Authors Guild And Others Sue Universities for Copyright Infringement

Posted by Victoria Strauss for Writer Beware

In the wake of the failed Google Book Settlement and the still-unresolved lawsuit that produced it, the Authors Guild, two international writers’ groups, and several individual authors have filed suit against a number of major US universities that have combined unauthorized scans of in-copyright books into a repository called HathiTrust, which will allow unlimited downloads by students and faculty of “orphan” works included in the repository (orphan works are in-copyright books whose authors can’t be found–with “can’t” meaning almost anything on a continuum from “impossible to locate” to “didn’t look very hard”).

The unauthorized scans were obtained from Google–one of the perks of Google’s unauthorized library scanning project was that the libraries that provided the books received free copies of the files–and HathiTrust is believed to include up to seven million in-copyright books from authors in dozens of different countries. The rules for defining “orphan” works have been established by the University of Michigan, the lead institution on the project.

The Authors Guild press release follows.

—————————————–

AUTHORS AND AUTHORS’ GROUPS FROM AUSTRALIA, QUEBEC, THE U.K., AND
U.S. SUE HATHITRUST, THE UNIVERSITY OF MICHIGAN, AND FOUR OTHER U.S.
UNIVERSITIES FOR COPYRIGHT INFRINGEMENT

Digital Files Provided by Google at Issue, As Plaintiffs Seek to
Impound Unauthorized Scans of 7 Million Copyright-Protected Books,
Pending Congressional Action

NEW YORK – The Authors Guild, the Australian Society of Authors,
the Union Des Écrivaines et des Écrivains Québécois (UNEQ), and eight
individual authors have filed a copyright infringement lawsuit in
federal court against HathiTrust, the University of Michigan, the
University of California, the University of Wisconsin, Indiana
University, and Cornell University. Plaintiff authors include
children’s book author and illustrator Pat Cummings, novelists Angelo
Loukakis, Roxana Robinson, Danièle Simpson, and Fay Weldon, poet André
Roy, Columbia University professor and Shakespeare scholar James
Shapiro, and Pulitzer Prize and National Book Award winning biographer
T.J. Stiles.

The universities obtained from Google unauthorized scans of an
estimated 7 million copyright-protected books, the rights to which are
held by authors in dozens of countries. The universities have pooled
the unauthorized files in a repository organized by the University of
Michigan called HathiTrust. In June, Michigan announced plans to permit
unlimited downloads by its students and faculty members of
copyright-protected works it deems “orphans” according to rules the
school has established. Other universities joined in Michigan’s project
in August.

The first set of so-called orphans, 27 works by French, Russian,
and American authors, are scheduled to be released to an estimated
250,000 students and faculty members on October 13th. An additional 140
books, including works in Spanish, Yiddish, French, and Russian, are to
be released starting in November.

“This is an upsetting and outrageous attempt to dismiss authors’
rights,” said Angelo Loukakis, executive director of the Australian
Society of Authors. “Maybe it doesn’t seem like it to some, but writing
books is an author’s real-life work and livelihood. This group of
American universities has no authority to decide whether, when or how
authors forfeit their copyright protection. These aren’t orphaned books,
they’re abducted books.”

“I was stunned when I learned of this,” said Danièle Simpson,
president of UNEQ. “How are authors from Quebec, Italy or Japan to know
that their works have been determined to be ‘orphans’ by a group in Ann
Arbor, Michigan? If these colleges can make up their own rules, then
won’t every college and university, in every country, want to do the
same?

The complaint also questions the security of the 7 million
unauthorized digital files. The numbers are staggering. The
universities have, without permission, digitized and loaded onto
HathiTrust’s online servers thousands of editions, in various
translations, of works by Simone de Beauvoir, Italo Calvino, Bernard
Clavel, Umberto Eco, Carlos Fuentes, Günter Grass, Peter Handke, Michel
Houellebecq, Clarice Lispector, Mario Vargas Llosa, Herta Müller, Haruki
Murakami, Kenzaburō Ōe, Octavio Paz, and Jose Saramago, among
countless other authors. Works from nearly every nation have been
digitized. HathiTrust’s databases house more than 65,000 works
published in the year 2001, for example, including thousands of works
published that year in China, France, Germany,
India, Indonesia, Italy, Japan, Russia, Spain, and the U.K., and
hundreds from Australia, Austria, Brazil, Canada, Egypt, Israel,
Lebanon, Mexico, The Netherlands, The Philippines, South Korea,
Switzerland, Thailand, Turkey, and Vietnam.

“These books, because of the universities’ and Google’s unlawful
actions, are now at needless, intolerable digital risk,” said Authors
Guild president Scott Turow. “Even if it weren’t for this preposterous,
ad-hoc initiative, we’d have a major problem with the digital
repository. Authors shouldn’t have to trust their works to a group
that’s making up the rules as it goes along.”

Google’s library scanning project is already the subject of a
federal class-action lawsuit in New York. A status conference in that
case is scheduled before Judge Denny Chin this Thursday, September 15.

Attorneys Edward Rosenthal and Jeremy Goldman of Frankfurt Kurnit Klein & Selz are representing plaintiffs.

16 Comments

  1. James Grimmelmann, one of the most objective commentators on the Google Book Settlement, has written an informative blog post analyzing the lawsuit and its implications.

