by Tom Gilson, Associate Editor (gilsont@cofc.edu)

Perhaps the biggest news item of this week is the lawsuit filed against the HathiTrust, the University of Michigan, and four other universities.  The Authors Guild, Inc. and two other author associations as well as eight individuals are suing the HathiTrust and the universities for what they claim is the “systematic, concerted, widespread and unauthorized reproduction and distribution of millions of copyrighted books and other works, including books whose copyrights are held by Plaintiffs.” They also claim that “In deciding to proceed with the HathiTrust Orphan Works Project, the Universities have taken copyright law into their own hands, ignoring proposed legislative solutions to address the issues as well as the Court’s rejection of a privately-negotiated agreement between Google and the Guild (among other parties) in a separate case.   The plaintiffs are asking the court to stop the scanning and impound the digital files.  Evidently they are not seeking monetary damages.

Of course, that is only one side of the story. In his most recent blog post Kevin Smith discusses the case and notes that the plaintiffs claim “to have standing to object to the digitization of their works … and to the distribution of digital files back to the universities and into the HathiTrust. (This, of course, assumes that they have the rights to some of these works.) However, Kevin argues that since “there is no sense of imminent harm” there is no support for the injunction requested in the suit.  He makes a similar argument regarding one of the other main complaints in the suit, that the “orphan works project … is an illegal distribution.”  Kevin insists that “they provide no evidence that any of the plaintiffs actually hold any rights in those works identified as orphans or that they represent anyone who does.”  This leads him to question whether there is “the immediate prospect of particularized harm” needed to give standing to their suit.

He also focuses on the issue of fair use saying that while the Authors Guild and their fellow plaintiffs dismiss the fair use arguments of the HathiTrust and the universities as being a “position … without legal support,” they do not elaborate and defend their position.  Instead they “immediately turn to a discussion of section 108 of the copyright act.”  But Kevin feels that fair use is still a potent argument and that the plaintiffs “will have to withstand an assertion of fair use, and if they cannot address that fair use claim they are doomed, one hopes, to failure”

Admittedly, the issues here are not black and white.  It is complicated with arguments from multiple stake holders.  However, a decision in this case has the potential to be a game changer so naturally ATG wants to know what you think.

Are the Authors Guild and their fellow plaintiffs on target?  Have 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.” Is the Orphan Works Project “an upsetting and outrageous attempt to dismiss authors’ rights” as claimed by the executive director of the Australian Society of Authors.  Or do the plaintiffs lack standing to sue as Kevin Smith seems to be saying?  Does fair use give the HathiTrust and the universities the right to make these books available?  Should the HathiTrust and the other defendants push ahead with the Orphan Works Project regardless? Are there other issues to be considered?  Think about it and let us know what you think.

See also:

LCA Statement on Authors Guild, Inc. et al. v. HathiTrust et al.

“I Wonder” Wednesday: Publishing Orphan Works Online

The Orphan Wars by Professor James Grimmelmann of New York Law School

In Authors’ Suit Against Libraries, an Attempt to Wrest Back Some Control Over Digitized Works By Jennifer Howard, Chronicle of Higher Education

HathiTrust Acknowledges Flaws in Handling Orphan Works, by Jennifer Howard, Wired Campus

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