An open letter to J.R. Salamanca

Dear Mr. Salamanca,

Earlier this week, only days after it filed its ill-advised lawsuit against the HathiTrust and five of Hathi’s partner universities, the Authors Guild gleefully announced that they had been able to find, with relative ease, the author of one of the books on Hathi’s initial list of orphan works.  You, of course, were that author, and the work in question was your 1958 novel The Lost Country.

It is not a comfortable position to be a pawn in a game of “gotcha,” especially when it involves litigation.  What I want to say to you is the same thing I say to faculty authors at the institution where I work: “Consider carefully where your own best interests lie, and manage your copyright to serve those interests.”

In one sense, your situation is quite unusual.  Apparently you still hold the rights in The Lost Country, perhaps because you recovered them from your publisher based on a contractual arrangement.  This was unusual in the 1950’s, when federal copyright did not attach to a work until it had been published, and it is, unfortunately, still not the case for many authors, particularly those who write academic books.  For many of them, rights must be surrendered in order to have a work published in the first place.  So you are ahead of the game in that sense; you have a chance to really manage your copyright for your own benefit.  Congratulations.

It seems clear that your book was included on the list of potential orphans in error.  Of course, inclusion on that list was precisely intended to catch such situations, so the system worked as it should.  Your book has not been included in any distribution of orphan works.  Now you have a chance to decide, however, if you would like to allow a more open distribution.

I am sure I do not have to tell you that libraries, including those that intend to participate in the Hathi Orphan Works project, are not your enemies.  We are in the business of helping authors find readers, which hardly seems like it should be an objectionable activity.  So let’s think for a minute about The Lost Country and what might be best for it and for you.

The sad fact is that The Lost Country has become a pretty obscure work. shows only two used copies available for sale.  In the Duke Libraries, the last transaction record we have for your novel is in 2004, when our copy was sent to high-density storage.  It has not left the facility once since then, and our system shows no circulations in the prior decade, either.   One of the famous “laws” of librarianship is that every book should have its readers, and the current system, I am afraid, is failing to connect your book to new readers.

It has to be said that the Authors Guild is not going to help you in this regard.  They are not going to publish a new edition of The Lost Country for you, nor will they pay you any royalties on the out-of-print edition.  The Authors Guild simply does not have the ability to create a new market for your book.  Even if they were to succeed in a grand strategy to impose a licensing scheme for orphan works in general, there is no reason to believe that you would profit from it. With such an obscure work, potential users who had to pay a fee would probably just skip the planned use.

Where you can find help for this problem is with the HathiTrust.  Their goal, and the goal of the libraries that plan to participate in the orphan works project, is to make it easier for readers to find works like your novel, which might otherwise languish on shelves or in large warehouses of books.  Digital access to low-use titles through our catalogs will encourage users to discover resources, for study and for entertainment, that they might not have bothered with before.

In your own case, let’s suppose a Duke student has recently seen the Elvis Presley movie made from The Lost Country.  Intrigued, she “Googles” the book and finds that there is a copy held by our library.  But to get it she has to send a request, wait 24 hours or so, then pick it up at one of the library service desks.  Years of experience with college students suggests to me that most just won’t bother; they will move on to something newer and easier to access.  On the other hand, if  that same record that she found with her Google search also contained a link to the book through Hathi, she might read a chapter or two.  She might get hooked.  You will have found a reader.

This is what libraries do; such serendipitous discovery is what we hope for everyday, and it is why we signed up with the HathiTrust.  What Hathi offers to you is the opportunity to continue to find readers for the book on which you worked so hard.

Your “case,” if I can call it that, illustrates two things.  First, that the process of identifying orphan works in the Hathi corpus needs to be tested and refined, which Hathi is committed to doing.  Second, in the rare instance like yours where the process actually turns up an author who does still own copyright, the rational course for that author is to embrace the mission of Hathi and of libraries everywhere of connecting books with readers, and to exercise their right to make their book(s) fully viewable.  Please believe me, that is a much better option than having a book live out its term of copyright on hard-to-access shelves in high-density storage.

