Writers Sue Universities for Digitizing Books

     MANHATTAN (CN) – The Authors Guild and writers groups from Australia and Quebec sued five major universities, to block distribution of unauthorized digital copies of millions of copyrighted works from the universities’ libraries.


     Eight individual authors also sued, claiming the universities “engaged in a concerted, systematic and widespread campaign to digitize, reproduce, distribute and otherwise exploit millions of copyrighted works in their libraries without permission from the copyright holders associated with those works.”
     Named as defendants are the University of Michigan, the University of California, the University of Wisconsin, Indiana University, Cornell University and HathiTrust, the universities’ library partnership organization.
     The universities, which partnered with Google to digitize their library collections, are planning to provide full-text access to so-called orphan works, whose copyright owners cannot be located, the writers say in their federal complaint.
     “Through cooperation agreements entered into with Google Inc. (‘Google’), defendants have engaged 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,” the complaint states.
     “In exchange for allowing Google to create, take and commercially exploit millions of digital copies of books and other materials in their university libraries, Google has agreed to provide and has already provided the universities with digital copies of plaintiffs’ and millions of others’ books for the universities to exploit. Led by the University of Michigan, the universities created and joined HathiTrust, a partnership of more than fifty research institutions and libraries that have already begun to and, unless enjoined by this court, will continue to combine their digital libraries to create a shared digital repository that already contains almost 10 million digital volumes, approximately 73 percent of which are protected by copyright. This so-called HathiTrust Digital Library (‘HDL’) is responsible for creating and distributing additional unauthorized digital copies of millions of copyrighted works, including works owned by plaintiffs, and risking the potentially catastrophic, widespread dissemination of those millions of works in derogation of the statutorily-defined framework governing library books.”
     HathiTrust, based in Ann Arbor, Mich., was created in 2008 by several major universities and research institutions as a repository to archive and share their digitized library collections. The defendant universities have contributed more than 8 million digital volumes to the HathiTrust library, according to the complaint.
     The writers says the universities defend their “systematic digital copying” by invoking the fair-use doctrine of the U.S. Copyright Act, which allows libraries to reproduce and distribute copyrighted works for preservation purposes and as replacement for published works.
     But the writers say the universities’ digital lending disregards the restrictions of the Copyright Act, which limits the number of digital copies libraries can make and prohibits libraries from distributing digital copies outside their premises or archives.
     “In blatant derogation of plaintiffs’ exclusive rights under Section 106 and the express regulations governing libraries’ rights under Section 108 of the Copyright Act, defendants have engaged in a concerted, systematic and widespread campaign to digitize, reproduce, distribute and otherwise exploit millions of copyrighted works in their libraries without permission from the copyright holders associated with those works,” according to the complaint.
     The authors say that “since commencing the digitization project, Google and its partners have digitized more than 12 million books.”
     They say the digitization project may be worth millions of dollars to the universities and their partners.
     “Upon information and belief, pursuant to separate cooperative agreements entered into by Google and each university, the parties cooperate to identify books from the university’s collection to be digitized. The books selected for digitization are not limited to works in the public domain, unpublished works or deteriorating published works that cannot be replaced, but include in-print books that are commercially available and are protected by copyright. The university then collects the works and has them delivered to a facility located either on or off the school’s campus that is occupied by Google personnel and scanning equipment.
     “Upon information and belief, Google is responsible for digitizing the content of the works. After a work has been digitized, Google retains at least one copy for commercial exploitation through ‘Google Books’, an online system that allows users to search the content and view ‘snippets’ of millions of digitized books.
     “Upon information and belief, Google also provides a digital copy of the work to the university. The digital copy comprises a set of scanned image files, files containing the text of the work extracted through optical character recognition (‘OCR’) technology, and data associated with the work indicating bibliographic and other information. By creating both scanned image files of the pages and a text file from the printed work, the digitization process, and each subsequent copy thereof, includes two reproductions of the original. After digitization, the original works are returned to the source library.”
     The authors say that certain universities also digitize books in their collections in-house, using their own equipment and personnel.
     They say that rather than copying their works, the libraries transfer the digital works to HathiTrust, which then creates additional backup copies, in violation of the Copyright Act.
     HathiTrust preserves works that are in-copyright and commercially available, and allows users to view and download full copies of certain volumes, according to the complaint.
     “Upon information and belief, the HDL is capable of providing public access to the ‘full view’ of every digital object in the database, even if access is purportedly restricted by settings in the HathiTrust rights database. Thus, if the copyright status of a work is misidentified in the HathiTrust rights database, the HDL malfunctions or a user obtains unauthorized access to the HDL, the work may become fully viewable, printable and downloadable by the general public,” the complaint states.
     The authors say neither Google nor the universities got the copyright owners’ permission to digitize their books.
     The Authors’ Guild filed a separate lawsuit against Google in 2005, alleging massive copyright infringement. U.S. District Judge Denny Chin rejected the parties’ proposed settlement this year, finding that the creation of a universal digital library would give Google an unfair advantage over competitors and would reward the company for exploiting unclaimed books and copyrighted works.
     Also this year, four of the defendant universities announced their participation in HathiTrust’s “Orphan Works Project,” which plans to identify and provide full-text access to digitized orphan works to university students and other library patrons, according to the complaint.
     Although HathiTrust claims to use a multistep process to check whether works are commercially available and to locate the copyright holder, many of the purportedly orphan works are still-in-copyright, the authors say.
     The first set of copyrighted works deemed to be orphans will become available for full view in October, according to the complaint.
     The authors say that “by digitizing, copying and now publishing the copyrighted works without the authorization of those works’ right holders, the universities are engaging in one of the largest copyright infringements in history. The universities have directly caused millions of works that are protected by copyright to be scanned, stored in digital format, repeatedly copied and made available online for various uses. These actions not only violate the exclusive rights of copyright holders to authorize the reproduction and distribution of their works but, by creating at least two databases connected to the Internet that store millions of digital copies of copyrighted books, the universities risk the widespread, unauthorized and irreparable dissemination of those works.”
     The authors want the libraries enjoined from scanning and distributing copyrighted books, the orphaned works project stopped and the digital copies on HathiTrust’s servers impounded.
     Plaintiffs include British novelist Fay Weldon, U.S. Historian T.J. Stiles, Columbia literature professor James Shapiro, Quebecois children’s book writer and novelist Daniele Simpson, Andre Roy of Quebec, short story writer Roxana Robinson, Australian novelist Angelo Loukakis, and U.S. children’s book illustrator Pat Cummings.
     They are represented by Edward Rosenthal with Frankfurt Kurnit Klein & Selz.

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