After a round of key filings, two Authors Guild cases challenging Google’s ambitious library book-scanning program are on schedule for early fall trial dates. Final reply briefs were filed July 27 for the Authors Guild v. HathiTrust, with that case now fully briefed and all but set for a November trial in Judge Harold Baer’s courtroom. And in the Authors Guild v. Google case, motions for summary judgment were also filed July 27, with a final round of reply briefs due September 17 and oral arguments set for October 9 before Judge Denny Chin.
With the summary judgment motions now in, the question before the courts this time around is refreshingly simple compared to the complex 300-plus–page settlement agreement between the authors, publishers, and Google that was rejected by Judge Denny Chin in March of 2011: digitizing millions of books for preservation and indexing is either authorized by Congress under the Copyright Act’s fair use provision, or it’s not. The Authors Guild holds that the unprecedented mass digitization programs exceed Congress’s stated intentions, while lawyers for Google and the HathiTrust (a coalition of research libraries) argue that the public benefits and transformative nature of the scanning projects easily qualify them as fair use.
With the battle lines now drawn, how is the fight shaping up? At this stage, observers say, the Authors Guild may be facing an uphill charge. “Google and HathiTrust have made a compelling case that digitization to support full-text search and long-term preservation is a fair use,” New York Law School professor James Grimmelmann told PW. On the other hand, he notes, in the HathiTrust case at least, the Authors Guild has simply not made “a convincing case” that there is harm to the copyright owners. (The Guild brief in the Google case is still under seal and awaiting redaction before its public release.)
“The security risks are conjectural, there is no functioning market for collectively licensing scanning, and there is no actual evidence of lost sales,” Grimmelmann said of the HathiTrust case. He added that the National Federation of the Blind, Intervenors in the HathiTrust case, have also made a strong case for using digitized books to provide access to the print disabled, and an amicus brief filed by a group of digital humanities scholars has made a strong case that “non-consumptive research” is fair use.
However the court rules, the litigation stands in stark contrast to the failed settlement process. For almost three years, the parties stumped for approval of a deal that skirted the core copyright issue in favor of a complex, forward-looking business model. But many rank-and-file copyright owners did not understand how the settlement would work, and of those who did many likened the deal to “private legislation.” The deal attracted a large number of objections, a fact that made an impression on Judge Denny Chin and likely played a role in its rejection.