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Rather Than Fixing The Problem Of Orphaned Works, The Authors Guild Wants To Play 'Gotcha'

from the you're-not-helping dept

With the Authors Guild's recent move to sue a bunch of university libraries for daring to make certain works digitally available to students as "orphaned works," the latest move by the guild is to engage in a massive game of "gotcha." It started by going through the list of books that were proposed as orphaned works -- and finding one of the authors, followed by an effort that potentially found a few more.

There's no doubt that, as James Grimmelman pointed out, this makes the HathiTrust effort look bad. This was their first effort to show how an orphan works program might work, and the fact that their process was shown to be less-than-perfect (especially their "first" showcase effort) is definitely going to set back any orphan works project in the future -- because any time such an effort is brought up, people will point to this example.

Of course, others might reasonably argue that the system worked. After all, none of these books had been released digitally yet. The process involved the HathiTrust first trying to track down the authors, then the authors/works being put in a public list, which could be scrutinized by the public to see if any of them could show that the works weren't orphans. And that's exactly what happened. Even if you could have hoped that the original investigation was a bit better, it's hard to argue that the system didn't work here. It did.

Either way, the University of Michigan did exactly what it had to do from a PR standpoint, and suspended the program until it can refine the process to make it more effective in only releasing truly orphaned works.

However, the bigger issue to me is just how gleeful the Authors Guild seems to be that it's sticking it to universities and their libraries. The Authors Guild should be supporting the efforts of these libraries to legitimately make otherwise unavailable works available again. The Authors Guild should be partnering with these libraries to make sure the works truly are orphaned. Instead, they're jumping up and down and gloating over the fact that such works won't be accessible any more. It's really quite disgusting.

I think the best response to all of this came from Duke's Scholarly Communications Officer, Kevin Smith, who wrote an open letter to J.R. Salamanca, who was the first name on the list who was "found" by the Authors Guild, asking him to recognize that the libraries are not his enemy, as the Authors Guild is trying to claim:

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.  Amazon.com 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.

It seems unlikely that the Authors Guild will understand this. But watching Scott Turow (whose books I was a fan of until all this began) and the other top brass at the Authors Guild act this way, it's hard not to be flat-out disgusted by the way the group is so gleeful about locking up knowledge.


Reader Comments (rss)

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  1.  
    identicon
    Anonymous Coward, Sep 19th, 2011 @ 10:55am

    Authors guild doesn't represent all authors

    The Author's guild, as has been noted before, represents legacy publishers and some big name established authors.

    This bears repeating.

    Both groups stand to benefit by excluding new authors and older, out-of-publication authors and titles.

    It is worth noting that the Author's Guild membership rules exclude authors who avoid the legacy publishers and self-publish, even if they have sold a million-plus titles.

     

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  2.  
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    Anonymous Coward, Sep 19th, 2011 @ 11:03am

    Y'arrr

    A third option, there be.

     

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  3.  
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    The eejit (profile), Sep 19th, 2011 @ 11:09am

    Re: Y'arrr

    An we be makin' The Author's Guild walk the plank!

    YARR!

     

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  4.  
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    Anonymous Coward, Sep 19th, 2011 @ 11:19am

    I wonder why the Guild never bothered to look for these authors before this. Royalties owed maybe?

    Maybe the library should release all the names so that the Guild can actually do some work to find ALL the authors. No more orphaned words, and more authors allerted to the status of his or her older books.

    Why should the Libraries pay to find the authors. Isn't that the job of the Guild anyways? and what they collect fees for?

     

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  5.  
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    out_of_the_blue @cableone.net, Sep 19th, 2011 @ 11:20am

    Oh, but this one is SO juicy! Calls for GLEE, indeed.

    "About two minutes of googling turned up a professor emeritus of one of the HathiTrust “orphan works” candidates. He lives in suburban Maryland. His second book sold a reported one million copies, and he’s listed in IMDb (two of his books were turned into movies: one starred Elvis Presley, the other Warren Beatty). He has a literary agent, and he signed an e-book contract earlier this month."

    And, again, pushing well-established bounds by seeing if anyone objects is neither legal nor ethical, even with claims of good intentions.

     

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  6.  
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    Anonymous Coward, Sep 19th, 2011 @ 11:24am

    What I do wonder is why it is so difficult to find the actual copyright holder(not necessarily the author).

    I saw some people saying others should go to great lengths to find those author at ANY COST, I just find that absurd, they should just look at the copyright office and if it is not on record that should be the end of it, because there is probably nobody interested enough in the country to keep those records up to date.

