November 19, 2:00 pm, Rialto Center for the Arts
In 2012, the North Georgia District Court ruled largely in favor of Georgia State University in the ongoing copyright lawsuit initiated by Cambridge University Press, Oxford University Press, and Sage Publishers. The decision was the first federal court decision specifically addressing fair use and electronic reserves. Plaintiff publishers appealed on many points of the ruling.
Oral arguments in the Cambridge v. Becker (GSU Copyright) lawsuit are scheduled for the morning of November 19th at the 11th Circuit Court of Appeals, room 339. Following the arguments, Georgia State University Library and American University Washington College of Law Program on Information Justice and Intellectual Property will host a post-argument panel at 2:00 p.m. in the Rialto Center for the Arts lobby.
Brandon Butler, Moderator, Practitioner-in-Residence, Glushko Samuelson IP Clinic, American University, Washington College of Law
Tony Askew, Principal, Meunier Carlin & Curfman LLC
Jonathan Band, Owner, Jonathan Band PLLC
Michael Landau, Professor, Georgia State University College of Law
Lisa Macklin, Director, Scholarly Communications Office, Robert W. Woodruff Library, Emory University
Steve Schaetzel, Principal, Meunier Carlin & Curfman LLC
Bruce Joseph, Partner, Wiley Rein LLP
The panel is free of charge, but registration is required to attend.
There will be a free live webcast of the event at http://www.livestream.com/georgiastate
If the 2nd Circuit Court of Appeals takes the same approach, the HathiTrust case is another loser for the Guild, as it put nearly all of its emphasis on the security argument at oral arguments.
In a powerful affirmation of the value of research libraries, Judge Denny Chin today ruled that Google’s digitization of millions of books from university library collections was a fair use. Chin cites the Library Copyright Alliance amicus brief throughout his opinion to support a fundamental proposition: that the Google digitization project and the resulting uses are “invaluable” to society at large, and harmless to authors. Indeed, digitization and search give “new life” to books that would otherwise have been “forgotten in the bowels of libraries.” Well, okay, libraries could probably have lived without that last part.
What lessons are there in this decision? Here are a few takeaways:
While we still await a decision in the HathiTrust case, it can’t hurt that Judge Chin, who now sits on the Court of Appeals for the Second Circuit, wholeheartedly endorses Judge Baer’s reasoning in that case, and finds expressly that all of the libraries’ uses of the Google scans are fair. After all, the Guild tried to sue Google not only for its uses of the scans, but also for sharing scans with research library partners and contributing to any infringement the libraries may have committed. Chin rejects those claims decisively, relying on HathiTrust and endorsing explicitly all of the uses HathiTrust members have made: preservation, search, and access for the print-disabled. Chin even quotes this wonderful passage from Judge Baer, which always bears repeating:
“I cannot imagine a definition of fair use that would not encompass transformative uses made by [HathiTrust] and would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts that at the same time effectuates the ideals espoused by the [Americans with Disabilities Act].”
In other words, today’s opinion is the strongest possible endorsement of library uses, as well as of Google’s uses, and it shores up Judge Baer’s opinion in that regard.
Amicus briefs really matter. Judge Chin relies on the LCA brief for core pieces of the opinion, including his finding that the Google project has significant benefits for the public (including libraries, researchers, the print-disabled, and more), and that those benefits are generally also favorable for authors, whose works are found and acquired by libraries and others by means of Google Book Search. The amicus brief filed by Digital Humanities Scholars is also crucial in helping Judge Chin explain the benefits of the book database for research.
The decision is a victory not only for transformative, non-consumptive search, but also for serving “traditionally underserved” libraries and their users, including disabled patrons.
It is time for the Authors Guild and other rightsholders to wise up and focus their energies on more productive pursuits. Years and years of litigation, millions in legal fees, and what have they got to show for it? It is beginning to look like individual authors have been sold a bill of goods by their leadership and by the lawyers that have been representing them in these cases. There is no pot of gold at the end of these lawsuits, and the research tools they’re trying to kill are their best hope of finding an audience. It is time for Authors Guild members, and for all authors who have supported this strategy, to ask themselves whether all this has been worth it. The Guild’s leadership has already said it plans to appeal, but perhaps it is not too late for members to suggest otherwise. The Second Circuit Court of Appeals is already deliberating on the HathiTrust case, and will surely issue an opinion before this case can be heard. The same panel hearing that case—Judges Leval, Cabranes, and Parker—will hear any appeal of this one. There is little reason to believe those judges will reverse Judge Baer in Hathi, and then the Guild will find itself once more arguing that what Google did was rank piracy even though its library partners were core fair users. The writing is on the wall and it’s time to back down.
Those are my main impressions and takeaways at this point, though I’m sure this is an opinion we’ll be discussing for weeks, months, and perhaps years to come.
Brandon Butler is the Practitioner-in-Residence at the Glushko-Samuelson Intellectual Property Clinic at American University, Washington College of Law.
|—||Judge Denny Chin, to Authors Guild attorney Edward Rosenthal, as reported by CNET in: Judge appears to back Google’s defense of digital books project | Internet & Media - CNET News|
|—||Excuse me, Roy Kaufman?|
|—||Kevin Smith, writing about the recent string of losses that publishing giant Wiley has suffered in recent months. From his lips to the 11th Circuit’s ears!|