Information about the Authors Guild Lawsuit

On September 12, the Authors Guild, the Australian Society of Authors, the Union Des Écrivaines et des Écrivains Québécois (UNEQ), and eight individual authors filed a law suit against HathiTrust, the University of Michigan, the University of California, the University of Wisconsin, Indiana University, and Cornell University for copyright infringement. The links below provide details on the lawsuit, with opinions and analysis from different sources. Further information follows, describing what HathiTrust is doing and not doing with respect to digital preservation and access.

The Lawsuit

The Author's Guild: Authors Guild, Australian Society of Authors, Quebec Writers Union Sue Five U.S. Universities [1]
The Author's Guild: Authors Groups From U.K., Canada, Norway and Sweden Join Authors Guild, Australian Society of Authors, and Quebec Writers Union in Suit Against HathiTrust - The Author's Guild [2]
Legal Docket: The Authors Guild, Inc. et al v. Hathitrust et al :: Justia Dockets [3]
HathiTrust et al.: Defendants' Joint Answer and Defenses [4]
The Public Index: Authors Guild v. HathiTrust [5]
Authors Guild v. HathiTrust Opinion and Order [6]

Statements

Resources

Association of Research Libraries: Resource Packet on Orphan Works: Legal and Policy Issues for Research Libraries [13]

Blogs and Analysis

Interview: Peter Hirtle on silos, the Hathi Trust, and orphan works [14]
James Grimmelmann: The Orphan Wars [15]
James Grimmelmann: The Procedural Swamp [16]
Kevin Smith: Stop the Internet, we want to get off! [17]
Kevin Smith: Is it all about the Orphans? [18]
Kevin Smith: An open letter to J.R. Salamanca [19]
Kenneth Crews: Authors, Copyright, and HathiTrust [20]
Kenneth Crews: HathiTrust and the Litigation Path [21]
Chris Bourg: Round-up on Authors Guild v. HathiTrust [22]
Chris Bourg: Round up Part 2: Authors Guild v HathiTrust [23]
Electronic Frontier Foundation: No Authors Have Been Harmed in the Making of This Library [24]
Association of Research Libraries: ARL Policy Notes, About those orphans [25]
Tracy Mitrano: HathiTrust Conundrum [26]
Francine Fialkoff: Are You Kidding - Library Journal [27]
The Entertainment, Arts and Sports Law Blog: The Google Books Project: Now the Authors File a Lawsuit Against the Libraries [28]
Public Knowledge: The Authors Guild Should Trust Universities and HathiTrust [29]
In the Library with the Lead Pipe: (The Universal Interrogative Participle)* is going on with the Authors Guild [30]
Reading 2.0: National federation of the blind has filed to seek status as defendants in AG v HathiTrust [31]
James Grimmelmann: GBS: Authors Guild Goes for an Early Knockout [32]
ARL Policy Notes: Finally, An Easy-ish Question [33]
Kevin Smith: A masterpiece of misdirection [34]
ARL Policy Notes: Library Associations File Brief in Defense of Fair Use - ARL Policy Notes [35]
James Grimmelmann: GBS: Oral Argument Report in HathiTrust - The Laboratorium [36]
Publishers Weekly: HathiTrust, Authors Guild File Motions for Summary Judgment in Digitization Battle [37]
James Grimmelmann: HathiTrust Summary Judgment Motions: Fair Use [38]
James Grimmelmann: HathiTrust Wins [39] (10/10/12)
Copyright Librarian: Author's Guild v Hathi Trust: A Win for Copyright's Public Interest Purpose [40] (10/11/12)
Kenneth Crews: Court Rules on HathiTrust and Fair Use - Kenneth Crews [41] (10/11/12)
Electronic Frontier Foundation: Digitizing Books Is Fair Use: Author's Guild v. HathiTrust - Electronic Frontier Foundation [42] (10/12/12)
Library Copyright Aliance: LCA Comments on Authors Guild v. HathiTrust Decision - Library Copyright Alliance [43] (10/11/12)
National Federation of the Blind: Decision Will Revolutionize Blind People’s Access to Books - National Federation of the Blind [44] (10/11/12)
Public Knowledge: The Increasing Importance of Digital Fair Use: Reaction to the HathiTrust Decision [45] (10/11/12)
Committee on Institutional Cooperation: Favorable Ruling in HathiTrust Fair-Use Case a Big Win for CIC Universities [46] (10/11/12)
James Grimmelmann: HathiTrust Appeal: The Authors Guild's Opening Brief [47] (2/27/13)

News

For the lawsuit in the news, please see links at http://www.hathitrust.org/around_the_web [48].

