Google BookScan

Suing HathTrust

originally September 2011 and later

1. The Constitutional Swamp
2. The Civil Procedure Jungle
   1. Potential Remedies as Overriding Limits
   2. Litigation Without Representation
   3. The Imaginary Component of Complex Litigation
3. The Merits Madness Without Method

• Notes

This is an initial review only of the third segment of the Google BookScan lawsuits, generally known as the "HathiTrust suit" and formally known as Authors' Guild, Inc. v. HathiTrust, No. 11–6351 (S.D.N.Y.) (Baer, J.). The first two segments wer the Authors' Guild's lawsuit against Google, and the publishers' lawsuit against Google (which were later consolidated... and at this writing may be severing). As a side note, the HathiTrust matter was referred to Judge Chin for further consolidation with the existing GBS suits, but was rejected as not sufficiently related... and inconsistent with Judge Chin's elevation to the Second Circuit, although the rejection did not emphasize that issue.

Because I have a lot of gall, I am dividing this discussion into three parts. It is an unfortunate division caused, at least in major part, by a combination of bad drafting in Congress and ideologically directed docket-control measures by the Supreme Court... that, were the same cases being decided today, would probably be decided differently. Thus, this first part and entry will deal with the high-falutin' intellectualness of significant constitutional barriers under existing law to the suit proceeding in this form at all. The next part (which will probably require more than one entry) will deal with the geekiness of civil procedure and the challenges it presents. The third part (again, probably more than one entry) will deal with the nerdiness of the merits of the action, both in theory and as pled.

I. The Constitutional Swamp

Constitutionally, this lawsuit is a mess. Part of that is as it should be; part of that... not so much, and resembling Catch-22 more than it probably should. It's actually easier to see the difficulties — as is all too often true in such policy-laden matters — by moving from the back to the front. In this instance, that means considering problems with hauling the defendants into court first, and then the problems with the plaintiffs.

The first, and perhaps most obvious, question is whether a United States District Court located in New York City has the power to hear a suit against the HathiTrust defendants in the first place. This breaks down into two subquestions: Personal jurisdiction and sovereign immunity. The personal jurisdiction question is not nearly as clear as one might think. The complaint names HathiTrust itself and the various regents and boards of the University of Michigan, the University of California, the University of Wisconsin, Indiana University, and Cornell University.¹ Although there is a longstanding doctrine of asserting personal jurisdiction in copyright matters where the harm would be felt,² this doctrine appears only to be asserted against non-governmental actors. Whether HathiTrust or some of its members qualify as non-governmental actors is an open question.³

The personal jurisdiction question, though, would be rather easily dealt with by either a transfer of venue to the Eastern District of Michigan or an original filing there. The fun part is the ability to sue these "arm of the state" defendants in federal court at all. Professor Grimmelmann provides a useful introduction to this morass at a general level. In summary, under the Eleventh Amendment, states (and arms of the state government) cannot be sued for damages in federal court. Under a misbegotten legal fiction known as Ex parte Young,⁴ one instead sues the particular officers of the state agency who have responsibility for performing an "unlawful act" for injunctive relief, but not damages. (This is why Mr. Gideon sued Mr. Wainwright, the warden of the Florida prison in which he was being held, and not the state of Florida itself.) The Authors' Guild did not, however, do so; suing the various boards is not the same thing as suing the officers who make up those boards (I did warn you that this was a legal fiction...).

Ultimately, this all comes down to whether Congress had the power, and appropriately exercised the power if it did, to take away the states' sovereign immunity. Unfortunately for everyone, the Supreme Court has decided that it did not.⁵ Further, this goes well beyond the Ex parte Young loophole; the Courts of Appeals have interpreted the Supreme Court's holdings to bar not just monetary relief, but all relief, against the states under the Copyright Act.⁶

Things don't get much better on the left side of the v., when considering the standing of the Authors' Guild and the various individuals also named as plaintiffs in the complaint. Standing to represent "orphan works" is, as Judge Chin noted when rejecting the GBS settlement, lacking and not even arguable, even though he didn't use the term "standing". The Authors' Guild (and its foreign counterparts) asserts "associational standing" for itself as a representative of interests, but this does not help much. First, associational standing is virtually never proper against private actors... and if HathiTrust and its members are not private actors, they're probably state actors, which just reinforces the sovereign immunity problems. Second, Judge Chin's decision holding that the Authors' Guild cannot represent authors of orphan works as a class representative — and is an inadequate representative for non-orphan works — cuts strongly against its associational standing in a parallel lawsuit based on the same transactions and operative facts.