     

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  7.  
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    Anonymous Coward, Sep 19th, 2011 @ 11:29am

    Re: Oh, but this one is SO juicy! Calls for GLEE, indeed.

    Exactly the problem. The authors guild is pushing because they can clearly see that this is a push by the anti-copyright types to limit, shorten, or curtain copyright by claiming works are "orphan" only because they can't find the author or agent after a seemingly cursory search.

    If anything, the University has shown mostly that what they need is more shelf space and perhaps some "remember old works" days, where they can put the books that they have (including The Lost Country) back on the shelf and promote it to the students and faculty. Perhaps getting one of the professors to add the book as reading material for a class might help?

    Seems they are trying to solve a problem that doesn't exist to anywhere near the level they claim it does. Sort of like global warming for culture.

     

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  8.  
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    Lord Binky, Sep 19th, 2011 @ 11:29am

    Now how did they find these people?

    It does not count if they used resources that they keep away from HathiTrust and partners. That's basically HathiTrust saying "Here's a list of out of print orphaned books we want to try to share better" and then the Author's Guild saying "You don't know what your doing! Here are some books that we have records to show the copyright owner. Wait, no, the point is not that we weren't going to share until you tried this crap. Your the bad guys, honest!"

     

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  9.  
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    PaulT (profile), Sep 19th, 2011 @ 11:36am

    Re: Oh, but this one is SO juicy! Calls for GLEE, indeed.

    Sigh...

    Great, but article strangely leaves out the actual point - is Mr. Salamanca the copyright owner of the work in question?

    It doesn't matter how many books his father wrote, how easily contactable he is or how many IMDB entries he has, if at some point during his father's career the copyrights were no longer in his possession for this particular work. It happens all the time - hence the existence of orphaned works.

    If, not, the above is utterly irrelevant. If so, then what's the alternative process for genuinely authored works? SHould we let them rot because someone made a mistake during a publicly visible process?

     

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  10.  
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    Josh in CharlotteNC (profile), Sep 19th, 2011 @ 11:49am

    Re: Re: Oh, but this one is SO juicy! Calls for GLEE, indeed.

    If anything, the University has shown mostly that what they need is more shelf space

    So you want inefficient physical storage over cheap and abundant digital storage?

    back on the shelf and promote it to the students and faculty.

    You mean the students who are now reading their books on Kindles and iPads?

    Perhaps getting one of the professors to add the book as reading material for a class might help?

    Let's assume getting professors to add it as reading material, or that promoting it, are successful, and now people want to read it.

    Where can they do so? The library only has 1 copy. There are 2 used copies on Amazon. For all we know, those 3 copies are the only ones in existence. The book being digitized would cheaply solve this problem. Is the Author's Guild going to do it? Of course they won't.

     

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  11.  
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    Ron Rezendes (profile), Sep 19th, 2011 @ 12:20pm

    Release the whole list of works and subsequently pull the titles if and when the copyright holder is located, if that is their desire.

    Hell, let the Author's Guild do the vetting, it's not as if they are too busy judging by their initial efforts.

    Crowd source the enemy, what a lovely little ironic twist!

     

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  12.  
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    Anonymous Coward, Sep 19th, 2011 @ 12:51pm

    Libraries Without the Brick and Mortar

    Public libraries are legal. I bet most, if not all of these books are in the public library. If I go down to the library and check out one of these books, I get to use the IP for 'free'.

    How much different is it to just torrent the e-book? I am not going to sell it. I might keep it (but get no late fees), and reread it, or lend it, but the chances that I will ever buy it are nil.

    If I use the brick and mortar library, the chances of my buying it are also nil. I also have to go to the library twice, and worry about the book being checked out.

    I do buy books, but I also use the library a lot.

     

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  13.  
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    David Liu (profile), Sep 19th, 2011 @ 1:23pm

    Here's a comment I found particularly interesting on James Grimmelhamm's post:

    What is unclear to me at this point is whether the Guild has succeeded in identifying rights holders. The examples they’ve listed are of finding the authors of some of the works in question. But the books in question were written at the beginnings of the authors’ careers, at a time when it was not uncommon for authors to turn over all rights to their publisher. If those publishers have gone out of business and their is no clear trail of where the copyrights went, does the still living author have any rights over those books? Is it the case that a particular work may still be an orphan even if the author is easily identified?

    Emphasis mine.

     

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  14.  
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    PaulT (profile), Sep 19th, 2011 @ 1:57pm

    Re:

    Yes, indeed. The guild seem to be very excited about finding the author, but haven't indicated if he and the copyright owner are one and the same. The fact that a group of professional authors can't make this distinction is a little concerning to say the least.

