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The “Guilded” Age

In American history, the “Gilded Age” refers to that period of time from the late 19th to the early 20th century when industrial tycoons enjoyed the spoils of unfettered capitalism. The wealthy enjoyed, thanks to the earnest toil of the laboring poor, access to a way of life that was exclusive to those who could afford to pay for its privileges. During this “Information Age,” there are some groups who would have us believe that access to knowledge is also a privilege reserved for those who can afford to pay. The Authors Guild, an American association representing the interests of published authors, has filed several lawsuits in the last 10 years, including the nearly defunct action against Google Books, in an attempt to control access to in-copyright scholarly works. The most recent lawsuit was filed yesterday (9/12/2011) in a New York federal court to prevent HathiTrust and five of its university members from continuing to scan in-copyright works, which are then digitally delivered to HathiTrust, and from proceeding with their plans to make those in-copyright works deemed to be orphan works (works whose copyright owner cannot be located) digitally available to their respective faculty and students.

Since 2004, the five named universities (Michigan, California, Cornell, Indiana, and Wisconsin), either in partnership with Google or through independent initiative, have selected millions of volumes from their collections and digitally scanned these volumes for distribution to HathiTrust. Many of these volumes are in the public domain, that is, their term of copyright protection has expired. However, a large portion of the HathiTrust’s digital repository is still protected by copyright. In May 2011, the University of Michigan, who is the host institution of HathiTrust, announced its plan to identify which of those in-copyright works were orphan works. Under the terms of the orphan works project, following a 90 day public notice period, those works so identified would then be made available to Michigan’s faculty and students. During the summer of 2011, several more universities signed on to participate in the orphan works identification and notification process and make digital copies of orphan works within their collections available to their communities through the HathiTrust.

Contending that these activities exceed the boundaries of the reproduction and distribution rights granted libraries under § 108 of the Copyright Act, the Authors Guild, similar associations from Canada and Australia, and several authors filed suit against HathiTrust and the universities for copyright infringement. The Authors Guild seeks to enjoin all future digitization and distribution activities and to seize all currently digitized works located in HathiTrust’s servers. In laying out its case for this relief, the Authors Guild et al. rely exclusively upon § 108 and summarily reject as “without legal support” any reliance upon fair use. This may be turn out to be a vulnerable flaw in their argument as § 108(f)(4) expressly states that none of its provisions in any way limit a library’s rights under fair use and defendants in this action rely heavily upon fair use in justification for the orphan works project. Jonathan Band, in a packet prepared by the Association of Research Libraries, conducts a thorough and convincing fair use analysis.

A more likely vulnerability is whether the Authors Guild and its co-plaintiffs have alleged sufficient facts to establish that they are the right persons to bring this action (in legal terms – whether they have standing to sue).  Although the individually named authors allege ownership in specific works that have been digitized, there is no assertion of what harm they will suffer (economic or otherwise) should these 60+ works become publicly accessible. Further, the Authors Guild and the other associations do not state any facts establishing ownership or other legal claim to the body of orphan works that may, at some indeterminate time, become available to the HathiTrust members. They have not identified any specific members of any of the named associations as the copyright holder(s) of one or more of the orphan works slated to be made available. An attempt to express the immediacy of harm is made with regard to the first set of orphan works  candidates identified in the project, which will become available on Oct. 13th of this year; however, the mere fact of the nearness of this date on the calendar is insufficient to demonstrate the threat or level of harm necessary for injunctive relief.  The next filing in the case may be a motion to dismiss. This is what happened in the UCLA case, another case of an association bringing suit on behalf of its members (although in that action the association, AIME, actually named a specific member who was allegedly harmed). And in response, as happened in the UCLA matter, an opportunity will be granted to plaintiffs to amend their complaint to correct the deficiencies.  This may very well be what Authors Guild hope happens — I think they are trying to buy themselves some time to do some further digging of their own to try and locate even one member who is the copyright holder of an identified orphan. Also, it is possible that the court would grant a preliminary injunction to prevent the current orphan candidates from becoming accessible on Oct. 13th while this action is pending.

With the Google Books Settlement set for a sure-to-be anticlimactic if not concluding status hearing this week and the decision a few weeks ago in another Authors Guild case (In re Literary Works) essentially sealing the Settlement’s fate, it is not so surprising that the Authors Guild has undertaken a new legal crusade. It also leads me to wonder if instead of the Information Age, we should call this the “Guilded” Age.

Excellent summaries of the filing also can be found on the blogs of James Grimmelman and Kevin Smith.

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