Author's Guild versus university libraries: a dead letter

You may have heard that the Author's Guild is suing the HathiTrust, a coalition of libraries that is proposing to share their scans of some out-of-print books whose authors can't be located, passing them around among themselves. Corynne McSherry from the Electronic Frontier Foundation reviews the AG's lawsuit, and concludes that they don't have a snowball's chance. I'm in Ann Arbor, MI today, where the local university has been named in the suit -- I had a couple conversations with Hathi-ers today, and they all seem pretty sanguine about the Guild's suit.

Instead, the Guild makes much of imminent plans to make a small set of orphan works (i.e., in-copyright works where the rightsholder cannot be found) available to the university community – but here’s where the Guild’s standing problem arises. None of the owners of those works are part of the lawsuit. The Guild cannot sue on behalf of people who aren’t members, and who aren’t even known. Since it filed the lawsuit, the Guild has managed to identify a few potential rightsholders that the libraries had categorized as orphans, but they are still not parties to the lawsuit (and the libraries are pulling them from the list, as was always promised if a potential rightsholder came forward). To top it off, most of the defendants are state institutions, and therefore cannot be held liable for money damages for copyright infringement. See here and here for more detailed analyses.

The lawsuit gamely claims the libraries are causing “great and irreparable injury” to the authors the Guild claims to represent, as well as several additional individual authors, but it is hard to imagine what that harm might be. Presumably, most authors would like to have their works preserved, which is what the original scans are for, and can hardly object to the public having access to bibliographic information about them. The Guild claims there is an “intolerable” risk that the repository will be hacked – but offers no reason to imagine this will happen, or that the digital repository is less secure than the places where physical books (and digital works on microfiche, etc.) are stored. The Guild also complains that the problem of orphan works should be solved by Congress. That would be great, but it doesn’t seem to be happening anytime soon and denying academic communities (and indeed all communities) access to these works while Congress fiddles seems deeply wrong.

No Authors Have Been Harmed in the Making of This Library

• [Martain Chandler]

  Authors vs. Libraries

  We are through the looking glass now.

  • [Eark_the_Bunny]

    And down the rabbit hole too.  I should know.

• [Kevin Boyle]

  No, this is not Authors vs Libraries, it’s Lawyers vs Libraries. The Guild doesn’t represent a single actual author in this dispute.

• [William]

  These are the same punks that tried to stop Google’s book-scanning project a few years ago.

• [Andrew Singleton]

  Crude yest, but the only thing i can think to say.What a bunch of douchmonkies. They don’t even have a dog in the fight yet claim these guys are doing ‘irrepeerable harm.’flatwat.jpg

• [bill]

  Flabbergasted was I to think that librarians of all people would infringe upon a writers slim means of sustenance, whether he be known or otherwise. But then the word appeared that made it all make sense: foundation. 
  Of course foundations have agendas and meticulously wield power through the manipulation of all media, but writers have agendas too, don’t they? Where do they get off sacrificing their health, well being and prosperity to art? Do they think they’re better than us or something. 
  There, I solved my own problem. 

• [dw_funk]

  For what it’s worth, Cory, “see here and here” in the linked post were almost certainly hyperlinks. I don’t know if there’s any kind of ethical call to be made about preserving links when quoting a source, but, you know. I guess I could click through.

  Oh, and also, why is the Author’s Guild so annoyingly dense about orphaned works? 

• [NickPheas]

  “Oh, and also, why is the Author’s Guild so annoyingly dense about orphaned works? ”

  My guess is that they see it as the thin end of a wedge. If we accept that an out of print book should be assumed to be in the public domain because we can’t contact the author then it’s a smallish step to beleiving that out of print books per se become public domain. Which obviously could seriously damage an author’s chance of getting their books back in print.

  • [esme]

    The problem with this line of reasoning is that every suggested approach to orphan works I’ve seen has a provision for rights holders to make themselves known.   When that happens, the work is removed from the orphan category and gets handled like a regular work again, now that there’s a rights holder to talk to.  So the works don’t become public domain — they simply get treated differently when there is no authorized source and no rights holder to ask for one.

    The Authors Guild has a bunch of hypothetical problems (what if the servers get hacked? etc.), but the Hathi Trust is trying to solve a very real problem: researchers and students want electronic access to these works, and there is no legal way to provide it.

    Disclaimer: I work at one of the libraries involved, though not with the Hathi Trust projects.

    • [Adela Doiron]

      But that still depends on the rights holders knowing they’ve been made orphan. The default assumptions favours the user/potential rights violator not the rights holders and by the looks of it the bar for effort in determining orphan status is low. Or as Scrivener often puts it it’s about administrative convenience. At least in the Canadian system we make you do the homework first and then ask permission..

• [Baldhead]

  they do their homework- if they can’t find the author, they go ahead. Should i point out that if they have trouble finding an author then so will anyone looking to give that author money for the work? Hell, if history is any indication, people looking to pay the author will try a lot less hard than someone looking to publish it for free.

• [Janet Croft]

  The Canadian system has a checklist the potential user of the work must go through to show they’ve used reasonable diligence in trying to find the rights owner. Basically, that’s what the Hathi Trust is doing, too, but there isn’t a US government-issued guideline for them to follow, alas, and then no US agency with which to file your intent to use the material. But the American library copyright community is well aware of the Canadian model and I’d be willing to bet that if you looked at the Hathi Trust’s internal procedures, they’d look pretty similar.

• [Gulliver]

  To the Guild: do not emulate the RIAA, et al. You do not have the resources for proper supervillainy. That is all.

• [Margaret Louise Clarke]

  The authors/Authors’ Guild concern may come from the listing of well-known books, from active academics on their site. I found two in a minute.
  The catch.  You can not access their content. Not even as much as you can with Google Books.
  The poster who mentioned “bibliographic info” got it. Great for capturing that.

• [Susan Carley Oliver]

  “the local university”?! You wouldn’t be referring to one of the most prestigious public universities in the country, would you?