Monday, December 26, 2011

Google files motion to dismiss

"The claims of the associations should be dismissed without leave to amend because they lack standing as a matter of law, since they do not themselves own copyrights and do not meet the test for associational standing set forth in Hunt." p. 19
With that conclusion, Google has filed a motion asserting that the copyright infringement lawsuits filed by the Authors' Guild and the American Society of Media Photographers, Inc. be dismissed. The arguments made in the document are:
  • "Individual copyright owners' participation is necessary to establish a claim for copyright infringement." (p.1)
  • "Plaintiff associations do not own copyrights alleged to have been infringed, and do not have standing to sue for copyright infringement." (p.4)
  • "Every copyright, and every alleged copyright infringement, is different."(p.7)
  • "... a central issue in these cases is whether the conduct alleged in the Complaints constitute fair use under 17 U.S.C. 107. Litigating that issue will require the participation of individual association members, because many of the relevant facts are specific to the particular work in question." (p.11)
All of this sounds plausible to this legal novice, but there are a couple of puzzling issues. First, why did Google not make these arguments in 2005 when the Authors' Guild filed suit? Instead, they negotiated with the association for six years, presumably in good faith, and those negotiations hinged on the acceptance of the AG as a representative of authors and their rights in their works. If Google had thought that the AG did not have standing, none of that negotiation would have made much sense.

Second, Google says in this document that fair use has to be determined on a case-by-case basis. They even quote from Campbell v. Acuff-Rose Music, Inc. that "Fair use must 'be judged case by case, in light of the ends of the copyright law....' It is 'not to be simplified with bright-line rules." (p.11) This seems to undermine Google's original defense that copying for the purposes of creating an index is itself fair use, not something that has to be determined on a case by case basis.

It isn't surprising the Google wants to bring an end to this case. It is now entering its seventh year (the original suit was filed in September of 2005), and has undoubtedly been costly for all parties. Google was moving ahead in putting into place the foundations for the settlement, including the creation of a large database of works and a means for owners to claim the copyrights. They had designated a director for the Book Rights Registry, which would administer the business agreed on in the settlement. The failure of the settlement and the amended settlement to get court approval meant that all of that effort was for naught. Yet it isn't clear to me (and I hope someone can speak to this) what practical outcome Google is seeking for its book digitization effort. A dismissal of this nature would put Google in the rather cynical position of continuing book scanning knowing that few individual authors will have the means to take Google to court, and those individual payments would probably be affordable for this multi-billion dollar company. If dismissal is rejected, then at least that aspect of the suit is clarified, but next steps surely will be that the suit goes forward as first entered.

The one thing that is clear is that negotiations between Google and the AG are no longer on the horizon.

Note, also, that the Authors Guild has filed suit against the HathiTrust for copyright infringement, and the decision here will no doubt reflect on that case as well.


Jonathan Rochkind said...

> First, why did Google not make these arguments in 2005 when the Authors' Guild filed suit? Instead, they negotiated with the association for six years, presumably in good faith, and those negotiations hinged on the acceptance of the AG as a representative of authors and their rights in their works.

The answer to that is pretty clear, no? Because if they had gotten the settlement they and the authors guild were going for, it would have been much better for them than actually winning in court.

That, and the generic reason anyone tries to settle -- to spare the expense of court with uncertain outcome.

When it looked like they were not going to be able to get a settlement that gave them all they hoped, it's back to plan B. Trying to prevail in court instead of settling. And when you try to prevail in court, any good lawyer will mobilize all available legal arguments.

There's no reason to look for a consistent philosophical outlook, that's just how the law works. Any company, any lawyer, will use any available argument.

Interestingly, if they prevail in this suit on 'standing', it doesn't force the court to say anything on whether the original scan-and-snippet was fair use or not. I think Googles brief does mention fair use issues too maybe? But judges in difficult cases frequently like to get out of having to deal with the facts of the case by ruling on standing or procedural issues instead, so I think it's quite possible that will happen. (Google's lawyers probably do too, which is one reason they use that argument). (although I wouldn't gamble on much at this point. The story so far is, um, a, err, page turner.)

A ruling on standing Google's way, if it ends up sticking in other courts, would still be a minor game changer. It will be very difficult for individual copyright holders suing individually to do much damage to google. (To some extent that applies to Hathi too). Especially since Google at least already has Google Books partnerships with most of the major publishers, yeah? There are still some copyright holders (esp internationally) with deep enough pockets to go after Google, but it's harder if it can't be a broad association or class action.

Jonathan Rochkind said...

Also, if the case gets dismissed on standing, that means that it still _could_ also be fair use, and that is presumably what Google would argue as defendent in any future lawsuits (that they don't settle, heh).

But legal arguments are quite often decision trees covering all bases. "Yes, we believe it's all fair use, but if that ISN'T true, then determination of fair use would be case-by-case." I don't know if that's what they're saying exactly, but that sort of thing would be common in a legal argument. "We think X, but even if not X, then Y, and if not that, then Z." A good legal argument frequently tries to cover all the bases like that.

Karen Coyle said...

Jonathan, oh how I would have loved to be a fly on the wall in the early meetings between Google and the AG/AAP - especially to know who first suggested the lucrative settlement. If it was AG/AAP then I suspect they would have some very unhappy members. The odd thing is that it's THEIR lawsuit, yet Google seemed to be getting the better end of the deal. Unusual for a defendant to come out on top.

I really do hope that we get a "tell-all" book once this lawsuit ends. Although the negotiation was done under non-disclosure, with the lawsuit over there may be one or more people willing to speak anonymously. It would read like a good mystery if done well, I think.