Are Universities Super-Sizing Copyright Infringement? Authors Guild Makes the Case in Suing HathiTrust/Universities for Google-Aided Digitization of Library Collections

According to a recent complaint filed by the Authors Guild, several Universities and the HathiTrust are engaging in "...one of the largest copyright infringements in history." The lawsuit concerns Google's on-going digitization of university library collections and orphan works. The complaint asks for the impoundment of all unauthorized digital copies and for their escrow pending an appropriate act of Congress.

The University defendants and Google entered into cooperation agreements allowing Google 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." In exchange, Google provides the Universities with copies of the digitized books. Allegedly, the project has digitized more than 12 million books and has a value of hundreds of millions of dollars.

The Authors Guild charges that the project has run amok in terms of copying, exceeding the statutorily mandated number of copies allowable for a library. 17 U.S.C 108. In its complaint, the Authors Guild alleges that:

In all, through their systematic and concerted digitization efforts, the Universities and HathiTrust are responsible for the creation of at least twelve unauthorized digital copies (six image files, six digital-text files) of every physical work in their libraries that is selected for digitization: two copies for Google, two copies for the originating University, two copies for the HDL servers at UM, two copies for the HDL [HathiTrust Digital Library] servers at IU and two tape backups of the image and digital text files at separate UM facilities. Each pair of digital copies is stored at a different location and is accessible by different individuals. It is likely that additional copies are made at some or all of the locations.

A sub-issue of the complaint concerns the HathiTrust's treatment of "orphan works." The HathiTrust follows a multi-step process (determining if an author's locatable and if not, listing the work for 90 days) in identifying orphan works. According to the Authors Guild:

In deciding to proceed with the HathiTrust Orphan Works Project, the Universities have taken copyright law into their own hands, ignoring proposed legislative solutions to address the issues as well as the Court's rejection of a privately-negotiated agreement between Google and the Guild (among other parties) in a separate case. ...

Rather than heeding the Court's words, and allowing Congress, acting in the interest of all communities, to determine the requirements and safeguards that will govern the use of digital libraries and orphan works, Defendants have instead proceeded on their own authority, ignoring the interests of copyright holders.

Regarding the aforementioned "separate case," Authors Guild v. Google Inc., 770 F. Supp. 2d 666 (S.D.N.Y. 2011) [enhanced version available to lexis.com subscribers], the complaint cites Judge Denny Chin's concern that "the establishment of a mechanism exploiting unclaimed books is a matter more suited for Congress than this Court." (as a side note, the case against the HathiTrust/Universities has been referred to Judge Chin as possibly related to 1:05-cv-8136). In the cited case, Judge Chin reasoned:

The questions of who should be entrusted with guardianship over orphan books, under what terms, and with what safeguards are matters more appropriately decided by Congress than through an agreement among private, self-interested parties. Indeed, the Supreme Court has held that "it is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause's objectives."

The Universities have defended their digitization activities as a societal benefit and as permissible under the fair use doctrine. The Author Guild disagrees and asserts that the Universities are limited by Section 108 of the Copyright Act, which "explicitly regulates the extent to which libraries may lawfully reproduce copyrighted works without authorization, the circumstances under which digital copies may be created and displayed to library patrons and when copies of orphan works may be released to the public."

In response to the lawsuit, the Association of Research Libraries recently issued a resource packet on orphan works. The resource packet briefly notes several issues that might jeopardize the lawsuit, including standing and sovereign immunity. More specifically, the resource packet examines the lawfulness of the Hathitrust's use of orphan works. It is suggested that the proposed use falls within the scope of section 108(e) and fair use.

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