In short, at a constitutional level there are so many questionable aspects of this case's very posture that I doubt it can, or will, get very far. Judge Chin's closing remarks — indicating that he believes this is properly a matter for Congress — are well-taken.

But is there a way to revise the posture so that it can proceed? Perhaps, and perhaps not. The obvious first attempt would be to file a deprivation-of-property-rights claim in the Michigan courts against the University of Michigan and HathiTrust. Leaving aside the whack-a-mole aspect of this "solution" — Michigan isn't the only U.S. state with a university library system, after all! — this does nothing for the problems with standing on the left side of the v.... and, perhaps more importantly, runs up against a collective-action-of-several-states problem that the Supreme Court has yet to resolve (having punted every time it had the opportunity to squarely confront it). Basically, that problem concerns whether the Eleventh Amendment applies against states acting in concert, or even in parallel without actual intent. It is as much a problem with the drafting of the Eleventh Amendment as anything else; such "interstate compacts" as defendants just were not considered, let alone when it's more a matter of "conscious parallelism" than anything else.

In any event, this is just the swamp. I disagree with Professor Grimmelmann on one thing: The civil procedure is not a mere swamp, but a jungle.

II. The Civil Procedure Jungle

By the time we're through here, and finally reach all of the nerdy policy stuff relating to the merits that everyone has been debating without considering how the procedural jungle shapes that debate, we'll definitely be agreeing with Captain Willard after encountering a tiger while looking for mangoes:

'Never get out of the boat.' Absolutely god-damned right.

This really is a jungle, and unfortunately I don't see much chance for Clean and Chef and the Chief to survive this little trip up the Nung River to a place where there is no method — only insanity — and accusing someone of infringing nebulous, unclear, or unclearly owned rights is all too much like handing out speeding tickets at the Indy 500. If all of that seems a bit too surreal for you, I suggest that you withhold judgment until you've spent a little bit of time in the jungle with me.

I'm going to start by considering how some of the civil procedure issues — in particular, the remedies and the parties' limited representativeness ‐ shape the complaint, the litigation, and the debate on the merits. (I'll try to withhold discussing the merits themselves until we reach Part III, but that's going to prove exceedingly difficult.) I will then describe some of the civil procedure issues raised by the complaint as filed that are somewhat more specific to the complaint. I will close this preliminary trip through the jungle by suggesting some procedural alternatives that avoid some of these problems... and describing some of the additional problems that those alternatives reveal themselves.

A. Potential Remedies as Overriding Limits

I hinted in Part I that the potential remedies have a constitutional dimension to them concerning the jurisdiction of the federal courts over this lawsuit. The complaint itself is more than a bit vague on what it is requesting:

WHEREFORE Plaintiffs demand that:

(a) Pursuant to 28 U.S.C. § 2201, this Court declare that:

   (i) Defendants' systematic digitization and distribution of copyrighted materials without authorization constitutes unlawful copyright infringement in violation of Sections 106 and 108 of the Copyright Act; and

   (ii) Defendants' distribution and display of copyrighted works through the HathiTrust Orphan Works Project will infringe the copyrights of Plaintiffs and others likely to be affected;

(b) Pursuant to 17 U.S.C. § 502, this Court issue an injunction enjoining Defendants from:

   (i) systematically reproducing, distributing and/or displaying Plaintiffs' or any other copyrighted works without authorization except as specifically provided by 17 U.S.C. § 108;

   (ii) providing to Google for digitization copyrighted works without authorization;

   (iii) proceeding with the HathiTrust Orphan Works Project, including without limitation, from displaying, distributing or otherwise making available any so-called orphan work protected by copyright.

(c) Pursuant to 17 U.S.C. § 503, this Court order the impoundment of all unauthorized digital copies of works protected by copyright within the Defendants' possession, custody or control, including works whose copyrights are held by Plaintiffs, to be held in escrow under commercial grade security, with any computer system storing the digital copies powered down and disconnected from any network, pending an appropriate act of Congress.

