The Authors Guild Should Trust Universities and HathiTrust

“Going to the library was the one place we got to go without asking for permission. And they let us choose what we wanted to read. It was a feeling of having a book be mine entirely.” – Rita Dove.  Unfortunately, the Authors Guild, an authors’ advocacy group, does not want library patrons to access books without its permission.  The Authors Guild filed a lawsuit against five universities and the HathiTrust last week.  Although the reasoning in its complaint is flawed, the Authors Guild successfully prevented access to numerous literary works that were set for digital release.   

The universities are scanning the hard copy and paperback works sitting on their library bookshelves into a digital system with the help of Google’s workforce and scanners. Library patrons may digitally view public domain, but not copyrighted, works.  Hathitrust is a partnership of about fifty research institutions and libraries, including the universities named in the suit, acting to compile the scanned works.  The Authors Guild has also been involved in a lawsuit with Google since 2005 because it has been scanning the universities’ materials.  

In its suit against HathiTrust and the universities, the Authors Guild wants the court to declare that the universities’ digital libraries are “one of the largest copyright infringements in history” and requests an injunction to prevent infringing reproductions, distributions and displays of works in the digital libraries.  It alleges that the universities’ scanning violates “the limited circumstances under which libraries are permitted to reproduce and distribute copyrighted works” under section 108 of the Copyright Act.  The Authors Guild even wants copies of the works impounded under commercial grade security. 

The digital scans of the works, however, are not copyright infringements because they are a fair use for at least three reasons.  First, the Authors Guild only showed that its copyrighted works were scanned, not that its works were distributed to the public.  The scanned copies floating around Google’s cloud or sitting on the universities’ servers that have not been distributed cannot possibly affect the potential market for, or value of, the work because no one has read them.  Second, when a library patron searches for a copyrighted work or text from the work, the search only returns the page numbers where the search terms are located—library patrons only have full viewing access to public domain works.  Third, library patrons have not had access to the text of any copyrighted work; however, if a patron ever gets access, the patron is accessing the work for the purposes of criticism, teaching, scholarship, and research, which is a quintessential fair use.  In short, the Authors Guild has not shown the harm or threat of irreparable harm necessary for a court to grant an injunction and impound the scanned copies.  

Contrary to what the Authors Guild argues, the universities’ fair use defense is not affected by section 108. The Authors Guild argues that the universities named in its lawsuit may only scan works in accordance with section 108, which controls the number of copies of a work that a library may make for certain preservation and archival purposes. Kevin Smith, Scholarly Communications Officer at Duke University, notes the Authors Guild’s “absence of logical argument” with respect to its section 108 claims, and he does so with good reason. Section 108 does not apply to the universities’ scans, does not define all allowable actions made by a library, and does not prevent fair use under section 107.  The universities are converting their collections into digital, easily-accessible information preferred by library patrons and preserved for future generations while traditional libraries become obsolete.  The Association of Research Libraries notes that of approximately 10 million volumes currently in the digital collection, most works are not available commercially and will disappear without the careful management of the universities and HathiTrust.

In its complaint, the Authors Guild also alleged possible future harm by the Orphan Works Project, which hopes to make out-of-print orphan works available to students and other library patrons.  Orphan works are subject to copyright protection, but whose copyright owners cannot be found.  The problem with orphan works is that the public loses access to the works until copyright protection expires because there is no identified copyright owner to grant permission to reproduce or distribute the works.  Few libraries are willing to risk liability in case a copyright owner does eventually emerge.  The Orphan Works Project had a procedure to find copyright owners of potential orphan works.  A few of the many listed orphan works turned out not to be orphan works—but this does not amount to liability because the incorrectly listed orphan works will not be made available digitally.  The Orphan Works Project is working to create a more reliable procedure for determining orphan works.  

Authors should earn money through their rights under copyright law; however, the university libraries’ uses do not fall under copyright protection.  The Authors Guild simply wants to extort money from the necessary and unprecedented process of granting people easier access to well-organized, high-quality information.  Instead of fighting for copyright protection where none exists, the Authors Guild should work with the technology that quickly disseminates authors’ works and create new business models that will bring in money earned from digital book sales.  It is time for the Authors Guild to focus less on litigation to impound its works under top security and turn its attention to creating the artistic work it claims to protect.


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