Most of these scans are the institutional copies of books digitized
by Google, which the Authors Guild sued six years ago in a complicated
case that has still not been resolved. (The parties met with a judge yet
again last Thursday.) This is the first time Google's university
partners have been directly targeted by the plaintiffs.
Unlike Google, which ambitiously -- some would say recklessly -- planned to
make all scanned books available in some form to the public, from
"snippets" to full views, HathiTrust simply wishes to make available for
scholarship older, out-of-print books whose authors and publishers
cannot be located. Often called "orphan works," these books exist in an
unclear realm: still technically in copyright but without identifiable
rights-holders. What is very clear is that without the orphanages we
call libraries, many of these works would no longer be available for
scholars to read.
Authors Guild v. HathiTrust is a strange legal twist. For an
association of professional writers, the Guild seems to have forgotten
some of the basic principles of its craft, such as not placing
sympathetic figures like librarians in the role of villains. Almost
comically, the Guild's press release
trumpeting its lawsuit against HathiTrust augurs a dark day in the
not-too-distant future when old works, including obscure Yiddish texts,
are "abducted" and "released" to thousands of students and professors.
One senses that the Authors Guild understands that librarians make
for worse antagonists than an Internet giant. The Guild hasn't asked for
millions of dollars in damages from HathiTrust, as it has from
Google -- merely the unplugging of its vast digital library. (The Guild may
also realize that state institutions like the University of Michigan
have strong legal protections.) In a ham-fisted attempt to pluck the
public's heartstrings, their lawyers added a few plaintiffs from central
casting: a poet, a Shakespeare scholar, a children's-book writer and
Yet those authors aren't being wronged here. They are well known, and
remain well protected. Moreover, one of the main reasons the Guild's
class-action lawsuit and proposed settlement with Google has been
handicapped is that the Guild doesn't represent all, or even most,
authors. It speaks for only a small fraction of those who write books,
and many authors -- including most of my colleagues in academia -- would be
delighted if a university preserved and made available their works for
decades to come, in modern formats.
The Authors Guild has had to fall back upon stale black-and-white
arguments about their inviolate right to make copies of their own works.
Yet they fail to mention sections of the U.S. copyright law that
strongly support what the universities are doing, and how they are doing
Section 108(e) of the copyright law permits libraries to make copies of out-of-print works for patrons, and Section 107
spells out critical fair use provisions, in which non-commercial
scholarly intents are especially worthy of exemption. Perhaps the
Authors Guild is banking on our era's dispiriting loss of balance
between rights-holders and readers and the steady erosion of fair use,
as well as a Congress that is inactive or hostile to restoring the
original purpose of copyright law.
We can hold out little hope for change on that front. But instead of
suing, the Authors Guild could work with librarians to identify the real
orphans as part of a sensible process HathiTrust is committed to.
Let's hope there's still time for a rewrite of this legal thriller.