Writers guild suing U.S. universities: 'Give up your Google books'

By | September 13, 2011, 6:36am PDT

Summary: Orphaned books or ‘abducted’ books? Five U.S. universities are being sued to prevent work from being uploaded and digitized.

A legal battle is under way between a coalition of writers and five major U.S. universities, after the writers’ books were digitized without their say so.

The Authors’ Guild and its equivalent organisations in Australia, Canada and the UK, along with a large group of other authors, are suing the five universities, including the University of Michigan, Wisconsin, Indiana, Cornell and the University of California.


(Source: Flickr)

The five universities allied with Google to digitize their books, in a bid to make the same copies of books available to more students without physically buying more books. Google partnered with these U.S. university libraries also to gain access to the books and works that it wants to digitize for its Google Books project.

But the authors of the books are not happy, and the lawsuit threatens Google’s long-term project of digitizing books for general availability.

HathiTrust, a named defendant in the case and a central core to the ongoing lawsuit, helped the universities set up a digital archive of their books. The repository was set up by the University of Michigan for student and staff access of ‘orphan works’ — defined as out-of-print books whose writers could not be found to ask or negotiate copyright.

But HathiTrust is in the cross-hairs as the suit suggests that books uploaded may be breaching copyright, given that they are outside the control of the universities that own the physical, hard copies of the work.

The company is attempting to find out-of-copyright books, so called ‘orphaned’ works. If it cannot find the authors, then it will go ahead and digitize the work regardless, and provide digital copies to students and staff. As you would expect, this has not gone down well — and the group pursuing the lawsuit claims that the books are not orphaned, more so “abducted”.

Google has so far digitized nearly five million books from Michigan’s library, but authors believe that the project is going ahead without their consent.

The coalition of authors wants the whole project to halt. Simply put, any computer with a digital copy of the books to be shut down and disconnected.

If the authors win the suit, Google Books could be over as we know it. But whether or not Google’s digital book service is a good thing or not, from the point of the students at least, that is a debate for another time.

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Zack Whittaker, a criminologist who studied at the University of Kent, Canterbury, is a journalist, writer and broadcaster.

Disclosure

Zack Whittaker

I worked briefly with Microsoft UK in 2006 but no longer have any connection with the company. Regardless, I remain impartial and unbiased in my views.

I don't hold any stock or shares, investments or industrial secrets in any company, but have signed confidentiality agreements with a number of UK and U.S. organisations, whose names I am not at liberty to disclose.

I was involved with Kent Union, the University of Kent's student union, undertaking voluntary, non-salaried, elected positions between early 2009 and mid-2010.

No other company, body, government department, non-governmental organisation or third sector organisation employs me or pays me a salary in any capacity whatsoever.

As a freelance journalist, whenever expenses are given and taken by a company that is not CBS Interactive, these will be disclosed in each relevant post to ensure transparency.

I currently work with a UK law enforcement unit, but this is an entirely separate position which bears no connection to other work.

(Updated: 23rd October 2011)

Biography

Zack Whittaker

Zack Whittaker, criminologist who studied at the University of Kent, UK, is a journalist, writer and broadcaster.

After studying criminology at university, though still in his early-20's, he has already had a series unconventional work and voluntary positions. He has worked with researchers studying neurological illnesses like Tourette's syndrome (which he suffers from), has given lectures on the nature of disabilities in the public community, and occasionally ends up speaking on television and radio discussing the events of the day.

He first had academic work published at the age of 22, then still an undergraduate, and has been cited by a wide range of publications: from the Huffington Post, Business Insider, AllThingsDigital, The Atlantic Wire and CBS News.

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No one objects to that
John L. Ries 17th Sep
@N952JL
It's the publications that are still under copyright but have been out of print for decades that are cause for concern.
This brings found memories of two ruthless mafia style organizations the RIAA and MPAA
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Do you remember the old days?
General C# 14th Sep
@RIAAsucks Remember in the old days when we used to pay for books? What suckers we were back then. Then the enlightened authors began sharing their knowledge with the world for free. Oh wait that's the other other alternate reality. These old farts aren't taking the digital revolution too well are they? Hmmm... I'm willing to pay, but I won't use what I bought under your terms.
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The question is...
John L. Ries 16th Sep
@General C#
...does the Authors' Guild represent those copyright holders, or current authors and publishers who don't want competition from public domain works?
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Greedy Authors and University's
databaseben Updated - 13th Sep
Some people may not know this, but a stinking college book can easily cost 300.00 and more, depending on the particular course. Then add up the multiple books the student must buy for that one class and then add the multiple books for the other class's. After the 3 month semester is over, those books are not worth anything unless you can re-sell them to other.