(d) Pursuant to 17 U.S.C. § 505 this Court award Plaintiffs their attorneys' fees and other costs; and

(e) Plaintiffs be granted such other relief as may be deemed just and equitable.⁷

Then, a vague prayer for relief is both traditional and expected at this stage of a lawsuit. No discovery has been taken; no defendant has asserted any specific defense; and on this issue in particular, the underlying law is about as clear as the mud at the bottom of the Nung River. But how does this shape the lawsuit?

First, note that the request for declaratory relief in (a) is inconsistent with the request for injunctive relief in (b) and the request for impoundment in (c). This complaint is plainly trying to have things both ways by getting both a forward-looking declaration of who has what rights and a backward-looking remedy to stop infringement both permanently in (b) and during the pendancy of the suit in (c). At least it avoided the more-obvious Eleventh Amendment trap of requesting damages that I discussed before; the problem is that the request for attorneys' fees might also constitute a federal-court-ordered expenditure by an arm of the state that implicates the Eleventh Amendment.⁸

Leaving the inconsistencies aside, though, the remedies requested also will shape this litigation because they are founded on largely incompatible interpretations of potential evidence and potential legal arguments. The declaratory judgment requested in (a) essentially asks the court to determine whether under the particular evidence eventually entered into the record the HathTrust program constitutes an infringement of these plaintiffs' copyright rights. That kind of declaration is very fact-specific and fact-bound. The impoundment requested in (c) is also fact-specific and fact-bound to the particular program in question. The injunction requested in (b), however, is not; in fact, by its very terms it inverts the evidentiary considerations by concerning itself not with actual behavior, but potential future behavior engaged in "without authorization". At this point, it is worth recalling footnote 6 of Tasini — a comment that for copyright matters in the digital age may end up being the equivalent of footnote 4 in Carolene Products:

The dissenting opinion suggests that a ruling for the Publishers today would maintain, even enhance, authors' "valuable copyright protection." We are not so certain. When the reader of an article in a periodical wishes to obtain other works by the article's author, the Databases enable that reader simply to print out the author's articles, without buying a "new anthology … or other collective work." In years past, books compiling stories by journalists such as Janet Flanner and Ernie Pyle might have sold less well had the individual articles been freely and permanently available on line. In the present, print collections of reviews, commentaries, and reportage may prove less popular because of the Databases. The Register of Copyrights reports that "freelance authors have experienced significant economic loss" due to a "digital revolution that has given publishers [new] opportunities to exploit authors' works."

More to the point, even if the dissent is correct that some authors, in the long run, are helped, not hurt, by Database reproductions, the fact remains that the Authors who brought the case now before us have asserted their rights under [17 U.S.C.] § 201(c). We may not invoke our conception of their interests to diminish those rights.⁹

The "without authorization" language in the HathiTrust complaint's request for relief part (b) is a mirror of Justice Ginsburg's language in Tasini note 6. The complaint appears to contemplate a positive prior authorization by the authors, while Justice Ginsburg was primarily concerned with a positive objection to prior conduct. This is where it becomes impossible to separate the merits from the civil procedure issues, because some of the "authorization" (or, from the opposite perspective, limitations on rights to object) for activities depends not on the ordinary rights of copyright holders found in § 106, but on the particular privileges accorded to libraries in § 108.¹⁰

The remedies requested — and not requested — will also shape the litigation in two other respects. For one thing, the requested injunction in (b) does not necessarily reach either collective and collaborative action — hypothetically, each of several libraries providing enough of a work to fall inside of the fair use defense provided by § 107, but that collectively exceed whatever limit there may be to fair use¹¹ — or the propriety of authorizing a third party such as Google to engage in conduct that the "libraries and archives" could do themselves, but could not otherwise be done by that third party because the third party itself does not fall under § 108(a)(1) or (2). For another, by limiting itself to nonmonetary remedies (excepting my musings on (d)'s request for attorney's fees as it may relate to the Eleventh Amendment), the request for relief essentially bars inquiry into the arrangements between HathiTrust and its members, and between the libraries (collectively and individually) and third parties like Google that actually created the digitized versions in question. These are both, however, inquiries that are critical to the policies and practices implicit in determining the merits of the action.

