It seems I spoke too soon. Only hours after I posted on this site a comment about why the HathiTrust orphan works project should not be controversial came news that the US Authors Guild, joined by similar associations in two other countries and eight individual authors, has filed suit to enjoin Hathi from proceeding with the project and seeking to impound all seven million digital volumes held by Hathi that may still be protected by copyright. Professor James Grimmelmann of New York Law School declares that “the Orphan Wars are upon us.”
Let’s start by being very clear about what these plaintiffs are asking. In their complaint they list 62 works to which named plaintiffs hold copyright and also assert “associational standing” based on their representation of other unnamed copyright holders in unnamed works. To protect those few works from distribution by Hathi, which as I far as I can tell is not actually imminent, the plaintiffs ask to impound and remove from Hathi 7 million files. AG President Scott Turow calls Hathi “an intolerable digital risk.” To me the real risk is that the foolish actions of Turow and his handful of followers (all but one of the plaintiffs are officers of one of the associations) will threaten the tremendous cultural potential of Hathi and similar projects simply because they are frightened of the Internet and have not yet figured out how to make money off of it.
Professor Grimmelmann has an excellent analysis of the complaint at the link above, and Kenny Crews of Columbia offers his comments here.
My own reading of the initial complaint — I doubt it is the final version — suggests a notable absence of logical argument. The press release the plaintiffs issued yesterday was full of protests and anguish, but did little to state a real case against Hathi. As it turns out, the complaint itself is not much clearer.
As Grimmelmann points out, one issue for the association will be standing to sue. Assuming that plaintiffs hold valid copyrights in some works that were digitized by Google and are held in the HathiTrust, they claim to have standing to object to the digitization of their works — but Google is not named as a defendant — and to the distribution of digital files back to the universities and into the HathiTrust. By itself, this would not, in my opinion, support an injunction; there is no sense of imminent harm. So then the complaint makes a dramatic turn and addresses the orphan works project, claiming that it is an illegal distribution. But they provide no evidence that any of the plaintiffs actually hold any rights in those works identified as orphans or that they represent anyone who does. So if the whole argument is needed to justify the injunction being sought, there may be a question of whether any of these plaintiffs have standing to seek it. They need to show an immediate prospect of particularized harm, and I don’t think they can do it.
Another place where logic fails in the complaint is when the plaintiffs try to explain why the digitization and preservation is illegal. Early on in the document they note that “The Universities have publicly defended their unauthorized digitization activities by claiming their conduct benefits society and is permissible under the fair use doctrine set forth in section 107 of the United States Copyright Act.” They then declare that “[t]his position is without legal support” and immediately turn to a discussion of section 108 of the copyright act. They never again mention fair use or address it as a potential defense, although they dedicate three pages later on to an elaborate, and irrelevant, discussion of section 108, which is the section that lays out specific exceptions for library preservation and for interlibrary loan.
The argument here seems to be that section 108 fully defines what libraries can do with copyrighted work and, if it is not permitted under 108 or authorized by the rights holder it is therefore infringing. But this is wrong; the argument is defeated by a single short phrase found in section 108 itself, at subsection (f)(4), where the law states that “Nothing in this section… in any way affects the right of fair use as provided by section 107.” Libraries still can rely on fair use, and it is interesting that the text of the law itself calls fair use a “right,” not merely a defense. Like it or not, the plaintiffs’ claim will have to withstand an assertion of fair use, and if they cannot address that fair use claim they are doomed, one hopes, to failure.
The fact is that the Authors Guild has not been doing very well on the litigation front recently. Their attempt to sue Google and then settle with it in a way that would allow the monetization of orphan works has failed, and the case is currently in limbo. It is interesting to speculate on whether or not this filing is intended in any way to influence the outcome of that case; perhaps they hope to persuade Judge Chin in that case that Google and its partners are not reliable actors to deal with the orphan works problem. The Authors Guild was also recently dealt a setback in its long-standing Tasini litigation when another judge refused to certify a class for class action status. Instead of becoming litigation-shy, it appears that the Authors Guild wants to raise the stakes. At least they have not tried to bring this case as a class action as well.
The reference to how we might solve the orphan works problem in this country and elsewhere gives us a clue, I think, to what is behind this lawsuit and why it takes such an odd and twisted form. I think what is really going on here is an attempt to forestall ANY exploitation of orphan works until and unless the industry lobbyists can convince Congress to pass legislation that allows them to make money from those works. The plaintiffs never address the defendants’ claim, to which they refer, that Hathi provides a social benefit, and I think that the point of the lawsuit is to make sure that they get paid before anyone is able to take advantage of that benefit. I will have more to say about this possibility in my next post.