But colleges are pretty shifty and they usually out date those books and change out the required books once every couple of years, to ensure maximum profitability via the book store and book sales.
@databaseben@... Just FYI . . . the plural of "university" is "universities" (not "university's"). And the plural of "class" is "classes" (not class's). And "resell" has no hyphen. Maybe you should split with some $$$ and buy some books!
@pluralpolice Regardless, he has a point. College textbooks are ridiculously high priced.
@databaseben@...
And to think, when I first started college back in the fall of 1966, we rented the books per semester (High School books too)! Of course, then the next semester (Spring 1967) we had to buy them, but then everything was cheaper--most cost less than $30, wages were much lower, food cost less, gas was in the $0.2*9 range, etc. I won't pay $20-$30 for a good novel, I will wait until it is priced in the less than $10 range to buy.
Apostrophe misuse--technically he could get by with class's as the apostrophe represents missing letters and the e is missing! It isn't common writing tactics to do so. The apostrophe protection society. http://www.apostrophe.org.uk/examples.htm
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Google is acting like an organized thug appropriating property that is not theirs to profit from it. The Google Books project is what turned me from a Google fan to someone that advocates against them.
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Opt-in...
Kangaruhs 13th Sep
@Bruizer

You're saying we should let those authors that Google is unable to find, to opt-in? Maybe Google should just send an e-mail to those authors it can't find, that might work, too. Or, perhaps, just sit down over a cup of coffee with those authors it can't find, and discuss the matter in person.

Google is after money, let's not fool ourselves, but they're also after creating a sustainable, world-wide library online. That's a good thing in my book.
@Kangaruhs
Google cant sell what is not theres to sell.Google cant give away what google doesnt own. If the authers come out of the woodwork then googles got to either pay them or remove the books. Its just that simple. People are getting sued for shareing files that dont belong to them what makes Google any diffrent? Google the modern day Robin Hood?
@Kangaruhs

All good points. Google is doing a service for present and future readers, and also for neglected or unreachable writers.
@Stan57

"Google can't GIVE AWAY (my correction) what is not theirs to sell." And the Writers' Guild can't forbid them to give away what the Writers' Guild doesn't own. If they have valid claim to any book, I expect Google would be happy to discuss licensing with them.
@StanTheMan57

Google's settlement had provided a separate fund to collect royalties for those authors whose orphaned works were sold.

Otherwise, what good are these works to sit in some publisher's vault, out of print, to a potential hundreds or thousands of people that would like to read and pay for access to their works?

The Author Guild's current stance amounts to a scorched Earth policy, and it's weak and utterly backwards.
Mr. Whittaker is badly summarizing the issue.

Out-of-copyright works are public domain... freely available.
'Orphan' works... are a different matter... if an author comes forward, it is no longer an 'orphan' work.
Out-of-copyright orphan work is yet another area... if there is such a thing... but freely available.

@Bruizer... yes, it is simple...
If authors are unhappy and come forward, their work is no longer orphan... and they have legal remedies, to which Google, et al, will have to submit. The proven authors can terminate distrubution or demand payment... this is not in doubt. So there's no need for a lawsuit by a guild... of non-orphaned authors, especially. Should there be a statute of limitations? Copyrights already expire. Should there be an establishment of date of orphaning? maybe.

Perhaps I'm wrong, but it seemed to me that the great majority of the digitized works are those that are definitely out of copyright... thus anyone make a copy.

If orphan work authors show up to claim ownership... they will be able to negotiate/litigate a settlement... an automatic payday ...or exercise their right to stop distribution.
For authors, or a guild (who have no 'orphan' works) to oppose the project, is not a good legal leg to stand on... they have no injury, no threat of injury.
All any author has to do is claim their work... yes, there would need to be some proof.
With five universities involved, I don't think it's malicious.
Is Google actually profiting... are they charging for this service to universities, to the end users?

