Authors Guild Gives Up Trying To Sue Libraries For Digitally Scanning Book Collection

from the about-time dept

Back in June we wrote about how the Second Circuit appeals court totally demolished the Authors Guild's arguments against a bunch of university libraries for scanning their book collections digitally, in order to enable better searching of the contents. The lawsuit was against Hathitrust, an organization set up to manage the book scanning program for a group of university libraries. In 2012, a district court said that what the libraries/Hathitrust were doing was obviously fair use and the appeals court re-enforced that strongly. The Authors Guild is basically giving up in this case, saying that should the libraries change their practices, it may want to revisit the issue. But for now, it's giving up the case while "reserving" its position.

This is hardly a surprise. However, while it's given up on the Hathitrust case, the case against Google for basically the same thing is still ongoing. And, yes, it's so far lost there as well, though that case is on appeal and was just argued recently -- including making bizarre references to Aaron Swartz as some sort of proof that if Google scans books, someone may hack them and leak all those books to the world.

We'll see how the appeals court rules in that case, but if I had to predict, I doubt this one will turn out well for the Authors Guild. Still, it's likely that the Authors Guild recognizes that if it's going to take one of these cases to the Supreme Court, it has a better shot against Google directly, rather than a bunch of university libraries...

Filed Under: book scanning, copyright, fair use
Companies: authors guild, google, hathitrust

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

from the oops dept

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.

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

Authors Guild Loses Book Scanning Case Once Again

from the because-book-scanning-is-fair-use dept

The Authors Guild simply won't give up on its quixotic attack on modern technology. Even after losing both of its book scanning cases -- one against the Hathitrust (a collection of university libraries) and the other against Google -- it appealed both rulings. This morning, the ruling in the first of those cases, the Hathitrust one, came out, and it pretty much demolished the Authors Guild's arguments, finding, yet again, that book scanning like this is clearly fair use, though for slightly different reasons than the lower court. But there is plenty of useful stuff in the ruling. First, the court explored whether having a full-text searchable database of all text is fair use and found overwhelming support for that idea:

Turning to the first factor, we conclude that the creation of a full-text searchable database is a quintessentially transformative use. ... [T]he result of a word search is different in purpose, character, expression, meaning, and message from the page (and the book) from which it is drawn. Indeed, we can discern little or no resemblance between the original text and the results of the HDL full-text search.

There is no evidence that the Authors write with the purpose of enabling text searches of their books. Consequently, the full-text search function does not “supersede[] the objects [or purposes] of the original creation,” ... The HDL does not “merely repackage[] or republish[] the original[s],” ... or merely recast “an original work into a new mode of presentation,” .... Instead, by enabling full‐text search, the HDL adds to the original something new with a different purpose and a different character.

In other words, copying all the words in books to create that searchable database is transformative fair use. In fact, the court notes that it "adds a great deal more to the copyrighted works at issue than" other transformative uses that the same court has approved. As for the fact that it copies "all" of the work, and how that impacts the "amount of work" used as a fair use test, the court, thankfully, focuses on the word necessary in exploring if "more of the copyrighted work than necessary" was used -- finding that "for some purposes, it may be necessary to copy the entire copyrighted work" and thus that does not weigh against the third factor in the fair use test.

Because it was reasonably necessary for the HDL to make use of the entirety of the works in order to enable the full-text search function, we do not believe the copying was excessive.

The Authors Guild, somewhat ridiculously, argued that because the full copies are kept on multiple servers, it meant that Hathitrust had "more copies than necessary," but the court brushes that aside by pointing out the value of backups and load-balancing between multiple servers.

But the really big issue comes down to the impact on the market, the fourth factor in the fair use test, and the one that is generally considered to be the most important. The court here makes an important distinction that many people completely miss when analyzing the "impact on the market" question -- which is that the only impact that matters is the impact because the copy serves as a substitute for the original. There are lots of other ways the copy might impact that market that do not matter in this analysis.