Information

What HathiTrust is doing (General)

Digitally preserving public domain and in-copyright works, in keeping with libraries’ traditional mission to build and curate collections to meet the research needs of our user communities.
Enabling discovery of works through HathiTrust interfaces and agreements with third-party organizations such as OCLC, Serials Solutions, and EBSCO.
Providing general access to public domain works; where we have the explicit permission of the rights holder, providing general access to in-copyright works; providing access under limited circumstances to other in-copyright works in accordance with copyright law. Limited circumstances include access to persons who have print disabilities, access to orphan works, and uses of materials (such as print replacement copies) that fall under Section 108 of U.S. copyright law. Access in these limited circumstances is provided under the following conditions:
- Access to persons who have print disabilities:
  - User must be a member of a partner institution and authenticated into HathiTrust
  - User must be certified by the partner institution as an individual with a print disability or a proxy for a person with a print disability
  - Print copies of volumes that are accessed must be owned currently, or have been owned previously by the partner institution's library system (libraries may chose to remove volumes from their collections for various reasons)
- Access to orphan works:
  - Volumes must have been identified as orphan works
  - User must be an authenticated member of a partner institution which has agreed to offer access to orphan works in HathiTrust, or an individual using a computer on such a partner institution's library premises.
  - Users must be located in the United States
  - Print copies of volumes that are accessed must be owned currently or have been owned previously by the partner institution's library system. The number of users who can access a given digital copy at a time is determined by the number of print copies held (or previously held) in the library system. If a library system only has one print copy, only one user at a time will be able to access the digital copy.
- Section 108 uses
  - Print copies of volumes must be owned currently or have been owned previously by the partner institution's library system.
Making the text of public domain works available for computational analysis
Storing our copies securely in keeping with community standards for trustworthy digital repositories [49], and standards required contractually by Google

What we are not doing (General)

We are not allowing viewing or downloading of in-copyright works that are not in keeping with the limited circumstances above, unless given explicit permission by the copyright holder through a formal agreement [50].

What we are doing with Orphan Works

"Investigating the provenance of each work in a documented and public process
Identifying rights holders when possible and requesting use of their works where appropriate;
Announcing the list of orphan works candidates [90 days in advance of use to invite more information from the public]; and
Negotiating for uses of works with an authentic rights holder if she comes forward, and removing any work from the candidate list." (these bullets are taken from the ARL report linked above [13], which provides a good summary of what we are doing and a FAQ on orphan works)
Providing access to orphan works under the parameters mentioned above to support teaching and scholarship at HathiTrust partner institutions.

What we are not doing with Orphan Works

We are not providing unlawful access.
We are not providing access to works that rights holders have kept in print.
We are not acting for commercial gain.
We are not and do not intend to compete with rights holders' interests.

We do not plan to change our access and preservation procedures in light of the lawsuit. We have a defined policy and process [51] by which parties may contend the use of certain works, which will remain in play.

