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Authors Guild sues universities over Google book scanning

The lawsuit centers on the use of 'orphan' works whose copyright owners can't be located

The Authors Guild has sued five universities and a library partnership organization alleging copyright infringement over their use of certain digitized copies of books made by Google in its Books Library Project.

The lawsuit, filed on Monday, goes after the University of Michigan, the University of California, the University of Wisconsin, Indiana University, Cornell University and the HathiTrust. Joining the Authors Guild as plaintiffs are the Australian Society of Authors, the Union Des Écrivaines et des Écrivains Québécois (UNEQ) and eight individual authors.

The HathiTrust was founded in 2008 by several major universities as a partnership of their research institutions and libraries to establish a repository to archive and share their digitized library collections. It contains copyright and public domain books scanned by the universities, Google, the Internet Archive and Microsoft.

However, the lawsuit focuses specifically on copyright works scanned by Google that are in "orphan" status, meaning that the copyright owners for different reasons can't be located and contacted.

Specifically, the Authors Guild objects to a plan unveiled in June by the HathiTrust and the University of Michigan to provide full-text access to digitized orphan works to University of Michigan users and visitors to its campus libraries. Access will only be available to works the university's library has in print format in its collection. Other universities including Cornell and Duke plan to join the effort with similar projects to make orphan works available to their library patrons.

Angelo Loukakis, executive director of the Australian Society of Authors, said in a statement that the universities' orphan works project is "an upsetting and outrageous attempt to dismiss authors’ rights."

The Authors Guild and the other plaintiffs are asking the court to declare that the universities are violating copyright law not only through the orphan works project but overall through the digitization and distribution of every book without the authorization of the copyright owner.

The plaintiffs also want the court to issue an injunction forbidding the defendants from "systematically reproducing, distributing and/or displaying Plaintiff's or any other copyrighted works without authorization." They also want the court to forbid the universities from providing copyright books to Google for scanning if copyright owners haven't authorized it. The court should also impound all digital copies of books that have been scanned without the permission of the copyright owners, according to the plaintiffs.

Paul Courant [cq], dean of libraries at the University of Michigan, said that the school's attorneys will respond to the lawsuit after they've had a chance to analyze the complaint, but that the university is confident that its use of digitized books is lawful and that it provides a lot of scholarly value to the university community.

Neither Google nor any of the other four universities named in the lawsuit responded to requests for comment.

Google has scanned millions books from a variety of university libraries since 2004 without always obtaining permission from copyright owners. In 2005, the Authors Guild and the Association of American Publishers sued Google over this wholesale library scanning, alleging massive copyright infringement.

The parties tried unsuccessfully to settle that lawsuit when their controversial proposed settlement was rejected earlier this year by Judge Denny Chin of the U.S. District Court for the Southern District of New York, the same court where this week's lawsuit was filed. In rejecting the settlement proposal, Chin wrote that it would have given Google "significant rights to exploit entire books, without permission from copyright owners. Indeed, the [settlement] would grant Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyright works without permission, while releasing claims well beyond those presented in the case."

Google and the plaintiffs are due in court for a status hearing on Thursday for the 2005 lawsuit, when the judge will be expecting either a revised settlement proposal or substantial progress toward one. Otherwise, the judge said in the last status conference in July, he will then set the wheels in motion for the case to finally go to trial. Google and the plaintiffs presented their first settlement proposal in 2008, after which it was available for comment and review, revised again, and then submitted to the judge, who took more than a year to render his decision in early 2011.

Clearly, it's not an encouraging development for the possibility of a settlement to have the Authors Guild file this new lawsuit just days before that status conference.

Google's defense has been that it's protected by the fair use principle because for copyright books, it only shows a snippet of text in its Books search engine -- a snippet containing the end user's search term -- unless it has permission from the copyright owner to show more. However, the plaintiffs argue that the act of making a digital copy of a book and making its entire text searchable online without the copyright owner's permission is a copyright violation.

This week's lawsuit also extends the litigation over the Google Books Library Project to the universities participating in the program, which until now had largely avoided legal action against them. The way that project works is that Google scans books from the library collections of participating universities and gives them the digitized copies to make available to their patrons, such as students and professors. Google also stores copies on its own servers for its Books search engine.


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