Authors Organizations File Fresh Lawsuit Challenging Google Library Scans and Pending "Orphan Works" Access

The Authors Guild filed a fresh lawsuit yesterday in a New York Federal Court that stems from the Google Books library scanning project. In this case, they are suing the university consortium HathiTrust, as well as the regents and trustees of the University of Michigan, the University of California, the University of Wisconsin, Indiana University and Cornell. The Guild is joined by the Australian Society of Authors, UNEQ (a Quebec writers union), seven authors who are on the boards of those organizations, and author Fay Weldon.

Like all the legal wrangling over the Google scanning, the case is complicated, and we'll try to get to the essence in a minute. First, the larger takeaways. With a hearing on the Google Books case before Judge Denny Chin set for this Thursday, people are drawing the reasonable conclusion that settlement talks have not led anywhere meaningful, despite the Judge's stern prodding the last time around.

Ever since the AAP first sued Google for copyright infringement in 2005 (shortly after the Authors Guild filed a separate suit), the publishers made it clear that their biggest concern was how state university libraries would use the scans. As part of state governments, those libraries are considered beyond legal reach. Which explains why the new suit tries going after the regents and trustees (which are organized as corporations) rather than the institutions themselves--and it's interesting to see the Guild turn its focus to the libraries as well after all these years.

The new filing appears to reflect some lessons learned from the unresolved first Google Books suit. This is not a class action suit (with the messy issues of trying to fairly and adequately represent millions of creators), and in the filing the plaintiffs assert "associational standing to pursue claims...on behalf of their members" and argue "individual participation of each author is not required" to determine whether the defendants are violating copyright.

Instead of asking for monetary damages, the suit asks the court to "impound" the digital files, to be held in escrow, and looks for legal fees as well. This time around, the plaintiffs are represented by an established IP firm--Edward Rosenthal and Jeremy Goldman at Frankfurt Kurnit Klein & Selz--rather than class-action specialists.

There appear to be two triggers for the new suit, which itself reasons on two different levels. One is the expected stalemate on the original Google Books lawsuit; the other is the HathiTrust's planned October 13 launch of their Orphan Works Project--which copyright holders view as part of libraries' aggressive efforts to invent new ways of providing electronic access to works beyond what they believe copyright law allows.

With no clear pathway to make orphan works available coming from the Google Books case or Congress (and Judge Chin has sided with those believe it's Congress's job to fix), HathiTrust intends to start making available a small number of scans to books it has concluded are available to share throughout their consortium after trying to locate valid copyrightholders through a "purported...multistep due diligence process." By "proceeding on their own authority, ignoring the interests of copyright holders," the plaintiffs say the universities "have taken copyright law into their own hands." They argue that imminent launch of the Orphan Works project poses "sufficient immediacy and reality" to warrant immediate action from the court.

The second prong of the suit goes back to challenging the very scanning of in-copyright (and potentially in-copyright) books, even if those scans are not made available to the public. The action acknowledges that the libraries have argued in public they are protected by fair use (delineated in this section of copyright law). The plaintiffs say "this position is without legal support," and focus their arguments on the very particular exceptions for libraries that copyright law already describes, arguing those exceptions should govern in this matter and that the HathiTrust "far exceeds the express limitations" of those provision. In particular, the suit argues that the interlinked consortium creates many more digital archive copies than the library exception provides for. They assert that even the private uses the universities make of those millions of book files also go beyond what the law allows. Because the consortium has machines connected to the internet, the plaintiffs argue there is a risk of "potentially catastrophic, widespread dissemination of those works," saying that, unlike what was provided for in the unsuccessful Google Books settlement, the consortium lacks "commercial-grade security guarantees" over those book files. AG president Scott Turow says the program creates "needless, intolerable digital risk," adding that "authors shouldn't have to trust their works to a group that's making up the rules as it goes along." Additionally, the suit argues that a mistake in the HathiTrust rights database (or unauthorized system access) can make a copyrighted book accidentally available to the public.

On his blog, James Grimmelman at New York Law School opines that "the authors have a comparatively better case" against the Orphan Works Project in particular, and reasons that the far broader challenge in the suit is included in part to provide legal standing to combat the orphan use. ("If the Authors Guild sued only to stop the orphan works displays, it would likely lack standing to bring the suit, since none of its members would be harmed by having their specific books displayed. That's the advantage for the libraries of using a book-by-book process: it's easy not to include any books that current Authors Guild members would own the copyright in. Indeed, by picking only out-of-print books with authors who can’t be found, they almost guaranteed that no specific author would step forward to sue.")
AG release (with link to the full complaint at the bottom)