Links:
[1] http://www.authorsguild.org/advocacy/articles/authors-3.html
[2] http://blog.authorsguild.org/2011/10/06/authors-groups-from-u-k-canada-norway-and-sweden-join-authors-guild-australian-society-of-authors-and-quebec-writers-union-in-suit-against-hathitrust/
[3] http://dockets.justia.com/docket/new-york/nysdce/1:2011cv06351/384619/
[4] http://thepublicindex.org/docs/cases/hathitrust/answer.pdf
[5] http://thepublicindex.org/documents/cases/hathitrust
[6] http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2011cv06351/384619/156/
[7] http://www.hathitrust.org/authors_guild_lawsuit_ruling
[8] http://www.hathitrust.org/authors_guild_lawsuit_statement
[9] http://networkedblogs.com/n5z0r
[10] http://www.lib.umich.edu/news/u-m-library-statement-orphan-works-project
[11] http://www.ur.umich.edu/update/archives/110916/courant
[12] http://www.vpcomm.umich.edu/pa/key/AuthorsGuildLawsuit.html
[13] http://www.arl.org/bm~doc/resource_orphanworks_13sept11.pdf
[14] http://www.youtube.com/watch?v=5qp1qpw8Lus
[15] http://laboratorium.net/archive/2011/09/12/the_orphan_wars
[16] http://laboratorium.net/archive/2011/09/26/the_procedural_swamp
[17] http://blogs.library.duke.edu/scholcomm/2011/09/13/stop-the-internet-we-want-to-get-off/
[18] http://blogs.library.duke.edu/scholcomm/2011/09/15/is-it-all-about-the-orphans/
[19] http://blogs.library.duke.edu/scholcomm/2011/09/16/an-open-letter-to-j-r-salamanca/
[20] http://copyright.columbia.edu/copyright/2011/09/13/authors-copyright-and-hathitrust/
[21] http://copyright.columbia.edu/copyright/2011/10/03/hathitrust-and-the-litigation-path/
[22] http://chrisbourg.wordpress.com/2011/09/15/round-up-on-authors-guild-v-hathitrust/
[23] http://chrisbourg.wordpress.com/2011/09/16/round-up-part-2-authors-guild-v-hathitrust/
[24] https://www.eff.org/deeplinks/2011/09/no-authors-have-been-harmed-making-library
[25] http://policynotes.arl.org/post/10402813009/about-those-orphans
[26] http://www.insidehighered.com/blogs/law_policy_and_it/hathitrust_conundrum
[27] http://www.libraryjournal.com/lj/home/891900-264/are_you_kidding__editorial.html.csp
[28] http://nysbar.com/blogs/EASL/2011/09/the_google_books_project_now_t.html
[29] http://www.publicknowledge.org/blog/authors-guild-should-trust-universities-and-h
[30] http://www.inthelibrarywiththeleadpipe.org/2011/authorsguild/
[31] http://reading20.posterous.com/national-federation-of-the-blind-has-filed-to
[32] http://laboratorium.net/archive/2012/03/04/gbs_authors_guild_goes_for_an_early_knockout
[33] http://policynotes.arl.org/post/18800477459/finally-an-easy-ish-question
[34] http://blogs.library.duke.edu/scholcomm/2012/03/05/a-masterpiece-of-misdirection/
[35] http://policynotes.arl.org/post/21695785549/library-associations-file-brief-in-defense-of-fair-use
[36] http://www.hathitrust.org/laboratorium.net/archive/2012/05/18/gbs_oral_argument_report_in_hathitrust
[37] http://www.publishersweekly.com/pw/by-topic/digital/copyright/article/52891-hathitrust-authors-guild-file-motions-for-summary-judgment-in-digitization-battle.html
[38] http://laboratorium.net/archive/2012/07/08/hathitrust_summary_judgment_motions_fair_use
[39] http://laboratorium.net/archive/2012/10/10/hathitrust_wins
[40] http://blog.lib.umn.edu/copyrightlibn/2012/10/authors-guild-v-hathi-trust-a-win-for-copyrights-public-interest-purpose.html
[41] http://copyright.columbia.edu/copyright/2012/10/11/court-rules-on-hathitrust-and-fair-use/
[42] https://www.eff.org/deeplinks/2012/10/authors-guild-vhathitrustdecision
[43] http://www.districtdispatch.org/2012/10/lca-comments-on-authors-guild-v-hathitrust-decision/
[44] http://www.nfb.org/national-federation-blind-applauds-landmark-court-ruling
[45] http://www.publicknowledge.org/blog/increasing-importance-digital-fair-use-reacti
[46] http://www.cic.net/Home/NewsAndPubs/News/12-10-11/Favorable_Ruling_in_HathiTrust_Fair-Use_Case_a_Big_Win_for_CIC_Universities.aspx
[47] http://laboratorium.net/archive/2013/02/27/hathitrust_appeal_the_authors_guilds_opening_brief
[48] http://www.hathitrust.org/around_the_web
[49] http://www.hathitrust.org/trac
[50] http://www.hathitrust.org/documents/permissions_agreement.pdf
[51] http://www.hathitrust.org/take_down_policy