Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Monday, July 15, 2013

Brief Amici Curiae HathiTrust

Pamela Samuelson and David R. Hansen, both of the University of California, Berkeley, School of Law, have made available the Brief Amici Curiae of 133 Academic Authors in Support of HathiTrust Digital Library. Here is the abstract.

The HathiTrust digital library contains over 7.3 million potentially in-copyright books. The complaint in this case has demanded that the court impound the in-copyright books in this repository and enjoin the use of all 7.3 million of these books, although the Authors Guild and its co-plaintiffs have identified only 116 works in which they claim to hold copyrights. Relying on an exceptionally broad conception of associational standing, the plaintiffs have asserted an entitlement to litigate this case and to attain injunctive relief that goes far beyond what the law allows.

The Authors Guild’s broad theory of associational standing is wrong for two reasons. First, the Copyright Act itself prohibits suits by non-rightsholders. The Guild does not claim to hold such an interest in its members’ copyrights; the district court therefore correctly held that the Authors Guild does not have associational standing to bring broad claims of infringement under the Act. Second, the Authors Guild’s theory of standing violates prudential limits on associational standing that have been developed carefully by courts over time. Article III courts have prohibited third party associations from pursuing claims when those claims would require more than the limited participation of individual association members. Because the works in the HathiTrust corpus likely implicate the rights of a very large number of third parties — including ourselves, co-authors, publishers, and other transferees — it would take involved participation by individual association members to prove who holds the rights in the works which the Guild claims to represent.

Academic authors — whose works are likely more typical of those in the HathiTrust corpus than works of the Authors Guild and its members — would be harmed by the outcome that the Authors Guild seeks because we typically benefit from HathiTrust, both because it makes our books more accessible to the public than ever before and because we use HathiTrust in conducting our own research. HathiTrust’s fair use defense is more persuasive to us than the Authors Guild’s theory of infringement. If granted, the Guild’s request for an injunction to stop HathiTrust from making its corpus available would directly harm academic author interests. In short, a “win” for the Authors Guild would be a “loss” for academic authors. This divergence in the interests of academic authors and of the Guild and its members, which may also affect the fair use calculus, is an additional reason why this Court should limit the Guild’s standing to the copyrights it actually holds.

Download the full text of the brief from SSRN at the link.

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