To illustrate why this is so, consider how copyright law treats book reviews. Book reviews often contain quotations of copyrighted material to illustrate the reviewer's points and substantiate his criticisms; this is a paradigmatic fair use. And a negative book review can cause a degree of economic injury to the author by dissuading readers from purchasing copies of her book, even when the review does not serve as a substitute for the original. But, obviously, in that case, the author has no cause for complaint under Factor Four: The only market harms that count are the ones that are caused because the secondary use serves as a substitute for the original, not when the secondary use is transformative (as in quotations in a book review).

The Authors Guild tried to get around this by using a popular tactic in copyright/fair use cases: claiming that the use might preclude a future licensing opportunity for the work. Thankfully, the court flat out disagrees with this assertion:

This theory of market harm does not work under Factor Four, because the full‐text search function does not serve as a substitute for the books that are being searched... Thus, it is irrelevant that the Libraries might be willing to purchase licenses in orderto engage in this transformative use (if the use were deemed unfair). Lost licensing revenue counts under Factor Four only when the use serves as a substitute for the original and the full‐text‐search use does not.

The Authors Guild also tested out a more laughable, and less popular theory, that because someone might hack into the database and free the works, it represents a harm on the market. The court is... not impressed, noting (1) that the libraries have taken precautions against this and (2) the risk is "hypothetical" and "conjectural" calling back to the MPAA's claims of "harm" from the VCR, where the Supreme Court rejected as being merely "speculative." In other words, you have to show a real likelihood of harm and not just some fantasy land conjectures.

The court also looks at two other users of the work. First, there's the question of providing digital access to "print-disabled audiences" (e.g., the blind, who may have trouble with ordinary books). It's somewhat ridiculous that the Authors Guild seems to actively fight against making works available in other ways to those it doesn't properly serve, but that's the Authors Guild these days. Once again the court notes that this is a clear fair use. Finally, on the question of "preservation" of the works, the court punts, saying it's unclear if that's really an issue with any of the works involved in this lawsuit. Thus, it's not clear if the Authors Guild even has standing to argue that the preservation of works is copyright infringement. So it sends the argument back down to the district court on that issue.

All in all, yet another good win for fair use -- though, given the Authors Guild's previous actions, it is likely they will appeal this ruling as well. Because that's what the Authors Guild does.

Filed Under: 2nd circuit, book scanning, copyright, fair use, standing, transformative
Companies: authors guild, hathitrust

Book Scanning As Fair Use: Google Makes Its Case As Authors Guild Appeals Hathitrust Fair Use Ruling

from the make-the-case dept

Two new developments in the two big cases concerning book scanning and fair use: first up, we've got the somewhat unsurprising news that the Authors Guild is appealing its rather massive loss against Hathitrust, the organization that was set up to scan books from a bunch of university library collections. As you may recall, Judge Harold Baer's ruling discussed how the book scanning in that case was obviously fair use. It was a near complete smackdown for the Authors Guild.

The appeal will cover a few different issues beyond just fair use, such as why the Authors Guild itself is even the plaintiff in the case, since it doesn't actually hold any of the copyrights in question. It would seem that the Authors Guild has an uphill battle.

Meanwhile, in a closely related case, involving the Authors Guild suing Google over its book scanning efforts, Google has filed its appeal brief in response to an earlier ruling, which said that the Authors Guild can represent authors and has standing to sue. Google is arguing that its offering is also a clear case of fair use, as in the Hathitrust case. This is something we thought Google should have pressed strongly from early on.

Google Books is a revolutionary search technology for books—a modern and marked improvement over the traditional card catalog. Google has scanned and indexed more than 20 million books by agreement with major research libraries. The Google Books tool allows any user to enter a search query, obtain a list of books containing the user’s search terms, and view limited “snippets” of surrounding words showing how the terms are used. Google Books does not allow users to read a book online, or even a single page of a book, without express permission from the rightsholder. But its search capabilities help users find books to buy or borrow, connecting them with the books they need, and thus bringing to light a wealth of information previously hidden, undiscoverable, in books sitting on library shelves. Google Books thus offers enormous benefits to authors and readers and to the progress and diffusion of human knowledge.

