Authors Guild v HathiTrust: Oral Argument on Appeal

by Kenneth Crews on October 30, 2013

The Authors Guild v. HathiTrust
Oral Argument, Second Circuit Court of Appeals
October 30, 2013

Presiding judges:
John M. Walker, Jr.
José A. Cabranes
Barrington D. Parker, C.JJ

Attorneys:
Edward Rosenthal, for The Authors Guild
Joseph E. Petersen, for HathiTrust
Daniel Goldstein, National Federation of the Blind

The following are my notes from attending the hearing this morning.  My apologies for any errors, and soon the transcript may be available, so we can explore more details.  For now, I hope this is helpful.  This proceeding is the appeal from a ruling last year from the U.S. district court.

The case was one of at least five cases on the docket that morning, and the court heard the arguments last.  A sizable public audience attended.  The courtroom had public seating for 48 persons.  Every seat was taken, and there were perhaps has many others sitting outside the courtroom watching on a TV monitor.

The district court decision made a strong point about the ability of HathiTrust (HT) to serve the needs of the blind.  Of the 48 members of the public in the courtroom, I counted 17 who had in hand a “white cane.”  It was a strong and quiet statement about the importance of the case.

Attorney for The Authors Guild (AG) opened with his strongest emotional point: This case is about the unlawful taking of millions of books, etc.  That was a good opening line for him, but it came apart immediately.  First, he was interrupted by a judge asking about the appropriateness of the association and whether it can have standing to represent copyright owners.  Second, the attorney himself promptly moved to another argument that frankly is not persuasive: The district court “ignored” the importance of Section 108 for this case.

Oddly, the AG lawyer also conceded two major points early in his argument.  First, he said that the AG has no concerns about the search functionality of HathiTrust.  It is concerned about multiple copies of millions of full books with no assurance that there will not be security breaches.  The lawyer came back to that concern several times.  Second, the AG is not concerned about the functionality of HT to meet the needs of the blind.  Although, later the AG attorney made clear that the AG objects to the district court’s interpretation of Section 121.

The judges asked many questions.  Some of the main ones:

•    How does the actual copying in this case create economic harm for the plaintiffs?
Reply: The AG lawyer focused on problems with the security for access to the files.  He came back to that point repeatedly.  One judge suggested that perhaps the university should get an insurance policy and thus be ready to pay for any breaches.  Wouldn’t that alleviate the security concerns?  It seemed a serious point.  The judge returned to it a few times.
•    How does this case relate to the pending Google Books case?
Reply: The AG counsel distinguished the cases, noting that this is the first case about mass digitization and Section 108; it involves a nonprofit defendant; it involves questions of sovereign immunity; parties are only seeking an injunction and not damages.
•    How to respond to the strong support from the scholarly community for this project?
Reply: The AG lawyer repeated his point that it has no objection to the search function, and that seems to be the main interest of scholars.
•    How can the Authors Guild take its position in this case when many of its members support the project?
Reply: The AG lawyer explained that surely some members have differing views, but the AG has full support of its board, etc.

When counsel for HT started, he opened by declaring that the concerns about security have always been a “red herring.”  He said that the issue had been part of the case from the beginning, and the record shows no evidence of a breach and does include evidence of systems in place to prevent breaches.

Finally, the court got to fair use.  The judge asked a general question about the meaning of fair use, and counsel for HT took the initiative to define it on his terms: Fair use is about the question, “Does this use serve a broader public good without harming copyright owners?”  Or words to that effect.

Astonishingly little of the argument was about the substance of fair use.  The judges did get to the important issue of the relationship between Sections 107 and 108.  They seemed content with the argument that 108(f)(4) makes clear that 107 and 108 are separate analyses.

The attorney representing the blind was especially effective at showing the problems with 108 and 121.  Especially regarding 108, he noted that if we relied on 108 preservation terms, users would have to go to the library “premises” to read the books.  Also, where 108 allows copies for users, it is only upon request, and no library can actually build a collection based on that statute.

The attorney for the AG not only stuck with the argument that 108 trumps fair use, but he further asserted that 108 can limit the application of 121.

The attorney for the AG had the last word, and the court handed him the open question of “anything else” he might want to say.  He chose to focus on the planned orphan works program in HT.  He criticized it, but he emphasized that it had not been dropped, but was only under reconsideration.  He urged the court to address it.

Kenneth Crews
Thanks to Greg Cram at NYPL for his added comments, insights, and information.