What's the point of the lawsuit? You don't want your work to be digitally published but you don't want to claim it either?
You want to protect the rights of orphaned authors? They already have protection in the law, if they exercise it.
The point of written work is to be published.
If you claim it, you have rights to stop distribution or get paid. I doubt you even have to claim your right -publicly-.
If your work is 'orphan', you're either dead, insensate, or hiding... there is a time-limit on copyrights. Eventually the work becomes public domain. Maybe the heirs to orphan works have a claim... so they can make it legally, and win... for 70 years after death of the author... or perhaps, we establish 70 years from date of 'orphanment'.
I doubt this project is thieving for profit.
@Bruizer Really, don't you remember about almost twenty years ago when we were all worried that we were cutting down trees faster than we could grow them, well this is the solution to fix that human created problem. So we need to decide are we going to allow lumbering, or are we going to digitize our print, we cant have it both ways.
"If the authors win the suit, Google Books could be over as we know it. But whether or not Google???s digital book service is a good thing or not, from the point of the students at least, that is a debate for this afternoon."

These authors need to start facing reality and "get with the program". Those out-of-print books were not generating any income for them. There is already a lawsuit regarding Google Books. They can simply get involved in that rather than "trying to reinvent the wheel" and waste everyone's time re-litigating.

The bottom line is that if Google doesn't do it in the U.S., someone else will do it somewhere else either where the work isn't copyrighted or the legal system doesn't permit lawyers to handle cases on a contingency basis (which is EVERY country except the U.S. and a few Canadian provinces). Either the U.S. courts, the legal system, and the authors need to face that or we'll wind up in "the dustbin of history" as other countries with more realistic legal systems take over.
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I smell M$ and Apple dirty hand here
The Linux Geek 13th Sep
trying to stop google's momentum
@The Linux Geek

I think you really should remove the word "Linux" from your name since all open-source licenses revolve around copyright and ownership. That's what the term license means in open-source: conditions with which someone can use code "owned" by someone else.

If Google and the universities prevail, it would be ominous for ALL copyrighted information.
I think that the authors should be complaining about their own works. If they can't show their own works being used without permission, they have no legal standing to sue.

Digital books should however be treated exactly the same as hardcopies. If you own the rights to the hardcopy, you also own the rights to digital copies and these must be controlled so illegal copies are not created and distributed.

Show you have been damaged though, or go away.
If the authors of the books in question aren't suing then I suspect this will be a very short-lived court case.
This is a rouse. Much of this content will perish once the paper rots away. Google will ensure this is captured for posterity. And if the authors / copyright holders show up then they can assert their rights. The idea that the books are not orphaned but abducted is absurd. Face it the commercial value of these papers is likely nothing. Anyone with a commercial valuable copyright is already collecting the fees and ensuring their rights are preserved.
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Pretty much the point
John L. Ries 17th Sep
@BajanMike
But you can't have 50 year old textbooks still in circulation. People might decide they're as good as the current ones.
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Writers responsibilities
Dr_Zinj 13th Sep
If you are an author, and you wish to retain copyright for your work(s); it is your responsibility to remain reasonably findable. That means a current mailing address on file with your still in business publisher at a minimum. Phone, e-mail, twitter account, place of residence filed with them even better. If you don't have a publisher still in business, then you need to be findable at the very least in the white pages. Maybe via the Library of Congress, or Wikipedia?

