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Copyright and Fair Use: Tightrope Walk or Tug-of-War?: Authors Guild v Hathi Trust

The Tug-of-War


Authors Guild Press Release

September 12, 2011. This afternoon, we filed suit against HathiTrust, the University of Michigan and four other universities over their storage and use of millions of copyright-protected books. The press release follows.

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...

“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.” ...

“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.”...


Hathi Trust Statement

On September 12, 2011 the Authors' Guild and a number of other entities filed suit against HathiTrust and a number of its university partners. The issues in the suit are the orphan works project as well as the digitization effort that we have been engaged in for almost two decades.

Digitization is a reflection of library prudence, rather than the reckless activity as characterized by the Authors' Guild complaint and accompanying statement. From its inception, the primary motive driving our digitization effort has been, and remains, preservation... Digitization offers a means of preserving the intellectual content of books whose lives as objects are subject to the vagaries of storage conditions and their own composition; for example, the vast majority of the volumes in our collection are printed on acid paper. Many of these volumes are protected by copyright, but if we wait until they enter the public domain they will be too brittle to circulate or digitize, and of no use to anyone.

The Orphan Works Project is an example of library prudence in other ways. Digitized collections offer other obvious benefits. They can be more readily shared with our community, who increasingly expect their research materials to be available in digital form, and they can also provide a trove of data, both humanistic and scientific, that will help scholars and researchers discover and create new knowledge. And in many cases, they can also be made available to anyone in the world with a connection to the Internet.

The way in which the HathiTrust partners share this particular collection is guided by a deep and abiding respect for intellectual property and US copyright law, particularly Sections 107 and 108, which help define how libraries may lawfully share their collections. While the law does not specifically address orphan works, we are certain that our scholarly purpose, along with our careful methodology in determining whether these works have a market or an extant copyright holder who can be contacted, make this sharing legal. Sharing, by the way, which is limited to online reading by our faculty and students in the United States, and one-page-at-a-time downloads; not, as the Guild complaint states, worldwide availability and full PDF downloads.

It is worth noting that the Authors' Guild complaint propagates a common but incorrect assumption that all US works published between 1923-1963 are in copyright. Our Copyright Review Managment System has reviewed nearly 200,000 of these works, and found more than 50% of them to be in the public domain. The same will be true of many works published outside of the United States. How many among the 7 million volumes that they wish to sequester might also be in fact works that no one—including the plaintiffs—has the right to restrict from the public?

Until the complaint, we had been engaged in what we thought was civil discourse with the Authors' Guild (and other parties) about the Orphan Works Project. We had hoped that they would bring their resources to bear to aid us in locating copyright holders—which remains the primary goal of the project—in order to reduce the number of potential orphan works. We are disappointed by the Guild's actions and words, but remain confident that our own actions are not only legal, but also ethical and indeed even noble.

More information from Hathi Trust