Finally for now, there is an implicit definition of "infringement" in the remedies that is inconsistent with the rights provided to copyright holders in § 106 of the Copyright Act. The remedies requested imply that an infringement is not complete until a copy is distributed to a third party. As I have noted before, this is an unduly restricted description of infringement, because making the copy in the first place — digitizing the works — is an infringement all by itself. This is a fundamental error by plaintiffs' counsel that is perhaps required by the Authors' Guild's prior errors in the litigation against Google... that reflects the Authors' Guild's unsuitability as a representative/associational plaintiff in this action. At least this lawsuit avoids mucking that problem up further with considerations of suitability as a class representative; however, it also fails to extend the statute of limitations as a class complaint would (echoing precisely the problems raised by Tasini itself!).¹²

B. Litigation Without Representation

It's time for a (seeming) side trip to find some mangoes, make a nice mango cream pudding... and discover that this lawsuit, for purely civil procedure reasons, means far less than most commentators have been willing to accept; there's a missing party necessary to make the lawsuit ultimately meaningful.

Remedy requests (a)(ii) and (b)(iii) explicitly contemplate relief against HathiTrust related only to orphan works; remedy request (c) implicitly includes relief against HathiTrust related to orphan works. In order to obtain such relief, though, holders of rights in orphan works must either be directly before the court as parties, or adequately represented in the litigation by appropriate representatives. Obviously, the holders of rights in orphan works are not directly before the court; by definition,¹³ if the party claiming rights in a work is directly before a court as a party, we're not talking about an orphan work. Thus, we're reduced to having representation for the owners of rights in orphan works... and Judge Chin has already held that neither the Authors' Guild nor individual members would be an adequate representative for orphan works rightsholders.¹⁴ Instead, the only proper representative who could be found would be... the United States itself.

That's right: The paper tiger of copyright litigation is the only proper representative of orphan rights holders. And not only is the relevant agency (the Copyright Office) more-than-arguably agency-captured¹⁵ and saddled with an obvious conflict of interest regarding registration (and recordation) fees and the registration (and recordation) process, but the Department of Justice was pretty harshly critical of the Authors' Guild in its objections to the Google settlement. At least politically (in the broad, nonideological sense of "political"), this explains why the proper party to represent orphan works is not in front of the court.

This also reflects the converse of Justice Ginsburg's comment in note 6 of Tasini quoted above. The Copyright Act has a truly awful logical hole in it: It does not provide for "private attorney general"-type actions. If one pays attention to the entire text of the Intellectual Property Clause,¹⁶ one would assume that the enabling legislation would provide for private enforcement in "public interest"-type actions, similar to those for environmental protection and civil rights. The Declaratory Judgment Act¹⁷ comes closest, with its slightly relaxed concept of standing... but it does not provide for any remedy other than a declaration of rights — no injunctions, no impoundment of copies — and binds only the parties actually in front of the court.

Thus, one can be reasonably certain that the civil procedure theory of the complaint is seriously flawed, if only because the identity of whom the complaint brought in front of the court reflects serious flaws in procedural thinking.

C. The Imaginary Component of Complex Litigation

There is one other purely civil-procedure aspect of this mess that remains underappreciated... and is going to turn around and bite somebody on the butt (my money is on Google as the bitee, for reasons that I will explain in detail after we've plowed through the merits). If nothing else, the Google Book Scan litigation, with its multiple suits and failed attempts at class certification, constitutes complex litigation.¹⁸ Just look at what we have:

• The original Authors' Guild v. Google suit, which was consolidated with
• A publishers' counterpart (McGraw-Hill v. Google) in the hopes of settlement, which has now failed
• A parallel suit involving illustrations in scanned books from the American Society of Media Photographers, which is not consolidated with the two preceding suits
• Not to mention this lawsuit

And that's just in the Southern District of New York, which I have maintained from the beginning is the wrong venue. It does not consider any of two dozen or so (that I have found without doing an expensive customized search) individual suits that disclaimed class status that have been filed against one or more of the guilty parties — including publishers that improperly approved scanning when they did not have the authority to do so. Neither does it consider potential suits that might be filed against other guilty parties, such as cooperating libraries outside of the HathiTrust structure (and you know who you are). Perhaps most disturbingly, it fails to consider the web of conflicts among those appearing across the v. from Google. The obvious author-publisher (and illustrator-publisher) conflicts are bad enough... but as Judge Chin pointed out in his 22 March 2011 rejection of the proposed class settlement, the conflicts within the classes of plaintiffs are so severe that it was inappropriate to accept the settlement as fair.¹⁹

Managing discovery in this kind of a nightmare is going to be a challenge in itself. That will be a particular problem when dealing with orphan works and with fair-use defenses. A little farther down the road, both sides will undoubtedly be filing motions for summary judgment. Unfortunately, the Southern District of New York does not have rules as clean as those in the Northern District of Illinois for handling the way the parties present the facts and evidence, so we're going to have inconsistent presentations there on the same side of the v., which will in turn make things very interesting indeed for the judge.

