Copyright Clash: Authors Guild and Others Sue HathiTrust and Five Universities
By David Rapp Sep 13, 2011The Authors Guild—along with Australian and Canadian authors' organizations and eight individual authors—filed suit yesterday against the HathiTrust digital repository and five of its member universities to stop them from "reproducing, distributing and/or displaying" copyrighted works, among other alleged infringements—and charged them with "engaging in one of the largest copyright infringements in history."
If successful on all fronts, the case could potentially derail HathiTrust's nascent orphan-works project and digitization projects across the nation—but some experts are already questioning how big an effect it will have.
The complaint [PDF], filed yesterday in the United States District Court for the Southern District of New York, charges that the digitization, archiving, and copying of copyrighted works—as has been done with some 9.5 million works in the HathiTrust repository—constitute massive copyright infringement. The suit also takes issue with HathiTrust's orphan works project, which aims to make the full texts of in-copyright but out-of-print digitized works available when their rights holders cannot be found. The project, the suit claims, is an example of the universities "tak[ing] copyright law into their own hands."
The suit also rejects the claim that such actions are allowable under Section 107 of the Copyright Act (the "fair use" exception), and asserts that more restrictive copying limitations of Section 108 are more applicable.
The plaintiffs are seeking to stop the named schools from giving on-campus researchers access to certain orphan works—the first of which are set to become available on October 13—with a formal statement from the court on whether HathiTrust's actions constitute "unlawful copyright infringement."
An injunction would stop HathiTrust and the universities from reproducing, distributing or displaying all copyrighted works, prevent them from providing works to Google for digitization, and would put the brakes on the orphan works project as well. Finally, the plaintiffs have asked that all digital copies of copyrighted works be impounded—that is, made inaccessible to HathiTrust and the universities.
The Authors Guild is also a party to the long-running Google Books case, which is set to have a status conference on September 15.
In addition to the Authors Guild, plaintiffs in the case include the Australian Society of Authors, the Canadian authors' organization Union des Écrivains et des Écrivains Québécois, and authors Pat Cummings, Angelo Loukakis, Roxana Robinson, André Roy, James Shapiro, Danièle Simpson, T.J. Stiles, and Fay Weldon.
The universities named as defendants are the University of Michigan, the University of California, the University of Wisconsin, Indiana University, and Cornell University.
Initial reaction
Intellectual property attorney Jonathan Band, a frequent consultant to the library community, told LJ that he thought the suit "borders on the frivolous." He also questioned the plaintiffs' standing to bring the suit, and called the plaintiffs' theory that Section 108 limits fair use "ridiculous." He told LJ that the Association of Research Libraries (ARL) would be putting out a packet of information commenting on the case later today. [Update 9/13: ARL released a 17-page PDF, "Resource Packet on Orphan Works: Legal and Policy Issues for Research Libraries," on its website.]
Meanwhile, James Grimmelman, an associate professor at New York Law School, in a post on his Laboratorium blog, pointed out that the plaintiffs' case was likely not directed solely at the orphan works project because of concerns about legal standing:
If the Authors Guild sued only to stop the orphan works displays, it would likely lack standing to bring the suit, since none of its members would be harmed by having their specific books displayed. That's the advantage for the libraries of using a book-by-book process: it's easy not to include any books that current Authors Guild members would own the copyright in. Indeed, by picking only out-of-print books with authors who can't be found, they almost guaranteed that no specific author would step forward to sue.
Grimmelman also noted that the suit could have a chilling effect on digitization projects such as the Digital Library of America (which is still in the planning stages, with a plenary meeting slated for October 21). "Building consensus will be a more difficult matter while the suit is underway: hope, fear, and anger will tug at stakeholders in subtle and complicated ways," he wrote.
