Authors Guild Files Amended Complaint in Suit Against HathiTrust
By Michael Kelley Oct 7, 2011The Authors Guild filed an amended complaint on Thursday, October 6, in its suit against HathiTrust, the University of Michigan, and four other universities which alleges the universities engaged "in one of the largest copyright infringements in history." A number of additional authors and authors groups have joined the suit, and offered some harsh words about the HathiTrust project.
The U.K. Authors' Licensing and Collecting Society, the Norwegian Nonfiction Writers and Translators Association, the Swedish Writers Union, The Writers' Union of Canada, and four individual authors are among the new plaintiffs in Authors Guild v. HathiTrust.
Individual authors joining the lawsuit include University of Oslo professor Helge Rønning, Swedish novelist Erik Grundström, and American novelist J. R. Salamanca. The Authors League Fund, a 94-year-old organization supported by Authors Guild members that provides charitable assistance to book authors and dramatists, is also now a plaintiff.
"Universities are important cultural bastions, valued by all of us," said Scott Turow, president of the Authors Guild, in a press release, "but they need to play that role thoughtfully. In this case, university defendants are using their immunity from money damages to act as pirates, rather than custodians, of our literary heritage."
The universities named as defendants in addition to Michigan are the University of California, the University of Wisconsin, Indiana University, and Cornell University. As state-run institutions, the schools are shielded by 11th Amendment sovereign immunity protections from paying damages for copyright infringement.
The Authors Guild—along with Australian and Canadian authors' organizations and eight individual authors—filed suit September 12 against the HathiTrust book-scanning project and the universities to stop them from "reproducing, distributing and/or displaying" copyrighted works.
An injunction would also stop HathiTrust and the universities from providing works to Google for digitization and would put the brakes on the HathiTrust's orphan works project as well. The plaintiffs have asked that all digital copies of copyrighted works be inaccessible to HathiTrust and the universities.
The HathiTrust's orphan works project, which is overseen by the University of Michigan, aims to make the full texts of in-copyright but out-of-print digitized works available when their rights holders cannot be found. Michigan devised a set of procedures -- including a protocol for searching for an author and posting the names of orphan work candidates at the HathiTrust website for 90 days - to determine whether a work was an orphan.
After filing the original complaint on September 12, the Authors Guild and others were able to locate dozens of authors and estates holding rights to the first 167 works listed as orphan candidates at HathiTrust's website, including "The Lost Country," by Salamanca.
HathiTrust had been scheduled to make downloads of Mr. Salamanca's work available to students and faculty members on November 8. But the University of Michigan (UM) Library released a statement September 16 announcing that it would be examining its "flawed" pilot process for identifying orphan works, putting the orphan works project effectively on hold.
"How is it they couldn't find Jack Salamanca?" literary agent John White said in a press release from Authors Guild. White has represented Salamanca for more than ten years. "He's a bestselling novelist, he's lived in suburban Maryland for decades, he's in the University of Maryland's current online catalog as an emeritus professor, and he signed an e-book agreement for 'Lilith' four weeks ago. It boggles the mind."
In its September 16 decision to suspend release of the works, the UM university librarian Paul Courant told LJ that some of the works in question "were, in effect, too easy to find."
"We have to go back and look at each one again and learn, from the mistakes we made, how we can do this reliably," he said, adding that the process "will take a little bit of time." As a result, the works currently on the orphan works candidate list are "very unlikely" to be released as scheduled.
The University of Michigan library's September 16 statement said that "Our mistakes have not resulted in the exposure of even one page of in-copyright material."
"These are major, well-funded U.S. research institutions capable of great things," said Greg Hollingshead, chair of The Writers' Union of Canada. "They could have found most of these authors had they cared to, but it seems they didn't. They just wanted to release e-books for free. They don't take literary property rights seriously, so why should any of us trust their security measures? If they're hacked, and digital files of 40,000 Canadian books are released, how are Canadian authors ever again to receive significant revenues from those works?"
"I've been in this business for decades, but this is one of the craziest things I've ever seen," said Trond Andreassen, president of the Norwegian Nonfiction Writers and Translators Association. "These American universities, with Google's help, decide to digitize and put on their servers thousands of books that were published in Norway. Why didn't they ask? We can find the authors, but those authors have rights, and sometimes the answer might be no."
In addition to the Authors Guild, the original 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 massive unauthorized digitization project ... has now imperiled the literary property rights of millions of authors from all over the world," Turow said.
