The Laboratorium: The Orphan Wars

"Just when I thought that the Google Books case might be tailing off towards an anticlimactic, unresolved ending — bam! The Authors Guild today filed suit against the HathiTrust, the library partnership holding many of the scans received from Google. You have to say this for authors: they sure know how to time a plot twist for maximum dramatic impact. I’ll give a quick summary of the important facts about the lawsuit, and then a few thoughts about what it means....One might well ask, why now? Google started scanning and giving copies to the libraries in late 2004. The same basic lawsuit could have been filed at any time in the last seven years. Initially, the libraries were unattractive defendants. Not only did their non-commercial status bolster their case, but the public universities were likely shielded by sovereign immunity, which makes it impossible to get money damages from a state government. Google, with its deep pockets and extensive commercialization, was a much better target. Then, as the lawsuit turned into a settlement, the libraries were brought in on the talks, and ultimately became partners in propounding the settlement. (At the fairness hearing, Michigan’s Paul Courant argued on the same side as the Authors Guild’s lawyers.) If there had been a settlement, it would have gone a long way to define what libraries could and couldn’t do. The settlement would have explicitly permitted the kinds of backups and storage that the HathiTrust is engaged in. It wouldn’t have reached the type of orphan works distribution that the universities now propose to make, but the existence of the Institutional Subscription would have made that issue moot for the participating libraries....Thus, I surmise that the Google Books talks have broken down irreparably. The authors now have nothing to lose there by alienating the libraries they were until recently working with....[T]he complaint...emphasizes the millions of books in the HathiTrust, rather than the hundreds in the actual orphan pipeline. There’s a reason for this. If the Authors Guild sued only to stop the orphan works displays, it would likely lack standing to bring the suit, since none of its members would be harmed by having their specific books displayed.... The Authors Guild has staked a tremendous amount of its institutional legitimacy on big copyright lawsuits. After the Authors Guild and Literary Works settlements were both rejected in the same year, it 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 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....This suit also upends many of the conversations taking place around the Digital Public Library of America...."