A Masterpiece of Misdirection

(Manually) reblogged from Kevin Smith’s Scholarly Communications @ Duke:

On February 28, the Authors Guild filed a memorandum in support of its “motion for partial judgment on the pleadings” in its lawsuit against the Hathi Trust and five of its partner libraries, asking the judge to rule that the activities the AG has complained about – the mass digitization of books and the proposed orphan works project — are not protected by the specific library exceptions found in section 108 of the copyright law and that Hathi Trust cannot even assert, much less successfully rely upon, fair use, which is section 107 of that law . . .

The memorandum strikes me as a masterpiece of misdirection, trying to make plausible arguments that do not quite fit the actual case in front of the judge.

The rest of the post can be found at this link (also given above). Given cogency of this argument, which is echoed by the Association of Research LibrariesBrandon Butler & Jonathan Band (see the appendix) and The Laboratorium‘s James Grimmelmann, I have just one question: why did the Authors Guild file this motion?

The Authors Guild is a resource-rich organization, staffed by capable people, not least Harvard Law School-trained Scott Turow. These capable, smart people must’ve made a benefit-cost calculation before filing this motion. Did they judge the probability of success to be high enough to justify the cost of paying their councils to draft this legal brief? Is there more merit to their argument than the above readings suggest? Is the motion a purely tactical move, intended not to prevail on the strength of its argument but rather to “confuse the Hathi Trust’s legal team, sway the judge, and curry favor with the client (the Authors Guild)”? Or, is it a matter of client capture? That is, is it possible that the Authors Guild’s lawyers are not acting in its client’s “win/settle the case with the least cost expended” interest?

(I guess that was more than one question after all. It’s more like one central question that spawned a bunch of auxiliary conjectures.)

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