It also argues that the Authors Guild cannot represent the class of authors in the case, since many authors are helped by Google Books and don't agree with the Authors Guild that it's somehow evil. As a result of that (and how copyright law works) Google also points out that the fair use determination may need to be on a book by book basis, rather than as a whole:

Despite the individual issues at the heart of Plaintiffs’ suit—and unrebutted evidence that a significant portion of the proposed class in fact approves, and benefits from, Google Books’ uses—the district court certified a plaintiff class under Federal Rule of Civil Procedure 23(b)(3) consisting of “[a]ll persons residing in the United States who hold a United States copyright interest in one or more Books reproduced by Google as part of its Library Project.” SPA2. That decision was error, for several reasons. First, Plaintiffs cannot adequately represent, as required by Rule 23(a), the large number of class members who would be harmed if Plaintiffs prevail—that is, the many class members who benefit economically and in other ways from the Google Books project and do not want to see it curtailed.

Not surprisingly, the argument here is compelling. Even if you don't buy the fair use argument, it's difficult to see how the Authors Guild can realistically represent such a diverse group of authors while claiming to represent them all. No matter what happens, as these cases move forward, I'm sure we'll have plenty to discuss.

Filed Under: book scanning, copyright, fair use, standing
Companies: authors guild, google, hathitrust

Court: Book Scanning Is Obviously Fair Use

from the not-even-close dept

Well, well. I had a post all written up that I was going to publish today about how the settling of the Publishers lawsuit against Google over book scanning had one downside -- that we didn't get a full court ruling on the question of whether or not the book scanning project constituted fair use. I have to now scrap that post, because before I had a chance to finish it off, the judge in a similar/related case -- filed by the Authors Guild against HathiTrust, a consortium of universities trying to digitize their libraries -- ruled that the book scanning effort was obviously fair use. Judge Harold Baer is pretty explicit that this is absolutely fair use when you look at the details:

Although I recognize that the facts here may on some levels be without precedent, I am convinced that they fall safely within the protection of fair use such that there is no genuine issue of material fact. I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendants’ MDP and would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts that at the same time effectuates the ideals espoused by the ADA.

In other words, when you look at this project, it should be obvious that it's advancing the public good in many ways, and thus, promoting the progress. The judge relies heavily on one of my favorite fair use cases that I often use to debunk false ideas that some people have about fair use. Those who don't know the law, often insist that there can be no fair use if either (a) the entire work is used or (b) it's used in a commercial setting. Yet, as the Bill Graham Archives v. Dorling Kindersley case showed, neither point needs to be true (even if they may weigh on how the fair use factors are considered). In this case, even if there were commercial elements and the entire works were "used" in that they were scanned, the court said that this use was obviously transformational in a useful manner.

A transformative use may be one that actually changes the original work. However, a transformative use can also be one that serves an entirely different purpose.... The use to which the works in the HDL are put is transformative because the copies serve an entirely different purpose than the original works: the purpose is superior search capabilities rather than actual access to copyrighted material. The search capabilities of the HDL have already given rise to new methods of academic inquiry such as text mining

The judge also, thankfully, noted that just because HathiTrust didn't "add anything new" to the work itself "misses the point" because each scan "serves a different function than the original work."

The judge also rejected the whole claim that the scanning "impacts the market" for the works -- which is the other key factor. While some like to pretend that any activity "impacts the market" because any use limits the possibility of a license, the court (thankfully) recognizes that such an argument is ridiculously broad and makes no sense. Furthermore, he notes that the plaintiffs have to show real harm is likely, and they completely failed to do so here.

Of course, the details in the Google book scanning suit are somewhat different -- in that the use is more clearly commercial, and a greater amount of the book is made available. However, as James Grimmelmann notes, the "near complete victory" for HathiTrust with this ruling does not bode well for the Authors Guild case against Google, and increases the likelihood of an out of court settlement.

