By Lucy E. Saxon, Reference and Instruction Intern
The application of copyright law in the digital environment continues to engender conflict, this month between the Authors Guild and the Hathi Trust. The plaintiffs are the Authors’ Guild (a major advocacy group for American authors—they also brought the well known case against Google Books), along with international authors’ groups, and individual authors. Hathi Trust, the defendant, is a consortium of research libraries that are cooperating with Google to preserve books digitally. It is comprised of more than fifty academic partner institutions.
The extent of cooperation between university libraries and Google Books may not we widely understood. James Grimmelmann of the the Institute for Information Law and Policy at New York Law School explains it this way:
“[…]each time Google scans a book, it returns both the physical book and a digital copy to the library that gave it the book. The libraries then gave [sic] their scans to the HathiTrust, which functions like a digital version of a shared off-site storage warehouse.”
The Author’s Guild has already sued Google over its digitization project: Google Books. A settlement was reached, but was thrown out by Judge Chin, on the basis that the Author’s Guild did not have the authority to negotiate in the name of all authors. Thus, the recent lawsuit against the Hathi Trust can be viewed as an extension of the on-going conflict over Google books.
The Guild’s most recent complaint is two-fold. Firstly, that the libraries have made digital duplicates of copyrighted material for archival purposes not in accordance with section 108 of the Copyright Code. Secondly, the suit targets the “Orphan Works Project,” wherein some research libraries are seeking to provide their library cardholders with digital access to works under copyright, but out of print, and for which no owner can be found. The complaint was served “less than a month” before the Orphan Works Project was set to debut.
Some legal scholars have suggested that the Author’s Guild has constructed this two-part argument in order to circumvent their lack of legal standing to represent authors of “orphan” works. That is, the Author’s Guild cannot bring a legal complaint on behalf of authors who are not in the Authors’ Guild (and cannot be located). Therefore, the objection to the “Orphan Works Project” has been nested in a complaint about the digital duplication (as opposed to distribution) of works under copyright. So the suit challenges libraries’ rights of archival duplication of materials that they own, not merely the accessibility (for scholarly purposes) of “orphan” works. The complaint also alleges that archival digital copies of works under copyright could be insecure and thus vulnerable to piracy. Grimmelman does not seem impressed by this argument, noting, “it doesn’t allege any specifically unsafe practices, nor does it claim that any books have actually leaked out.”
In light of the suit, many libraries and related organizations have expressed confidence in their interpretation of fair use provisions of copyright law, and in the mission of the Hathi Trust to promote digital preservation. A preponderance of opinions appeared to favor the Trust until the Authors’ Guild released news that they had located rights’ owners for 4 of 166 “orphaned works” that the Hathi Trust had intended to make available in October. The University of Michigan (a major partner in the Hathi Trust) responded by promising an “examination of our procedures to identify the gaps that allowed volumes that are evidently not orphan works to be added to the list.” The partnership remains committed to the mission and principles of the “Orphan Works Project.”
The vagaries of copyright law with regard to libraries have always generated controversy. Now, as libraries have smoothly assimilated new technologies and become major participants in digital culture, the case law that guides libraries has lagged behind. We will continue to follow the evolution of the Hathi Trust and Google books cases as new law is hammered out in court.