What's the Deal with Associational Standing?
As we all know by now, the streaming video/copyright infringement case (as it is casually known) against UCLA was dismissed earlier this fall on a number of procedural grounds and as such, the court was unable to rule on the merits of the case; that is, whether or not streaming entire videos within an accessed controlled online course constitutes copyright infringement, among other things. As the court said in its opinion, "Jurisdiction must generally be determined prior to a federal court considering a case on its merits", citing supporting case law.
Jurisdiction includes a number of concepts, including subject matter jurisdiction and whether or not a party has "standing" to sue. It's complicated. Indeed, for those of you who found something else to do for three years besides spending 10-12 hours a day reading case law, hornbooks, treatises, law review articles, and attending law school courses embodying an unusual amount of public humiliation, there are entire courses (multiple) devoted to the study of civil procedure. Having said that, I thoroughly disclaim expertise in said area of the law and haven't litigated in twenty years. I am completely open to being corrected or otherwise educated by my more experienced and knowledgeable colleagues.
However, since this case was so closely watched by the library and higher educational community (not to mention video producers and the motion picture industry in general), I became interested in why plaintiff AIME (Association For Information Media and Equipment) was thrown out of the lawsuit rather quickly (and apparently, not unexpectedly) for failure to achieve "associational standing." In the court's opinion, it was dealt with rather in a somewhat conclusory fashion, the court simply quoting three requirements for associational standing and stating that AIME failed the third. (more later) This result was noted by other bloggers with speculation that the Authors' Guild would suffer the same fate in its suit against Hathi Trust (although there are quite a few other plaintiffs in that case that do not suffer the same potential problem that the Guild might).
As I said, I am no associational standing expert but it seemed to me - and maybe you as well - that associations are suing over copyright infringement all the time. Think about it - all those lawsuits brought by the RIAA, or the MPAA, or the AAP. And what about associations like ALA, or ARL, or the EFF? How is it that they meet the associational standing test? Anyone?
According to the UCLA court, as well as pretty much most federal courts considering the question of associational standing, the association must meet three requirements:
1. Its members would have standing to sue on their own,
2. The interests it seeks to protect are germane to the organization's purpose, and
3. The case does not require the participation of individual members in the lawsuit. The seminal case setting forth these requirements is Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 343 (1977).
AIME describes itself as "a non-profit membership organization offering copyright information and support to teachers, librarians, media center directors, producers and distributors of informational film, video, interactive technologies, and computer software and equipment. AIME serves as your organization's copyright resource." That's interesting - copyright information and support to teachers and librarians? Sounds familiar.
So, after spending a good amount of time looking up cases, it would appear that an association can bring suits on behalf of its members, but it depends on the nature of the lawsuit. In the case of a copyright infringement lawsuit, only the copyright holder can bring the action. Although the popular press frequently refers to copyright infringement lawsuits being brought by the AAP or the RIAA, etc. if you actually look up the case itself, the associations are not the plaintiffs. They may be funding the lawsuit, organizing the campaign, if you will, but they are not actually the named plaintiffs. Even the Google book project lawsuit,involving the mass copying of both in-copyright and out-of-copyright books by Google in university libraries, is actually brought by individual publishers that hold the copyrights at issue, rather than their trade association.
I finally found what I was looking for in the archives of Patry's excellent copyright blog , although the following quote is from the 2008 entry of Professor Peter Friedman of Case Western Reserve University who devised an assignment for his law students involving writing briefs on either side of a fictional copyright infringement lawsuit. His students' materials and more are still available on his What Is Fair Use? page.
"Mr. Patry is correct in stating that the lawsuit does have to be brought in the copyright holders' names, but ASCAP can and often does bring it, in their names, on their behalf. Thus, though ASCAP should not nominally be a plaintiff in my fictional lawsuit, it could nevertheless be the party prosecuting the lawsuit on behalf of the copyright holders. In other words, ASCAP is often the driving force behind these lawsuits even if it is not named as a plaintiff. Thus, the fact ASCAP is actually named as a plaintiff in my fictional case is, for all practical purposes, a moot issue. Thus, the court in Ocasek v. Hegglund, 116 F.R.D. 154, 1987 U.S. Dist. LEXIS 5193, *7-8; 4 U.S.P.Q.2D (BNA) 1127; Copy. L. Rep. (CCH) P26,149, 157 (D. Wyo. 1987), explained:
"Yet for all of ASCAP's broad power to enforce its members' copyrights, it cannot bring an infringement suit in its own name. ASCAP's Achilles' heel, if it has one, is that it lacks standing to sue for infringement of its members' copyrights. See, e.g., Broadcast Music, Inc. v. CBS, 1983-2 Trade Cas. (CCH) P 65,661 (S.D. N.Y. July 20, 1983); Eden Toys, Inc. v. Florelee Undergarment Co., Inc., 526 F. Supp. 1187, 1190 (S.D. N.Y. 1981), rev'd and remanded in part on other grounds, aff'd in part, 697 F.2d 27 (2d Cir. 1982). "ASCAP's rather odd status as ghost-plaintiff is due to the combination of copyright and antitrust laws. The Copyright Act has always specified that only the copyright owner, or the owner of exclusive rights under the copyright, as of the time the acts of infringements occur, has standing to bring an action for infringement of such rights; a non-exclusive licensee does not have standing. 17 U.S.C. § 501(b). Prior to 1950, ASCAP did operate as an exclusive licensee of the copyright owners. However, in response to antitrust suits brought by some ASCAP licensees, the government amended a prior consent decree between ASCAP and itself (also in response to antitrust litigation) such that after 1950, ASCAP was prohibited from acquiring exclusive performing rights and was thus limited solely to non-exclusive rights. United States v. ASCAP, 1950-51 Trade Cas. (CCH) P 62,595 (S.D. N.Y. 1950); see also, Buffalo Broadcasting v. American Soc. of Composers, 744 F.2d 917 (2d Cir. 1984). The cumulative effect of these various laws and rights is that while ASCAP bears the primary responsibility for enforcing its members' copyrights and has authority to bring enforcing lawsuits on behalf of its members, it must remain a non-exclusive licensee and, therefore, cannot bring the suit in its own name. This dichotomy between ownership and enforcement of copyrights creates this rather unique situation wherein the plaintiff has little or no information about a lawsuit to enforce his or her rights while a non-party, ASCAP, is fully informed, available and responsible for the legal action."
While in many ways, it seemed obvious that AIME, not being a copyright holder, should not be able to bring a copyright infringement lawsuit, I had never had occasion to go behind many of the reports and articles discussing copyright infringement lawsuits brought by other associations, most prominently RIAA. Thus, my interest in why some associations apparently could sue, yet AIME was tossed out. I'm still not entirely sure I have the whole picture because I have the utmost respect for the plaintiffs' attorney, Arnold Lutzker, who has provided many an opinion on behalf of library associations as well as speaking and teaching us frequently on copyright topics. If he included AIME, there had to have been a reasonable argument.
As said before, I welcome comments, corrections, and enlightenment of all nature.
P.S. If you are having difficulty posting a response, you need to contact the Center for Intellectual Property. If you know me at all, you know the technical side of this site is not under my control.