The Orphan Wars

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.

James, given that the project dates back to 2004, are there any statute of limitations issues? I assume the Author’s Guild can only sue for copies made within the past 3 years…?

In theory, this would depend on the timing of the scanning of the various books, and when HathiTrust makes additional backup copies. I suspect that for declaratory and injunctive relief (rather than for damages), it won’t matter very much. There is a plausible threat that HathiTrust will make additional backups as needed to deal with hardware failures.

But this may just be me rationalizing my unwillingess to go reread the statute of limitations cases unless I absolutely have to.

From an Australian Copyright Council press release

“The Australian Society of Authors has jointed the USA’s Authors Guild,……in filing suit against a partnership of research libraries and five universities ….”

“The complaint submitted in a US District Court claims that the universities obtained unauthorised scans from Google of an estimated seven million copyright-protected books: “By digitising, archiving, copying and now publishing the copyrighted works without the authorisation of those works’ rightsholders, the universities are engaged in one of the largest copyright infringements in history.””

There seems a to be a difference of ‘opinion’ as to what the libraries have been doing and what they are doing “now”. It also seems a bit ‘vexatious’?

Thus, I surmise that the Google Books talks have broken down irreparably.

If this is indeed the case James, I wonder if we will see the the Authors Guild on Thursday “seek[s] an injunction to stop them [Google and the universities] from further scanning or displaying the books, and to “impound” the digital copies…”?

I guess we will know Thursday.

Cornell and the HathiTrust appear to be the only ones truly exposed in a monetary damages sense. Seems like a desperate move on the part of the Author’s Guild. My understanding is that a number of their members are beginning to question the use of the Guild since it has, as of late, been more focused on lawsuits than on helping promote its members.

This will be one of the few cases where I cheer on Sovereign Immunity.


Thanks for this. But please don’t call the Authors’ Guild “the authors.”

We authors have never and will never be represented by the Authors’ Guild.


Point taken, but there are eight individual plaintiffs in the case, and they are all authors. In addition, these are associational plaintiffs whose members are authors, and they are allowed to bring suit only as representatives for their members. It’s accurate to use ‘the authors” or “authors” to refer to those authors who are plaintiffs in this suit, directly or indirectly. Nowhere do I say that they speak for or represent all authors.

I’ve been expecting such a suit to be filed ever since libraries in the Hathi Trust started to publicly announce they were distributing scans of copyrighted books. Since the suit was filed by the Author’s Guild, I suspect this is yet another collusional attempt to try and create legal “orphan works” precedent with a “settlement,” while bypassing Congressional legislation.

The Internet Archive is also now “lending” scans of copyrighted books, though I believe the scans were not obtained from Google. Is anyone suing the Internet Archive? They certainly deserve it as much as the Hathi Trust does.

One issue is that there are umpteen print-on-demand publishers who download scans from Google, the Internet Archive, and other sources, print books from the scans as-is, and sell the books for profit. These include both public domain and copyrighted works. It’s prevalent enough that the used-book-seach engine now has a button for excluding print-on-demand books from searches (which still doesn’t exclude them all). Also, if you know how to evaluate the listings you can see a lot of them on Amazon.

Note that print-on-demand is often not a one-copy printing when a customer asks for it, but a small print run using specific printing and binding machinery. What I am getting at is, if a POD publisher lists the book, that does not mean they just have one copy of it.


Forgot to say, in addition to the Internet Archive, the Boston Public Library has announced that they are distributing copyrighted books.

Could you re-read this part, James? I think Siva might have a point: “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.”


Good catch, Dan — I was reading the two clauses standing alone, but now that you point it out to me, the two clauses taken together give the impression I was trying to avoid. My apologies, Siva.

James would the guild have unpaid debts owed to legal council leftover from the GBS action?

Is there any significance to the fact that the firm representing the Authors’ Guild in this case is Frankfurt Kurnit Klein & Selz, rather than Boni & Zack?

Thank you once again for a very informative and useful post. I have been taking a look at the list of works that have so far been identified as ‘orphans’. I note that there is no record of searches undertaken, nor any information as to why a particular work has been deemed to be ‘orphan’.