Finally for now, there's the potential estoppel arguments... for each significant issue. Let's consider just a fair use defense for a moment. Ordinarily, if Google were to lose the fair use defense against any of these defendants, the other defendants would (and could) hold that finding against Google in their own proceedings.²⁰ The problem is that the four statutory fair-use factors²¹ (not to mention that overriding fifth fair-use factor, administrative convenience) are claimant-specific, because the third and fourth factors are substantially different for the intermediate licensee-distributor (the publisher) than they are for the licensor-creator (the author, or the photographer).

Last, though, there's the converse problem. Judge Chin properly called for legislative action, particularly in dealing with the orphan works problem. That, however, can only concern itself with future conduct; it is improper for Congress to insert itself so far into a pending matter that it directs the outcome of that matter. Thus, the longer that Congress waits to do something, the less it can actually do (which is not much of a surprise, is it?). In the meantime, the judiciary is stuck with not just the possibility, but the high probability, of inconsistent judgments and results in these actions. If nothing else, this points out an aspect of antitrust doctrine that was carefully neglected in the various public discussions of the proposed settlement.

III. The Merits Madness Without Method

1. See Complaint (Doc. 1), ¶¶ 25–30.
2. See, e.g., MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005) (copyright suit against non-US corporation allowed to proceed in California).
3. Ironically, Cornell University is arguably an arm of the state of New York, as it is the land-grant college of New York. Really. Thus, all five of the named universities are state actors...
4. 209 U.S. 123 (1908).
5. College Sav. Bank, Inc. v. Florida Prepaid Postsecondary Education Expense Bd., 527 U.S. 666 (1999); Florida Prepaid Postsecondary Education Expense Bd. v. College Sav. Bank, Inc., 527 U.S. 627 (1999).

   These decisions are arguably part of the Rehnquist Court's long effort to shrink the ever-expanding federal court docket in the face of Congressional intransigience in providing the resources (primarily judges) to handle that docket. This realpolitik view of the "federalist resurgence" was as much ideological as anything else... with all of the attendant unintended consequences.

6. See, e.g., Chavez v. Arte Publico Press, 204 F.3d 601 (5th Cir. 2000) (explicitly considering the State Street Bank decisions cited in note 5). It is not a coincidence that the leading cases concerning this theory, at all levels of courts, arise from the Confederacy; one of the problems with the CSA was that it did not accept the concept of intellectual property rights, and certainly not when asserted against its even-more-sovereign-than-the-present-US states.
7. Complaint (Doc. 1) at 22–23 (hyperlinks added).

   As an aside, this prayer for relief is simultaneously unusually clear for copyright and other intellectual property litigation and incredibly sloppy for high-stakes litigation of any kind. It is unusually clear in that the prayer for relief itself cites the authority authorizing the court to grant such relief. It is incredibly sloppy in that it was not adequately proofread for either grammar and typography or parallelism (consider, for example, the inconsistent use of end-of-clause punctuation). As we will also see, it is also sloppy in that the relief requested in (a) is fundamentally incompatible with the relief requested in (b) based on the parties' status and character.

