With a new round of filings hitting the docket last week, the Authors Guild appeal of Judge Harold Baer’s landmark copyright decision in the the HathiTrust case is underway. The broad appeal raises a handful of key questions on which the Guild is seeking review by the Second Circuit Court of Appeals, including whether the district court erred in finding the scan plan to be fair use.
Among the issues raised:
Orphan works: “Did the District Court err in deciding that Defendants-Appellees could avoid judicial scrutiny of their Orphan Works Project that was on the verge of distributing unauthorized digital versions of copyright-protected books…?” the AG filing asks, noting that the HathiTrust announced it was “merely suspending (but not ending)” the proposed project.
In the summary judgment proceedings, the HathiTrust argued that since no orphan works were ever made public, the issue was “not ripe for adjudication.” In his ruling, Baer agreed, noting that any decision at this point would be based on hypotheticals.
Fair use: “Did the District Court err in ruling that Defendants-Appellees' actions connected to their mass book digitization venture with Google, through which millions of copyright-protected library books were digitized, copied, stored and used without the permission of their authors or other rights owners, constituted fair use under the Copyright Act?”
Baer ruled that the program was fair use, at one point emphatically stating that he could not imagine “a definition of fair use” that would compel him to shut down what he called an “invaluable contribution to the progress of science and cultivation of the arts.”
Standing: “Did the District Court err in holding that Section 501(b) of the Copyright Act precludes an association of authors from seeking to enjoin a group of universities from digitizing and making various uses of copyright-protected books without the permission of the books' authors, including authors who are members of the association, or other rights owners?”
In his ruling Baer held that the Authors Guild lacked “statutory standing” to bring suit. Specifically, the court found that because the Copyright Act states that only “legal or beneficial” owners are entitled to sue for infringement, other parties are therefore excluded. The net effect: the Authors Guild, as it stands, is now “permanently barred from bringing copyright lawsuits on behalf of its members,” explained New York Law School’s James Grimmelmann. Unless Baer’s decision is overturned, that part of the decision could stand as “a real blow to [the Guild’s] institutional status as a legal advocate for copyright owners,” he noted.
Fair Use for the Disabled? “Did the District Court err in holding that Defendants-Appellees’ mass digitization activities are permitted under Section 121 of the Copyright Act, 17 U.S.C. § 121?” That section deals with “reproduction for blind or other people with disabilities.”
In his decision, Baer clearly was impressed by the access the project affords to the blind and print disabled (who had intervened in the case via the National Federation for the Blind), citing it often in his opinion and at one point writing that the “unprecedented ability of print-disabled individuals to have an equal opportunity to compete with their sighted peers” was perhaps the “most important” transformative use of the scans.
Notably not present in the filings: the Authors Guild argument that section 108 of the Copyright Act—the so called library exemption—precludes the libraries’ ability to invoke sections 107—fair use. Baer found that argument to be lacking, citing the plain text of section 108, which states that nothing in Section 108 shall affect the right of fair use as provided by section 107.
Next up, in the coming weeks or months, the Second Circuit will decide whether to take on the appeal.