Two new developments in the two big cases concerning book scanning and fair use: first up, we've got the somewhat unsurprising news that the Authors Guild is appealing its rather massive loss against Hathitrust, the organization that was set up to scan books from a bunch of university library collections. As you may recall, Judge Harold Baer's ruling discussed how the book scanning in that case was obviously fair use. It was a near complete smackdown for the Authors Guild.

The appeal will cover a few different issues beyond just fair use, such as why the Authors Guild itself is even the plaintiff in the case, since it doesn't actually hold any of the copyrights in question. It would seem that the Authors Guild has an uphill battle.

Meanwhile, in a closely related case, involving the Authors Guild suing Google over its book scanning efforts, Google has filed its appeal brief in response to an earlier ruling, which said that the Authors Guild can represent authors and has standing to sue. Google is arguing that its offering is also a clear case of fair use, as in the Hathitrust case. This is something we thought Google should have pressed strongly from early on.

Google Books is a revolutionary search technology for books—a modern and marked improvement over the traditional card catalog. Google has scanned and indexed more than 20 million books by agreement with major research libraries. The Google Books tool allows any user to enter a search query, obtain a list of books containing the user’s search terms, and view limited “snippets” of surrounding words showing how the terms are used. Google Books does not allow users to read a book online, or even a single page of a book, without express permission from the rightsholder. But its search capabilities help users find books to buy or borrow, connecting them with the books they need, and thus bringing to light a wealth of information previously hidden, undiscoverable, in books sitting on library shelves. Google Books thus offers enormous benefits to authors and readers and to the progress and diffusion of human knowledge.

It also argues that the Authors Guild cannot represent the class of authors in the case, since many authors are helped by Google Books and don't agree with the Authors Guild that it's somehow evil. As a result of that (and how copyright law works) Google also points out that the fair use determination may need to be on a book by book basis, rather than as a whole:

Despite the individual issues at the heart of Plaintiffs’ suit—and unrebutted evidence that a significant portion of the proposed class in fact approves, and benefits from, Google Books’ uses—the district court certified a plaintiff class under Federal Rule of Civil Procedure 23(b)(3) consisting of “[a]ll persons residing in the United States who hold a United States copyright interest in one or more Books reproduced by Google as part of its Library Project.” SPA2. That decision was error, for several reasons. First, Plaintiffs cannot adequately represent, as required by Rule 23(a), the large number of class members who would be harmed if Plaintiffs prevail—that is, the many class members who benefit economically and in other ways from the Google Books project and do not want to see it curtailed.

Not surprisingly, the argument here is compelling. Even if you don't buy the fair use argument, it's difficult to see how the Authors Guild can realistically represent such a diverse group of authors while claiming to represent them all. No matter what happens, as these cases move forward, I'm sure we'll have plenty to discuss.

Well, well. I had a post all written up that I was going to publish today about how the settling of the Publishers lawsuit against Google over book scanning had one downside -- that we didn't get a full court ruling on the question of whether or not the book scanning project constituted fair use. I have to now scrap that post, because before I had a chance to finish it off, the judge in a similar/related case -- filed by the Authors Guild against HathiTrust, a consortium of universities trying to digitize their libraries -- ruled that the book scanning effort was obviously fair use. Judge Harold Baer is pretty explicit that this is absolutely fair use when you look at the details:

Although I recognize that the facts here may on some levels be without precedent, I am convinced that they fall safely within the protection of fair use such that there is no genuine issue of material fact. I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendants’ MDP and would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts that at the same time effectuates the ideals espoused by the ADA.

In other words, when you look at this project, it should be obvious that it's advancing the public good in many ways, and thus, promoting the progress. The judge relies heavily on one of my favorite fair use cases that I often use to debunk false ideas that some people have about fair use. Those who don't know the law, often insist that there can be no fair use if either (a) the entire work is used or (b) it's used in a commercial setting. Yet, as the Bill Graham Archives v. Dorling Kindersley case showed, neither point needs to be true (even if they may weigh on how the fair use factors are considered). In this case, even if there were commercial elements and the entire works were "used" in that they were scanned, the court said that this use was obviously transformational in a useful manner.

A transformative use may be one that actually changes the original work. However, a transformative use can also be one that serves an entirely different purpose.... The use to which the works in the HDL are put is transformative because the copies serve an entirely different purpose than the original works: the purpose is superior search capabilities rather than actual access to copyrighted material. The search capabilities of the HDL have already given rise to new methods of academic inquiry such as text mining

The judge also, thankfully, noted that just because HathiTrust didn't "add anything new" to the work itself "misses the point" because each scan "serves a different function than the original work."

The judge also rejected the whole claim that the scanning "impacts the market" for the works -- which is the other key factor. While some like to pretend that any activity "impacts the market" because any use limits the possibility of a license, the court (thankfully) recognizes that such an argument is ridiculously broad and makes no sense. Furthermore, he notes that the plaintiffs have to show real harm is likely, and they completely failed to do so here.

Of course, the details in the Google book scanning suit are somewhat different -- in that the use is more clearly commercial, and a greater amount of the book is made available. However, as James Grimmelmann notes, the "near complete victory" for HathiTrust with this ruling does not bode well for the Authors Guild case against Google, and increases the likelihood of an out of court settlement.

There's an interesting article over at Law.com highlighting just how many lawsuits there are in which college professors and librarians are fighting back against overly draconian copyright laws. Most of the cases they mention are ones we've discussed here, but it's a good article overall. It talks about the Georgia State fair use case, the UCLA case about streaming video, and the Authors Guild suit against the Hathitrust for trying to make books more accessible.

The really incredible thing in all of this is that copyright is supposed to be about the encouragement of learning. In fact, the first US federal copyright law was called "An Act for the Encouragement of Learning." But, the fact is that universities and librarians are constantly bumping up against the ridiculous and over-aggressive limits of copyright law in ways that prevent them from basic tasks that aid in education and learning.

Copyright system defenders love to paint critics of today's copyright laws as merely being a bunch of "freeloaders" and "pirates." That's a ridiculous assertion. The big problem of copyright law today is how it impacts everyday people doing everyday things. The fact that so many professors and librarians -- those who are at the forefront of the "encouragement of learning" -- are discovering that copyright law gets in their way more than it helps suggests a law that is completely out of touch with its intended purpose. This isn't about freeloaders and pirates. This is about some of the fundamental principles of education.

After the Authors Guild decided to prove that it's really against education by suing University Libraries, it also began a disappointing game of "gotcha". Specifically, the Guild found J.R. Salamanca, an author who the HathiTrust had been unable to find. The HathiTrust had listed a novel by Salamanca in its list of potential orphan works. The list actually worked as intended -- providing time for any such authors to identify themselves and to stop the orphaned work from becoming available as a scanned work.

Still, this made HathiTrust look bad, and it put the project on hold. The best response, though, was from Duke University's Scholarly Communications Officer, Kevin Smith, who wrote an open letter to Salamanca urging him not to join the lawsuit:

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.”

[....]

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 appears that the rhetoric from the Authors Guild won out, and J.R. Salamanca has gone in the other direction, joining the lawsuit against the universities and the HathiTrust. What a sad legacy Salamanca is adding to his career. Rather than embracing greater access to his obscure and out of print works, he's chosen to attack learning institutions who sought to make his works more accessible. As a professor himself, he ought to be ashamed.

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.