In its initial complaint last year, the Authors Guild accused the HathiTrust of “ignoring the interests of copyright owners” and failing to allow Congress to “determine the requirements and safeguards that will govern the use of digital libraries.” Last week, in a joint amicus brief, the Library Copyright Alliance and the Electronic Frontier Foundation accused the Authors Guild of ignoring reality. Calling the prospects of a Congressional solution to the pressing—if thorny—issues of book digitization “completely speculative,” the LCA/EFF brief told the court that it did not need to wait for a Congressional solution that would likely never come. “Fortunately, a legislative solution already exists,” the brief states, “the fair use doctrine.”

The LCA/EFF brief was one of two “friend of the court briefs” filed last week in the Authors Guild vs. HathiTrust case—both in support of the HathiTrust. In the other brief, a group of “digital humanities” scholars, argued that the copying at issue in mass digitization is fair use because it enables “ultimately non-expressive, non-infringing, and socially beneficial uses,” such as discovery and “text-mining,” without treading on any “expressive, legally cognizable—uses of the works.”

Wait for Congress?

The LCA/EFF brief supports and seeks to buttress the legal argument put forth by the HathiTrust asserting fair use. In short: “The public derives tremendous benefit from [the HathiTrust],” the LCA/EFF argues, while “authors stand to gain very little if the public is deprived of this resource.” But it’s the more practical argument that stands out: Congress simply will never get this done.

“[The Authors Guild] in their motion for judgment on the pleadings reference the orphan works bills considered by Congress in 2006 and 2008, suggesting that Congressional resolution of the copyright issues relating to [the HathiTrust] is likely,” the brief reads, but “the legislative solution envisioned by Plaintiffs overlooks the substance of the orphan works legislation as well as its fate.” Indeed, orphan works legislation was arduously debated for years, until a bill was finally put forth that was “very protective of the interests of the absent copyright owners.” Nevertheless, the bill died in the face of “vociferous” opposition from artists and illustrator organizations.

“There is no reason to assume that legislation resolving the copyright issues relating to [the Hathitrust] would fare better than the orphan works legislation did in 2008,” The LCA/EFF brief argues. “Moreover, the copyright issues relating to [the HathiTrust] are far broader than the scope of the orphan works legislation, which did not address mass digitization, nor access for the print disabled.” In fact, “a comprehensive legislative solution” satisfactory to the Authors Guild essentially would require enactment of a “compulsory license,” by Congress, an unlikely prospect that should factor in the court’s decision.

“The Court should be aware of the implausibility of the remedy proposed by Plaintiffs as it considers the equities of fair use.” The brief argues. “This Court should use the equitable power granted it by Congress in section 107 [fair use] to allow HathiTrust to continue to maintain the digital library and to offer socially valuable services that cause Plaintiffs no economic harm, such as search, non-consumptive research, access to full text by the print disabled, and access to the full text of orphan works.”


In its closing section, meanwhile, the LCA/EFF brief raises another interesting point for the court: if the HathiTrust Digital Library is “one of the largest copyright infringements in history” with potentially “catastrophic” consequences, then why has the Authors Guild never sought to actually stop the scanning over the past seven years of litigation?

While that may not be the defining question before the court, the brief deftly recalls the Authors Guild’s “litigation choices”—including the terms of its proposed settlement with Google—potentially deflating some of the rhetoric in the AG’s complaint.

“In short, [the Authors Guild’s] litigation decisions over the past seven years have allowed Google to scan millions of books in the collections of their partner libraries, and to provide copies of those scans to the libraries,” the LCA/EFF brief states. “When Plaintiffs sued Google in 2005, they could have sought preliminary relief, but they chose not to. When the Plaintiffs entered into settlement discussions with Google, they could have demanded that Google cease scanning books and providing copies of the scans to libraries, but they chose not to. During the course of the three years of settlement negotiations with Google, they could have demanded that Google discontinue scanning, but they chose not to. When the Plaintiffs agreed to a settlement with Google in 2008, they once again could have insisted that Google cease scanning pending approval of the settlement, but they chose not to.”

In fact, the LCA/EFF brief asserts, the Authors Guild was well aware that while it was negotiating with Google over its commercial scanning project, that project was in turn creating the scans that would form the HathiTrust. In fact, the settlement the AG negotiated and agreed to explicitly allowed libraries to hold such a research corpus. “Accordingly,” the brief argues, “it is completely disingenuous for Plaintiffs to express shock at the ‘massive infringement’ represented by HDL.” In addition, AG claims that the library effort represents a “potentially catastrophic” security risk also “ring hollow,” the brief argues, because the HathiTrust implements the same security measures the Authors Guild agreed to in its settlement.

Of course, Judge Denny Chin rejected the Google settlement in 2011. Chin, however, never reached the fair use question at the heart of the case, instead rejecting the settlement on the basis of the deal’s unprecedented, forward-looking business model. But while the AG alleges that the settlement’s rejection should leave the matter to Congress to sort out, the LCA/EFF argue that is not necessary.

“Judge Chin rejected the settlement,” the brief acknowledges. “But that does not mean that this valuable resource that resulted, in significant part, from Plaintiffs’ own litigation decisions should be destroyed or ‘mothballed’ until Congress takes action. The Court has the equitable power to find that the existence and use of HDL is a fair use.”