Authors’ Orphan Works Reply: The Libraries and Google Have No Right to “Roll the Dice with the World’s Literary Property”

Authors’ groups from Australia, Canada, Norway, Sweden, the UK and the US (including the Authors Guild and the Authors League Fund) and eleven individual authors filed their reply brief in the HathiTrust mass book digitization and orphan works case late on Friday. It’s the final brief to be filed in the appeal of Judge Harold Baer’s ruling last October that questions regarding HathiTrust’s “orphan works” program were moot and that HathiTrust’s other uses of millions of copyrighted books were protected by copyright law’s fair use doctrine.

A summary of the litigation is here. Here’s a six-sentence version for the time pressed: Several university libraries worked with Google to digitize millions of copyright-protected library books. The universities then placed these digital books in an online repository known as HathiTrust and permitted Google to keep a copy of each of the digital books it created. Although HathiTrust does not generally make those ebooks available, in the summer of 2011 it announced an “orphan works” program that would have allowed the downloading of books that the universities deemed “orphans” (books for which the authors cannot be found after diligent search). Authors and authors’ groups sued to stop the program and quickly discovered that many of the so-called orphans were readily findable. HathiTrust suspended the program, promising to restart it after further review. Last October, Judge Baer ruled as above; the plaintiffs appealed the ruling.

From its opening page, the authors’ reply brief focuses on the dangers inherent in HathiTrust’s storing millions of unauthorized digital books in online servers:

While the Authors strenuously disagree with the contention that [HathiTrust’s] uses are transformative, that debate is largely beside the point: no use merits putting millions of books at risk of widespread digital theft. One cannot fairly claim to serve the goals of copyright while jeopardizing the literary marketplace.

The place for this matter to be decided, the brief argues, is in Congress, where “common-sense” issues such as security can be dealt with. The authors point to the proposed Google Books settlement as providing just such a measure:

In their attempt to settle a separate lawsuit (the so-called “Google Books” case), The Authors Guild, Google, publishers, many of the Libraries, the NFB and groups representing the interests advocated by Amici participated in the creation of a settlement agreement that would have permitted certain of the uses that the Libraries claim are transformative, including indexing of the book database and providing access to the visually disabled users. That agreement, however, included critical measures designed to protect copyright holders and the market for their works including commercial-level, auditable security backed up by financial accountability. This type of security provision is not only vital; it is common sense. It is precisely the sort of provision that any sensible legislative approach to addressing the issues raised by mass book digitization would include.

The authors’ argument is summarized in the brief’s three-page Preliminary Statement, which concludes:

It is not the place of the Libraries or Google to roll the dice with the world’s literary property, subjecting it to a risk of theft and dissemination caused by an outside agent or even internal incompetence, such as the errors in the ill-conceived “orphan works” program that triggered this lawsuit. Far too much is at stake.

Oral argument on the appeal is expected to be scheduled for late summer or the fall.