Hypocritical Authors Guild Photocopies Author's Book While Claiming That Scanning Works Is Infringement

from the oops dept

Tue, Jun 24th 2014 6:44am — Mike Masnick

A few weeks ago, we wrote about the big win for fair use, as the appeals court ruled against the Authors Guild and said that libraries scanning books in their collection to make a searchable index is fair use. Hilariously, the Authors Guild is in complete denial about this ruling, putting out a statement claiming it was "not a total victory for either side" and that the ruling was "narrow." Except, that's not true. Yes, the Court sent back a tiny part of the case, but if it wasn't a "complete" victory for libraries, book scanning and fair use, it was, at the very least a 95% victory.

Still, the eagle-eyed sleuths at 5 Useful Articles have spotted an absolutely hilarious exchange that happened during one of the depositions in the case. The deposition was of Peter Hirtle (full disclosure: I know Hirtle a bit, and he once invited me to speak at an event, though I was unable to go -- though until now I had no idea he was even a part of this case in any way). Hirtle, who has spent many years as an archivist and policy advisor for the Cornell University Library, also happens to be an author. At one point, the lawyers for the Authors Guild apparently brought in a bunch of copies of Mr. Hirtle's book. Photocopies. I think you can see where this is going.

If you can't read that, well, I'm just going to have to transcript it out. Lawyers Goldman and Rosenthal represent the Authors Guild, while Potter and Roth represent the Hathitrust and Cornell respectively.

MR. ROTH: I see you've made multiple copies of Mr. Hirtle's book.
MR. GOLDMAN: Yes.
Mr. ROTH: That is in copyright and for sale in bookstores.
MR. GOLDMAN: Okay. Yes.
MR. POTTER: You don't think it raises any copyright concerns?
MR. ROSENTHAL: I don't think this is an appropriate question.
MR. GOLDMAN: No, I think it's also -- I'm not even going to engage in that.
MR. ROTH: Note our objection. These books could have been purchased. And given the subject matter of the lawsuit, it's quite ironic that you'd be using multiple copies of a book in copyright.
MR. GOLDMAN: It's published under a creative commons license. It's not attribution and noncommercial.
MR. ROSENTHAL: Why don't we just destroy the copy that we gave Mr. Hirtle's lawyer and to anybody else in the room who wants a copy other than the one we marked for the thing. If they really don't want to have copies for purposes of fairness in the deposition, then we'll just get rid of the extra copies. That's fine. You want us to take back Mr. Potter's copy and destroy it?
MR. ROTH: I'm not going to give you advice.
MR. ROSENTHAL: Okay. I'm going to take these -- let the record show I'm taking these extra copies and I'm going to put them in our shredder which is in the next room. Anybody who wants to come watch me do it, may be welcome to come do it. And no one has even looked at those. So there you go.
MR. POTTER: I guess if no one else looks at something, it's not infringement? That's an interesting theory.

That last line is the real zinger -- since a big part of the Authors Guild's argument in the lawsuit was that even if no one looks at the scanned works, it's still infringement merely because they made a copy. And, yes, the Creative Commons license around the book certainly suggests that the Authors Guild's lawyers did not, in fact, infringe on Hirtle's copyright, but it does show, yet again, how frequently it seems that copyright maximalists rush to easily copy something when it suits their needs.

I'm reminded, of course, of that time when the MPAA was caught making unauthorized copies of the film, This Film Is Not Yet Rated, which skewered the MPAA and its practices. The MPAA, in that case, insisted that it could make such copies "because it had implications for our employees." Yet, this was the same MPAA that insisted that "all forms of piracy are illegal and carry serious legal consequences." It also was going around at the time telling school children "if you haven't paid for it, you've stolen it." And its former boss, Jack Valenti, once (incorrectly) insisted that fair use doesn't exist.

There's something deeper here. People copy stuff all the time, because it's a natural and normal thing to do. People make copies because it's convenient and it serves a purpose -- and quite often they know that doing so causes no harm in those situations. This is an intrinsic understanding. It's so intrinsic that folks at the MPAA and Authors Guild do it without even realizing it. But it's part of what makes their hardline position so ridiculous.

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Filed Under: book scanning, copies, copyright, creative commons, peter hirtle
Companies: authors guild, hathitrust

32 Comments

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Michael, 24 Jun 2014 @ 7:02am

Okay. I'm going to take these -- let the record show I'm taking these extra copies and I'm going to put them in our shredder which is in the next room.

I'm just going to take this evidence and destroy it...would anyone like to watch me?
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- Nate (profile), 24 Jun 2014 @ 7:17am
  
  Re:
  What evidence? They haven't done anything wrong.
  
  Are we talking about this book, which is freely available from Cornell U.?
  http://ecommons.library.cornell.edu/handle/1813/14142
  
  What's the problem with making copies of that book? It's under a CC license. Where's the hypocrite in using a book exactly the way the author intended, with his permission?
  [ link to this | view in chronology ]
  - Michael, 24 Jun 2014 @ 7:27am
    
    Re: Re:
    I understand that it is not actually evidence, but that is what the exchange looks like.
    
