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HathiTrust: An author never forgets

By Rachel Premack, Daily Staff Reporter
Published February 18, 2013

The process of asking each author for permission would have been immense.

Litman said HathiTrust is a sort of project that copyright should not and does not illegalize.

“It seems to me that it was a very clear fair use argument,” Litman said. “The only thing I can speculate about is that the authors felt so strongly that the existence of a digitized copy was a dignitary wrong.”

In Litman’s view, the authors were inaccurate about this interpretation of the law, adding that organizations do not need to ask permission when digitizing a work.

Aiken argues that digitization is a duplication of work, which necessitates the copyright holder’s consent. Without this, some writers don’t profit from their work.

Edward Hasbrouck, co-chair of the Book Division in National Writer’s Union, said many authors support the creation of a digital copy of their writings. But the fact that they cannot give their permission is unlawful.

“If you have read many of the legal cases, Google Books and HathiTrust have tried to create an entirely false impression that authors oppose the scanning of the books and want to oppose digitization,” he said. “We very strongly endorse and support digital libraries.”

Many authors don’t agree with Google and HathiTrust bypassing them when digitizing works, which he feels denies authors and publishers their fair compensation.

“It’s profoundly disingenuous for Google to claim a benign public purpose in its efforts,” Hasbrouck said. “They are investing lots of money in this project because they can make lots of money in this purpose.”

According to Courant, however, most of the works in HathiTrust lack profit possibilities.

“Most of the books in the HathiTrust are long, long out of print,” Courant said. “Nobody’s been making any money to speak of in a long time. There really isn’t much of an income stream at risk here.”

While both Google Books and HathiTrust will take down works if asked, Hasbrouck said this is problematic. For instance, an academic author with hundreds of works would have to demand each work be removed. It may be an endless battle if projects like Google Books goes international.

The HathiTrust case is an echo of a previous class action suit filed in 2005 by the AG and the Association of American Publishers against Google Books.

The agreement reached involved a retail product of Google’s digitized works, Courant said, where 37 percent of profits went to Google and the rest to the right holders. The product required that readers would pay to read online works and those readers affiliated with certain research institutions could access works for free.

The U.S. Court of Appeals rejected the settlement in 2008 on the basis that too many people — holders of books not in AG or AAP — were not represented, adding settlement ought to represent the opinions of all people who would be affected by it.

Hasbrouck said the settlement tapped into the question of whether the author or publisher holds electronic rights.

Google and AAP have since settled out of court, while Google and AG are still at odds. Google declined to comment due to ongoing litigation.

Aiken stressed that this settlement would have allowed AG to distribute their work to libraries and students in an equitable way.

“It (mass digitization) should be done by contractual agreements,” Aiken said. “It should be done so the value of the books are recognized by the owners of the works.”

Pamela Samuelson, director of the Berkeley Center for Law and Technology, said the 2012 ruling in favor of HathiTrust improves the outlooks for Google’s litigation.

“The underlying issue of fair use is pretty similar, so I would think that if the HathiTrust victory is affirmed by the Second Circuit Court — good news for Google,” Samuelson said.

Who holds the rights?

Even once it’s decided if the consent of right holders — whoever can license a work for certain uses, often the author or publisher — is needed for digitization, two little words destroy the concordance: orphan works. These are works that have no owner because the publisher is out of business, the author is deceased or there are other complications.

Samuelson said these works might be digitized after “due diligence” has been served to find the copyright holders.

That may involve researching the author, the publisher, the relatives of the author and so on, but the legal term is subjective.

The University, launched a now-suspended Orphan Works Project that aimed to make works with unknown rights holders available. Aiken pointed out that many works that the University determined to be orphaned had living authors or were still in print.

“This is interference with the authors’ commercial rights.