Friday, October 12, 2012

Judge Rules Against Authors Guild in HathiTrust Lawsuit

Posted by Victoria Strauss for Writer Beware

On the heels of several publishers' secret settlement deal with Google in the long-running Google Books lawsuit, a judge has made a major ruling in another lawsuit over book scanning.

In September 2011, the Authors Guild, two international writers' groups, and several individual authors filed suit against a number of major US universities, challenging their aggregation of scans of in-copyright books into a repository called HathiTrust. The plaintiffs claimed that the scans--obtained from Google as part of the Google Books project--were unauthorized, because permission to scan had not first been sought from copyright holders. The universities argued that such digitization is fair use under US copyright law.

This week, Judge Harold Baer granted HathiTrust's motion for summary judgment, finding that the universities' digitization project was indeed fair use.

The full opinion is here. See also this analysis by law professor James Grimmelmann.

This is a major decision that has direct bearing on the Google Books lawsuit (although the publishers involved in the lawsuit settled, the Authors Guild is proceeding with litigation), since Google has always argued that its scanning is fair use. One major difference between Google and HathiTrust is that Google is a commercial enterprise, which wants to make money from the books it digitizes, and HathiTrust is not. But Grimmelmann, quoted in PW, feels that may not make a difference.
This is a pretty serious blow to the Authors Guild....The fair use ruling is substantially applicable to Google: yes, Google is commercial, but the transformative use and market harm points stand, and that's enough for a solid fair use victory. This seems like an appropriate time for the Authors Guild to take stock of the litigation, ask what it's accomplished for authors, and consider what the consequences of pressing on would be.
For its part, the Authors Guild disagreed "nearly every aspect of the court's ruling." In a statement to members, it said:
We're especially disappointed that the court refused to address the universities' "orphan works" program, which defendants have repeatedly promised to revive. A year ago, the University of Michigan and other defendants were poised to release their first wave of copyright-protected, digitized books to hundreds of thousands of students and faculty members in several states. The universities had deemed the authors of these books to be unfindable.

Within two days of filing our lawsuit last September, Authors Guild members and staff found that the "orphans" included books that were still in print, books by living authors, books whose rights had been left to educational and charitable institutions in the U.S. and abroad, books represented by literary agents, and books by recently deceased authors whose heirs were easily locatable.

"The so-called orphan works program was quickly shown to be a haphazard mess, prompting Michigan to suspend it," said Paul Aiken, the Guild's executive director. "But the temptation to find reasons to release these digitized books clearly remains strong, and the university has consistently pledged to reinstate the orphan works program. The court's decision leaves authors around the world at risk of having their literary works distributed without legal authority or oversight."
The Guild says it is discussing its options, and will soon announce what further steps it intends to take.

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An observation: My posts on these kinds of subjects get fewer views and comments than almost anything else I write. I know that many of you prefer my funny posts or my scam exposes. But I continue to cover the wonky subjects--because if you're a writer, they directly affect you. Copyright law and practice is being sweepingly re-shaped by the digital revolution, and by litigation such as the lawsuits discussed above. It's wise to keep up with the challenges and the changes, so you don't find yourself blindsided by them.

26 comments:

Lisa Lane said...

It is my impression that the universities in question were scanning the works to make them electronically available for their visually impaired students.

Victoria Strauss said...

That's one aspect of HathiTrust, but not the only one.

steeleweed said...

Perhaps it is time for authors and other creators of 'intellectual property' to try a different approach. I suspect that one reason there is less public support (and judges are not immune to public attitudes) for authors is the expansion of copyright beyond its original scope. Trying to tie up rights for too long create a perception of greed and provides more motivation to circumvent the rules. In this case, they are clearly stretching the definition of 'fair use'. Perhaps simplifying the law and limiting the term of exclusive copyright would make the law more enforceable.

Richard Gibson said...

I may not comment very often, but I really very much value these posts about copyright and similar high-impact issues. Thanks.

DeadlyAccurate said...

I value these posts. I just tend to read them in my RSS reader and not click through if I don't have anything to say in response.

Shaun J. McLaughlin said...

I appreciate the efforts made to keep me informed on copyright issues. Thanks

Dan said...

Thanks for carrying this kind of news.

Personally, I am amazed at the disparity between Disney's success in extending copyright law to protect its various franchise films, i.e. the old Steamboat Willy, while this judge rules that scanning and distributing in-print copyrighted work is fair use.

What happens when Hathitrust goes up against Disney?

mad said...