46 thoughts on “An open letter to J.R. Salamanca”

  1. Nicely done, Kevin. This is a wonderful, clear and persuasive letter. It lays out in a logical fashion the genuine and realistic interests of authors such as Mr. Salamanca. I would never deny him his right to opt-out of such a system if he chooses, but let it be an individual choice rather than the result of the Authors Guild’s retrogressive actions.

  2. Kevin,
    I agree with Bill’s comments. Excellent as always. I will be most interested to see if J.R. Salamanca responds.

  3. Kevin Smith says that the Authors Guild suit is ‘ill-advised’. Section 106 says that — subject to limitations and exceptions including sections 107 and 108 — the copyright owner has exclusive rights to reproduction and distribution of the copyrighted work. The HT seems to be saying to the copyright owners that — in an unprecedented digitization and potential distributions of 10 million or so works copyrighted in the USA and elsewhere — we are going to do it unless you can conjure a way to stop us.

    So regardless of the merits of the case as regards orphan works or works in-print, the Authors Guild may be ill-advised NOT to challenge HT and establish precedent as to how Sections 107 and 108 might to such a wholesale reproduction and distribution of copyrighted works without the consent of the copyright owner.

    … anyway, all this might just be precursor to what rights the IFLA proposes libraries be granted worldwide:

  4. John E. Miller: See the statement today from the University of Michigan:

    “The close and welcome scrutiny of the list of potential orphan works has revealed a number of errors, some of them serious. This tells us that our pilot process is flawed.

    Having learned from our mistakes—we are, after all, an educational institution—we have already begun an examination of our procedures to identify the gaps that allowed volumes that are evidently not orphan works to be added to the list. Once we create a more robust, transparent, and fully documented process, we will proceed with the work, because we remain as certain as ever that our proposed uses of orphan works are lawful and important to the future of scholarship and the libraries that support it.

    It was always our belief that we would be more likely to succeed with the cooperation and assistance of authors and publishers. This turns out to be correct. The widespread dissemination of the list has had the intended effect: rights holders have been identified, which is in fact the project’s primary goal. And as a result of the design of our process, our mistakes have not resulted in the exposure of even one page of in-copyright material.” [1]

    It’s a shame that the Author’s Guild, despite full cooperation from HathiTrust, deciding to jump directly to filing suit rather than helping to create a process that both protects authors rights and as well as those of the commonwealth — on whose behalf, it should be pointed out, the right of copyright was established at all. Perhaps it’s time to blow the dust off the Constitution and re-read the relevant passage?


    1. How about then reading US Copyright Act Section 108(g) which deals with the ‘systematic reproduction’ by libraries or archives of the ‘same material’?

        1. Sure — the 108(e) provision of making for ONE person who must fill out an individual order form to request ONE copy to be made (which may be a paper copy-machine copy) of ONE out-of-print book is a procedure unique to that individual request and not a wholesale ‘systematic’ reproduction and distribution as in 108(g).

    2. Um, do you really expect the general public to be constantly locating copyright owners for you? Especially when you start publishing electronic editions of thousands of books rather than about 150 books? For years to come, when the lawsuit is not in high profile>

      And why, exactly, should preserving you from lawsuits for copyright violation by locating copyright holders be everyone else’s responsibility than yours?

  5. The Authors Guild may believe the original digitization by Google was un-authorized in the first place and the HT Trust — beyond purely archival purposes — is already attempting to benefit from that ill-gotten action.

    So it seems IMHO that the HT is now expecting ‘full cooperation’ from the Authors Guild after the horse is already out of the barn.

  6. A possibility not mentioned in this letter: Given that Mr. Salamanca does control his rights, he could also become his own digital publisher (for instance, via a program like Amazon’s KDP), as so many authors are doing these days with their backlist books. That way, he could not only facilitate serendipitous discovery by new readers–he could get paid for it, too.

