New Players Join Battle Over Scanning ‘Orphan’ Books

The ugly fight between writers and universities over book scanning is getting bigger. The Authors’ Guild yesterday updated its court complaint to add writers’ groups from the UK, Canada and Sweden as well as new individual authors. But it has yet to explain how it will overcome a legal shield that protects the universities from being sued.

The book scanning fight broke out in September after the University of Michigan and other schools announced a plan to release digital copies of a handful of “orphan works” — books that are covered by copyright but whose authors can’t be found — to faculty and students. The Guild, fearing that safeguards to locate authors won’t work, sued to prevent the “catastrophic” possibility that writers will see their works turned loose on the Internet against their will.

The Guild’s list of plaintiffs now also includes JR Salamanca, an author whose obscure first work was mistakenly designated as an “orphan” to be released. The decision to add Salamanca and the foreign writers groups to the lawsuit appears to be not just a legal tactic but part of the Guild’s noisy public relations effort to portray the universities as aloof and reckless. The University of Michigan has shot back that the lawsuit is “misguided and unnecessary” and that the library is trying to share knowledge that would otherwise be forgotten on dusty shelves.

But no matter who has the moral upper hand, Michigan appears to hold a legal edge that the Author’s Guild has yet to address in either its public statements or its court filings.

Michigan’s ace-in-the-hole is the 11th Amendment which holds that states can’t be sued in federal court. The rule, known as sovereign immunity, creates a legal shield for the university because it is a state institution.

The Guild’s lawyers are in a bind because they have to bring the copyright action in federal court where they have little hope of succeeding unless the state grants a waiver consenting to be sued. The authors’ prospects look even dimmer after a judge in California this week dismissed a copyright case against UCLA because of sovereign immunity.

More generally, a court is likely to be uncomfortable with the Authors Guild’s request to seize the Michigan computers containing the millions of books known as the HathiTrust:

Plaintiffs demand that … this Court order the impoundment of all unauthorized digital copies of works protected by copyright … to be held in escrow under commercial grade security with any computer system storing the digital copies powered down and disconnected from any network, pending an appropriate act of Congress.