I suspect the few comments are because so many authors have a head-in-the-sand belief that somehow in future there will still be a way to earn a living by writing or other content creation. There will not be. The constant erosion of our rights and royalties through piracy, scanning, so-called orphaned works legislation, draconian contracts that benefit everyone except the writer, the constant demand for free content on sites like the Huffington Post, all add up not only to no future for professional writers but to the continual erosion of literary quality. Those who benefit from our free labour keep feeding us the same line about "exposure" and "viral nature" and "success will come to authors who adapt to the digital era" and too many authors are falling for it, especially as one can always find and latch onto that one author whom piracy or Google scanning benefited. Tera Consultants in Paris did a study of illegal use of music, software, movies and television and their conservative estimate is that by 2015 $159 billion and 600,000 creative jobs will be lost; the outside figure is twice that. That's food for thought.

Frances Grimble said...

I obviously am not a lawyer, and James Grimmelmann is. However, he is also connected with Microsoft, which has a keen interest in using copyrighted works in search engine works. Therefore, I hope his gleeful predictions that this ruling will give Google everything it wants are incorrect.

Some points: The judge does not seem to have considered that publishers produce e-books and audiobooks, which the vision impaired use, and that there is a paying market for those books that this ruling may impact. Also when I was in college, blind students got other students to read texts to them, either on a volunteer basis or for very low pay. I did a bit of this myself for a totally blind friend (and this ruling will not help the totally blind since people need some vision to read a screen). I am not saying this is optimal, but that the judge's idea that all these books *had* to be illegally scanned is incorrect.

Grimmelmann claims on his blog the ruling only applies to search results, and only to use by the vision impaired. Not to the distribution of entire copyrighted books to everyone, which is what the proposed Google settlement made it clear Google wanted. And it is what Grimmelman wants, as is made clear by his gleeful assessment of universities putting entire books online for all students as becoming the new norm. Yet, that has to impact sales, because of course other people will download the books, and students constitute the main market for some books.

If the Author's Guild was judged not to have standing to sue on behalf of their members (which Grimmelmann happily extrapolates to all associations and to any future AG suits), why did the judge not throw out the case to begin with, instead of ruling on it?

Grimmelmann has said the Judge Chin, who is ruling on the Google case, would not like to rule differently than his colleague, but my impression is that judges like to make up their own minds. Chin has been considering the Google case very seriously for some years now and I doubt he's issue a mere copycat ruling.

Grimmelmann seems very happy that no distinction was made between books that are in print and books that are not, let alone the so-called orphans often used as a red herring.

I suspect the Author's Guild will appeal and I hope they succeed.

Like the AG, I would very much like to see the text of the private agreement Google made with the publishers. Has Grimmelmann seen it and if not how can he call it "bare bones"?

In sum, I do not believe everything Grimmelmann extrapolates, due to his obvious bias against copyright, but I am worried.

Frances Grimble said...

Steelweed,

I've often heard the argument that if owners of intellectual property allowed their rights to be eroded in certain ways, that the rest of their rights will be enforced. I think the exact opposite is true. Also, your argument does not apply to this ruling since the judge made no distinction whatever regarding the age of the book and its in-print or out-of-print status.

Frances Grimble said...

Mad,

I keep up discussions on these issues but it's hard because I find them so depressing. Because I believe that in the short term at least, it has already become harder to earn money (even less than a living) as a writer and rulings like this make the future look increasingly worse. And anyone who thinks professional writers will work for nothing should consider whether most publishers will. I don't see any incentive any more, for myslef.

Anna L. Walls said...

Keep up these posts. I for one am very interested. The lack of comments may stem from not knowing what to say.

Marilynn Byerly said...

Dorchester is currently in the process of returning rights to authors, and their listing of people they need to contact is laughable. Doc Smith, Marian Zimmer Bradley, and JM Barrie (PETER PAN)? Really? And they misspelled HP Lovecraft's name.

Welcome to the wonderful world of publishers and groups like the HathiTrust finding orphaned works' authors.

The list is here:

http://www.dorchesterpub.com/

Kerry Gans said...

I love your business-related posts. They almost always end up being one of the links in the weekly round-up we do on my group blog, The Author Chronicles. I think it is so important to know what is happening with copyright--it is, after all, our future we are talking about.

Deb Salisbury said...

I read your posts avidly, but I rarely comment because I'm too depressed. I have a non-fiction ms that I may never finish editing because I see so little point in trying to publish it.

Victoria Strauss said...

I appreciate the comments here (and those I've received in email). I will definitely keep covering these kinds of issues, and I'm very happy people are finding my posts useful. Thank you!

Kristin Laughtin said...

I very much appreciate these posts, actually! I'm an academic library employee, and so I often hear one side of the issue regarding HathiTrust. I find it useful and educational to get other perspectives, too.