It took me less than two minutes to find the literary agency representing the estate of prolific British author Eleanor Farjeon (1881–1965), author of Portrait of a family (British title A Nursery in the Nineties). I simply looked up her name on the WATCH database. Incidentally, there are a very large number of used copies of this book listed on Bookfinder, most at very affordable prices.

I assume that Edward Fitzgerald’s Victorian translation/version of The Rubáiyát of Omar Khayyám is on the list because the introduction and notes to the edition detailed in the linked catalogue record are of special interest. Is it the editor or the publisher who cannot be traced? I think they should tell us in the list. Incidentally this book also is available via Bookfinder.

In any case, why is the list itself so very hard to find? It is not linked from the main HathiTrust page; only, it seems, from the University of Michigan pages on its ‘orphan works’ procedures.

I note that the Univ of Michigan has posted two ‘Orphan Works Project Workflow’ sheets. No information is given on the crucial matter of exactly where they search for contact information for the copyright holder. Also they do not, it appears, attempt contact by letter; only by email and phone. A book is not supposed to be considered as an orphan if it is available on Amazon or Bookfinder; so neither of the books above should have been listed.

After what they call their ‘due diligence process’ (but it does not seem very diligent to me) they plan to ‘list possible orphan works publicly for 90-days as “Orphan Candidates”’. After the 90 day period, what then? Will there be a second public list of ‘Presumed Orphans’? They do not say.

Gillian this bit of Spinoza seems germane , hope you like it.

Now many errors consist of this alone. That we do not apply names rightly to things. For when any one says that lines which are drawn from the centre of a circle to the circumference are unequal, he means, at least at that time, something different by circle than mathematicians. Thus when men make mistakes in calculation they have different numbers in their minds than those on the paper. Wherefore if you could see their minds they do not err, they seem to err, however, because we think they have the same numbers in their minds as on the paper. If this were not so we should not believe they had made mistakes any more than I thought a man in error whom I heard the other day shouting that his yard had flown into his neighbours chickens, for his mind seemed sufficiently clear to me on this subject.

Ethics , Part II, Proposition XLVII

There certainly a few chooks missing in the top paddock.

Eric, you’ve raised a good point that points out yet more ineptness in the GBS litigation that the Authors’ Guild began a few years back.

On the one hand, during the pendency of a class action until the class is definitively rejected for certification (or other, final resolution of class-member claims), the statute of limitations is tolled. See Crown Cork & Seal Co. v. Parker, 462 U.S. 345 (1983); American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974). There has been no definitive rejection of class certification in the GBS litigation, so the three-year statute of limitations has been tolled since 20 September 2005… and reaches back to 21 September 2002.


That tolling operates properly only as to claims against the defendants named in the class-action suit, or their successors in interest. And here, things get very interesting indeed… because Authors’ Guild v. Google did not name the University of Michigan as a defendant. Although the slightly later complaint filed by McGraw-Hill did, it arguably did not include all of the causes of action/theories put forth in this most recent complaint, so it’s far from certain whether tolling applies fully to reach back to the beginning of the scanning program.

That said, since the various defendants have not yet made the purported orphan works available on their proposed system, one could also argue that this most-recent complaint actually sounds as much in a declaratory judgment as anything else… and that just makes discerning standing so much more fun, doesn’t it?

Eric H., yes, the choice of different counsel is notable. Boni and Zack is first and foremost a class-action firm. Edward Rosenthal is a copyright lawyer.

Thanks, C.E., for that quick highlight reel of the various smelly bits in the procedural mess the case is turning into. I hope to do a roll-up on some of the civil-procedure issues this complaint raises, but the research will take some time, and I’m not inclined to start it in earnest until after Thursday’s status conference.

The Association of Research Libraries and Jonathan Band have posted Resource Packet on Orphan Works: Legal and Policy Issues For Research Libraries. I did not read the whole document because it lost its creadibility to me when I read this point on page 5:

Is it really fair for research libraries to make new uses of orphan works? Even if orphan works were essentially abandoned, wouldn’t research libraries be stealing someone else’s intellectual property?