    The libraries had to have seen this coming…Indeed, the Orphan Works Project comes across as a deliberate attempt to test boundaries, perhaps even an attempt to provoke a suit so that the first orphan works battle would be fought on ground of the libraries’ own choosing…

    The suit gives Congress yet another excuse to keep well clear of orphan works. And it shakes out the fault lines in a new way: the Authors Guild has now apparently flipped from being the authors’ group most in favor of quick orphan works action to being the authors’ group most against it. Where the publishers will end up when the dust settles has yet to be seen.

  2. I have been expecting such a suit ever since the libraries started to publicly announce that they are distributing scans of copyrighted books.

    By the way, the Internet Archive is now doing it too–is anyone suing them? As far as I know they are not using Google scans, but ones they made or obtained elsewhere. But it's the same issue.

    Another issue is that there are umpteen print-on-demand publishers who are downloading scans from such sources, printing books from the scans, and selling them for profit. This includes many copyrighted books as well as public domain ones. If someone "lends" a book scan to just one individual or business, or posts it anywhere on the net, soon it can be, and often is, all over the place.

  3. Recently I was looking for some information online and came across an Osprey book somebody had posted in its entirety on a torrent site. Osprey is a small niche publisher that does very detailed books about aspects of the military. No doubt in a few years everyone will be wondering what happened to them and why there aren't any more Osprey books….

    *sigh*

  4. The University of Michigan's current list of proposed orphan works is here:

    http://orphanworks.hathitrust.org/Search/Home?page=2&use_dismax=1&page=1

    but I am sure there will be more, on an ongoing basis. Note, they are not proposing to give you any money whatever if you discover your books were declared orphans and distributed without your consent.

    British copyright activist Gillian Spraggs comments on Grimmelman's blog that she easily traced the agent for one of the British authors of the proposed "orphans." Also, one of the "orphan" criteria is supposed to be that the books are not available on Amazon or Bookfinder, yet she is finding some there–at reasonable prices. See her entire comment.

  5. This is a classic case of shoot first and ask forgiveness later on the part of the universities. You would think there would be at least one person on staff who raised objections to this project. I suspect we are going to continue to see these types of lawsuits as the world becomes ever more digitized.

  6. Is there any way to join the suit? I discovered back when the Google project broke that Google had scanned books of mine that were a) in print and b) I was easily found. Nobody bothered to look. Wrong on every level. Still angry.

    Have blogged about it (linking to this post) at my LJ:
    http://e-moon60.livejournal.com w/title "Institutional Theft: Google and Academic Libraries"

  7. Lynette, you can go to HathiTrust and search on yourself or your book titles.

    I just searched on myself, and found one of my books, although "Full view is not available for this item
    due to copyright © restrictions."

  8. A comment, slightly — no – very biased.

    While my comments likely will have little to no effect upon the outcome of any decisions to this outright theft of copyrighted material, I shall voice my opinion non-the-less.

    A copyright, is the intent of an author to protect that author's work or works from ANY who would beg, borrow, or steal it.

    In the case of copying and then presenting works which are copyrighted, whether they be in Print, Film, or Digital format of one kind or another, without paying for that privilege constitutes theft from an author for the 'sweat of their brow' ie. the creation of that work.

    Such creation sometimes requires years to complete.

    How would you feel if you had worked for many months to produce some tangible product only to have someone come along and tell you that product was theirs to do with as they please while you receive no recompense for same?

    The answer to this entire issue is simple. Be it Google or be it a University or group of Universities; be it individuals or entire business groups, theft is theft and I, for one, am not willing to allow my copyrights to fall into public domain without a fight.

    R A Dumas

    P. S. thank you, Victoria, for an interesting article.

  9. For years, I've been hearing the hoop-de-ha about libraries being unable to digitize so-called orphan works without changes in US and foreign copyright law. Amazingly, I never looked to see if there was already such a provision in US copyright law. But there is! See:

    http://www.copyright.gov/docs/nla.html

    Apparently, the legal rules and procedures already established, are simply more stringent than the Hathi Trust wants to comply with.

  10. I think we need to have help from university students (from many universities) in looking into some of this. The university near me has cut-and-paste-jobs online supposedly by the professors in given classes that must be purchased by the students for those classes in lieu of (or sometimes in addition to) real textbooks. But you cannot go to the university web site and pull up and read about the required readings as though you are a prospective student as far as I have been able to ascertain (and I did ask a student while I was researchin in that library). I think that this is a hidden way there is more of this than even this covers. I got my first clue by reading the student newspaper and local newspaper seeing gripes about the kind of stuff the students were having to buy.

  11. "By the way, the Internet Archive is now doing it too–is anyone suing them?"
    Yes Frances we have begun litigation against the Internet Archive for copyright infringements,as well as privacy and publicity right violations.

  12. I know that people are seriously looking for free rides these days but this is ridiculous. Especially from people that should know better, and this just reinforces my idea that colleges can be full of themselves like anybody else. I don't go to a four-year college and already I know better than them, ouch.
    I just took a look at that copyright notice from Frances and there it is. Some people just don't respect the long hours, months, and years it takes to write a book and after words want a little money out of it for the trouble. This really has to inflame publishers too since they are mostly interested in profits and schools would be a big part of their business.
    Giving stuff away may be generous, but it doesn't help the economy if done too much.

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