On June 11, some 133 academic authors filed an amici curiae brief in the Authors Guild v. HathiTrust case, in support of the HathiTrust. (In October 2012, The Honorable Harold Baer, Jr., held that the HathiTrust’s mass digitization is fair use, but the Guild filed an appeal in November.)
The brief distinguished their interest from that of the Guild’s members and pointed out that they are not only different, but diametrically opposed. “A ‘win’ for the Authors Guild would be a ‘loss’ for academic authors,” the brief stated bluntly. Academic authors, it argued, benefit from the Trust, “both because it makes our books more accessible to the public than ever before and because we use HathiTrust in conducting our own research.”
The authors also pointed out that their works “are likely more typical of those in the HathiTrust corpus than works of the Authors Guild and its members,” since much of the Trust’s holdings came from three partners’ participation in the Google Books project, and of those scans, 93 percent were nonfiction and 78 percent of the nonfiction was aimed at a scholarly audience.
The authors therefore asked the court to limit the Guild’s standing to the copyrights it actually holds (about 116, the brief estimates) rather than allowing its broad theory of associational standing to cover the trust’s 7.3 million potentially in-copyright books.
They also noted that in the related Google Books case, a District Court judge ruled that the Guild had inadequately represented the interests of academic authors. (In February 2012, more than 80 academics objected to class certification in that case, in a brief written by Professor Pamela Samuelson of the University of California, Berkeley, who also worked on this one.)
While drawn from a wide range of disciplines, law, computer science, sociology, journalism, and librarianship/LIS education were particularly well-represented among the authors. Librarians from the University of North Carolina at Chapel Hill, University of California, Berkeley; University of California, Merced; University of California, Los Angeles; Harvard University; University of Illinois at Urbana-Champaign; Wake Forest University; Emory University Libraries, and Duke University Libraries participated.
Kevin Smith, LJ columnist and director of copyright and scholarly communication at Duke, told LJ, “I do not feel the perspective of the Authors’ Guild represents my interests, nor the interests of many of the academic authors with whom I work. For many of us, broad dissemination of our work is an unmitigated benefit, and allowing the Authors’ Guild to impound millions of digital files would potentially undermine that benefit. Furthermore, the services that HathiTrust provides to the academic community, including preservation of digital scans, indexing across a huge corpus of works, and access for persons with print disabilities, are all things that are important for scholarly authors. Unlike the small subgroup of authors that the AG represents, I am not in the least threatened by those activities and do not want them to stop. In short, I believe that the continuation and growth of the HathiTrust is good for scholarship, for the public in general, and for academic authors in particular.”
The filing follows another amicus brief in the same case filed by the Library Copyright Alliance (which includes the American Library Association, Association of Research Libraries, and the Association of Collage & Research Libraries as members) on June 3. In that brief, LCA strongly put the library case that the plaintiff’s reading of section 108 would preclude, not just the HathiTrust’s activities, but library staples from providing Internet access to preservation copies, digital exhibitions, and institutional repositories.