Hathi’s victory is good news for anthropologists (and everyone else)

I was literally doing a little victory dance in my office the other day when twitter lit up with news that HathiTrust has pw0ned the Authors Guild in a recent legal case. The nature of the case was a little arcane, but its worth learning about: basically, several of the largest and most well-libraried universities in the United States got together and had Google digitize their libraries. They then put those digitized collections up on the Internet for the use of the member libraries. If the books were in the public domain, you could download them. If they were still in copyright, you could search the full text of the collection for specific quotes, but that was it. An exception was made for the visually disabled: they could get the full text of the book in a form they could use, since the physical book wasn’t much use to them. The Authors Guild (read: the publishing industry) sued them because given the choice between making money and helping the disabled they chose, you know, making money.

I’ll leave a full analysis to the people who are experts on the case. But what’s so satisfying about the case for me personally is that it establishes an important baseline: publishers can’t sue universities for digitizing content they own. This is “transformative fair use”. The implications are broad because Hathi is, as far as I can tell, angling to push the envelope on these issues. Now that they have a huge body of digital books they can begin to chip away at them, slowly ‘turning on’ more and more books for general use. Right now they have public domain books visible, now they can start looking for ‘orphaned works’ which are out of copyright but nobody has noticed. And they can start looking for copyright holders and say “do you want the world to be able to read the book you labored over? We’ve got it all set up — we just need you to sign on the dotted line so we can flip the switch”. Its an exciting, important, and deeply ethical project. And best of all, it is now clearly, resoundingly legal.

How is this relevant to anthropology specifically? The anthropologist Jason Jackson is one of the key players in the creation of Open Folklore, the project through which folklorists are open-accessing everything they’ve ever done. And their partner? HathiTrust.

Sadly, the American Anthropological Association hasn’t been very involved in this effort. In their attempts to keep their unsustainable business model afloat, they see libraries — and, increasingly, members — as customers and not constituents. Although they have a back catalog of obscure but high-quality monographs and edited volumes, if you want to take a look at them you’ll have to visit their bookstore. I’m not sure how much money they’ll make flogging the Ward Goodenough festschrift (to name just one publication), but apparently its enough to make sure that no one will ever read it.

Alex Golub is an associate professor of anthropology at the University of Hawai‘i at Mānoa. His book Leviathans at The Gold Mine has been published by Duke University Press. You can contact him at rex@savageminds.org

7 thoughts on “Hathi’s victory is good news for anthropologists (and everyone else)

  1. Rex: I’m sorry to have say it, but your post here is simplistic on the law and overly optimistic on the utopian consequences of the HathiTrust decision.

    I’m a human rights lawyer, not an IP lawyer, but from what I have read of the case, it involves the narrow question of whether Google’s scanning technology is ‘fair use’, and the court found in summary judgment that it was. The court did not rule on the future use of scanned texts, uses that may well violate copyright. At the moment, scanned texts are used for word and phrase searches, probably welcome by many authors as well as readers, but not exactly Open Access. This case did not break down any major barriers.

    Second, the Authors Guild is most certainly NOT the publishing industry, and was formed to push back against a greedy publishing industry that habitually took advantage of authors – many of whom, if not most of whom, are fairly naïve about the details of contracts and related agreements. The Authors Guild represents authors such as yourself, who might someday be dismayed to find that your publishers are making lots of money on your work, and you’re getting zip. I’ve heard this and related complaints on this forum often enough to be at least mildly surprised to find that you blithely lump the Authors Guild and publishers into one greedy package.

    Greedy in an especially despicable way, it seems: profits over the disabled! Jeez, guy, this is not the option, and it’s unfair to pose these as mutually exclusive possibilities. First, authors write books; how those books are published, including decisions about how to make them available to blind readers or other ‘print-disabled,’ is tightly controlled by publishers. I suspect that most authors would be happy to make versions of their work available to print-disabled readers. Your implication that print disabled readers need free versions of published works may be insulting to many vision-impaired readers, but it’s also irrelevant. Publishers make these decisions, not members of the Authors Guild. A portion of the Authors Guild suit simply raised the concern that digital copies of books intended for print disabled readers could find their way into the broader market, potentially cutting into authors’ income. The Authors Guild was not concerned about lost profits from the ‘disabled’ reader; the concern was about other uses to which those texts might be put.

    Finally, let’s be clear about the stakes. As scholarly writers we don’t make a living on our writing, and most of us would be pleased to have our work made widely available at no cost or low cost. So far, the HathiTrust /Google project seems limited to scholarly texts. Professional writers, though, have a great deal at stake here, and anyone who has to rely on royalty checks to pay the bills should be concerned about the future of this technology.

  2. Ms. Piper, I disagree with your assessment to a certain extent. The ruling itself has some fairly broad interpretations of law that go beyond Google’s scanning technologies, and there are implications for the remaining case. You can read the decision itself here:

    http://www.scribd.com/doc/109647049/HathiTrust-Opinion

    I agree that it’s not Open Access, but I disagree that it hasn’t broken any barriers. At the very least, the poor argument that the Section 108 exemption for libraries and archives precluded an assertion of fair use was thrown out handily. There are also other implications, well described here and elsewhere:

    http://blogs.library.duke.edu/scholcomm/2012/10/11/a-big-win-for-fair-use-and-libraries/

    Also, as the original post pointed out, HathiTrust does participate in Open Access efforts, and this case could at least indirectly affect their ability and willingness to participate in those activities.