Anonymous said...

I also read all of these posts, but just don't know what to say. Taking a long view, they are far more serious to all writers than the always interesting scam du jour.

These incidents and decisions routinely presume that they can trample all rights of authors, stealing their works with various excuses of 'public good'. At every step I feel that authors are getting the worst possible deal, no consideration or rights whatever, simply because it is easier to add more precedents that stealing their works, in their entirety, is okay.

Mad Scientist Matt said...

I definitely read all the "wonky" posts. They just don't inspire enough good snarky one-liners for me to comment most of the time.

But I still very much appreciate the copyright related news.

Frances Grimble said...

The current attitude toward creators of works is highly disincentivizing. Most people would never have become writers, publishers, artists, or musicians if they did not love their work and want to share it with others. But the PR spread by large corporations such as Google who want to massively, financially exploit creators of works has been picked up by many consumers, causing creators to be universally dumped on. (I see this mostly in regard to written works, since that's my profession, but musicians and artists seem to get it too.) Writers are constantly being told they are rip-off artists and/or fools because they want to be paid, that writers and publishers *must* adopt a business model that accommodates theft and/or all their work given away, that their work is not worth paying for (by people who urgently want that work free AND who expect to be fairly paid for their own professions, whatever those are), that writers are somehow compelled to write just for strokes and even in the face of almost universal contempt, and if they don't continue to write plenty of other idiots will, that their professions are outmoded just because they want respect and payment and the legal structure that enables them to get paid, and on, and on, and on, and on, and on.

I'm certainly not going to accept strokes on the net (or elsewhere) in lieu of real payment, but constantly being told I am hated, worthless, and a rip-off artist doesn't help. I started writing how-to materials because I wanted to help people. Now I hate my readers and I don't want to do a damned thing for them. There are jobs I can get (and have held in the past) where I will actually be paid a fair living and given respect for my skills.

I also feel as if consumers and businesses think I'm a fool when they urge me to give up seeking payment because it will come in some undefined way (though not from them), or to voluntarily give up my copyright protection and no one will steal from me (pull the other leg, why don't you), or when they use tactics such as scanning for the vision impaired to release books to everyone, directly or indirectly. I wasn't born yesterday, which means I generally get accused of being a rip-off artist rather than an idealistic idiot. I feel that producing books *does* make me an idiot in this climate.

You know, capitalism is *supposed* to mean that if you want someone's work, you give them a financial *incentive* sufficient to make them do that work. Of course, what Google and the amateur pirates and parasites are counting on is the massive amount of work that has already been done and released. They don't give a rat's patootie about the future of fiction or nonfiction.

Heather Button said...

This is very interesting. My experience in Canada:

At my University (name not needed) we have to sign a Theses Non-Exclusive License that allows our University the rights to publish our own thesis. We are lucky enough to share the rights, so I retain the right to publish my own thesis.

One day I looked my thesis up for curiosity's sake, and found a place online that was selling my thesis for $75 PDF. I found out that Canada's National Library gets rights through the agreement to sell it, and they use this particular vendor. The odd thing is, anyone who wants a PDF of my thesis just has to look it up in the University Library, where they can download the PDF for free.

It is my understanding that most universities retain the copyright to theses because, like work, you did it using their resources. And if this is the case, they have the right to use a source to publish, as mine did.

Am I correct?

Frances Grimble said...

Another point: Nonfiction writers are constantly told that in addition to writing their books, they are supposed to be fonts of free advice posted on blogs, e-groups, and in response to private questions. The meme that everyone is supposed to market by social networking is translated into, they owe potential lots of free stuff because maybe, someday, those readers might possibly consider buying something. Or maybe not. But they demand the free stuff anyway, even flame if it is not worded just the way they want it, and express outrage when it is pointed out that a writer's time is worth something.

I don't see why I should put up with this crap. There have been things I really, really wanted to write, a new field I wanted to push into, and now, if the public is like this I just don't want to do it any more. No matter how much I love creating something, I don't want to bury it. But I don't see why I should put it out into the world only to financially benefit (by revenue and/or savings) of search engine companies, collection agencies, libraries who don't want to pay for books (and some are selling POD copies of the Google scans), and readers who don't want to pay authors or publishers. Everyone is vigorously fighting over the revenues for my work, and the one person they don't want to give them to is me.

Marion Gropen said...

I am thrilled that more people are writing about the core issues in our industry. Please don't be discouraged if most of us choose not to respond very often. Mostly that means that you're saying it so well that we don't feel the need to amplify or to argue.

That is an amazing compliment, when you think about it!

Mad Scientist Matt said...

