Only Congress is equipped to strike the right balance between the promise and dark underbelly of mass digitization, the organization says in papers made public last week.
The Authors Guild made that argument as part of its attempt to revive a copyright infringement lawsuit against the HathiTrust -- a digital book storage project of the University of Michigan, University of California, University of Wisconsin, Indiana University and Cornell University. The writers organization sued the HathiTrust in September of 2011; the National Federation of the Blind later intervened in the lawsuit in favor of the universities, arguing that the HathiTrust's digital library would revolutionize access to books.
Last year, U.S. District Court Judge Harold Baer in New York ruled against the Authors Guild. He called the HathiTrust an "invaluable contribution to the progress of science and cultivation of the arts,” and said it was protected by fair use principles. Baer noted that digital copies are searchable in a way that print copies are not, and that they "facilitate access for print-disabled persons."
The Authors Guild appealed that decision to the New York-based Second Circuit Court of Appeals. Digital rights activists weighed in on the side of the HathiTrust, arguing that the project makes fair use of books.
But the Authors Guild contends that the libraries have no right to make digital copies of books that are under copyright. The Authors Guild has raised a number of arguments, but its latest papers emphasize the risk of piracy. “Even if the libraries have thus far avoided a data breach, there is no assurance they will succeed in the future. Security could be compromised by increased pressure from hackers, foreign governments or private actors determined to disrupt American interests, budget cuts, a disgruntled employee or mistakes that lead to the release of copyright-protected materials.”
Somewhat surprisingly, the Authors Guild's latest papers draw attention to deceased activist Aaron Swartz, who hanged himself while awaiting trial for having downloaded scholarly articles.
Many people believe that Swartz did so in order to make the articles available to the public. His death early this year has spurred a movement to reform computer fraud laws.
But the Authors Guild has a different take on Swartz. “There are people who specifically target digital libraries and similar databases, and they have succeeded,” the Authors Guild argues. “Two months before the filing of this lawsuit an activist was indicted for hacking into a proprietary database of journal articles by sneaking into a network interface closet in the MIT library, hooking his laptop directly into the network and downloading over 4.8 million articles, with the intent to disseminate the archive throughout the Internet.”
In an argument sure to inflame Swartz's supporters, as well as digital rights advocates everywhere, the Authors Guild says that Swartz's case shows the potential “devastating impact” that could result from book digitization.
From the above article: But the Authors Guild contends that the libraries have no right to make digital copies of books that are under copyright.
In the brief referenced above, in addition to employing the phrase 'digital copies', the lawyers for the Authors Guild use the phrase 'multiple copies' 11 times such as in "Even if Copying Millions of Books to Facilitate Search is Transformative, There is No Justification for Storing Multiple Copies of the Image and Text Files Online".
So the Authors Guild attorneys are not questioning solely the right to make digital copies, but the right to make multiple copies stored at multiple locations of those digital copies.
To put this in context, over 1,000,000,000 people have written stuff, but according to Wikipedia the Authors Guild has only about 8,000 members, including literary agents and attorneys.
And since the HathiTrust currently has digitized (as of today) 5,642,677 book titles, that leaves over 995 million persons of the 1 billion persons who have written 'stuff' that has not been digitized and included as yet in the HathiTrust collections. But maybe, regarding the 8000 Authors Guild Members, as Winston Churchill once put it: Never was so much owed by so many to so few.
The NFB Brief 10 JULY 2013 #238 Document on Page 19 under Argument says:
"I. The district court correctly analyzed the application of the ADA to the issues presented."
Section 121 'Chafee Amendment' was enacted in 1996. The original Americans with Disabilities Act (ADA) was enacted 1990 and an Amended Act was enacted in 2008. However, in drafting the Amended Act of 2008, there is no specific mention of or indirect reference to the Copyright Act Section 121 'Chafee Amendment' that was enacted 12 years prior.
It is also nowhere specifically or indirectly made clear in the 2008 Amended Act that the ADA has anything to do with any provision of 'Fair Use' nor any obligation under the SUBCHAPTER II - PUBLIC SERVICES toward providing 'equal access' to copyrighted materials in academic or educational settings.
The NFB Brief at Page 19 also says:
"(Second) because the ADA makes equal access a primary mission of universities, a university may be an authorized entity under the Chafee Amendment."
Neither phrase "equal access" nor "primary mission" in fact occurs anywhere in the text of the ADA as amended 2008.