Author(s): Pamela Samuelson
Year: 2013
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.
Keywords: Copyright, associational standing, standing, fair use, mass digitization, HathiTrust, Google Books
Link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2274402