The battle lines are drawn, or should we say, more battle lines are now drawn. On June 29, the parties in the Authors Guild vs. HathiTrust filed motions for summary judgment, with the Authors Guild asserting that it should win because the library defendants have no viable defense for their mass-digitization program, while the HathiTrust argues that it should win because its program clearly falls under fair use. A third motion was also filed, in support of the HathiTrust, by the National Federation of the Blind.

In its copyright infringement suit, filed in September of 2011, the Authors Guild alleges that the HathiTrust, a digitization collective of research libraries, is built with millions of “unauthorized” scans created by Google. The suit seeks an injunction barring the libraries from future digitization of copyrighted works; from providing works to Google for its scanning project; and from proceeding with its plan to allow access to “orphan works.” It also asks the court to “impound” all unauthorized scans and to hold them in escrow “pending an appropriate act of Congress."

The case is yet another front in the Authors Guild’s ongoing battle with Google following the demise of the Google settlement in March of 2011. In its other, more high-profile case, Authors Guild vs. Google, motions for summary judgment are due later this month.

Section 108 vs. Fair Use

In their memorandum in support of summary judgment, attorneys for the Authors Guild ramped up their rhetoric against the libraries. “Discovery has only reinforced how brazen Defendants, and their business partner, Google, have been,” the brief states. “For all intents and purposes, Defendants permitted Google to back trucks up to university library loading docks, empty every book from every shelf, drive the trucks to one of several top secret Google-operated scanning centers, digitize each work, keep a digital copy for Google’s own commercial purposes and then return the printed work and a digital copy to Defendants for their own use.”

In crafting such a program, the AG brief argues that libraries have deprived authors of potential sales, exposed their books to “potentially catastrophic security risks,” and “undermined the copyright owners’ ability to decide whether, when and under what circumstances to participate in existing or new licensing opportunities.”

Specifically, AG attorneys say the libraries “overstepped every allowance granted to them in Section 108 of the Copyright Act,” and hold that “nothing in copyright law permits the unlicensed scanning, copying and use of millions of copyrighted books, whether by a giant commercial entity like Google or a group of university libraries.” The Section 108 argument is essentially “a revamped version” of the AG’s February motion for judgment on the pleadings, blogged New York Law School’s James Grimmelmann, adding that the court has yet to rule on that motion.

Among the AG’s arguments regarding section 108 is that the statute contains a “threshold” condition stating that any reproductions must be made without “direct or indirect” commercial advantage. “Even if the defendant libraries do not themselves have a commercial purpose,” the AG brief states, “Google certainly does.” In addition, the AG notes that the HathiTrust project oversteps section 108 in other ways, for example, it makes more copies of each work than the three copies permitted by law; that the program does not limit copying to works that were damaged or deteriorating; and did not, as required, determine whether reasonably priced replacement copies could be obtained before creating copies.

While leaning heavily on its Section 108 argument, The AG also addresses fair use, although in less detail. “The plaintiffs stand by the main point that Defendants’ preemptive and mass digitization of millions of books cannot possibly be considered fair use, and a detailed analysis of the four factors in Section 107 is not required.” Should the court find that a fair use analysis is required, however, the AG attorneys say the court would also find that the bar for fair use is not cleared.

Public Benefit vs. No Harm

The HathiTrust motion for summary judgement, meanwhile, relies almost entirely on fair use, asserting that all four factors of the fair use analysis either favor or “tilt toward” the libraries.

While the HathiTrust began in 2008, digitization efforts in libraries are over 20 years old, and offer significant public benefit, attorneys argue: digitization preserves books, enables search and new methods of research, such as text-mining, and increases access for students and scholars with print disabilities. And the collaboration between research libraries, and Google, has created a more stable, secure corpus in just a decade than could have been achieved in centuries by individual libraries, while fully respecting copyright: not one line of text is displayed via HathiTrust for books presumed to be in copyright, attorneys note, not even snippets (unlike Google's commercial index).

