With the Google Settlement poised to meet its ultimate demise as early as Thursday, when the parties are scheduled to appear before Judge Denny Chin for a status conference, the Authors Guild yesterday doubled down on its infringement claims, filing a new lawsuit against a consortium of university libraries over a digital library initiative known as HathiTrust. The suit is the latest twist in the ongoing legal drama over digitization.
In the copyright infringement suit filed yesterday in New York, the Authors Guild, along with two other international writers groups and eight individual authors, allege that HathiTrust is built with millions of “unauthorized” scans created by Google. The suit seeks an injunction barring the libraries from future digitization of copyrighted works; from providing works to Google for its scanning project; and from proceeding with its plan to allow access to “orphan works.” It also asks the court to “impound” all unauthorized scans and to hold them in escrow “pending an appropriate act of Congress."
"These books, because of the universities’ and Google’s unlawful actions, are now at needless, intolerable digital risk,” said Authors Guild president Scott Turow in a statement, who called HathiTrust a "preposterous, ad-hoc initiative." The Guild specifically criticized the recently unveiled plan by HathiTrust to make available a small number of "orphan works," books for which it believes no copyright owner exists. "Authors shouldn’t have to trust their works to a group that’s making up the rules as it goes along," Turow noted.
Formed in 2008, HathiTrust was initially led by the University of Michigan, a pioneer in library digitization efforts, which aggressively opened its entire library collection to Google's scanners in 2005 in return for a so-called “library copy” of the books Google scanned. HathiTrust is a collaborative effort, though, and now numbers over 50 partners, with a digital collection of nearly 10 million digitized volumes, the bulk of which were created by Google's scanners, in concert with the librarians.
The effort is designed to "preserve content," noted Michigan’s John Price Wilkin in a 2009 Library Journal editorial, shortly after its launch. But, it would also "support access by print-disabled users, generate print replacement copies from the digital files when original print copies are damaged or lost, and serve as a body of content for large-scale computational needs," he noted, activities that would have been specifically sanctioned by the now-failed Google Settlement. "We introduce trustworthy curation and permanence for the cultural record into the mix of large access projects," Wilkin went on to explain. "HathiTrust should be seen not as a threat to the interests of publishers and authors but as a complement, bringing the great value of libraries to a broad ecology of interests."
Officials at HathiTrust maintain they fully respect copyright. HathiTrust only offers full display of books determined to be out of copyright, but only snippets and bibliograhic information for titles still under copyright. Nearly three quarters of the books in the HathiTrust archive are believed to still be under copyright, and are therefore not accessible, although they are being made increasingly discoverable and searchable, not only through the HathiTrust interface, but soon through a host major library vendors. “Preservation without access is meaningless,” Wilkin notes, saying the libraries “share a commitment to exposing and using content in the repository to the fullest extent possible.”
The group's recent plan to make orphan works available has raised questions, however. This fall, the University of Michigan library is set to make available a handful of books for which a copyright owner cannot be determined—mostly out-of-print books published between 1923 and 1963. Under the plan, Michigan librarians have researched the rights for the works, and have placed the bibliographic information online on a dedicated page for 90 days. If no legal rights holder materializes in that period, the works will be made accessible to the UM community until a rights holder does appear, and objects. The first 140 orphan works are set for release on October 13.
Plaintiff Angelo Loukakis, executive director of the Australian Society of Authors, slammed that as an outrageous attempt to dismiss authors’ rights. “This group of American universities has no authority to decide whether, when or how authors forfeit their copyright protection,” he asserted. “These aren’t orphaned books, they’re abducted books.”
Viewed independently, the suit is rather puzzling. Why sue libraries? While the HathiTrust plan appears to exceed the provisions of section 108 of the Copyright Act, the so-called library exemption, noted New York Law School’s James Grimmelmann, there is also little if any demonstrable harm, leaving the Guild to fight mostly on a “legal theory.” But viewed within the collapse of the Google Settlement, the suit makes sense. If the parties in the failed Google Settlement are headed back to litigation, as it appears almost certain that they are, suing Google’s library scanning partners ramps up the pressure. And, taking a shot at a quick injunction against cash-strapped libraries could prove helpful in the fight against the well-funded Google.
