is perplexing, on a number of levels. For one thing, the Authors Guild allowed nearly identical amicus briefs to be filed in the HathiTrust case. I can understand that different lawyers might reach different conclusions in different cases, but I would have thought that the Authors Guild itself could at least make its two sets of lawyers talk to each other and reach a common decision. For another thing, the law here is quite clear. District judges have broad discretion either to accept amicus briefs or to reject them. Opposing the filings more or less requires that Judge Chin will have to read the briefs in order to rule on the motion to strike the filings. At the end of the day, he’ll listen to the briefs if he thinks they’re persuasive, and ignore them if he doesn’t. Opposing the filing just comes across as petulance, if you ask me.
The one point I think the opposition makes effectively is that amicus briefs can be a subterfuge to put factual claims before a court without the opportunity for a well-developed adversarial presentation. (At the Supreme Court level, advocacy groups do this all the time to try and supplement the official record.) But on the whole, I find the ALA and EFF’s reply to be persuasive and to the point. The opposition, overall, is a litigation tactic for the sake of tactics; I don’t see how it helps the plaintiffs either substantively or strategically.
UPDATE: The Digital Humanities and Law Scholars have filed their own brief reply.
UPDATE: Judge Chin has allowed the filings and given the plaintiffs the opportunity to respond.