The Authors Guild has notified the court that it will appeal Judge Harold Baer’s landmark October 10 ruling in the Authors Guild vs. Hathitrust case. In a short, paragraph-long filing submitted late last week, Guild attorneys notified the court of the appeal. Although few details were available at press time, it isn’t hard to imagine on what parts of the decision the Guild appeal might hinge: in a statement issued at the time of the decision, the Authors Guild said they “disagree with nearly every aspect of the court’s ruling.”
The decision to appeal, which was largely expected, means that the Second Circuit Court of Appeals now has two cases before it involving the Authors Guild and Google’s library book scanning project. This summer, the Second Circuit agreed to review Judge Denny Chin’s May 31 decision granting the Authors Guild associational standing and certifying the Guild suit against Google as a class action. Just last week, Google filed its arguments with the Second Circuit, reiterating its position that Chin erred in granting the case class action status, because, among other things, “under the Copyright Act, only the legal or beneficial owner of an exclusive right under a copyright may sue for infringement.”
Standing will also be one of the issues for review in the HathiTrust case, should the court agree to take the appeal. Notably, while Baer expressly agreed with Chin’s decision to grant associational status to the Authors Guild on a “constitutional” basis, he denied the Guild standing on “statutory” grounds. Specifically, he found that because the Copyright Act states that only “legal or beneficial” owners are entitled to sue for infringement, other parties are therefore excluded.
And then, of course, there is the substance of the fair use ruling itself. Even if the Guild manages to retain its class action case and its associational plaintiff status, the fair use decision for the HathiTrust was emphatic. As New York Law School professor and PW contributing editor James Grimmelmann observed, Baer’s decision didn’t even seem close. “On every substantive copyright issue, HathiTrust won,” he observed. And even though Google is a commercial venture, the ruling is largely applicable. “The transformative use and market harm points stand,” Grimmelmann blogged, “and that's enough for a solid fair use victory.”
By all accounts, Baer’s ruling granting summary judgment to HathiTrust was seen as a repudiation of the Authors Guild suit. In his opinion, the judge conceded that while “the facts may on some levels be without precedent,” he wrote that he “could not imagine a definition of fair use” that would compel him to shut down the HathiTrust Digital Library, which he called an “invaluable contribution to the progress of science and cultivation of the arts.”