“The public benefits from the Libraries’ limited uses of book scans are indisputable,” the brief states. “Unfindable print books can be found—yet only read in the print copy. Men and women who cannot see or turn physical pages are afforded equal access to the cultural record. Thousands of books that would have been lost each year are preserved. Older, out-of-print, rarely checked-out, and public-domain books, formerly banished to offsite storage facilities, are again discovered, purchased, and used. Authors—as well as the public—benefit.”

HathiTrust attorneys also argue that there is no evidence of the market harm the Authors Guild claims. “Plaintiffs admit they are unable to identify any specific, quantifiable past harm, or any documents relating to any such past harm resulting from the Libraries’ uses of their works,” the brief notes. “Instead, Plaintiffs argue they will suffer only prospective, unrealized harms.”

In fact, no harm exists, the libraries say. There is no evidence any of the works have been pirated from the HathiTrust, and the Libraries continue to purchase books, even copies of the books that have already been digitized. Last year alone, the brief notes, Michigan spent over $24 million on library hardcopy and electronic acquisitions. “These uses do not harm authors; they increase discovery of their works and stimulate new purchases.”

HathiTrust attorneys also rebut the AG’s argument that the project precludes a future licensing market for authors. “Plaintiffs cannot preempt markets that currently do not exist by speculating that they might one day develop a licensing scheme for these uses.” And, they argue that there will almost certainly never be a commercial, license-based preservation initiative that would invest in the kind of important work libraries do.

Perhaps the most newsworthy item in the filings comes regarding the HathiTrust’s challenged Orphan Works Project. The brief acknowledges that the libraries have suspended any plans to make any works available through the Orphan Works Project (OWP), but now states that “the project may never resume.” Initially, library officials said they remained committed to the program. Because the program is halted, and because “not one single out-of-print book whose copyright holder could not be located—has ever been distributed, displayed, or performed to anyone,” the libraries argue that this issue should not be adjudicated.

“Nearly seven years after the collaboration with Google began and decades after the Libraries began digitizing works, impounding and freezing the HathiTrust corpus presents the Court with a stark choice,” HathiTrust attorneys argue. “The Libraries respectfully submit that the Court should hold that the limited uses at issue in this proceeding fall squarely within the Libraries’ right of fair use.”

Heating Up

Next up, opposition briefs are due on July 20, and replies in support of summary judgement are due July 27. The deadline for filing amicus briefs in the case, meanwhile is today, so another wave of briefs are soon to roll in. Motions for summary judgement in the Authors Guild vs. Google case, meanwhile are also due July 27.

Barring an unlikely quick victory by one side or another at the summary judgment stage, a trial in the HathiTrust case could begin in Judge Harold Baer's courtroom in November, just weeks after the Authors Guild vs. Google trial (October 9) is set to be heard in Judge Chin's courtroom. That sets up a fascinating scenario in which two judges in the same district court will simultaneously decide two separate cases involving the same plaintiff, both involving Google, and virtually the same digitization behavior.

Initially, the HathiTrust case was referred to Judge Chin, but Chin quickly declined the case as "not related." In reality, and as evidenced in the filings, the cases could not be more related. But Chin, already promoted to the Second Circuit Court of Appeals was sitting by designation in the Google case, as well as in a parallel case involving visual artists, and was surely not eager to expand his district court assignments while already at work at the appellate court.

The concurrent cases now create a tantalzing possibility: that the two judges could rule differently on a fundamentally identical issue. "We could very well have the judges reaching opposite results," NYLS's Grimmelmann told PW, "although, in practice, a decision by one would exert a strong pull on the other not to reach the issues." Thus, a key question in the ongoing saga of Google's library scanning could now be which judge will rule first.

Of course, we are still a ways from any decision, and perhaps a ways away from a trial. In the Authors Guild vs. Google, Google has appealed Chin's recent decision to certify the case as a class action with the Authors Guild having associational standing, adding another potential wildcard. And, in the HathiTrust case, Judge Baer has yet to rule on a HathiTrust motion challenging the Authors Guild's associational standing, filed back in December of 2011.