8. Just to make things perfectly clear, I'm no fan of Eleventh Amendment jurisprudence on realpolitik, theoretical, practical, or ideological grounds. The Amendment is what it is, regardless of my dislike for the premises behind it. However, existing jurisprudence has failed to interpret it narrowly enough in light of the Fourteenth Amendment's Due Process and Privilege and Immunities clauses in particular and in the context of the Supremacy Clause in general. That, however, is an argument for another time; for the present, I will just continue thinking dark thoughts about the slaveholding origins of the Eleventh Amendment as essentially counting three-fifths of all other claims...
9. New York Times, Inc. v. Tasini, 533 U.S. 483, 498–99 n.6 (2001) (internal citations omitted, hyperlink added); see also U.S. v. Carolene Products, Inc., 304 U.S. 144, 152–53 n.4 (1938) (concerning the scope and interaction of legislation, presumptions of constitutionality, and later-enacted restrictions). That note in Carolene Products has probably been dissected and written upon, by both scholars and practitioners, more than all other elements in that opinion combined... seldom reaching any defensible conclusion that is not subject to further hedging.
10. Unfortunately, this also points out a fairly serious drafting error in the Copyright Act: There is no satisfactory definition — in § 108 or elsewhere — of "library or archives." In particular, it is unclear whether the "open to the public" language in § 108(a)(2) requires "without charge or other payment required for access," "without restriction," and/or "with anonymity." Further, § 108(a) is concerned with access to works... and silent regarding provision of (relatively) permanent copies of particular works that enlarges the number of copies, except by implication under § 108(g). There's no real question that this is something that Congress, and not the courts, must fix.
11. See, e.g., Harper & Row, Pubs., Inc. v. Nation Enters., Inc., 471 U.S. 539 (1985) (holding that an extract from a book of less than 800 words exceeded fair use for that book... but explicitly refusing to establish a bright-line or proportionate test).
12. See, e.g., Crown Cork & Seal Co. v. Parker, 462 U.S. 345 (1983); American Pipe & Constr. Co. v. Utah, 414 U.S. 538 (1974) (together, holding that the statute of limitations is extended for unnamed classmembers during the pendency of an otherwise-timely-filed class complaint concerning the same legal theory and operative facts or transaction).
13. Although not defined in the Copyright Act itself, "orphan works" are those for whom the present copyright holder cannot be located. Cf., e.g., U.S. Register of Copyrights, Report on Orphan Works 1 (Jan. 2006) (PDF) (defining an "orphan work" as "the situation where the owner of a copyrighted work cannot be identified and located by someone who wishes to make use of the work in a manner that requires permission of the copyright owner").
14. Technically, this is not preclusive against the Authors' Guild for two reasons. First, it concerned representative capacity in a class action, under Fed. R. Civ. Proc. 23; this lawsuit was filed not as a class action, but alleging associational representation. The rules for associational standing are different from those for class actions... but arguably much more restrictive. The key point is the difference for this purpose.

    Second, Judge Chin's decision does not operate as a final judgment on the merits in the Google lawsuit. Thus, it is at most persuasive authority, not binding precedent. However persuasive and understated his reasoning, and despite his elevation to the Court of Appeals overseeing the court in which the HathiTrust action is being heard, the Authors' Guild is not precluded from making the (IMNSHO futile) argument that it can be a representative for the actual rightsholders of orphan works. It passes the "nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law" scrutiny required by Fed. R. Civ. Proc. 23(b)(2), however wasteful and confusing to others it may be.

15. "Agency capture," also called "regulatory capture", occurs when the industry or activity that is supposed to be regulated by an administrative agency ends up actually controlling that agency's decisionmaking process. See, e.g., Rachel Barkow, Insulating Agencies: Avoiding Capture Through Institutional Design, 89 Tex. L. Rev. 1(2010) (PDF). In this instance, it is perhaps most helpful to follow the later employment of Copyright Office employees... almost all of whom end up working for copyright exploiters. In particular, some prior senior counsel are now employed in-house by scanning/digitizing companies like Microsoft... and Google.

    There's one additional irony involved here. Judge Chin and the Register of Copyright, among many others, called for Congressional action on orphan works. Unlike most administrative agencies, the Copyright Office is not either part of the executive branch or an "independent agency"; it is, instead, part of the Library of Congress.

16. U.S. Const. Art. I § 8 cl. 8 ("The Congress shall have Power... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries").
17. 28 U.S.C. § 2201.
18. See, e.g., Federal Judicial Center, Manual for Complex Litig. (4th) (2004) (PDF). Ironically, the MCL is just about due for a decennial revision...
19. There's one conflict that was not discussed in that opinion that is not quite an elephant in the room — perhaps it is only a hippopotamus, or a very angry rhinoceros. And that is the Bankruptcy Code. All it would take to torpedo this entire litigation is for one of the many named plaintiffs to enter bankruptcy; given the ill health of the publishing world, that's a more than trivial possibility. Hell, all it would take would be for one of the named-plaintiff authors to become seriously ill outside of his/her health insurance coverage! Or, worse yet, for one of the named plaintiffs to be a successor in interest to a debtor that had been discharged in bankruptcy.
20. See Parklane Hosiery v. Shore, 439 U.S. 322 (1979).
21. 17 U.S.C. § 107.

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