Not at all. There is a sharp distinction in the law between owning the copyright itself and owning any particular copy of the work. Research libraries would not be taking or claiming ownership of the copyright itself. What libraries would be doing under fair use or Section 108 involves making new uses of their own copies of the protected work, uses that are natural extensions of traditional, physical preservation and lending. The uses research libraries would likely make would not impinge on a copyright holder’s rights to control and exploit their copyright. Unlike the “theft” of physical property, making legitimate uses of a lawfully owned copy does not deprive a right holder of her intellectual “property.”

So under this reasoning libraries could purchase a physical book, scan it and loan it out only as a digital copy. No need to buy x-number of copies to meet the demands of patrons. Even though they are supposed to be talking about “orphan works” their response to the question is in terms of copyrighted works in general.

A question to lawyers:

Who do the authors guilds represent, and how many of those books belong to the represented authors?

The combined members of the three authors guilds is about 13,000. That seems like a significant number, but the Library of Congress name authority file has about 8 million names. That file also contains name/title combinations, and I don’t have any statistics that tell me how many of those there are. (If anyone out there has a copy of the file and can run some stats on it, I’d greatly appreciate it.) Some of the names are for writers whose works are all in the public domain. Yet no matter how we slice it, the authors guilds of the lawsuit represent a small percentage of authors whose in-copyright works are in the HathiTrust database.

The legal question then is: does this lawsuit pertain to all in-copyright works in HathiTrust, or only those by the represented authors? Could I, for example, sue HathiTrust for violating Fay Weldon’s copyright?

Good question, Karen, and one I plan to address in more detail in a civil procedure post in the next few days. In brief, you couldn’t sue to enforce Fay Weldon’s copyright, as you aren’t an “owner” of any of the rights in it. The Authors Guild and other organizations can sue on behalf of their members, but the details of associational standing are complicated. There is also the question of the scope of a possible injunction (e.g. could Fay Weldon win as to one of her works and obtain an injunction covering others, or works by others), where there are also significant limits on how far the court can go. Again, more soon.

It is telling to hear folks talk about “libraries distributing copyrighted books” as if it’s a real cause for concern.

This is what libraries do and have done for centuries! Partisans for both sides of the copyright wars sometimes give the impression that the status quo of the law enshrines total rights holder control over all information and that only a revolutionary legislative shift will provide free access to information, but libraries have always been places where free access to copyrighted material is permitted by law. New digital uses are novel in some respects, but at their core they are libraries doing what libraries do: preserving and providing access to materials in their collections.

Sometimes the arguments against new uses seem to be that authors should be paid for every use of their work, or that there should be no alternative to purchasing works if you want access to them, or that only rights holders can decide when and how to preserve cultural heritage and when and on what terms works are available to readers. None of these premises can comprehend libraries as they have always existed, much less as they must evolve to meet the digital future.

One wonders whether the folks who condemn the HathiTrust and the Orphan Works Project wouldn’t, for the same reasons, be happy to see libraries themselves impounded and unplugged. They argue that libraries are pushing the limits of their rights, but from our side (the “defendants” side of the case heading!) it seems like the pushing is coming from the other direction.

Sorry, Brandon, I assumed people would know I meant distributing illegal copies” of copyrighted works. Copyright law quite literally covers *making copies. It does not permit entities to publish and distribute new editions of works without the permission of the copyright holder. Nor, as I’ve read US copyright law, is copying books that are readily available new or used, instead of buying them, considered fair use by libraries.

Yes, I think there should be a licensing arrangement where copyright holders are paid for loans.

But even better: It is time for libraries to go. Clearly, their only goal these days is to maintain their existence—with the aid of public funding, which most writers and publishers do not get—in a world where libraries have become obsolete. Libraries are a legacy of an 18th- and 19th-century world where not only books, but higher education and means of self-education, were considerably more rare and expensive. For much of the 19th century, there was not even a good postal system for mail ordering books or other items.

Now higher education is considerably more available and common, there is legitimate free information on the Internet, and books are widely available for purchase on the Internet and in a huge number of brick-and-mortar stores.

I am not saying the gap between rich and poor, or well educated and ignorant, has ever been closed. It never will be.

There’s a far cry between a 19th-century frontier inhabitant struggling to gain any kind of information or education, and a modern person who just wants infinite free books. Most of the people I hear saying they personally want libraries admit to being comfortably paid.

Therefore, I no longer support libraries in any way. They are just obsolete, largely unnecessary, and a drain on public budgets that are already extremely strapped. I’d rather have my local roads repaired. That’s something that needs to be done by the government.