Filed Under: book scanning, fair use, transformative
Companies: authors guild, google, hathitrust

The Biggest 'Pirates' And 'Freeloaders' Of Them All? College Professors And Librarians

from the freetards dept

There's an interesting article over at Law.com highlighting just how many lawsuits there are in which college professors and librarians are fighting back against overly draconian copyright laws. Most of the cases they mention are ones we've discussed here, but it's a good article overall. It talks about the Georgia State fair use case, the UCLA case about streaming video, and the Authors Guild suit against the Hathitrust for trying to make books more accessible.

The really incredible thing in all of this is that copyright is supposed to be about the encouragement of learning. In fact, the first US federal copyright law was called "An Act for the Encouragement of Learning." But, the fact is that universities and librarians are constantly bumping up against the ridiculous and over-aggressive limits of copyright law in ways that prevent them from basic tasks that aid in education and learning.

Copyright system defenders love to paint critics of today's copyright laws as merely being a bunch of "freeloaders" and "pirates." That's a ridiculous assertion. The big problem of copyright law today is how it impacts everyday people doing everyday things. The fact that so many professors and librarians -- those who are at the forefront of the "encouragement of learning" -- are discovering that copyright law gets in their way more than it helps suggests a law that is completely out of touch with its intended purpose. This isn't about freeloaders and pirates. This is about some of the fundamental principles of education.

Filed Under: education, learning, library
Companies: authors guild, hathitrust

Unfortunate: Novelist Joins Lawsuit Against Libraries; Would Apparently Prefer His Book Rot In Obscurity

from the short-sighted dept

After the Authors Guild decided to prove that it's really against education by suing University Libraries, it also began a disappointing game of "gotcha". Specifically, the Guild found J.R. Salamanca, an author who the HathiTrust had been unable to find. The HathiTrust had listed a novel by Salamanca in its list of potential orphan works. The list actually worked as intended -- providing time for any such authors to identify themselves and to stop the orphaned work from becoming available as a scanned work.

Still, this made HathiTrust look bad, and it put the project on hold. The best response, though, was from Duke University's Scholarly Communications Officer, Kevin Smith, who wrote an open letter to Salamanca urging him not to join the lawsuit:

It is not a comfortable position to be a pawn in a game of “gotcha,” especially when it involves litigation. What I want to say to you is the same thing I say to faculty authors at the institution where I work: “Consider carefully where your own best interests lie, and manage your copyright to serve those interests.”

[....]

I am sure I do not have to tell you that libraries, including those that intend to participate in the Hathi Orphan Works project, are not your enemies. We are in the business of helping authors find readers, which hardly seems like it should be an objectionable activity. So let’s think for a minute about The Lost Country and what might be best for it and for you.

The sad fact is that The Lost Country has become a pretty obscure work. Amazon.com shows only two used copies available for sale. In the Duke Libraries, the last transaction record we have for your novel is in 2004, when our copy was sent to high-density storage. It has not left the facility once since then, and our system shows no circulations in the prior decade, either. One of the famous “laws” of librarianship is that every book should have its readers, and the current system, I am afraid, is failing to connect your book to new readers.

It has to be said that the Authors Guild is not going to help you in this regard. They are not going to publish a new edition of The Lost Country for you, nor will they pay you any royalties on the out-of-print edition. The Authors Guild simply does not have the ability to create a new market for your book. Even if they were to succeed in a grand strategy to impose a licensing scheme for orphan works in general, there is no reason to believe that you would profit from it. With such an obscure work, potential users who had to pay a fee would probably just skip the planned use.

Where you can find help for this problem is with the HathiTrust. Their goal, and the goal of the libraries that plan to participate in the orphan works project, is to make it easier for readers to find works like your novel, which might otherwise languish on shelves or in large warehouses of books. Digital access to low-use titles through our catalogs will encourage users to discover resources, for study and for entertainment, that they might not have bothered with before.

It appears that the rhetoric from the Authors Guild won out, and J.R. Salamanca has gone in the other direction, joining the lawsuit against the universities and the HathiTrust. What a sad legacy Salamanca is adding to his career. Rather than embracing greater access to his obscure and out of print works, he's chosen to attack learning institutions who sought to make his works more accessible. As a professor himself, he ought to be ashamed.

