As with a difficult pregnancy, the birthing of a new publishing model for the 21st century has proven complex and painful for everyone involved. The focus of much of the debate and angst has centered on what the publishing industry and authors see as the nexus of the struggle: Google Books, and recent actions seem to be taking this struggle aggressively to new levels. On Sept. 12, eight authors—including James Shapiro and Fay Weldon—along with three key organizations representing authors in North America and Australia—filed suit to stop academic libraries from their participation in HathiTrust digitization projects (in cooperative agreements with Google Books). Led by the Authors Guild (AG), the “nation’s leading advocate for writers’ interests,” the plaintiffs include the Australian Society of Authors Limited and Canada’s Union Des Écrivaines et des Écrivains Québécois (UNEQ).

The suit, filed in U.S. District Court, Southern District of New York, charges that HathiTrust, University of Michigan, University of California, University of Wisconsin, Indiana University and Cornell University are engaging in “systematic, concerted, widespread and unauthorized reproduction and distribution of millions of copyrighted books and other works, including books whose copyright are held by Plaintiffs.”

HathiTrust, founded in 2008, is “a partnership of major research institutions and libraries working to ensure that the cultural record is preserved and accessible long into the future.” Its membership list reads like a who’s who of academic research libraries: The 13 academic research libraries in the Committee on Institutional Cooperation, the Triangle Research Libraries Network of North Carolina, the University of California library system, as well as the Library of Congress, Harvard, and many more.

HathiTrust was originally established by a collaboration of libraries involved with the Google Books digitization effort as a way to house, share, and create a single portal for access to this shared digital repository of works. The organization now has enlarged its focus to reflect its “deep commitment to the public good” by efforts to “contribute to the common good by collecting, organizing, preserving, communicating, and sharing the record of human knowledge."

The suit alleges that these institutions, in effect, colluded with Google to engage in “an unprecedented effort to ‘digitize’—or to create digital copies of—all or a significant portion of the works in their libraries without the permission of their authors or other copyright holders.”

A Widening Rift Between Publishers & Writers

This suit came 3 days before publishers and authors groups were meeting with Google’s representatives in U.S. Federal Court for a status conference on pending litigation on Sept. 15. Publishers and Google reported that progress was being made. Tom Allen, president of the Association of American Publishers, a party to the talks, noted that “we are working to resolve the differences that remain between the parties and reach terms that are mutually agreeable.” However, authors, as represented by the AG reported that, although talks were continuing, they appeared less positive about a resolution. A pre-trial schedule for ligation in the case was set for July 2012.

Jeff Roberts, blogging at paidContent.org, notes that “the common front between authors and publishers against Google has come apart. Struggling publishing houses are likely to welcome the near-term cash infusion a deal with would bring Google as they try to grab a piece of the growing ebook market. Individual authors, on the other hand, stand to gain less—the initial settlement would have paid them $60 to $300 per book—so they may have more of an incentive to continue the court fight.”

This latest lawsuit by the AG follows its ongoing effort, in collaboration with the American Society of Journalists and Authors and National Writers Union on behalf of “thousands of freelance writers whose stories appeared in online databases without their consent” against such media companies as Dow Jones, The New York Times, and the owners of LexisNexis, which had “made digital use of the writers’ articles without permission.” This case, first filed in 1993, is still in the courts.

The Final Straw: Orphan Works

The Orphan Works Project was initiated by HathiTrust in June 2011 as a way to try to deal with works for which a copyright owner could not be identified or found so that these works could still be made available through the HathiTrust Digital Library. Led by the University of Michigan libraries, a system was developed to research the ownership status of these orphaned works based on the proposed-but-never-enacted orphan works legislation, the Orphan Works Project.

According to the protocol established by HathiTrust, if a copyright owner couldn’t be identified through a process of due diligence, the HathiTrust would post the work on a HathiTrust Orphan Candidates webpage for 90 days. If no copyright owner would come forward during this time, the work would be made available for use by authenticated users of the member universities’ libraries, including students, faculty, other staff, and possibly alumni.

As Information Today’s Legal Issues columnist and attorney George H. Pike noted in a recent NewsBreak, the legality of the enterprise was questioned from the start: “Copying the entire work as the Orphan Works Project plans to do, and as Google did before them, usually argues against a finding of fair use. In addition, while the database may transform access to the books, it could be seen as simply a different form of copying. Finally, the amount of time and money that Google has put into the Google Books project suggests that there is a digital market for out-of-print books that would be impacted by the Orphan Works Project.”

Many have questioned the legality of establishing an “opt-out” model, since U.S. copyright law doesn’t recognize “orphan works” as being any less protected than any other work. Judge Denny Chin himself was reported as noting that “substantial objections would be eliminated if the settlement applied only to books whose authors or copyright owners would explicitly ‘opt in’ to its terms.”

