HathiTrust Copyright Case Rumbles On….

On September 12, 2011, what purports to be the largest copyright infringement suit in history was filed in the US District Court for the Southern District of New York. At stake are copyrights in digitized works of authorship. Filed by several authors’ guilds from several nations, the suit takes to task the University of Michigan, the University of California, the University of Wisconsin, Cornell University, and the HathiTrust, a partnership formed in 2008 “to contribute to the common good by collecting, organizing, preserving, communicating and sharing the record of human knowledge.” In other words, HathiTrust’s mission is to copy and distribute works of authorship. They have a digital archive of library materials, many of which are protected by copyright under the laws of the United States and other countries.

The universities and HathiTrust, of course, argue fair use. The works in question are so-called “orphan works” — works whose authors cannot be found. Only the University of Michigan has announced that it has suspended the digitization of potentially copyrighted works pending the outcome of the case.

Plaintiffs’ choice of venue is not accidental. They could have brought suit in Wisconsin, Michigan, California, or in any district where the HathiTrust has a member. However, the US District Court for the Southern District of New York encompasses New York City, home to the publishing industry. This court is well versed in copyright law and has a large volume of precedent cases that are favorable to copyright holders.

There was a procedural hiccup in the case not long ago; some defendants, who exist far away from New York City, wanted their depositions to be taken in their own home territory. The attorneys have settled that matter out, but the consequence of this skirmish is that the close of discovery has been pushed back until June 8. This tightens the schedule for summary judgment. US District Judge Harold Baer wanted the summary judgment motions to be fully briefed by July 20. I don’t know if that’s still reasonable, since allowing the necessary time for each side to respond to the other’s papers means that the motions must be filed in mid-June, which is too close for comfort to the end of discovery.

Since Judge Baer has taken July off (Article III judges can do that…), it might be wisest to allow the parties to take July to brief their motions. I doubt that will happen, but it would likely result in a much better product for the Judge to rule on when he comes back.

Meanwhile, this behemoth of a case (which is closely related to the Google digital library case) rumbles on, with next due dates in mid-June when summary judgment motions are due.