Just when I thought that the Google Books case might be tailing off towards an anticlimactic, unresolved ending — bam! The Authors Guild today filed suit against the HathiTrust, the library partnership holding many of the scans received from Google. You have to say this for authors: they sure know how to time a plot twist for maximum dramatic impact. I’ll give a quick summary of the important facts about the lawsuit, and then a few thoughts about what it means.
The story starts with Google’s scanning agreements with the libraries: each time Google scans a book, it returns both the physical book and a digital copy to the library that gave it the book. The libraries then gave their scans to the HathiTrust, which functions like a digital version of a shared off-site storage warehouse. HathiTrust makes multiple copies of each file, storing versions on hard drives and tape backups at both Michigan and Indiana. It offers the public bibliographic information about the books, and provides a full-text search engine. Unlike Google Books, however, which shows “snippets” from the books as search results, HathiTrust will only tell users the page numbers where the search terms occur. If a book is in the public domain, HathiTrust turns on full view, letting users read it online. (If you’re affiliated with one the member institutions, you can also download the book as a PDF.)
This spring, HathiTrust announced the “Orphan Works Project,” which aimed to investigate the rights status of the books still in copyright. It would investigate the author and publisher information available about the book; if they could not be located and the book was unavailable, it would be flagged as a possible orphan and put on a list of candidates. If at any time a copyright owner is identified and located (e.g. because they step forward), the book is removed from the list.
Then the Michigan library announced that it would take these identified orphans and make them available for full view to the university’s students, faculty, and other affiliates. Other universities announced their own participation later in the summer. Each university is preparing to make the books that came from its library and that the process identifies as being orphans available to its own affiliates, but not to the other universities. The first batch of book is scheduled to go in full view on October 13.
Claims: The complaint alleges that the universities and HathiTrust are violating copyright owners’ rights by scanning, duplicating, and distributing their books. It doesn’t ask for damages, but it does request a declaration that what the defendants are doing violates the law. It also seeks an injunction to stop them from further scanning or displaying the books, and to “impound” the digital copies — i.e. have them held in escrow where the defendants can’t get at them.
Defenses: Libraries have a complicated set of specific statutory privileges, set out in Section 108 of the Copyright Act. They let libraries make certain kinds of copies for preservation and research use. I haven’t heard a detailed argument that what HathiTrust is doing fits within Section 108’s finely-drawn categories; of course the Authors Guild asserts that it doesn’t. That leaves Section 107: fair use. Except for the Orphan Works Project, the libraries’ fair use case is arguably even stronger than Google’s: they’re using the copies for preservation, and unlike Google, they don’t even show snippets. The orphan works uses … let’s just say that’s legal terra incognita. The complaint also argues that the libraries’ copies contribute to security risks that the books will leak out, but it doesn’t allege any specifically unsafe practices, nor does it claim that any books have actually leaked out.
Plaintiffs: This new suit is not a class action. Instead, the Authors Guild is suing as an “associational plaintiff” on behalf of its members. It is joined by two foreign authors’ groups — the Australian Society of Authors and the Union Des Écrivaines et des Écrivains Québécois — and by eight individual authors: Pat Cummings, Angelo Loukakis, Roxana Robinson, André Roy, James Shapiro, Danièle Simpson, T.J. Stiles, and Fay Weldon. Except for Weldon, the individual authors are all officers or board members of the institutional plaintiffs.
Defendants: In addition to HathiTrust, five universities are named as defendants: Michigan, California, Wisconsin, Indiana, and Cornell. The first four are public; Cornell is private. All of the named universities except for Indiana have announced their plans to participate in HathiTrust’s Orphan Works Project. The other members of HathiTrust, including Universities that are participating in the Project (e.g. Johns Hopkins and Florida) but are not Google Books Library Partners, are not named as defendants.
Timing: One might well ask, why now? Google started scanning and giving copies to the libraries in late 2004. The same basic lawsuit could have been filed at any time in the last seven years. Initially, the libraries were unattractive defendants. Not only did their non-commercial status bolster their case, but the public universities were likely shielded by sovereign immunity, which makes it impossible to get money damages from a state government. Google, with its deep pockets and extensive commercialization, was a much better target. Then, as the lawsuit turned into a settlement, the libraries were brought in on the talks, and ultimately became partners in propounding the settlement. (At the fairness hearing, Michigan’s Paul Courant argued on the same side as the Authors Guild’s lawyers.)