    1. Exactly. It seems astounding that this very basic point–the most obvious one to anyone trying to make a living from writing–has been entirely overlooked by Kevin Smith and HathiTrust.

    2. In all likelihood, Mr. Salamanca’s time, energy and money spent in becoming his own digital publisher would not be offset by any income he might generate in doing so. If his book were in high enough demand, I venture a guess that market forces would have already kicked in to result in someone’s reprinting this book.

      1. Mr. Brooks,

        And how do you know whether Mr. Salamanca has the skills to put his book into e-format (as many authors now learn to do) and post the file on some venue such as Amazon? All of which is very cheap. And how do you know how much money he might make or whether that sum, however small you think it might be, is worthwhile to him?

        All that is solely the copyright owner’s decision.

    3. “That way, he could not only facilitate serendipitous discovery by new readers–he could get paid for it, too.”

      Well said, Victoria. Digital publishing is also new enough that some of the authors whose works are presumed orphaned –like Salamanca– might only just now be considering re-issuing their works this way.

      1. Or Mr. Salamanca could use print-on-demand with a minimal investment and quite possibly income he’d like to have, regardless of what the Hathi Trust thinks he’d like. Finding readers and making money from books are NOT mutually exclusive.

  7. Your say, “In one sense, your situation is quite unusual. Apparently you still hold the rights in The Lost Country, perhaps because you recovered them from your publisher based on a contractual arrangement. This was unusual in the 1950′s, when federal copyright did not attach to a work until it had been published,”

    This statement is questionable, at best. What would be unusual in the fifties would be a publishing contract for a novel that mentioned electronic rights at all, and, in the absence of any such assignment of e-book rights, those rights remain with the author. This is the essence of the Supreme Court’s decision in Tasini and the judge’s finding in Rosetta Books.

    1. This is a serious and common misreading of Tasini. The is no separate “electronic rights” designated in the copyright act, except for a limited performance right. The issue about who has the right to reproduce and distribute a digital copy of a work is usuallly a matter of interpreting the scope of the contractual assignment of those basic reproduction and distribution rights. And then Tasini had to deal with a different provision, about compilations, which again does not mention electronic rights.

      1. If that’s your interpretation of the law, it’s no wonder that you didn’t go looking for Mr. Salamanca. While I’m not a lawyer, I would suggest that your views of publishing rights may be based too closely on academic publishing. In trade publishing, which is the venue for Mr. Salamanca’s book, reproduction and distribution rights are specifically enumerated, not based on “interpretations.”

  8. As a longtime used bookseller, I need to point out that there are at least 12 used copies available online through Abebooks (2 Pocket Books mass-market movie tie-ins from 1961, 4 Advance Reader’s copies, and 6 copies of the 1958 hardcover). By itself, this should have stopped the orphan process, based on HathiTrust’s own published protocol. Their process specifies searching Amazon, then Bookfinder, but since Bookfinder is a meta-engine that searches Abebooks, all twelve copies should have been found.

    Twelve booksellers, in the US and Canada, have taken the time to carefully describe their copies, some have scanned the cover or jacket, all will likely have to wait months or years to sell their copy. True, Mr. Salamanca would not share in the proceeds, but secondhand bookselling has been an accepted part of the book world since Gutenberg. To act as though no harm is done to “any person” is galling.

    1. to Ron DeCicco- Wow, really nice professional discourse. Couldn’t just state that you disagree and why?

  9. I see that J.R. Salamanca just joined in the Author’s Guild amended lawsuit. I guess he didn’t bother reading your letter or simply prefers to make certain that the fewest possible people read his books.

    1. Why would that be? Because an author can’t be trusted to make the best decisions for his own work?

      Your snide remark betrays the underlying disrespect hidden beneath Mr. Smith’s letter to Mr. Salamanca. In your institutional zeal to prove how necessary you are for all humankind, you happily bulldoze the rights of individual humans. Sad.

