The Authors Guild, Inc. et al v. Hathitrust et al

Filing 87

DECLARATION of Kelly Duffin in Support re: 81 MOTION for Summary Judgment.. Document filed by Authors' Licensing and Collecting Society, Pat Cummings, Erik Grundstrom, Angelo Loukakis, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Helge Ronning, Andre Roy, Jack R. Salamanca, James Shapiro, Daniele Simpson, T.J. Stiles, Sveriges Forfattarforbund, The Australian Society Of Authors Limited, The Authors Guild, Inc., The Authors League Fund, Inc, Union Des Ecrivaines Et Des Ecrivains Quebecois, Fay Weldon, the Writers' Union of Canada. (Rosenthal, Edward)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ----------------------------------------------------------------X THE AUTHORS GUILD, INC., et al., : : Plaintiffs, : : - against : : HATHITRUST, et al., : : Defendants. : : ----------------------------------------------------------------X Index No. 11 Civ. 6351 (HB) DECLARATION OF KELLY DUFFIN I, Kelly Duffin, hereby declare as follows: 1. I am the Executive Director of The Writers’ Union of Canada (“TWUC”), one of the plaintiffs in the above-captioned action. 2. I submit this declaration in support of Plaintiffs’ motion for summary judgment. I have personal knowledge of the facts set forth in this Declaration and could testify competently at a hearing or trial if called upon to do so. The Writers’ Union of Canada 3. TWUC has approximately 2,000 members who earn their living from writing books. Since its inception in 1973, TWUC has been an advocate for effective copyright law, protection of freedom of expression, fair publishing contracts, and other issues that affect authors. TWUC’s objects include uniting authors for the advancement of their common interests and fostering writing in Canada. Certified by the Canadian Artists and Producers Professional Relations Tribunal, TWUC is the national voice of professional book writers in Canada in the English language. The Works At Issue 4. Upon information and belief, members of TWUC own the copyrights in hundreds or thousands of works that were digitized and are being used by Defendants without authorization (collectively, the “Member Works”). 5. One such member is Greg Hollingshead, who is a former Chair of TWUC and the author of the Governor General’s Award-winning book The Roaring Girl (1995/Toronto: Somerville House). Upon information and belief, Roaring Girl was digitized by Defendants and incorporated into the HathiTrust Digital Library. See http://catalog.hathitrust.org/Record/ 007138321. As the author and copyright owner of The Roaring Girl (see U.S. Copyright Reg. No. TX0004415789), it is my understanding that Mr. Hollingshead could bring a lawsuit in his own right against Defendants for digitizing and using his work without authorization. 6. In addition to filing this lawsuit to protect the rights of its members, TWUC itself owns the copyrights in and to a number of works that were scanned and incorporated into HathiTrust without TWUC’s knowledge or consent. Attached as Exhibit A is a schedule of works whose copyrights are owned by TWUC and have been infringed by Defendants ( the “TWUC Works”). Attached as Exhibit B is a copy of the Will showing the bequest of her copyrights from deceased TWUC member Edith Fowke to TWUC. Harm Resulting From Defendants’ Use Of The Works 7. The TWUC agreed to join this lawsuit as an associational plaintiff after learning that print copies of the TWUC Works, Member Works and millions of other copyright books were digitized and being used as part of the Google Library Project, and that Defendants planned to begin making digital copies of purported “orphan works” available for free. 2 8. I have reviewed the declarations of several individual authors who are plaintiffs in this litigation, including the declarations of T.J. Stiles, Pat Cummings and Roxana Robinson. I believe that the works written by those authors provide a fair sampling of the types of works authored by members of TWUC. 9. I agree with and incorporate by reference the description in those declarations of the various harms and potential harms that result from Defendants’ unauthorized digitization and use of copyrighted works. Those descriptions need not be repeated here in full, but can be summarized as follows. 