HathiTrust and the Litigation Path

When parties file a lawsuit and send their case into the court system, predictions are almost always wrong, if not reckless.  Yet litigation is a matter of strategic planning that demands predictions.  Predictions are also a tempting parlor game, so let’s indulge a bit. 

Earlier this month, The Author’s Guild and several individually named authors filed a copyright infringement lawsuit against HathiTrust and five major universities.  The scope and complications of the case make it especially unpredictable, and much has been written about the legal, constitutional, and procedural challenges that lie ahead.  I see the case in another way.  It may be instead a harsh prelude to reining in the corpus of Google Books digital files.

At the core of the case is the allegation that Hathi’s actions (“Hathi” here is shorthand for all the defendants) to receive, store, and provide limited uses of digital files of scanned books are a violation of the copyrights in those books.  If that were the entire case, we could explore the possible infringing activity and debate the application of fair use or Section 108 of the U.S. Copyright Act.  The case is hardly that simple.  It is complicated by the separate litigation brought by authors and publishers against Google Books—and the quest for a possible injunction that could effectively shut down HathiTrust.  Other blogs have underscored serious problems such as sovereign immunity and standing that weaken the authors’ case.

Passing judgment with only the complaint on file is folly, but here are a few possible directions this case may take:

The Fade Away.  Not all cases run their full course.  Some gradually disappear into a litany of legal motions, changed policies and attitudes, or distractions by other developments.  Too much is at stake here to make this option likely.  Somewhat more likely is outright dismissal or summary judgment.  We can expect to see the defendants file motions on various grounds.  The court would then hold hearings through the coming year or more just to determine if any part of the action will go forward.  Even these preludes to trial can be protracted and expensive.

The Bleak House.  The case could proceed on its own terms, leading to years of litigation at enormous costs.  A basic rule: Don’t start any litigation if you are not ready to finish.  I assume The Author’s Guild is ready to pay substantial sums to lawyers to prosecute the case.  The fees could be millions of dollars.  If Hathi is determined to test the law and press this case to conclusion, it has to get ready to defend on similar monetary terms.  A supportive law firm may offer a lower price, or a foundation may contribute its services, but the commitment of time and money is always considerable.  The outcome is utterly unpredictable.  Right now, every party might secretly wish this option away.

The Snowball.  The legal rule of joinder allows for cases on related issues to be consolidated, suggesting the possibility that the case against Hathi could be consolidated with the ongoing litigation by authors and publishers against Google Books.  The signals so far suggest that is not going to happen.  The cases may not even qualify.  Moreover, Judge Chin is hearing the Google Books case, and he declined to have the HathiTrust case assigned to him.  At least in the courts, this case will likely remain separate from Google Books.

The New Deal.  If the authors, publishers, and Google are successful in the coming months in reaching a revised settlement of their litigation, HathiTrust could easy be drawn into the fray.  Here’s how.  The previous proposed settlement would have allowed the digital scans of books produced by Google to be used by the libraries and maintained at shared repositories, such as HathiTrust.  However, the libraries and repositories may keep and use the digital books only subject to formidable restrictions.  The Author Guild’s concerns about the Orphan Works Project will probably motivate the Guild to argue for even yet tighter restrictions in the next round of negotiations.

This New Deal option could leave Hathi with difficult choices.  For example, the parties to the Google Books case (i.e., not HathiTrust) may do all the negotiations for a revised settlement, including any new restrictions for uses of digital files.  The parties would then turn to Hathi with this offer: Accept the new terms, and the authors will dismiss the lawsuit.  Hathi would have limited choices: Agree to the new deal; convince the parties to revise their settlement; or get ready to continue the litigation.  This is a loaded bunch of issues.  Leaving Hathi out of the room while negotiating about it is a poor business strategy, yet pulling Hathi into a roster of agreed conditions and restrictions seems not likely.  Under this scenario, the new terms would of course apply only to book scans received from Google, but that is a vast swath of Hathi content.

I am not an insider or a fortune teller.  But if HathiTrust is going to continue its services and have the flexibility to meet changing future needs, Hathi will have to make a strong case for the importance, the lawfulness, the reliability, and the security of its services.  HathiTrust is enormously important, but I suspect the outcome of the lawsuit will not depend on either the social significance of libraries or the procedural deficiencies of the complaint.  This may instead be a case about hard-core negotiations of practical rules and procedures.  Hathi may have to assert its position before a judge, but more likely in tough and pragmatic settlement talks.  Otherwise, negotiations taking place in a separate locked room could leave Hathi with few options.

These are my opinions, and I welcome yours.  You may have noticed that this essay includes little substantive about orphans.  The HathiTrust case is not specifically about the law of orphans, but will shape it.  That is another conversation.

Kenneth Crews October 3, 2011

A previous version of this posting stated that Michigan’s Orphan Works Project was suspended.  It has not been suspended, but a colleague at Michigan referred me to this statement.