Brandon has pointed out a major problem with the rhetoric of this entire matter that will make actually considering the merits and policies much more difficult, because it communication will be less certain:

What does “distribute” mean in copyright law? And for libraries?

Unfortunately, the two sets are not congruent; they don’t even overlap that much. And I say that as a strong supporter of libraries and of copyright!

On the one hand, Brandon’s point that “‘libraries distributing copyrighted books’ … ‘is what libraries do and have done for centuries’” is absolutely correct for a definition of “distribution” that presumes access to, but not legal title to, particular properly purchased copies for a limited time. Keep in mind that the US Copyright Act does not offer a definition of what constitutes a “library” that passes the laugh test… or any definition at all of “distribute” (or cognate terms).

On another hand, the fact of how electronic files are “distributed” and used concerns a different meaning of “distribute.” Anyone who says “well, the libraries will just ‘distribute’ time-limited copies” doesn’t remember CopyIIPC, or DeCSS, or…

Now, on top of this, we have the European/Berne concept of “making available to the public” and the default in the rest of the world to compensation to individual copyright holders for use of the lending right — yet another meaning of “distribute.” And just to make things even more confusing, “distribution” is a term of art in the publishing industry arising from the non-copyright aspects of solicitation and fulfillment of orders for individual copies of copyrighted material.

To say the least, the possibilities for miscommunication are not just high or endless; they are virtually certain and will limit the overlap between the “legal” and the “rhetorical” resolution of the problem.

C. E. Petit:

I have been a professional writer, editor, and publisher, for about 25 years.

In the publishing world—and I have long believed, in the legal world—when an entity makes additional copies of the work and makes them available to consumers, they are publishing. Whether or not they are actually claiming authorship, and whether they are selling the copies or giving them away. It is not legal for a publisher to scan another publisher’s book and distribute e-copies of it; nor to laboriously and expensively redesign, re-lay-out, reprint it, and distribute those new copies. Why should it be legal for libraries to do so?

I also believe that free distribution of the same book ultimately cuts into its sales far more than sales of a competitive work, even a better and cheaper work. Libraries are now asking publishers to not only make virtually no money from library sales, but to cut into the sales they are already making. Why would any consumer want to pay for a book—or even go to a library to borrow it—when they can download it free, from anywhere, in a few minutes? This is even assuming the DRM isn’t cracked and the book uploaded to a torrent site that bypasses libraries altogether.

Libraries have moved from buying substantial numbers of books from publishers, to buying many fewer and passing many books around via interlibrary loan, to building up huge “consortiums” for which they can buy exactly one copy and pass that around in e-form forever? They seem to be expecting a totally free ride. Why on earth should any publisher or author give it to them?

This debate is all about money. Who gets it, whether in the form of payment for books or the form of free books, or public funding for libraries: Publishers, authors, libraries, or consumers? If it comes out of the pocket of one entity, it goes into the pocket of another. And I don’t intend to be a loser.

Wow, I’m glad I could help Frances clarify for us where he stands! I thought I might be constructing a straw man in suggesting some people are against libraries simpliciter; thank you for the vindication.

And I agree with C.E. Petit. The meaning of “distribution” varies across a lot of contexts that are relevant to this debate. My comment played on that ambiguity.

Of course, when libraries lend books, they are “distributing” copies within the meaning of the Copyright Act. Luckily, the First Sale doctrine permits such lending without permission or payment (with some increasingly strange wrinkles related to where the copy was printed), notwithstanding the rights given under § 106. Whether a digital “distribution” constitutes an infringement will depend on context. I just wanted to be sure that we were being clear that (pace Frances), the law comprehends a host of situations in which copyrighted works are distributed without permission or payment. Libraries are a core beneficiary of these limits to the copyright monopoly. Maybe we should become the kind of culture that Frances describes, where every use must be paid for, but that is not the law we have now.


I was, in fact, very much in favor of libraries before they started (a) lending copyrighted books to Google to scan and (b) publicly asserting their right to copy and distribute copyrighted works without paying. They are publicly admitting they are doing this to support their organizations. They are running businesses, in essence, diametrically opposed to mine and are now asserting their survival depends on pirating my work.