    He was called out on copying a document and Rosenthal didn't explain why it was ok, he immediately went to "Oops, sorry, I'll just shred it".
    [ link to this | view in chronology ]
    - Anonymous Coward, 24 Jun 2014 @ 7:54am
      
      Re: Re: Re:
      No, that was just a physical demonstration of the equivalent of a DMCA takedown. No verification if the person making the request was the copyright holder and no consideration for fair use at all. Nope, simply because something is was is under copyright and was copied by someone other than the copyright holder, the copies have to be destroyed quickly before anyone can see them regardless of the circumstances.
      [ link to this | view in chronology ]
      - Anonymous Coward, 24 Jun 2014 @ 6:51pm
        
        Re: Re: Re: Re:
        It's not really, though. Nobody in that exchange claimed to be the copyright holder, they just asked Mr Rosenthal if he thought it was ironic to have copied a book in a case where Mr Rosenthal is saying it's illegal to copy a book without a license.
        
        The strange part is why Mr Rosenthal didn't just say that the copies are licensed because he's complying with the CC license terms, and move on?
        [ link to this | view in chronology ]
        
        Anonymous Coward, 24 Jun 2014 @ 8:44pm
        
        Re: Re: Re: Re: Re:
        Not the best lawyering job ever. Got caught flat footed and fell in the tarpit.
        [ link to this | view in chronology ]
  - Anonymous Coward, 24 Jun 2014 @ 7:41am
    
    Re: Re:
    The problem is that the argument used by the Author's Guild was rejected out of hand by the Author's Guild in other cases that the Author's Guild were plaintiffs in.
    [ link to this | view in chronology ]
  - Anonymous Coward, 24 Jun 2014 @ 7:57am
    
    Re: Re:
    Evidence is only important to DUE process. This isn't that. This is DO process where evidence isn't really that important.
    [ link to this | view in chronology ]
    - Bergman (profile), 24 Jun 2014 @ 10:14am
      
      Re: Re: Re:
      The difference between 'do' process and 'due' process situations -- ANY situations -- is whether the relevant authorities have become aware of it yet.
      
      It's still evidence tampering when they're not yet aware.
      [ link to this | view in chronology ]
      - Anonymous Coward, 24 Jun 2014 @ 12:59pm
        
        Re: Re: Re: Re:
        Do process was originated buy the USAG so I don't know what other relevant authorities you could be referring to.
        [ link to this | view in chronology ]
- Anonymous Coward, 24 Jun 2014 @ 7:21am
  
  Re:
  Interestingly, it is not considered evidence until it has been admitted and ruled as such. If the judge does decide to go back and rule the destroyed docs as evidence then yes... that would be destruction of evidence. But until that ruling occurs... it is benign.
  [ link to this | view in chronology ]
  - Michael, 24 Jun 2014 @ 7:30am
    
    Re: Re:
    That is not correct.
    
    In this case, it isn't actually evidence of a crime because he was actually licensed to make a copy, but you can be found guilty of tampering with evidence if you have done so well before any trial has started.
    [ link to this | view in chronology ]
Anonymous Howard (profile), 24 Jun 2014 @ 7:31am

Hi RIAA
Good morning RIAA agent. Oh, is this HDD of mine is full of pirated music? Then I'm just gonna delete it. You wanna watch? I didn't listened any of them, I pinky swear!
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Lord_Unseen (profile), 24 Jun 2014 @ 7:34am

Mr. Rosenthal, you're throwing a tantrum. Now, go stand in the corner and think about what you've done.
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mcinsand, 24 Jun 2014 @ 7:40am

>>"because it had implications for our employees."

My first reaction was that they seemed to be saying that, if being able to copy helps someone in a job, then copyright doesn't apply.
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- Michael, 24 Jun 2014 @ 7:44am
  
  Re:
  Stress is a huge problem in the workplace these days.
  
  I think being able to relax and watch a movie in the evenings has implications for my employees, so downloading a bunch of movies and handing out copies should be totally fine. No?
  [ link to this | view in chronology ]
Bengie, 24 Jun 2014 @ 8:45am

Just Computers
They need to classify the human brain as a computer. Watching a movie is the same as making a copy.
[ link to this | view in chronology ]
- sorrykb (profile), 24 Jun 2014 @ 9:22am
  
  Re: Just Computers
  Bengie wrote:
  They need to classify the human brain as a computer. Watching a movie is the same as making a copy.
  
  Would that make people with good recall repeat infringers?
  [ link to this | view in chronology ]
- Anonymous Coward, 24 Jun 2014 @ 9:27am
  
  Re: Just Computers
  They would then just turn it around and exploit it for their own benefit like the government does...
  
  DEA sells you drugs so that they can arrest you for possession of drugs.
  
  FBI creates a terrorist plot for you to be involved in so that they can arrest you for being involved in a terrorist plot.
  