  10. Mr. Smith, your letter is condescending, rude, and about as honest as a shark’s explanation to a tuna that they’re really on the same side, and the tuna can swim happily in the shark’s stomach.

    Let me address several specifics in both the letter and some of the comments on it.

    1) You say that libraries “are in the business of helping authors find readers.” No. Libraries are in the business of serving their patrons, mostly readers–providing patrons with the reading material patrons want. Libraries were founded for, and maintained for, that purpose…to serve readers, not authors. If libraries were really in the business of “helping authors find readers,” they would not de-accession works that hadn’t found their readers–that were circulated too seldom for economic retention.

    2) Many, but not all, authors are in the business of making a living from their writing. Under copyright law (with which, I must say, you seem to be oddly unfamiliar as it applies to nonacademic presses) the author chooses whether to make a living from her/his work or not. But let us stick to those authors who do make a business of their writing, and thus expect to be paid when a paper book is sold or a digital file downloaded. If we do not self-publish, we license someone else to produce those copies and sell the copies on our behalf: a matter of contract, which grants to that entity the right to do so, and to us a stipulated royalty per transaction.

    3) It should be clear that the interests of a library (serving its patrons within its budget) and the interests of a writer (making money from writing) are not parallel. In this country (unlike Europe) libraries do not have to keep track of usage and forward money to writers on that basis. (We wish…) Libraries have been granted special privileges in the past because their benefit to readers was great, and the effect on a writer’s income stream was minimal to mildly positive. However, when a library infringes copyright–either by allowing patrons to make copies of works on the library photocopier rather than buying additional copies of works in high demand, or by digitizing works and then distributing innumerable copies of the digitized work to once again avoid purchasing sufficient copies for demand in its collection–the library is acting directly against the writer’s interest. The law did not ever give the library the right to print its own unlimited edition of a book it held in the collection in competition with editions authorized by the writer…and that’s what digitization and distribution amounts to. The writer’s interest is not in how many readers he/she has, but in how many copies are sold. Even unread copies sold pay the electric bill. A million readers who never buy books do not. Surely even you can see that.

    4) Copyright is the protection that writers (and their publishers) have against unauthorized copying and distribution of their work. Permission to copy should precede any digitization. When academic libraries and Google first came up with this project, writers quickly discovered that Google had already digitized books that were not only not out of print or copyright, but that were readily available for sale–books whose distribution (by Google or libraries) would immediately impact sales. I have over 25 books currently in print in English in this country in various editions–all my books but one collection of short fiction (whose components are available in other collections) are in print: single novels, omnibus editions of two or three, short fiction collections. In print, on the shelves of bookstores, available from And yet Google digitized almost all of them, plus anthologies in which I had short fiction: without my permission, without my knowledge, and without doing one iota of search to find out if the author was available. (How do I know that? Google on my name. It comes up on top, with my website and contact information.) Google infringed my copyright, and also the license I had granted my publishers for e-rights. To the extent that this Trust has not investigated the status of every single book–doing legitimate searches of the relevant sources to determine copyright status–the Trust has violated copyright. To the extent, if any, that the Trust is holding a copy of Google’s master file of its digitization, it is violating copyright with every single digital copy that is an infringement.

    5) Under Copyright law, writers have the right to publish or not publish…republish or not republish…as that writer sees fit. It is common (was always common) for writers to renew their copyrights if they chose, though that was a clumsy system that placed undue labor on writers. (Having to re-register the deed to a house, for instance, or a piece of furniture someone built, lest it suddenly be declared not-owned and available to anyone who wanted to walk in and claim it would raise huge protests.) Thus the snide remarks about “wanting fewer readers” are irrelevant as well as rude: if, should production of my first book lapse, I decide to revert the rights and not seek more publication–that’s my right as copyright owner. No one has the right to decide that I must republish or they’ll do it for me. My work; my decision. If you write a book and want to give it away or let someone else take it…fine. Your book; your decision.