10. First, each digital copy of a TWUC or Member Work that is created by Defendants without purchase or license represents a lost sale to the associated rightsholder. Defendants could have purchased a copy but instead had it scanned without compensating the copyright owner. 11. Second, Defendants’ storage of the TWUC and Member Works in an online digital repository exposes that property to security risks for which the rightsholders receive no commensurate remuneration. Unauthorized access to copyright books leading to widespread piracy would gravely impact the market for those works. 12. Third, Defendants’ various uses of the TWUC and Member Works undermine various licensing opportunities for rightsholders. For example, authors routinely grant or authorize their publishers to grant online distributors like Amazon a license to scan and make portions their books viewable online as part of a commercial arrangement targeted at promoting book sales. Defendants also scan and make books searchable but without a license and without being part of an effort to sell the books and provide revenue to the author. Defendants also 3 permit the books to be used for non-consumptive research, an emerging field that represents another potential licensing stream for authors. 13. Fourth, Defendants’ mass digitization and orphan works programs undercut opportunities for authors to receive royalties. If permitted to proceed, the Orphan Works Project is likely to negatively impact revenues for authors generated through a system established in Canada to address orphan works. Section 77 of the Canadian Copyright Act permits the Copyright Board of Canada (the “Board”) to issue licenses to users whose reasonable efforts to locate a copyright holder have been unsuccessful. The Board sets a licensing fee for each permitted use, which compensation is generally directed to a designated collective society authorized by Canada’s Copyright Act to license a repertoire of authors’ works. In the case of a print publication in languages other than French, the user pays the fee or royalties to the collective society known as Access Copyright, which holds the payment in trust for the unlocatable author or may use the payment for the benefit of the rightsholders whose works it represents, provided that the author may claim the payment from Access Copyright within five years of the expiry of the license. Attached as Exhibit C is an example of a license issued by the Board to the University of Athabasca to digitally reproduce and distribute certain newspapers in exchange for a $5,000 licensing fee. Defendants’ Orphan Works Project allows people to make uses of orphan works but without any system to compensate rightsholders. 14. Fifth, making books available through the Orphan Works Project will directly undermine efforts to revive out-of- print books and will impact future sales of such books. 15. In short, Defendants activities have harmed or have the potential to cause enormous harm to the rights of authors. 4 I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Dated: Toronto, Ontario June 28, 2012 KELLY DUFFIN 5 EXHIBIT A EXHIBIT A AUTHOR(S) Edith Fowke and Carole Carpenter TITLE A Bibliography of Canadian Folklore FIRST PUBLICATION 1976/Ontario: York University. SUBSEQUENT PUB(S). 1981/Toronto: University of Toronto Press MOST RECENT PUB. HARDCOPY OR ELECTRONIC? U.S. COPYRIGHT REGISTRATIONS OR RENEWALS Hardcopy N/A – Foreign Work Hardcopy N/A – Foreign Work Hardcopy N/A – Foreign Work Hardcopy N/A – Foreign Work Hardcopy N/A – Foreign Work Hardcopy N/A – Foreign Work Hardcopy N/A – Foreign Work 1986/Penguin Edith Fowke and Jay Rahn A Family Heritage 1994/Calgary: University of Calgary Press Edith Fowke Canada’s Story in Song 1960/Toronto: W. J. Gage Edith Fowke Canadian Folklore 1988/Toronto: Oxford University Press Edith Fowke Folk songs of Canada 1954/Waterloo: Waterloo Music Co. c1965/Toronto: W. J. Gage 1955/Waterloo: Waterloo Music Co. 1958/Waterloo: Waterloo Music Co. 1967/Waterloo: Waterloo Music Co. 1970/Waterloo: Waterloo Music Co. Edith Fowke Folk Songs of Quebec 1957/Waterloo: Waterloo Music Co. Edith Fowke Folklore of Canada 1976/Toronto: McClelland & Stewart 1979-01-01/Toronto: McClelland & Stewart 1990-04-01/Toronto: McClelland & Stewart AUTHOR(S) TITLE FIRST PUBLICATION Edith Fowke Lumbering Songs from the Northern Woods 1970/Austin: University of Texas Press Alice Kane; Edith Fowke (editor) Songs and Sayings of an Ulster Childhood Songs of Work and Freedom 1960/Chicago: Roosevelt University