No Authors Have Been Harmed in the Making of This Library
We’ve been puzzling over the Author’s Guild’s decision to sue several university libraries for participating in the digitization and storage of millions of works (largely in connection with the Google Books project) and making scans of some of those works available to the academic community. Simply put, it appears that the Guild is dead set on wasting time and money addressing imaginary harms, whether or not its efforts might actually benefit either its members or the public.
If the case, called Author’s Guild, et al v. HathiTrust, et al, was filed in order to strengthen the Guild’s position in negotiations with Google or the libraries, we find it hard to believe it will provide much leverage. For one thing, the issue of the legality of the digital scans is already being litigated in the Author’s Guild v. Google case: hiring more lawyers to fight the same issue isn’t likely to scare anyone. And, to the extent the libraries’ activities are different than Google’s, the fair use case for the libraries is only stronger than it was for Google. The libraries are making copies for noncommercial purposes, using no more than necessary, and can’t possibly be harming book sales or licensing given that they only make public domain works available to the public. Public domain books are outside copyright. Full stop. So there’s no copyright left to sue over.
For works that are still in copyright, the libraries simply provide factual information about the books, which also isn’t infringing, so there’s no harm there either.
Instead, the Guild makes much of imminent plans to make a small set of orphan works (i.e., in-copyright works where the rightsholder cannot be found) available to the university community – but here’s where the Guild’s standing problem arises. None of the owners of those works are part of the lawsuit. The Guild cannot sue on behalf of people who aren’t members, and who aren’t even known. Since it filed the lawsuit, the Guild has managed to identify a few potential rightsholders that the libraries had categorized as orphans, but they are still not parties to the lawsuit (and the libraries are pulling them from the list, as was always promised if a potential rightsholder came forward). To top it off, most of the defendants are state institutions, and therefore cannot be held liable for money damages for copyright infringement. See here and here for more detailed analyses.
The lawsuit gamely claims the libraries are causing “great and irreparable injury” to the authors the Guild claims to represent, as well as several additional individual authors, but it is hard to imagine what that harm might be. Presumably, most authors would like to have their works preserved, which is what the original scans are for, and can hardly object to the public having access to bibliographic information about them. The Guild claims there is an “intolerable” risk that the repository will be hacked – but offers no reason to imagine this will happen, or that the digital repository is less secure than the places where physical books (and digital works on microfiche, etc.) are stored. The Guild also complains that the problem of orphan works should be solved by Congress. That would be great, but it doesn’t seem to be happening anytime soon and denying academic communities (and indeed all communities) access to these works while Congress fiddles seems deeply wrong.
So at the end of the day it appears the Guild has decided to hire lawyers not to address any actual harm to any actual author, but rather to try to stop libraries from preserving books and helping make orphan works, which would otherwise be largely inaccessible, available to a broader community. Author’s Guild members: is this really the best use of your dues and your organization’s strong pedigree?