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Remember the Orphans? Battle Lines Being Drawn in HathiTrust Appeal

Organizations were lining up to file briefs in the HathiTrust appeal this week. Before we get to that, however, let’s take a moment to recap for those of you who may be foggy on the details of this mass book digitization lawsuit.

In the fall of 2011, authors’ groups from Australia, Canada, Norway, Sweden, UK and US (ourselves and the Authors League Fund) and eleven individual authors sued digital book repository HathiTrust and five universities over their storage and use of millions of books. The basic facts are pretty clear. Everyone agrees that some of the universities authorized Google to digitize copyright-protected books by the million (we say seven million, but we think that’s conservative). Those books comprised nearly the entire stacks of some university libraries, and included in print and out of print books by authors from all over the world in dozens of languages.

Google employees and contractors produced complete digital replicas of each library book and converted those page scans into machine-readable digital text. Google then gave the libraries the resulting ebooks — a readable page-by-page image file accompanied by an embedded, searchable digital text file for each of the seven million books. For its trouble, the libraries agreed that Google could keep its own copy of the ebooks it created. (Google’s actions are the subject of a separate, ongoing, seemingly unending, class-action lawsuit, Authors Guild v. Google, which we and representative plaintiffs brought in 2005.) Neither Google nor the libraries sought or obtained authors’ or publishers’ permission to convert their books into machine-readable form for ingestion by Google and the university library data centers.

HathiTrust generally does not make displays or downloads of the Google-created ebooks available. In the summer of 2011, however, HathiTrust and the universities announced plans to begin releasing to their campus communities the ebooks that HathiTrust deemed to be “orphans,” which means that the authors or other rights owners of the books are unfindable after diligent effort. About 163 ebooks, representing just the first wave of books in the orphan works program, were to be available for downloading by an estimated 250,000 students and faculty members in the fall of 2011. The “orphan books,” including works in English, French, Russian, Spanish, and Yiddish, were written by French, Russian, and American authors, among others.

After the authors’ groups filed suit, we quickly found that many of the so-called orphan books had authors or authors’ estates that were actually quite easy to find through simple Google searches. One “orphan” author was an emeritus professor of the University of Maryland whose agent had just negotiated an ebook deal for one of his bestselling novels. A French “orphan” author was living in Paris (though he died that summer). The estates of others were represented by major literary agencies or were registered with the Authors Registry or with the Authors’ Licensing and Collecting Society in the UK. Pulitzer Prize winning novelist James Gould Cozzens, another orphan author, had left his literary estate to Harvard University, according to Copyright Office records. Rights to one “orphan” are held by our very own Authors League Fund, which provides assistance to authors in dire financial need because of health-related issues or other misfortunes.

In light of all this, HathiTrust quickly suspended its “orphan works program.” It never ended the program, however. Instead, it promised to start it anew, after it dealt with the program’s flaws.*

Last October, Judge Baer ruled that HathiTrust’s uses of the digitized books were a fair use under US copyright law. Even though defendants had repeatedly promised to revive their orphan works program, Baer held that HathiTrust’s suspension of the program rendered that particular issue moot.

Hang in there; that almost brings us up to this week.

The authors’ groups appealed Judge Baer’s ruling, arguing that Congress never intended fair use rules to justify the mass digitization of books. The risks to the authors’ copyrights, the authors argue, including the possibility that the universities will at some point let down their guard and lose control of the entire book database, is not a risk for the universities to take.

This week, coalitions of libraries, colleges and universities filed friends of the court briefs supporting the HathiTrust defendants, as reported by Inside Higher Ed. The briefs filed in the U.S  Court of Appeals for the Second Circuit urge the court to uphold Judge Baer’s ruling.

The American Council on Education and several other educational organizations argue that, “The relevant issue is not the number of works, but the hugely beneficial educational and transformative purposes that the HDL undeniably serves.”

The brief filed by a group of library associations argues that a ruling in favor of the authors would prevent libraries from fulfilling their mission. Among the benefits of HathiTrust they cite is that it provides blind students and faculty access to “millions of works of scholarship and literature, the vast majority of which are out-of-print and will never be made available by their publishers in accessible formats.”

There you have it, the two sides. While the benefits of a properly constituted digital library would indeed be many, the authors’ groups say that to ignore the risks involved ignores the realities of digital databases. There are many interests to accommodate here, including the interests of those who created the valuable works at that defendants have chosen to put at risk.

The Guild and its co-plaintiffs will be filing their reply brief later this month.


*Although Congress has considered various orphan works proposals, it never has created an exception for the copying or distribution of works deemed to be genuine orphans. The Guild has long questioned whether there really is such a thing as an orphaned book, at least where an individual, rather than an institution, is the author. Whether or not that’s so, the problem does seem to be routinely overstated, to the extent that the existence of a considerable orphan books problem has become an accepted truth among many.