Even while the Authors Guild have one ongoing suit against Google, they file another against Google's digitization partners.

The digitization of print media is the logical next step. Document scanning technology and the Internet have made instant access to reference materials, research papers, and books the norm. Consequentially, leafing through bound volumes is fast becoming a cumbersome and antiquated way to get information. And, in general, efforts to go digital – most notably the Google books project – is regarded as a good thing. What could possibly be bad about greater access to information?

Not so fast, say several book author groups.

In the latest chapter of the Google-versus-authors thriller, the American Authors Guild, the Australian Society of Authors and the Québec Union of Writers filed a lawsuit on September 12 against five major universities working with Google on their Google books project. As reported in the New York Times, the lawsuit asserts that “by digitizing, archiving, copying and now publishing the copyrighted works without the authorization of those works’ rights holders, the universities are engaging in one of the largest infringements in history.”

Plaintiffs also include children’s book writer Pat Cummings, “Cost” author Roxana Robinson and Pulitzer Prize-winning biographer T. J. Stiles.

The authors are seeking to “impound” approximately 7 million copyright-protected books that they claim were illegally scanned by Google and handed over to HathiTrust, a partnership that includes over 50 research institutions and libraries. HathiTrust, which includes institutions such as MIT, Harvard and Johns Hopkins is currently compiling their own digitized library that includes many books to which the authors still hold rights to, according to the Authors’ Guild. In addition to HathiTrust, their suit takes aim specifically at the University of Michigan where HathiTrust is based, the University of California, the University of Wisconson, Indiana University and Cornell University.

“We’ve been greatly concerned about the seven million copyright-protected books that HathiTrust has on its servers for a while, Paul Aiken, executive director of the Authors Guild, told the New York Times. “Those scans are unauthorized by the authors.”

Two days after the lawsuit was filed the Library Copyright Alliance condemned the Authors Guild. “The case has no merit, and completely disregards the rights of libraries and their users under the law, especially fair use,” the LCA said in a statement. The “fair use” that the LCA is referring to is a legal doctrine that allows the reproduction of copyrighted material under certain circumstances. Normally fair used to quote short excerpts in news media or critical reviews “for illustration or clarification of the author’s observations.” See how I just utilized fair use? But the doctrine is open for some pretty liberal interpretation. Even the US Copyright Office admits that “the distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission.”

A sentence here, a passage there, an author’s entire body of work....

I’m no lawyer, but scanning an entire book that’s out of print and charging people for access doesn’t sound like clarifying an author’s observation. How exactly does Google get away with that? By giving authors an opportunity to either sign up and take their cut or, if they prefer, to remove their book from the database altogether.

But what happens if the author doesn’t call in? Too bad, says Google, you had your chance. And the book becomes what are referred to as ‘orphans.’ HathiTrust is sifting through their database to identify these orphans so that they can be made available to the public. On October 13th they plan on releasing the first 27 orphans for unlimited downloads by students and faculty members. This first group of orphans includes works by French, Russian and American authors. Another 140 books by Spanish, Yiddish, French and Russian authors are due to be released in November.

The plaintiffs are beside themselves. Among statements posted on the Authors Guild website the president of the Québec Union of Writers Danièle Simpson had this to say: “I was stunned when I learned of this. 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?” Angelo Loukakis, executive director of the Australian Society of Authors, said “These aren’t orphaned books, they’re abducted books.”

On top of what the Authors see as blatant thievery, they’re further incensed at the fact that the stolen goods are being stored on HathiTrust computers – a repository the Authors view as far from secure. “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 just can’t catch a break. The current lawsuit, while not against Google but at their partners, could be viewed as an extension of a lawsuit the Authors Guild filed against Google in 2005 for copyright infringement. An agreement in that case was reached in 2008 under which Google was to pay $125 million to a number of publishers and authors. The agreement would have been a major step towards establishing a system analogous to the music industry’s setup through which authors, publishers and digital collections holders like Google could all benefit. Would have, were the agreement not shot down this past March by presiding Judge Denny Chin citing antitrust and copyright concerns. Now, it’s back to the drawing board. Lawyers for all parties met September 15 and say “substantial progress” towards an agreement has been made. So, when might we see a Google books that everyone can live with? I wouldn’t hold my breath. Judge Chin is “still hopeful” that lawyers can reach an agreement, reports Reuters, even though they’re “essentially starting from scratch.” The Judge’s thinking is much more aligned with the Authors Guild than Google, as he would rather books be included contingent on agreement by copyright owners rather than requiring authors to “opt out.”

Contacting lots of authors to cut a deal sounds like lots of work. And negotiating terms rather than coming up with your own “reasonable” terms sounds like even more work.

When Google books takes its final shape one day, I wonder how close it will be to Google’s original vision, how much it will contribute to their mission to “facilitate access to information for the entire world.”

But that’s a chapter that has yet to be written.

[image credits: Huffington Post and Law On The Row]
image 1: Google
image 2: Google Book Search

Peter Murray was born in Boston in 1973. He earned a PhD in neuroscience at the University of Maryland, Baltimore studying gene expression in the neocortex. Following his dissertation work he spent three years as a post-doctoral fellow at the same university studying brain mechanisms of pain and motor control. He completed a collection of short stories in 2010 and has been writing for Singularity Hub since March 2011.