Posted by Victoria Strauss for Writer Beware

In the wake of the failed Google Book Settlement and the still-unresolved lawsuit that produced it, the Authors Guild, two international writers’ groups, and several individual authors have filed suit against a number of major US universities that have combined unauthorized scans of in-copyright books into a repository called HathiTrust, which will allow unlimited downloads by students and faculty of “orphan” works included in the repository (orphan works are in-copyright books whose authors can’t be found–with “can’t” meaning almost anything on a continuum from “impossible to locate” to “didn’t look very hard”).

The unauthorized scans were obtained from Google–one of the perks of Google’s unauthorized library scanning project was that the libraries that provided the books received free copies of the files–and HathiTrust is believed to include up to seven million in-copyright books from authors in dozens of different countries. The rules for defining “orphan” works have been established by the University of Michigan, the lead institution on the project.

The Authors Guild press release follows.

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AUTHORS AND AUTHORS’ GROUPS FROM AUSTRALIA, QUEBEC, THE U.K., AND
U.S. SUE HATHITRUST, THE UNIVERSITY OF MICHIGAN, AND FOUR OTHER U.S.
UNIVERSITIES FOR COPYRIGHT INFRINGEMENT

Digital Files Provided by Google at Issue, As Plaintiffs Seek to
Impound Unauthorized Scans of 7 Million Copyright-Protected Books,
Pending Congressional Action

NEW YORK – The Authors Guild, the Australian Society of Authors,
the Union Des Écrivaines et des Écrivains Québécois (UNEQ), and eight
individual authors have filed a copyright infringement lawsuit in
federal court against HathiTrust, the University of Michigan, the
University of California, the University of Wisconsin, Indiana
University, and Cornell University. Plaintiff authors include
children’s book author and illustrator Pat Cummings, novelists Angelo
Loukakis, Roxana Robinson, Danièle Simpson, and Fay Weldon, poet André
Roy, Columbia University professor and Shakespeare scholar James
Shapiro, and Pulitzer Prize and National Book Award winning biographer
T.J. Stiles.

The universities obtained from Google unauthorized scans of an
estimated 7 million copyright-protected books, the rights to which are
held by authors in dozens of countries. The universities have pooled
the unauthorized files in a repository organized by the University of
Michigan called HathiTrust. In June, Michigan announced plans to permit
unlimited downloads by its students and faculty members of
copyright-protected works it deems “orphans” according to rules the
school has established. Other universities joined in Michigan’s project
in August.

The first set of so-called orphans, 27 works by French, Russian,
and American authors, are scheduled to be released to an estimated
250,000 students and faculty members on October 13th. An additional 140
books, including works in Spanish, Yiddish, French, and Russian, are to
be released starting in November.

“This is an upsetting and outrageous attempt to dismiss authors’
rights,” said Angelo Loukakis, executive director of the Australian
Society of Authors. “Maybe it doesn’t seem like it to some, but writing
books is an author’s real-life work and livelihood. This group of
American universities has no authority to decide whether, when or how
authors forfeit their copyright protection. These aren’t orphaned books,
they’re abducted books.”

“I was stunned when I learned of this,” said Danièle Simpson,
president of UNEQ. “How are authors from Quebec, Italy or Japan to know
that their works have been determined to be ‘orphans’ by a group in Ann
Arbor, Michigan? If these colleges can make up their own rules, then
won’t every college and university, in every country, want to do the
same?

The complaint also questions the security of the 7 million
unauthorized digital files. The numbers are staggering. The
universities have, without permission, digitized and loaded onto
HathiTrust’s online servers thousands of editions, in various
translations, of works by Simone de Beauvoir, Italo Calvino, Bernard
Clavel, Umberto Eco, Carlos Fuentes, Günter Grass, Peter Handke, Michel
Houellebecq, Clarice Lispector, Mario Vargas Llosa, Herta Müller, Haruki
Murakami, Kenzaburō Ōe, Octavio Paz, and Jose Saramago, among
countless other authors. Works from nearly every nation have been
digitized. HathiTrust’s databases house more than 65,000 works
published in the year 2001, for example, including thousands of works
published that year in China, France, Germany,
India, Indonesia, Italy, Japan, Russia, Spain, and the U.K., and
hundreds from Australia, Austria, Brazil, Canada, Egypt, Israel,
Lebanon, Mexico, The Netherlands, The Philippines, South Korea,
Switzerland, Thailand, Turkey, and Vietnam.

“These books, because of the universities’ and Google’s unlawful
actions, are now at needless, intolerable digital risk,” said Authors
Guild president Scott Turow. “Even if it weren’t for this preposterous,
ad-hoc initiative, we’d have a major problem with the digital
repository. Authors shouldn’t have to trust their works to a group
that’s making up the rules as it goes along.”

Google’s library scanning project is already the subject of a
federal class-action lawsuit in New York. A status conference in that
case is scheduled before Judge Denny Chin this Thursday, September 15.

Attorneys Edward Rosenthal and Jeremy Goldman of Frankfurt Kurnit Klein & Selz are representing plaintiffs.