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Flipping the Script

July 20, 2012

In 2009, when the Authors Guild tried to settle its epic legal battle with Google over the company’s massive Google Book Search project, the Association of Research Libraries and the Association of College and Research Libraries both fought the settlement. By forgiving Google for unlawfully scanning millions of copyrighted works, the associations argued, the settlement would give the company an unchallengeable monopoly on digitized books. The judge in the case agreed, and the settlement failed.

Now the library associations are fighting the Authors Guild again. Only this time the library advocates have appropriated the arguments the guild used in favor of the Google settlement and are trying to turn those arguments against the guild’s attempts to stifle the HathiTrust, a nonprofit digital repository that wants to serve a similar function as Google Book Search (also known as Google Books or GBS).

The library associations this month filed an amicus brief in Authors Guild vs. HathiTrust that reads like a glowing review of Google Books, a database within the Google website that enables users to search full-text versions of digitized books and read excerpts for free.  

The HathiTrust Digital Library already owes its existence to Google. As a condition of allowing the company to scan their books, a number of major research libraries (including the University of Michigan library, where HathiTrust resides) required Google to leave each library a digital copy of every volume it scanned from its collection. Those libraries later pooled their duplicates to create a sort of shadow GBS database, purportedly for preservation purposes.

However, when the libraries stated their intention to give students and faculties access to unclaimed “orphan works” in the HathiTrust Digital Library, the Authors Guild sued for copyright infringement. HathiTrust’s method for identifying “orphans” was flawed, it said; and further, the measures it had taken to secure the database were inadequate. The Authors Guild took the occasion to call into doubt the legality of the HathiTrust’s basic existence. The HathiTrust suspended its plans to make the orphan works available. (This paragraph has bee updated since publication.)

Now the library associations are lashing back on the trust's behalf, arguing that if the Authors Guild is willing to acknowledge the right of Google Books to exist under the auspices of “fair use,” then it should do the same for HathiTrust.

“GBS has become an important means for libraries to identify valuable research sources,” writes Jonathan Band, a lawyer for the library associations, in the brief. Google’s full-text search and preview tools are “indispensable” to students and librarians at certain underfunded libraries, says Band. They help patrons find citations, verify quotations and scientific assertions, and “explore alternative viewpoints” with a series of easy keystrokes, thereby “sav[ing] libraries (and scholars) both money and time,” he writes, citing testimony from several librarians.

Monopoly notwithstanding, Google Book Search currently functions a public good, says Band, and if that public benefit is a factor contributing to its right to crawl and display copyrighted materials, then HathiTrust would be glad to do the same. But treating Google’s harboring of copyrighted works as acceptable under fair use, while condemning HathiTrust, is unfair, he writes.

James Grimmelmann, an associate professor at New York Law School, says the libraries’ double-standard argument may prove to be a more effective weapon against the guild’s claims about the security of the copyrighted works -- HathiTrust’s security arrangement is more or less equivalent to what the Authors Guild had agreed to in the proposed Google settlement -- than against the guild’s arguments about compensation and licensing fees.

In any case, Grimmelmann says the library associations’ attempt to use turn the Authors Guild’s position on Google Books against its position on HathiTrust is, at the very least, “amusing.”

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