    6) More people than the author are harmed by copyright infringement. When a writer’s income drops due to unauthorized copies competing with authorized ones, when a publisher’s income drops for the same reasons across many authors and books, the fallout runs right back down the supply chain…bookstores, their employees, the stores their employees used to buy food, clothes, etc. from, printshops and binderies and their employees, shipping companies, publishers and their employees and the services that keep the offices open…everyone from the migrant worker picking oranges or apples to the shoe factory…with many et ceteras…is connected via the income of the publisher and writer to the question of copyright infringement. Steal from me, and you’re stealing from (among others) the utilities that supply my house with water, electricity, propane, and phone service, the grocery stores I buy food in (and those behind them, remember), the office supply store I buy paper and ink cartridges in…you’re making it harder for me to contribute to community needs (small rural town–lots of those)…and yet you say “libraries are not your enemies.” Really? I’m not on the Trust list yet, but I sure was on Google’s. I regard someone who makes my life harder as–if not an enemy–certainly someone whose interests are not aligned with mine or helpful.

    7) Non-academic writers are used to being dissed by academia…but there’s a difference between deciding that because we have no doctorate or no MFA from Iowa’s prestigious program that we don’t deserve a place on the faculty, and deciding that a university library has a right to publish our work without permission or remuneration. No, you don’t. And since I like to eat, pay the light bill, contribute to the local food bank, etc., I will defend my right to decide who gets to publish my work, ensuring that I get a cut of the profit.

    8) Should libraries want to regain the friendly relationship they used to have with writers, back in the days when my university library supported copyright, they will have to quit treating writers like bubble gum stuck to their shoes and start recognizing that without writers there would be nothing to store (or digitize.) Copyright is real. It is important to writers. It is vital to those who make their living from writing. Treat writers and copyright with respect.

    1. There is also a common misconception that academics don’t make money from their books. However, academics often write formal textbooks, and other books often assigned for student purchase. Which can be very lucrative.

  11. This is a typical response of somebody caught in the act of theft and makes me wonder if the Hathi Trust is funded by the biggest copyright offender — Google. They sure seem to be taking the same “we’re really here to help you” approach.

    The root issue is that copyright law puts the decisions of how, when, and even if a book should be distributed or made readily available in the hands of the copyright owner. The fact that a book is OP and, horrors, might be difficult for a college student to find or for a “library” to locate its author is not a valid justification for violating that standard.

    As others have noted, in the 21st century we authors have a lot of options for what can be done with our backlist titles, including those that are OP, including self-publishing them as eBooks. Why should the Hathi Trust, or Google, get to decide whether the author can make a profit through that kind of publishing?

    Sorry, Mr. Smith, the Hathi Trust was caught with its hand in the cookie jar and should be summarily punished.

  12. A red flag pops up in my mind when someone argues that something has little or no worth, and that’s why he should have it.

    1. It does kind of play like a Marx Brothers routine, doesn’t it?

      What I take away from reading this Open Letter, apart from the really toxic tone adopted by Professor Smith toward someone who is, in a very real sense of the phrase minding his own business, is that the Professor is ignorant. By which I mean to say that it’s obvious he’s never actually seen a trade book publishing contract. If he had, he wouldn’t be saying these loony things that only reflect badly on Duke University.

      I’m sure that SFWA, or the Authors Guild — or the Mystery Writers of America, or Romance Writers of America, or Novelists Inc., or any other of the many writers organizations — would be pleased to send him samples of boilerplate contracts so that he can see how these documents are put together. This would make him. . .a lot more credible when speaking on behalf of Duke University.