Filed Under: copyright, j.r. salamanca, libraries, orphan works
Companies: authors guild, hathitrust

Rather Than Fixing The Problem Of Orphaned Works, The Authors Guild Wants To Play 'Gotcha'

from the you're-not-helping dept

With the Authors Guild's recent move to sue a bunch of university libraries for daring to make certain works digitally available to students as "orphaned works," the latest move by the guild is to engage in a massive game of "gotcha." It started by going through the list of books that were proposed as orphaned works -- and finding one of the authors, followed by an effort that potentially found a few more.

There's no doubt that, as James Grimmelman pointed out, this makes the HathiTrust effort look bad. This was their first effort to show how an orphan works program might work, and the fact that their process was shown to be less-than-perfect (especially their "first" showcase effort) is definitely going to set back any orphan works project in the future -- because any time such an effort is brought up, people will point to this example.

Of course, others might reasonably argue that the system worked. After all, none of these books had been released digitally yet. The process involved the HathiTrust first trying to track down the authors, then the authors/works being put in a public list, which could be scrutinized by the public to see if any of them could show that the works weren't orphans. And that's exactly what happened. Even if you could have hoped that the original investigation was a bit better, it's hard to argue that the system didn't work here. It did.

Either way, the University of Michigan did exactly what it had to do from a PR standpoint, and suspended the program until it can refine the process to make it more effective in only releasing truly orphaned works.

However, the bigger issue to me is just how gleeful the Authors Guild seems to be that it's sticking it to universities and their libraries. The Authors Guild should be supporting the efforts of these libraries to legitimately make otherwise unavailable works available again. The Authors Guild should be partnering with these libraries to make sure the works truly are orphaned. Instead, they're jumping up and down and gloating over the fact that such works won't be accessible any more. It's really quite disgusting.

I think the best response to all of this came from Duke's Scholarly Communications Officer, Kevin Smith, who wrote an open letter to J.R. Salamanca, who was the first name on the list who was "found" by the Authors Guild, asking him to recognize that the libraries are not his enemy, as the Authors Guild is trying to claim:

I am sure I do not have to tell you that libraries, including those that intend to participate in the Hathi Orphan Works project, are not your enemies.  We are in the business of helping authors find readers, which hardly seems like it should be an objectionable activity.  So let’s think for a minute about The Lost Country and what might be best for it and for you.

The sad fact is that The Lost Country has become a pretty obscure work.  Amazon.com shows only two used copies available for sale.  In the Duke Libraries, the last transaction record we have for your novel is in 2004, when our copy was sent to high-density storage.  It has not left the facility once since then, and our system shows no circulations in the prior decade, either.   One of the famous “laws” of librarianship is that every book should have its readers, and the current system, I am afraid, is failing to connect your book to new readers.

It has to be said that the Authors Guild is not going to help you in this regard.  They are not going to publish a new edition of The Lost Country for you, nor will they pay you any royalties on the out-of-print edition.  The Authors Guild simply does not have the ability to create a new market for your book.  Even if they were to succeed in a grand strategy to impose a licensing scheme for orphan works in general, there is no reason to believe that you would profit from it. With such an obscure work, potential users who had to pay a fee would probably just skip the planned use.

Where you can find help for this problem is with the HathiTrust.  Their goal, and the goal of the libraries that plan to participate in the orphan works project, is to make it easier for readers to find works like your novel, which might otherwise languish on shelves or in large warehouses of books.  Digital access to low-use titles through our catalogs will encourage users to discover resources, for study and for entertainment, that they might not have bothered with before.

It seems unlikely that the Authors Guild will understand this. But watching Scott Turow (whose books I was a fan of until all this began) and the other top brass at the Authors Guild act this way, it's hard not to be flat-out disgusted by the way the group is so gleeful about locking up knowledge.

Filed Under: books, copyright, orphan works
Companies: authors guild, hathitrust