Authors Guild Responds To Loss In HathiTrust Case

The Authors Guild isn’t getting the love it would like from the courts these days.  It opposed the settlement between three publishers and the Justice Department in the e-book price fixing case.  The Association of American Publishers settled with Google, effectively leaving the Guild to continue the fight on its own.  Then there was the loss in the HathiTrust case which looks as if it could affect the Guild’s legal position that scanning an entire work is not fair use.  Judge Baer ruled that despite the volume of books used, the online word index created out of the scans was transformative and fell under fair use.  Other than arguing that displaying snippets is out of bounds, Judge Baer’s opinion may give Judge Chin some cover in ruling on the issue. 

I wrote about the Guild’s loss in the HathiTrust case last week.  The Guild’s response came on Friday.  Curiously, there wasn’t much in the statement about fair use other than a generic sentence noting the Guild’s disagreement with every aspect of the ruling.  The bulk of the statement attacks the ruling in the Orphan Works Project where the University of Michigan had planned to make available in-copyright books where the rights holder could not be located.  The University did an admittedly bad job at identifying an orphan work and stopped the program until the standards for identification could be reevaluated.  Judge Baer ruled that since the program is not going forward there was not controversy to address.  The Guild’s reaction: 

“The so-called orphan works program was quickly shown to be a haphazard mess, prompting Michigan to suspend it,” said Paul Aiken, the Guild’s executive director. “But the temptation to find reasons to release these digitized books clearly remains strong, and the university has consistently pledged to reinstate the orphan works program. The court’s decision leaves authors around the world at risk of having their literary works distributed without legal authority or oversight.” 

We’ll be discussing the decision with our colleagues and co-plaintiffs in Europe, Canada, and Australia and expect to announce our next steps shortly. 

I would expect Michigan to come up with tighter standards if they plan to offer the program again.  I wonder, though, if the Guild will be allowed to represent “persons or persons unknown” if the issue goes to litigation for a second time.  I expect the Guild to appeal the most recent decision.  I’ll be interested in their arguments on fair use.  I think that is the more interesting aspect of the litigation.  [MG]