    The Library Copyright Alliance has a neat infographic about the cases here:
    http://www.librarycopyrightalliance.org/bm~doc/googlebookslitigation-familytree.pdf

    I agree that the Authors Guild are not the publishers, but I also think that they’re neither all authors nor in the right in this particular situation. That doesn’t mean that they haven’t, and won’t, continue to do good things for authors, but I don’t think this was one of them. Also, the HathiTrust/Google project is not limited to scholarly texts. I think there are problems with the Google Books project and settlements, but not so much in this situation.

    My only quibble with the post is that orphan works are not quite as described. ^_^; Orphan works are works that are under copyright, but for a variety of reasons the copyright holder cannot be found or otherwise unclear. So, it is impossible to seek permission for uses that would ordinarily fall under the exclusive rights of the copyright holder. The problem of orphan works is significant, and generally acknowledged by people on all degrees of the copyright spectrum. The orphan works problem was not specifically addressed in this case, although the fair use evaluation in this case will probably affect how organizations treat orphan works.

  3. Carlos: Thanks for your note. I do not think that we disagree on the facts or the opinion, but on its interpretation, and I am happy to adopt your more positive judgment. I am less optimistic than Rex about the potential impact of this case, and your note reinforces my sense of caution about the implications of this ruling.

    I have not followed this case in any detail, and so my assumption that the works at issue were predominantly scholarly works came from examples cited and the use of a university research library. If that is not accurate I am happy for your correction, but that might make it of even more concern to authors who must make a living on their writing.

    Further, I do believe that Rex was fundamentally incorrect in identifying the Authors Guild with the publishing industry, and your comments are tangential to that point.

    Thanks again for your comment.

  4. Ah, the pushback. I write a piece on an Atlantic Article in which I quote from Lowie’s 1937 History of Ethnological Theory and someone criticizes me for writing something that could not be read by readers of The Atlantic. So then I _do_ write an article that can be read by readers The Atlantic and I’m told that I’m being too simplistic. I understand that the case is complicated and that you recognize that. I’ll tell you what, why don’t you write a blog post that explains the Hathi decision for someone interested in anthropology but otherwise unaware of details of the case, examines the implications, connects it to existing anthropological projects and has all the caveats you suggest — in 495 words?

    If you think its ‘insulting’ to believe visually impaired students, faculty, and staff of universities should be able to read the books in the university library you disagree not only with me, but the National Federation for the Blind:

    http://www.nfb.org/national-federation-blind-applauds-landmark-court-ruling

    Oh and for the record, I never called anyone ‘greedy’.

    Thanks for your critical comments on the article I didn’t write. If you’d like to take a look at the one I did write, I’d be interested in hearing what you think about it.

  5. @Rex

    I’ve toyed with several different kinds of response to your comment, from the snarky to the defensive, but the best might be simply to point out that we agree that the HathiTrust case is good news for scholars, and I am anxious to see how it changes things. I am less optimistic than you are, partly because I believe that the understanding of ‘fair use’ embraced by Judge Baer in this case is flawed and may be reversed on appeal, but I also felt that the HathiTrust scan-search system was a transformative use of protected works, and I would certainly love to see greater access to the kind of search benefits that Google/HathiTrust make available.

    I would also like to see authors retain more control over the ways in which our work is used, a view I believe you also embrace, but this cuts both ways. Most of us would opt in to the HathiTrust/Google/library arrangement, which makes our work available to a wider audience, but I also acknowledge that the professional authors who joined the suit feel that they could lose income that they rely upon, even if the court found that their fears are – at this point in time – not borne out. As I suggested, it’s not a matter of a benefit to the visually impaired, but of electronic copies of whole texts escaping into the interweb… Carlos helpfully pointed out that the HathiTrust work is not limited to scholarly publications, all the more reason to recognize that professional authors (Fay Weldon was a plaintiff, for example) might see the issues differently than we do.

    I do hope that you can invite an IP lawyer to speculate on the implications of the ruling for anthropology in Savage Minds. Despite my mildly critical comments earlier, it is an important issue and your bringing it to Savage Minds was laudable.

  6. For those seeking perspectives on the case from well-informed IP lawyers (who are sometimes also librarians), please look at Barbara Fister’s 10/11/12 post at Inside Higher Education http://www.insidehighered.com/blogs/library-babel-fish/fair-use-victory-scholars . She provides links to excellent early assessments.

    There is a link problem where she points to Nancy Sims’ important essay. This is actually here: http://blog.lib.umn.edu/copyrightlibn/2012/10/authors-guild-v-hathi-trust-a-win-for-copyrights-public-interest-purpose.html#comments

    Nancy Sims is both a librarian and a copyright lawyer, an increasingly common arrangement in the major research libraries working to help faculty and students negotiate the current scholarly communications/IP landscape. She knows her stuff and, helpfully for us, she also knows about our stuff in particular (ex. Open Folklore) and about this domain in general (HathiTrust).

    The AG has not been as forthcoming with commentary relative to those rooting for HathiTrust, but I am sure plenty of counter-views will be available soon enough.

    I just want to stress that it is not useful to conflate the Google Books Project and the HathiTrust Digital Library. Working with Google is just one of several routes by which HathiTrust partners have digitized works in their physical library collections.

Comments are closed.