The Authors Guild sure knows how to win friends and influence people. A week ago today it led an international cast of plaintiffs in yet another new lawsuit – against the HathiTrust, a consortium of major university libraries (including the University of California) over its project to establish a digital repository of their book collections. Taking to new extremes its proclivity to litigate, rather than organize or persuade, the AG now seeks to stop the mere act of scanning literary works even before they are commercialized.
This follows the collapse of the AG's effort in leading two other writers' organizations, the National Writers Union and the American Society of Journalists and Authors, down the primrose path in “Freelance” – the settlement in a class action on behalf of newspaper and magazine journalists against the periodicals and electronic database industries.
As Beyond Chron readers know, I led the objectors against that disgraceful sellout, which an appellate court rejected last month. There is no word on whether the plaintiffs and defendants intend to engage the objectors in serious negotiations, or simply continue to whine that that they had every right to exploit and punish the 99 percent of the class who hold copyrighted works which were and are being systematically infringed, but who haven't yet done their Copyright Office registration homework.
The action against HathiTrust book-scanning also follows federal judge Denny Chin's second and final rejection of the AG's interesting, but fatally flawed, settlement in the Google Books case.
For HathiTrust, the plaintiffs dumped Boni & Zack, the incompetent class-action factory that had been calling the shots in Freelance and Google Books.
The Google parties are set to litigate further next year, while reportedly still talking behind the scenes. But to what end on either front if the Authors Guild continues to project such an incoherent vision?
Here's New York Law School professor James Grimmelmann, a leading observer of Google Books and the whole tortured debate over the conundrum of “orphan works” (copyrighted material for which it is, at minimum, difficult and burdensome to locate the rights holders and secure permissions):
“After [Freelance and Google Books] were both rejected in the same year, [Authors Guild] might have looked for an exit strategy. Instead, it doubled down — and whom did it sue? Not the multinational publishers, not Googlezon, but the cuddly lil’ old libraries. Perhaps this [HathiTrust] suit will vindicate the strategy and bolster authors’ standing in the world of electronic books, but it could also turn them into the party of no. Internally, if this new adventure turns out poorly, one wonders how much longer the Authors Guild’s members will continue to support its long-on-litigation strategy.”
Amen to that. I admit that the HathiTrust plaintiffs have done a nice job exposing how the defendants dissembled about their “due diligence” in locating orphans. But that is an accomplishment that could as easily, and much more effectively, been done outside the courthouse.
Librarians and their patrons, as well as individual online users, want access, and that is in the overall public good. The problem is that, at this moment, litigation is retarding rather than facilitating a just resolution of copyright models for the digital age.
The Authors Guild and its baby-brother alphabet-soup writers' organizations need to muzzle their lawyers and – in partnership with libraries and responsible corporate players – get Congress to move on the national business of copyright reform, antitrust waivers, and compulsory licenses in order to realize the benefits of new technologies.
Irvin Muchnick, a regular contributor, is at http://concussioninc.net.