Fair use—or not fair use? That is the question, as attorneys for the Authors Guild and the HathiTrust on July 27 filed the final round of briefs connected to their motions for Summary Judgment in Authors Guild vs. HathiTrust. With no further briefings scheduled, the case is now all but set for trial in November in Judge Harold Baer’s New York Courtroom.

In the latest exchange of briefs (replies to each side’s July 20 motions opposing Summary Judgment) the parties get in some last licks in their arguments for Summary Judgment, and attempt to frame the issues for trial. The Authors Guild again portrays the HathiTrust as an unprecedented attempt to circumvent the clear intentions of Congress as set out in copyright law, while the HathiTrust portrays its digital preservation program as entirely lawful, transformative, and clearly beneficial.

AG’s Parting Shots

In its reply brief, the AG acknowledges that “the issues raised by orphan works and how to make more books available to people with print disabilities are important,” but insists that “current copyright law defines when copies of copyrighted books may be made, who may make them, and the formats in which they may be made.” Making archival copies of a book “to be discovered and read later plainly does not transform the book’s original purpose of being discovered and read,” the brief states.

To that end, the AG asserts that the libraries’ argument that there is no licensing market for the search and preservation of books, (and likely never will be) a “disturbing” notion: “Defendants claim that authors are not entitled to a license fee for the digital copies of the books the libraries created because their use is purportedly transformative,” the AG brief states. “But Defendants’ use is not transformative because the secondary use (digitizing books for collection, discovery and preservation) merely supersedes the original (buying books for collection, discovery and preservation), serving as a market substitute.”

Once again, as it did in its opposition brief, the AG relies on the declaration of Pulitzer Prize-winning author T.J. Stiles, who expresses indignation over the library effort: “It’s like saying now that I’ve stolen your baseball, what harm is it to you that we go and play a ballgame with it?” Stiles declared. “[Y]ou’re stealing off my baseball cart and saying, well, hey, now that I’ve got it, why can’t I play a ballgame?”

The AG also argues that the libraries “give short shrift” to the authors’ “profound concerns” over security, and continue to press for an injunction against the HathiTrust’s proposed (although indefinitely suspended) orphan works project.

Perhaps the AG’s strongest argument, however, is its most basic: that the creation of the HathiTrust is unprecedented.

“None of the cases upon which [the Hathitrust of the National Federation of the Blind] rely support the unprecedented mass digitization and permanent storage of millions of copyrighted books,” the AG argues, noting, for example, that three “search engine cases” cited by the defense involved the copying of Web pages for the purpose of pointing users to files previously posted on the Internet. “Here, in contrast, the millions of print books copied by Google and Defendants were not already available on the Internet,” the brief states, observing that none of the search cases cited sanction a third party to create and hold a large, central corpus of unlicensed digital copies.

“By scanning the books without authority,” the brief states, “Defendants usurp authors’ rights to control the digital reproduction of their work and expose them to security risks that previously did not exist.”

No Reading Allowed

The libraries, however, counter that the AG argument fundamentally misrepresents the library program. “The purpose of the Libraries’ preservation uses is not to make these scans available to be read,” the library brief states “unless and until there is an independent, lawful basis for doing so.”

HathiTrust attorneys claim that the AG wrongly compares the HathiTrust—which permits no reading of the scanned works—to cases involving “the photocopying of articles for reading, the sale of coursepacks containing large excerpts; and a subscription music service providing access to entire sound recordings.” Yet, the difference between “simply finding a potentially relevant book through search—but not allowing the book to be read—and making available copies of entire songs to listen to…and books to read…is obvious.”

The libraries also push back against the AG argument that the HathiTrust preempts a licensing market for search and preservation. The brief reiterates that such a market is likely never to exist because of prohibitive transaction costs, again citing the declaration of Joel Waldfogel. “If Plaintiffs really believe the non-profit Libraries are in a position to pay for a project costing at least $569 million, they have a grossly exaggerated idea about the resources of colleges and universities,” the brief states. “Without fair use, this market failure will cause the valuable uses afforded to the public by the HDL to disappear.”

The libraries also respond to the AG’s security concerns, noting that the risk of the HathiTrust corpus being hacked, given its rigorous protections, are both highly speculative and highly unlikely, and that the risk of piracy is “more likely to occur as a result of Plaintiffs’ own digital sales through Amazon.”

As to the orphan works issue, the libraries again insist that the program is not ripe for adjudication because the program is not live, thus there are no alleged infringements and no facts on which to rule, only hypotheticals. “If dealing in hypotheticals, the Court can only assume that the orphan works project would operate as contemplated,” the libraries argue. Thus, the Court would have to assume, the brief states, that any work being made available through a hypothetical orphan works project is, in fact, “a true orphan work.”

The centerpiece of the library argument, meanwhile, is that even with such dramatic technological change, copyright law—namely fair use—adequately governs the library project. “Plaintiffs continue to ask this Court to wait for Congress to legislate,” the brief states. But, the libraries argue, the courts should take copyright “as they find it.” Citing the landmark Sony case, where Congress had not addressed a new technology—videotape recorders—both “the district court and the Supreme Court found ample Congressional authority to sanction their sale…as fair use.”