Point is, if they can't reasonably find you, you forfeit the copyright.
@Dr_Zinj
But that's not the way the law works.
You should edit this sentence: "The company is attempting to find out-of-copyright books, so called orphaned works." Orphan works are in-copyright, but the authors can't be found. (Out-of-copyright means public domain, which doesn't pose as much of a legal problem, if any. I do still begrudge G for monetizing these, though.) You say it (somewhat) correctly earlier, so I'll assume it's just a typo. Whether orphan works are out-of-print (although they likely are) may not be accurate either. (A publisher may have license to publish, but not the right to license it to Google, which licensing right is retained by the MIA author.) Best just to say in-copyright, but the rights holders are MIA.
And where were these authors till now?
If you read enough of these comments, it becomes quite clear that some of the comment authors should spend some time reading the books in question. The spelling and grammar in their comments is atrocious.
All good points. Google is doing a service for present and future readers, and also for neglected or unreachable writers.
is fikirleri
girisimci fikirler
We wouldn't have this ridiculous problem if the copyright laws had remained the same, dating back to the 1790 Copyright Act. Under the original copyright act, you were granted 14 years, plus a 14 year extension if the author were still alive, and requested an extension.

Instead of forcing authors to be proactive, we have a passive system promulgated by the Author's Guild (along with corporations like Disney), that fully ignores the public benefit of turning over works to the people to use.
I agree that royalties must be collected and paid-that's what the producers of the intellectual property earned and deserve. HOWEVER, the universities and learning institutions have got you over a barrel in that they charge much, much more than the books are worth, and as some of the other commenters said, they pull the books annually or every two years so they can stick it to the next batch of students. It's the same situation as with the RIAA and MPAA, they want you to buy the whole CD or DVD and get really bent out of shape when yu buy only the song or movie you want for far less, like 99 cents or whatever. Google is threatening the business model of the publishers and schools, and they are really upset. The five forward-thinking schools that chose to break ranks are to be commended , not sued. If a proper method of ensuring royalties go to the persons who earned them is established, the publishers and schools will lose another cash cow. This wouldn't be an issue if they weren't so damn greedy. My last semester of college, the books came to more than the tuition! Hang in there Google!
If the copy right has expired and the author cannot be found, then the book is in public domain and it is free to digitize it.
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No one objects to that
John L. Ries 17th Sep
@N952JL
It's the publications that are still under copyright but have been out of print for decades that are cause for concern.
Before I comment on this issue, let me qualify myself by saying that I retired a year ago from a 44 year career in book publishing, having spent the last 30 of those years as a university press director. The issue in this lawsuit is more esoteric than most of you realize, including the author of the article. First, Google is not a defendant in this case. That is because they were a defendant in an earlier case recently settled out of court presumably to the satisfaction of The Author's Guild, as they were one of the plaintiffs in that case. This suit against these five universities is about interpretation of a clause in the U.S. Copyright Code, ?? 108. Limitations on exclusive rights: Reproduction by libraries and archives. Some university libraries have interpreted this clause as giving them the right to make copies, including digital copies, of any work in their collections, whether U.S. or international copyright is in force or not,and making those copies available to their clients, and, according to the Clause, to anyone needing the work for their research or enjoyment. The Authors' Guild and most publishing houses disagree. This will most likely be settled in the Supreme Court, and that decision will be some time in the future, by which time the whole digital environment and the world of book publishing will have completely changed.
On the subject of textbook prices, although I spent my career as a publisher, I agree that textbook prices are outrageously high in many disciplines, particularly in the STM areas (Scientific, Technical, Medical). However, neither universities nor their bookstores set the prices of new books. The publishers do that, although they are not mandated prices. The bookstore can sell books at whatever price they want. Amazon sometimes offers books at a substantial discount. Brick and mortar stores rarely do. Also, universities do not mandate which books are to be used in any particular course. The individual professor selects the books for her/his courses. In rare cases, some university departments with huge introductory courses form textbook selection committees to consider all books available for, say, Principles of Sociology, and select one for use by all who teach sections of that course, usually graduate student TAs (Teaching Assistants). Finally, it is the publisher, sometimes in consultation and agreement with the author(s), who plans the revision schedules. That was every three to five years when I was a textbook acquisitions editor in New York; now every two years, I am told, is a common revision schedule.
Finally, for those who may be grammatically challenged, buy and read, or at least refer regularly to the following:
The Elements of Style by Strunk and White, which can be bought on Amazon of $.01, plus shipping, of course,
and
The Chicago Manual of Style by the Editors of the University of Chicago Press which is also available from Amazon. any edition form the 13th on will do.
Also, get a decent dictionary. I use the online version of Merriam-Webster's Dictionary and Thesarus. It is free.

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