A listing of 167 titles was posted by the University of Michigan on the HathiTrust site (it has since been taken down). Once the AG was able to find one of the Orphan works’ copyright holder, the die was cast. In “about two minutes of googling,” AG staff were able to locate the author of one of the orphaned works doing what they described as “cursory research into some of the names on the list of ‘orphan works’ candidates at the HathiTrust website to see if we could find contact information for a copyright holder.”

The AG noted that “if HathiTrust’s researchers can’t locate a bestselling author with a literary agent, an author who’s also a retired professor from a major East Coast university, how are they going to locate authors in other countries? How will they find an author of a work in Finnish (more than 4,000 books in the collection), Hindi (more than 35,000 books), or Japanese (more than 150,000 books)?”

However, this clearly wasn’t the instigation of the suit, as AG admitted in its press release. The AG’s decision to do its own research on these works began “just before we filed our lawsuit,” so clearly this didn’t precipitate that action.

Once the error was made public, the University of Michigan library released a statement admitting that their “pilot process is flawed,” and their intention to “create a more robust, transparent, and fully documented process,” before they continue the process. Expressing satisfaction that having released the list, non-orphans were properly identified for removal from the list, the library asserted that they “remain as certain as ever that our proposed uses of orphan works are lawful and important to the future of scholarship and the libraries that support it.”

The lack of a diligent search to locate the owner is a tragic blunder, given the unsettled copyright status of the project. The AG seemed particularly gleeful in their reporting of this and, as Jeff Roberts noted at the paidContent blog, “the news means that the authors’ groups have won the first round in shaping public perceptions of the orphan works. The debate so far has for the most part been a rhetorical one in which authors have tried to paint the librarians as legal outlaws who want to give away their books in a Napster-style free-for-all.”

HathiTrust executive director, John P. Wilkin, was quoted in a New York Times article on the suit, calling this project “a lawful activity and important work for scholarship. This is a preservation operation, first and foremost. Books are decaying on the shelves. It’s our intention to make them available to people at institutions for scholarly purposes. We are ensuring that the cultural record is preserved.”

Regardless of its future, the project was an interesting, proactive move on the part of the libraries to advocate for access through the muddy waters of U.S. copyright law.

Reaction

Reaction has been swift and broad-based. The Library Copyright Alliance (LCA), a group whose members include the American Library Association, Association of research libraries and Association of College & Research Libraries, called the Guild’s lawsuit a “deplorable…[effort] to dismantle this invaluable resource out of a misplaced fear of the digital future.” LCA, which works to represent the interest of its members in the areas of “copyright and related intellectual property laws and treaties, nationally and internationally,” called the suit shameful, with “no merit and completely disregards the rights of libraries and their users under the law, especially fair use.”

The Electronic Frontier Foundation’s Corynne McSherry notes that “the guild is dead set on wasting time and money addressing imaginary harms, whether or not its efforts might actually benefit either its members or the public.”

Law professor and blogger James Grimmelmann sees the suit as evidence 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.”

Grimmelmann continues “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.”

However, Grimmelmann believes that libraries and HathiTrust should have seen this coming. “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.”

Irvin Muchnick, writing in the BeyondChron blog, notes that what is needed now is to “move on the national business of copyright reform, antitrust waivers, and compulsory licenses in order to realize the benefits of new technologies.”

Internet Archive’s Peter Brantley, blogging for Publishers Weekly, suggests that it would “be better if libraries and rights representing organizations, agents and publishers, author unions and archives, worked together to figure out how to join with efforts, such as ARROW, to build comprehensive and interoperable registries of rights information?”

An Upcoming Battle With Authors?

Going the litigation route only guarantees that no solution will be forthcoming for many years to the basic issues in this case. It also represents an ominous shift in relationships between authors and libraries, a relationship that has traditionally been very strong and mutually beneficial.

Author Frances Grimble takes the case against libraries a step further: ‘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.”

As author Jessamyn West noted in a blog posting reacting to Grimble, “libraries are really one of the largest purchasers of books in the U.S. 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.”

The bad feelings and legal entanglement created by the current state of copyright in the U.S. is destined to carry this problem along for many years to come. Matthew Ingram, writing for a Business Week blog, notes that, as further collateral damage, Google may decide to pull out of this battle to focus company energy on more productive, less controversial projects. If this is done, it would “would leave the universities in the HathiTrust on their own, fighting the authors and publishers that want to maintain control over the world’s books instead of allowing Google to provide them for free. That in turn could ultimately kill the idea of a global library that makes all books available ... and is that the kind of future we want?”