What fair use is for

When I considered the Authors’ Guild lawsuit against the Hathi Trust and some of its partner institutions a couple of months ago, only the complaint had been filed, so it it was natural to focus on the motivation of the plaintiffs.  And those motives are not hard to discern; after tasting the possibility of monetizing orphan works through the Google Books settlement and then having it snatched away, the AG is looking for an alternate way to use litigation to carve a profit-making opportunity from the labors of others.

Now, however, answers to the suit have been filed, both by the named defendants and by a potential defendant.

The defendants’ answer, filed on Dec. 2,  is a very lawyerly document, and for that reason it might disappoint some readers.  There are no lofty assertions about public benefits and the purpose of fair use ( I will make those assertions on their behalf).  Instead, the defendants’ answer does what it is required by the rules of federal civil procedure to do; it goes point-by-point through the complaint and, largely, admits the factual assertions while denying the conclusions of law.  It also states quite baldly the defenses on which these parties intend to rely.  We have a system called “notice pleading” in the U.S., and the defendants are only required to give notice to the court and the plaintiffs of the arguments they intend to make.

Nevertheless, we can see the broad outline of a response here.  The plaintiff’s complaint focused nearly exclusively on section 108 of the Copyright Act, the so-called “library exceptions” which deal with preservation and copying made for patrons (the foundation of inter-library loan).  The plaintiffs want the court to conclude, it seems, that this one section of the law entirely encompasses all that a library is entitled to do with copyrighted material.  As they go through the points alleged in the complaint, the defendants repeatedly assert that “Section 108 of the Copyright Act is one of many limitations on copyright holders’ rights” and “that plaintiffs description of section 108 is incomplete and therefore mischaracterizes the statute.”  What is left out, of course, is that section 108 states explicitly that fair use –section 107 — is still available and that nothing in 108 “affects the right of fair use” (section 108 (f)(4).

Fair use, which exists for the purpose of allowing exactly the activities that Hathi is designed for — research, teaching and scholarship — will naturally be the heart of this case, however badly the plaintiffs wish this were not so.  But the defendants raise several other defenses as well, including sovereign immunity (since all but one of the defendants are public institution),  the plaintiffs’ lack of standing (since they cannot show that they or their members own most of the works at issue), the statute of limitations, and the fact that many of the works that the AG wants to impound are actually in the public domain.  And, of course, these defendants assert fair use.  In fact, they assert a whole slew of the exceptions that Congress built in to the copyright law.  One of the places we will learn most from this case will be where the defense weaves together sections 107, 108, 109, 110 and 121 into, I imagine, a thicket of justification that emphasizes how comprehensively Congress intended to permit the socially beneficial uses that Hathi will facilitate.

The reference to section 121, which allows reproduction of copyrighted materials “for blind or other people with disabilities,” took on added importance on Dec. 9, when the National Federation of the Blind filed a motion asking the court to let it intervene as a defendant in the case.  Such intervention is allowed in federal procedure “as a matter of right” when a party can show that it has a substantial and legally protectable interest in the matter at hand, that they could be harmed by a decision, and that their interests will not be adequately represented by the parties already involved.

Unlike the formal defendant’s answer, this document does make a full-blown argument, and it is a compelling one.  The National Federation For the Blind tells several stories of university students and teachers whose ability to do their work is hampered by the laborious, and sometimes impossible, process of obtaining copies of works that can be read by a computer text-to-voice reader.   They provide a vivid picture of how the Hathi Trust project “would allow blind students and faculty to participate fully in university life,” and that this has been a major purpose of the Trust since its inception.

The spare language of the one document, and the fully developed rhetoric of the other, combine to produce a convincing picture of what fair use and the other exceptions to the copyright monopoly were intended not merely to allow but to facilitate.  Research, teaching, scholarship and access for persons with visual impairments.  If copyright is allowed to impede the advancement of these purposes through mass digitization, and in the name of tying these files up until a private organization figures out a way to make money from them — to reap where they did not sow, as it were — then copyright law will have proved a failure indeed.  But I do not believe that a court will allow that to happen.

One thought on “What fair use is for”

  1. Despite the sparsity of language, I was interested very much in defenses E-G, which argued lack of jurisdiction. This isn’t something I remember having seen any commentators mentioning in advance of this answer, but to my untrained eyes it looks like a compelling defense: if none of the copies have been made available outside the defendants’ libraries (maybe that’s where I’m misinformed), then shouldn’t the S.D.N.Y. be the wrong forum for this action, given that none of the alleged injuries took place within its boundaries? If they’d wanted to sue in the S.D.N.Y., shouldn’t they have named NYU or Columbia as plaintiffs? Lacking public access via the internet, Penguin v. American Buddha doesn’t seem applicable here to me.

    The laches defense also seems strong to me, though I admit I’d love to see a fair use ruling.

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