Edith Fowke Songs of Work and Protest Tales Told in Canada Edith Fowke The Penguin Book of Canadian Folk Songs 1973/Harmondsworth: Penguin Edith Fowke Traditional Singers and Songs from Ontario Edith Fowke Folktales of French Canada 1985/Toronto: NC Press c1983/Toronto: McClelland & Stewart Edith Fowke SUBSEQUENT PUB(S). Edith Fowke MOST RECENT PUB. HARDCOPY OR ELECTRONIC? U.S. COPYRIGHT REGISTRATIONS OR RENEWALS Hardcopy N/A – Foreign Work Hardcopy N/A – Foreign Work Hardcopy N/A – Foreign Work 1973/New York: Dover Hardcopy N/A – Foreign Work 1986/Toronto: Doubleday Hardcopy N/A – Foreign Work 1974-0730/Harmondsworth: Penguin Hardcopy N/A – Foreign Work 1965/Ontario: Burns & MacEachern 1965/Hatboro, PA: Folklore Associates Hardcopy N/A – Foreign Work 1979/Toronto: N.C. Press 1981/Toronto: N.C. Press Hardcopy N/A – Foreign Work 1961/New York: Doubleday 1982/Toronto: N.C. Press 1993/Toronto: N.C. Press EXHIBIT B EXHIBIT C Copyright Board Canada Commission du droit d’auteur Canada Ottawa, April 30, 2010 FILE: 2009-UO/TI-22 UNLOCATABLE COPYRIGHT OWNERS Non-exclusive licence issued to the University of Athabasca for the digital reproduction and communication to the public of community newspapers Pursuant to the provisions of subsection 77(1) of the Copyright Act, the Copyright Board grants a licence to the University of Athabasca as follows: (1) The licence authorizes the digital reproduction and the communication to the public of the complete contents of the following community newspapers, in their original format, published between the dates shown, for non-commercial purposes only and subject to the limitations set out in this licence: • • • • • • • • • • • • • • • • • • Novosti (1944-1948) - Croatian Vaba Estlane (1952-1987) - Estonian Liekki ((1944-1973) - Finnish Canadian Uutiset (1919-1927 / 1982-1987) - Finnish Isien Usko (1936-1978) - Finnish Vapaus Sana (1921-1930 / 1932-1977 / 1979) - Finnish Viikkosanomat (1975-1986) - Finnish Kanadai Magyarsae (1951-1977) - Hungarian Magyar Elet (1957-1997) - Hungarian Zwilazkowiec Alliancer (1933-1987) - Polish Serbian Herald (1946-1948) - Serb Edmonton Ukrainian News (1928-1971) - Ukrainian Vilne Slovo (1934-1977) - Ukrainian Jedinstvo (1948-1970) - Yugoslavian Nasa Novine (1971-1986) - Yugoslavian Bavarijas Latviesu Vestnesis (1945-1946) - Latvian Brivais Latveitis (1948-1949) - Latvian Liaudies Balsas (1937-1976) - Lithuanian (2) The licence applies only to issues that are not part of the public domain when this licence is issued. AG 0004432 -2(3) The licence does not authorize (a) the reproduction of individual works; (b) the translation of the publications. (4) The issuance of this licence does not release the licensee from the obligation to obtain permission for any other use not covered by this licence. (5) The licence expires in respect of each issue at the time the issue joins the public domain. (6) The licence is non-exclusive and valid only in Canada. For other countries, it is the law of that country that applies. (7) The licensee shall pay $5,000 to Access Copyright, The Canadian Copyright Licensing Agency, who may dispose of this amount as it sees fit for the general benefit of its members. Access Copyright undertakes, however, to reimburse 6 ¢ per page to any person who establishes, within five years of an issue joining the public domain, ownership in that issue. Should the total amount of claims exceed the licence fee, each claim shall be reduced on a pro rata basis. (8) The licensee shall ensure that the following notices are prominently displayed on the web site: “Some of the content shown is used under a non-exclusive licence issued by the Copyright Board of Canada in cooperation with Access Copyright, pursuant to subsection 77(1) of the Copyright Act.” “A user may not reproduce or otherwise use any of the content found on this website unless the contemplated use is authorized by the Copyright Act or the content is in the public domain.” (9) The owner of copyright in an issue is entitled to end the licence with respect to future uses of that issue. (10) The coming into force of this licence is conditional on Access Copyright filing with the Board a notice of receipt which confirms that the royalties, as specified in paragraph (7) above, have been received and that Access Copyright undertakes to comply with the conditions set out in same. Gilles McDougall A/Secretary General AG 0004433