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.
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
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.
Lexis.com subscribers can explore/search Copyright Law resources on Lexis.com or access any of these Mathew Bender Copyright Law publications:
Non-subscribers can purchase Copyright Law
treatises/resources and Mathew Bender publications from the LexisNexis Bookstore
For more information about LexisNexis products and
solutions connect with us through our corporate