    To be fair, my own search does suggest that the copyright was renewed and in the author's name (see link below), but the fact that they're using IMDB records and Google to confirm ownership of the copyright rather than copyright records themselves suggests that they literally don't know what they're doing. Hell, there's an IMDB record for the ancient Greek poet Homer, but that doesn't mean his heirs get to collect if The Iliad is reprinted.

    On top of that, of course, the fact remains that this is an obscure work that's almost completely unavailable and so nobody's making money. Perhaps this might lead Mr. Salamanca to make more money from his work, but either he or his publisher haven't been doing much of that from this particular novel recently, either way.

    I'm still waiting for one of the usual crowd to explain how, if there's so much money to be lost as the book is so "valuable", that nobody's bothering to print it any more.

    http://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?v1=7&ti=1,7&Search_Arg=lost%20countr y&Search_Code=TALL&CNT=25&PID=8__u0nYTZQB2SzP9bD38SXbPN&SEQ=20110919164345&SID=1

     

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  15.  
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    Anonymous Coward, Sep 19th, 2011 @ 2:08pm

    Re: Re:

    PaulT: What it means is that there is doubt, there is someone to contact, and they could have certainly followed up with him. Their failure to do so is a clear indication that they aren't checking works very hard, and seem to be declaring this as orphaned without much justification.

     

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  16.  
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    Anonymous Coward, Sep 19th, 2011 @ 2:11pm

    Re: Oh, but this one is SO juicy! Calls for GLEE, indeed.

    Ethical? We're talking about copyrights here. You must be talking about something else if you think ethics even enter into the discussion. They're just statutory rights.

    Legally speaking pushing 'well-established bounds by seeing if anyone objects' is the way most legal precedents are set regardless of intentions.

     

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  17.  
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    PaulT (profile), Sep 19th, 2011 @ 2:32pm

    Re: Re: Re:

    "seem to be declaring this as orphaned without much justification"

    Was it? IIRC, the list was a list of *potentially* authored works with calls for others to research if that was correct. Let's not exaggerate unless the facts are there. They were wrong about the copyright on this particular book, but that doesn't invalidate the concept.

    Even so, this is a storm in a teacup for the most part. Since the book wasn't commercially available, no money has been lost. The author hasn't lost anything at all, and has even gained some free publicity. The HathiTrust now know they need to be more careful and will presumably put more safeguards in place later on if they bring the project back.

    In fact, the only people I've seen come particularly badly out of this are the Author's Guild, who not only seem to be confused about authorship vs. copyright ownership, but have proven themselves will to go to the courts rather than working to correct a publicly visible vetting process. I've not seen any reasoning behind this that doesn't boil down to some rather silly conspiracy theory or a misguided attempt to "protect" profits that aren't available since the works are out of print...

     

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  18.  
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    MrWilson, Sep 19th, 2011 @ 2:54pm

    Re: Re: Oh, but this one is SO juicy! Calls for GLEE, indeed.

    Wow, I was certain you were being sarcastic up until the third paragraph and then noticed your absurdity never wavered.

    Welcome to the 21st Century. I will be your tour guide.

    We have mobile devices and computers in almost every home and dorm room that are network with relatively fast (for the US) internet connections. Library buildings as physical repositories of information are becoming obsolete. They're seeing their funding cut in the face of a bad economy. Top library schools are teaching the importance of information literacy and digital repositories rather than how to shelve books according to the Dewey decimal system and how to shush people while where horn-rimmed glasses.

    Students want to read books on their iPads, Android devices, et cetera. Sure, some love the old school dead tree versions and the libraries still stock those, but it's just incredibly inefficient. With digitization, multiple students can check out the same book! With full text searches, students can find information that they might otherwise not have found because they wouldn't think to look in a particular text or that they might not have found except after tens of hours of analog reading in dimly lit corners of the library.

    So yes, welcome to the future. Things are better here. Feel free to extract your head from the 20th Century, or where ever it has been stuck.

     

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  19.  
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    Anonymous Coward, Sep 19th, 2011 @ 3:40pm

    The authors guild may be happy to know that the internet on America is just like the internet in Hungary.

    https://www.commondreams.org/view/2011/09/17-0

     

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  20.  
    identicon
    Alatar, Sep 19th, 2011 @ 11:43pm

    So now suddenly they found "rightsholders" for orphan works?

    Just seconds before the HathiTrust project came out, they didn't seem to care, they were claiming "we can't find anyone, really, so we have to keep the money for ourselves" (a bit like the RIAA's "can't find those artists".
    And now HathiTrust came out, they suddenly managed to produce a real effort to locate the author? Great job!

     

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