Frances - I don't mind putting a few bits of samples online. My co-author and I are working on a website to promote our book (www.efibook.net, in case you were wondering), and I'm planning to put a couple articles I've written (and usually sold, but still have online rights to) up on the site to help promote the book. However, they're items I have anyway, and I figure putting them up online to promote the book is as good a way to monetize them as any.

On the other hand, I don't feel like I have to do this; I just feel that choosing to do so seems to make good business sense in this particular case.

Frances Grimble said...

Matt,

It is perfectly reasonable for authors and publishers who believe free samples will market their books, to post those samples, or even the entire book if they want. I believe such posting (though only smallish portions) makes more sense for fiction than nonfiction. If you post the first chapter of a novel, readers may buy it to find out what happened to the characters. If you post even part of a nonfiction book, let alone the whole book, readers may well get all they need from the posted material and not bother buying the book. Some authors will disagree with me. But my point is, if you are the copyright holder you can do what you want with your own material, whether it ultimately benefits you or not. You make the decisions, and you have the control.

However, the ruling in the Hathi Trust case declared the posting of entire books online to come up as search engine results to be a “transformative use,” and one for which the user of the books did not have to get any permission from or make any payment to the copyright holders. Attorney James Grimmelmann told me a transformative use is not the same as a derivative work, such as making a movie from a novel. As we all know, if you want to create a derivative work from a copyrighted original work, you must get permission from and usually pay the copyright holder.

I will now float a legal theory that I did not get from Grimmelmann, but which may be behind his expressed happiness at the ruling in the Hathi Trust case. (He’s connected with Microsoft, who of course has a search engine.) The long-standing legal pattern in the actions of Google and related entities such as the Hathi Trust (the accumulator of Google scans for the purpose of distributing them to libraries), has been to do something, wait for cash-strapped entities (such as most authors) to mount the resources to sue, try to settle out of court, and if that does not work, try for a favorable legal precedent.

In the failed settlement Google tried to negotiate with the Author’s Guild, Google wanted the right to pour all (millions of) the copyrighted scanned books into their search engine to enrich the results, and the right to sell ads next to those results. Some fiction authors might not care, as regards their own work. If a small, random section of your novel appears online, readers probably won’t even be able to make sense of it. The problems for nonfiction authors and illustrators may be far greater. As I’ve said, readers may well be able to get all they need from the search results, without ever reading your whole book. Each illustration, whether for a fiction or nonfiction book, almost certainly must be displayed whole.

If one judge has declared it legal to pour millions of entire copyrighted books into a search engine because it’s a “transformative use,” there may currently be nothing to stop Google from doing just that and continue to do it. Possibly the Author’s Guild may appeal the Hathi Trust ruling, but it could take years for an appeal to finally be won or lost. By the time the process is concluded, the market value of your nonfiction book(s) will probably be long gone, since readers will have gotten everything they want in the searches. And as far as I know, there is no legal obligation for the search engine to explain where they got your material. A reader who saw a snippet from your book and wanted to buy it, might not even know from the snippet what the title or author is. How could this help you market your book(s)?

I encourage authors to be (regularly) on the lookout for the appearance of their book material in the main Google search engine*as well as* the Google book search per se. Personally, I intend to search on unique and unusual phrases from each of my books and see if chunks of the book appear in the search results.

Frances Grimble said...

As I've had to point out on www.laboratorium.net, there is an absolutely fair, legal, and noncontroversial way for publishers and/or organizations representing the vision impaired to get rights to publish editions suitable for the vision impaired. All they need to do is approach copyright holders and offer payment to license those rights, exactly as rights to other editions are licensed--hardcover, translations, and so on. The vision impaired are complaining that publishers have not published suitable editions and so Google was "forced to" scan the books. I saw nothing about the vision impaired in Google's or the Hathi Trust's original charter. But getting past that:

You don't have to wait for a publisher or other copyright holder to approach you to make a deal; you can approach them, with an offer, a list of specific titles, and a willingness to sign a contract. The publisher, author, or other copyright holder may not accept your offer, but then again they may. Nonprofit organizations can even mount charitable drives to fund publishing projects, or ask copyright holders to donate rights to publish editions for the vision impaired. The Hathi Trust ruling applies to *all* books, including millions of books in print and with easily locatable copyright holders. Yet, at no point has anyone tried to legitimately license the rights.

Therefore, we have yet another group who wants publication rights, but does not want to pay for them or take any trouble to even try to negotiate them. We simply cannot allow legal precedents of "they need it so it's legal for them to seize it" because the norm. Many, many entities who want rights without paying for them will simply seize copyrights. And we, the copyright holders, most definitely need to be paid.