If there had been a settlement, it would have gone a long way to define what libraries could and couldn’t do. The settlement would have explicitly permitted the kinds of backups and storage that the HathiTrust is engaged in. It wouldn’t have reached the type of orphan works distribution that the universities now propose to make, but the existence of the Institutional Subscription would have made that issue moot for the participating libraries. Of course, Judge Chin rejected the proposed settlement, and the parties went off into further talks. Then came Literary Works, which I think scotched any possibility of settlement, even on much narrower terms.
Thus, I surmise that the Google Books talks have broken down irreparably. The authors now have nothing to lose there by alienating the libraries they were until recently working with. The impending launch of the HathiTrust Orphan Works Project lit a fuse on the matter. Perhaps the upcoming Google Books status conference on Thursday provided a deadline for the Authors Guild to choose its course of action.
Standing: The complaint doesn’t clearly distinguish between copyright violations from scanning the books and making database copies, and copyright violations for showing the books to users. The authors have a comparatively better case for the full-text Orphan Works Project than for the scanning and indexing. But the complaint is drawn much more broadly; it emphasizes the millions of books in the HathiTrust, rather than the hundreds in the actual orphan pipeline.
There’s a reason for this. If the Authors Guild sued only to stop the orphan works displays, it would likely lack standing to bring the suit, since none of its members would be harmed by having their specific books displayed. That’s the advantage for the libraries of using a book-by-book process: it’s easy not to include any books that current Authors Guild members would own the copyright in. Indeed, by picking only out-of-print books with authors who can’t be found, they almost guaranteed that no specific author would step forward to sue. It wasn’t a certainty, but at a hundred or two hundred books, the odds were good.
Even as an organization, an associational plaintiff can only bring the claims of its members. The Authors Guild would have needed to identify a member whose book was on the orphan list. Remember that this suit isn’t a class action; indeed, it would have been very hard to bring a class action here after the Authors Guild and Literary Works decisions. Thus, instead, the Authors Guild drew a complaint that described the infringements suffered by its members more broadly. I expect the defendants to use this standing problem to try to narrow the issues actually considered by the court.
Grand Strategy: The Authors Guild has staked a tremendous amount of its institutional legitimacy on big copyright lawsuits. After the Authors Guild and Literary Works settlements were both rejected in the same year, it might have looked for an exit strategy. Instead, it doubled down — and whom did it sue? Not the multinational publishers, not Googlezon, but the cuddly lil’ old libraries. Perhaps this suit will vindicate the strategy and bolster authors’ standing in the world of electronic books, but it could also turn them into the party of no. Internally, if this new adventure turns out poorly, one wonders how much longer the Authors Guild’s members will continue to support its long-on-litigation portfolio.
The libraries had to have seen this coming. I’m sure that their general counsel have been stockpiling memos on the scans since 2004, and updated them this year with new memos on the Orphan Works Project. The exact form of the lawsuit and its timing may have been a surprise, but they clearly knew they were risking one. Indeed, the Orphan Works Project comes across as a deliberate attempt to test boundaries, perhaps even an attempt to provoke a suit so that the first orphan works battle would be fought on ground of the libraries’ own choosing. But no battle plan survives contact with the enemy, and the libraries are now very much caught up in things in a way they weren’t before.
This suit also upends many of the conversations taking place around the Digital Public Library of America. Building consensus will be a more difficult matter while the suit is underway: hope, fear, and anger will tug at stakeholders in subtle and complicated ways. The suit gives Congress yet another excuse to keep well clear of orphan works. And it shakes out the fault lines in a new way: the Authors Guild has now apparently flipped from being the authors’ group most in favor of quick orphan works action to being the authors’ group most against it. Where the publishers will end up when the dust settles has yet to be seen.
The Orphan Wars are upon us, I fear. We might have hoped that they would be the Orphan Discussions, or perhaps the Orphan Debates, but no. The Orphan Wars it will be.