      In fact, I’ll have pity on him. Here, Professor Smith — here’s a copy of a model contract:

      It’s a little out of date, but the provisions pertinent to the discussion are still pretty much the same — Those would be:

      12. Reversion and Termination
      14. Reserved Rights
      19. Infringement
      22. Inheritance

  13. For my entire life, I’ve earned my living as a writer and editor. It is absolutely not the business of the Hathi Trust to decide whether I want to, or can, make money from a book, or whether that sum is worthwhile to me.

    Note, many books are illustrated with photos, line drawings, or other art. Often, the copyrights to those are owned by the photographer or illustrator–not the publisher or the writer. I did not see anything in the Hathi Trust’s “process” that indicates they are making any attempt to contact the copyright owners of the art in books. Nor in what they are doing about contacting the multiple authors of works in anthologies.

    Also, any “preservation” argument is bogus. These are the Google project scans–blurred, crooked, with unscanned pages, with images of human fingers on them, and other flaws. The OCR’d ones are unproofed. Hardly what anyone wants for either scholarly research or a permanent archive.

    And, paper books have a much better chance of being readable in a couple of hundred years-even 20 years–than any software format. Or do libraries now expect to repeatedly request public funding for endless rounds of upgrading scans to new file formats?

  14. If the unnamed (I saw no signature, offhand) Duke employee applied his logic about authors’ rights to his own employment situation, his job would be filled with someone who had volunteered to do the work for free (for the “public good,” or for job experience),since Duke is in the priceless business of “spreading knowledge.”

    If you’re an independently wealthy writer, perhaps you can afford to have your work ripped off without compensation, and illegally at that.
    But even there, it should NOT be done without your express consent.

    Get some ethics, guy. Not that anything but an academic approach to them seems to be inculcated at Duke–or elsewhere.

  15. The Hathi Trust is a pack of thieves, and the project is one of long-term thievery. While hypocrisy is not a crime per se, it certainly adds to the Hathi Trust’s sleaziness that it portrays itself as noble at the very time it steals and plans more thievery.

    The Hathi Trust actions are CRIMINAL COPYRIGHT INFRINGEMENT. It is absolutely outrageous that the responsible parties have not yet been formally charged and arrested for criminal copyright infringement. Did the Trust, like Google, pay off the current administration? Were the campaign donations nothing more than bribes and protection money?

    The “Elephant in the room” is the question: Why not criminal prosecution?

  16. Kevin Smith’s letter is insulting, arrogant, and lying outright as to the facts and issues of copyright law. It is up to the copyright holder to control copying and distribution of the book. Smith cannot legitimately claim that purported inconvenience justifies Smith’s thievery and criminal infringement.

    Smith is a lawyer (note the initials “JD” after his name.) If he made such a dishonest and insulting argument in court or legal papers he could legitimately be fined by the court.

    Meanwhile, as Mr. Samson above points out: Why haven’t Smith and his cohorts been criminally charged with copyright infringement?

  17. Another issue:

    Mass scanning projects may well be an attempt to overtake the copyright holder’s voluntary republication.

    Everyone’s becoming increasingly alert to the money that can be made from backlist books now that inexpensive e-book and print-on-demand editions are very easy and very affordable. Publishers are wanting to reissue out-of-print works. Authors are seeing the advantages of producing e-book and/or POD editions of their older titles, and posting these for sale at online venues such as Amazon. Non-writers are thinking about reissuing publications they inherited from older relatives.

    The income stream may not be as good as when the book was first published, but the book can sell till the end of the copyright term–in many cases, for decades–and it all adds up. Practically everyone would like to make a few thousand, or even a few hundred dollars, more a year with little effort or expense.

    And libraries are not thrilled about negotiating licenses with publishers, literary agents, or authors as to pay-per-view, or a set number of views, how many readers can “borrow” the book at a time, DRM, and other restrictions.

    But I suspect libraries are thinking, if they can just digitize a lot of copies before the copyright holder gets around to it, those books will be free to libraries forever. Meanwhile, the copyright holders will be unable to sell their books when everyone can easily download the same book for free from a library.

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