Therefore, I have become a library opponent. They’re sacred cows, waving around rhetoric about education and enlightenment to support their financial goal of organizational survival in a society where they have become largely unnecessary. Which their rhetoric about “maintaining relevancy” admits.

Please make all “he”s to “she”s in reference to Frances Grimble. Sorry!

Karen Coyle

I would be surprised if many members of the Australian Authors Society know that much about the action they have joined .

BWT James

Is there some legal requirement for proof of paid up and consenting membership, placed on these guilds? In some places You have to be a member of ‘something’ to get your share of the various education lending/photocopying levies that are collected ‘automatically’.

This case gets more interesting by the minute.

First, the Author’s Guild claims to have found the rights holder for one of the supposed orphans with “a few minutes of Googling.

Major egg on the elephant’s face!

But now in the comments of the same post, it’s suggested that the reunited orphan is actually in the public domain, due to non-renewal of the copyright!

I’ll be at the status conference tomorrow, taking lots of notes.

The suggestion is, I believe, in error. According to the Copyright Office records linked from the comment, the original copyright in The Lost Country was secured on October 29, 1958. Under the 1909 Act, renewal had to be made in the year prior to the end of the original 28-year term, i.e., in the year before October 29, 1986. There is caselaw that renewing even a few days after the end of the original term was ineffective. But while the 1976 Act retained the renewal requirement (which was only eliminated in 1992), it specified that copyright terms would

run to the end of the calendar year in which they would otherwise expire

Thus, the original term for The Lost Country ran through December 31, 1986, which means that the October 29, 1986 renewal was timely. Or so it appears. One must be extremely careful with claims about the formalities, particularly under the 1909 Act, and my own analysis here could also be in error.

Therefore, I no longer support libraries in any way. They are just obsolete, largely unnecessary, and a drain on public budgets that are already extremely strapped.

And yet libraries are more popular than ever and seeing record numbers in terms of circulation and patron visits. Some of this can be attributed to the economic slowdown in the US but it’s also because libraries are just popular public spaces that appeal to a large number of people who are happy to pay for them. You may not be one of them and that’s totally fine, but it’s not really a centrist position to hold.

Boston Public Library, in fact, has a crack team of lawyers and they feel that the lending they are doing — to the best of my knowledge if they are lending a digital copy they have a print copy that does not circulate — is permissible and allowable. I have a weird feeling sometimes that they’d like someone to legally test this so that what they are doing at their library could be something that more libraries could do and reach more people with the content that they’re already circulating.

I do understand your objections, but libraries are really one of the largest purchasers of books in the US. Having more of them on board with digital content as well as print content is considered by many to be something that will be a net benefit to most authors and not a money-losing proposition. The incoming president of NYPL is very gung ho on finding ways to work with authors in order to be able to deliver their content to readers in a way that makes financial sense to all the parties involved. You dislike them, that’s your business, but they’re far from obsolete.


I’m not disputing that people of all income levels enjoy free books, even vigorously assert a “right” to free books. I’m asserting that a publicly funded library system is no longer vital for educational purposes, for most people. There are simply too many other places to get books, often at very affordable prices.

Consider: If the “solution” is ebooks delivered over the net, people can easily download public domain ones from a variety of sources. They can buy them from Amazon, Barnes & Noble, and other sources. They can do this without ever sitting foot in a library or getting a library card.

Also, many libraries seem to have become more computer centers and community centers. I am not disputing the usefulness of either, but I think—especially when seeking funding—we should quit calling them “libraries.”

FYI, Cornell is part private, part public, which is why anyone can use the libraries and even get a library card. I’m not sure which part of Cornell the books in this suit are from, so don’t know whether Tenth Amendment immunity applies.

I used to be a member of the Authors Guild, but quit in disgust over the Google Books settlement. I don’t know who they represent, but it certainly isn’t all the country’s authors.

I have certainly held library cards and full privileges at both UC Berkeley and San Francisco State University, long after ceasing to be a student anywhere. Both universities would, at least at the time, issue cards to anyone in the alumni association. All you need to do to join the UC Berkeley alumni association is have once taken an extension course there. With SF State, any member of the public can get a library card for a modest fee, even if they are not in the alumni association.