  So...
  
  MPAA would then sue you for infringement on making a copy of a movie by watching the movie you paid to see.
  [ link to this | view in chronology ]
Kenneth Michaels, 24 Jun 2014 @ 9:32am

Evidence
The defendant's attorneys made a few mistakes here. First, they should not have objected at all, since allowing the copy in the deposition is consistent with their theory of the case. By raising the issue, they allowed the plaintiff's attorney to change course and proceed according to the plaintiff's theory of the case. The defendant's attorney should have raised this contradiction as persuasive evidence after the deposition.

Second, attorney babble is not evidence. What the witness says is evidence. The witness (Peter Hirtle) didn't say a thing in this portion of the transcript. Presumably Peter Hirtle would be aware of this contradiction and could mention it during his testimony.

Because the attorney was so happy he caught a contradiction, he opened his mouth to show how smart he is and blew it.
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Whatever (profile), 24 Jun 2014 @ 9:47am

There's something deeper here. People copy stuff all the time, because it's a natural and normal thing to do. People make copies because it's convenient and it serves a purpose -- and quite often they know that doing so causes no harm in those situations.

Those people aren't the issue. The people who are the issue are the ones who, knowing that the work is copyright and that they should purchase a copy, decide instead to just take a copy for their own enjoyment.
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- Anonymous Coward, 24 Jun 2014 @ 9:54am
  
  Re:
  Interesting attempt at a derail.
  
  That has nothing to do with either this copyright case or the quoted sentences.
  
  /rerail
  [ link to this | view in chronology ]
  - Anonymous Coward, 24 Jun 2014 @ 6:56pm
    
    Re: Re:
    Don't be too enthusiastic. Part of the fun of reading Techdirt is watching to see how Whatever will try to twist the article into saying the opposite.
    [ link to this | view in chronology ]
- Anonymous Coward, 24 Jun 2014 @ 5:10pm
  
  Re:
  Yup, only those baddies are being targeted. And yet grandmothers who do not own a computer receive threat letters claiming infringement.
  [ link to this | view in chronology ]
  - Anonymous Coward, 24 Jun 2014 @ 6:16pm
    
    Re: Re:
    Don't confuse Whatever with facts.
    [ link to this | view in chronology ]
    - Anonymous Coward, 24 Jun 2014 @ 8:46pm
      
      Re: Re: Re:
      Are we in a Fact Free Enviroment just like FOX News?
      [ link to this | view in chronology ]
Anonymous Coward, 24 Jun 2014 @ 10:08am

> People make copies because it's convenient and it serves a purpose -- and quite often they know that doing so causes no harm in those situations.

How do they know they are not causing harm? So, if I don't know that I'm causing harm, it's not infringement. That's an interesting theory.

It's hard to find the proper middle ground on the topic of copyright, isn't it?
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That One Guy (profile), 24 Jun 2014 @ 1:09pm

It only counts when other people do it
Hardly surprising really, it always seems that those that push for increased and harsher copyright laws and punishments have a complete blind-spot when they are the ones infringing, and while they won't accept 'It was an accident' from anyone they accuse, they certainly waste no time employing the excuse themselves when they get caught.

As a classic example, consider the whole French three-strikes debacle and it's defenders...

One More Copyright Infringement, And HADOPI Must Disconnect Itself From The Net
https://www.techdirt.com/articles/20120224/11082417868/one-more-copyright-infringement-hadopi-mus t-disconnect-itself-net.shtml

As Sarkozy Pushes Three Strikes, He Pays Up For His Own Copyright Violations
https://www.techdirt.com/articles/20090428/1204424684.shtml

Nicolas Sarkozy Caught Mass 'Pirating' DVDs; Time To Kick Him Off The Internet
https://www.techdirt.com/articles/20091216/0816327383.shtml

Sarkozy's Party Found Violating Copyright Yet Again With Awful Lipdub
https://www.techdirt.com/articles/20091216/0816327383.shtml
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Anonymous Coward, 24 Jun 2014 @ 3:11pm

This is one I've thought of many times. Courts require evidence to sustain trains of verbal thought. No one seems to think anything of just photocopying whatever is needed for that. Seems to me that those who hunt infringement violations never look to court to see exactly where these violations occur, unlike the internet.

Do we have a legal blind spot here? It would appear so.
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John, 24 Jun 2014 @ 3:32pm

More money for the lawyers
It was probably cheaper to buy the 5 books then it would have been to copy. The lawyers would have charged $2 per page (?) to copy the book yet it may have cost a few hundred to buy them. The lawyers made money from charging their client for copying the book.
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Anonymous Coward, 25 Jun 2014 @ 7:18am

The lawyer did have a license to make copies (as does the whole world) since it was licensed with a creative copy license. You could argue that a court proceeding is a commercial activity, but that doesn't make the lawyer with the copies hypocritical. This is much ado about nothing.
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john winter, 8 Aug 2014 @ 7:16am

scanning
book scanning wins again.
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