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

Filing 86

DECLARATION of Pat Cummings 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 PAT CUMMINGS I, Pat Cummings, hereby declare as follows: 1. I am one of the plaintiffs in the above-captioned action and submit this declaration in support of Plaintiffs’ motion for summary judgment. 2. I am the author and illustrator of numerous books for children and young adults. I have made my living as a full-time illustrator and writer for over thirty-five years, and am also an adjunct professor at Pratt Institute and Parsons The New School For Design, where I teach classes on children’s book illustration and writing. In addition, I speak at many literary events and conferences each year and conduct a Children’s Book Boot Camp, an annual five week long summer workshop for writers and illustrators of picture books. I sit on the boards of The Society of Children’s Book Writers and Illustrators and The Eric Carle Museum of Picture Book Art. I am also a member of the Board of Directors of Plaintiff The Authors Guild. The Works At Issue 3. I am the sole author and copyright owner of each work listed on Exhibit A hereto (hereafter referred to as the “Works”). A true and correct copy of the copyright registration for each Work is attached hereto as Exhibit B. 19894.300 4. Although I have licensed to my publishers certain exclusive rights in connection with the commercial exploitation of my Works, I did so in exchange for the payment of royalties and I remain the legal and/or beneficial owner of all rights in and to my Works. I never assigned to any third party the copyright to my Works. Unauthorized Uses Of My Works 5. It has come to my attention that print copies of my Works were copied without my permission when they were digitized by one of the defendant universities (collectively referred to herein along with HathiTrust as “Defendants”) in partnership with Google, as part of the HathiTrust and Google Books projects. This digitization took place without my knowledge, consent, or approval. I did not authorize Google, HathiTrust, or any of the university defendants to digitize or make any other use of my Works. To date, I have received no compensation of any kind for Defendants’ digitization and various uses of my Works. Harm Resulting From Defendants’ Use Of My Works 6. As an author who depends in large part on the value of my work to earn a living, I brought this action because the Defendants’ unauthorized digitization and use of my Works has harmed or threatens to harm me in a number of ways. 7. I have reviewed the Declaration of T.J. Stiles and I agree with and incorporate by reference Mr. Stiles’ descriptions of the various harm and potential harm caused by the Defendants’ actions. Two differences between Mr. Stiles and me are that (as described below) certain of my Works are no longer in print and I have not yet chosen to make any of my Works available in digital form. These differences do not, however, change the fact that Defendants’ actions are causing and threatening to cause damage to me and to the value of my Works. 8. While several of my Works are no longer in print, specifically C.L.O.U.D.S., Jimmy Lee Did It, and Talking With Artists: Volume 2, my other three works, Clean Your Room, 2 19894.300 Harvey Moon!, Talking With Artists: Volume 1, and Talking With Adventurers, are in print and available for sale. In either case, the harms articulated in the Declaration of T.J. Stiles affect me because these Works are still protected by copyright law and I still hold the copyright. Whether my Works are in print or not, I should have the right to decide how these works are copied or distributed and should have the option to resurrect these Works on my own terms, whether that means self-publishing them, making new publishing deals, or anything else I choose. 9. New technology is opening new possibilities in publishing and it is now possible, for the first time in history, to self-publish a book in print or digital forms without the aid of a publishing company. While I have not yet made a decision on how to proceed with my out-ofprint Works, I am aware of this option and consider it a possibility for the future. This is why even my currently out-of-print Works are affected by the Defendants’ unauthorized copying. 10. Moreover, I have received an offer to make one of my Works available in digital form. See Exhibit C. Despite this offer, I have chosen not to make my Works available in electronic format yet, though I do intend to eventually. Digital marketplaces and security protections are still developing, and I am waiting to enter this marketplace until I feel comfortable with the arrangement and with security provisions. 11. I believe that I am entitled to determine whether, when and under what circumstances my Works are scanned, digitized, copied and used. Defendants’ insistence that the new, complex, technologically-enabled uses they intend to make of my Works should be permitted without my consent dangerously presupposes that copyright law does not give authors any right to control how their works are used and exploited in these contexts. To the best of my knowledge, this is not the law in the United States. 3 19894.300 12. Defendants argue that uses of my Works that do not allow individuals to read the text, such as non-consumptive research and full-text searching, do not inhibit sales of my Works or deprive me of licensing opportunities and therefore do not require my permission. This is not so. As the Declaration of T.J. Stiles points out, these kinds of uses represent a new market whose value is evidenced by Defendants’ use of my Works, as well as the works owned by the other Plaintiffs and the millions of other works Defendants scanned and copied. I believe that I have the legal right to decide whether or not to permit these uses, and to seek remuneration for these uses if I do decide to allow them. Defendants could have asked my permission to digitize my Works, or offered to purchase one or more additional copies of my in-print Works for their library collections. 13. In addition, by failing to seek a license, Defendants eliminated the usual mechanism that authors use to exercise control over our work: licensing or other agreements that define terms of use and hold licensees accountable. Without such a contract, I am rendered powerless to dictate terms as to how my Works may or may not be used. I also have no ability to insist that HathiTrust take security measures to protect my work. I have no power to ensure that the infringing copies of my work are truly in a “dark archive” that is not accessible for viewing or further copying. I have no assurance that Defendants’ actual use of my work is limited to the uses they claim to intend to make, and no power of enforcement if their uses exceed this scope. [The rest of this page intentionally left blank] 4 19894.300 I declare under penalty of perjury that the foregoing is true and correct. Dated: New York, New York June 28, 2012 _ ________________________________ PAT CUMMINGS 5 19894.300 EXHIBIT A EXHIBIT A AUTHOR TITLE Cummings, Pat C.L.O.U.D.S Cummings, Pat Clean Your Room, Harvey Moon! FIRST PUBLICATION SUBSEQUENT PUB(S). 1986-04-02/New York: Lothrop, Lee & Shepard Books 1991-03-01/New 1991-03-31/New York: Bradbury Press York: Simon & Schuster 1991/New York: MacMillan McGraw Hill School Division 1991-09/New York: Spoken Arts (audiobook) 1994-01-01/New York: Simon & Schuster 1996/New York: Houghton Mifflin MOST RECENT PUB. HARDCOPY OR ELECTRONIC? Hardcopy U.S. COPYRIGHT REGISTRATIONS OR RENEWALS TX0001806038 1986-04-15 Hardcopy TX0003159777 1991-08-08 AUTHOR Cummings, Pat TITLE Jimmy Lee Did It FIRST PUBLICATION SUBSEQUENT PUB(S). 1985-08-08/New 1985/Littleton, York: Lothrop, Lee & MA: Sundance Shepard Books Publishers 1993/Littleton, MA: Sundance Publishers 01-1995/New York: Harper Trophy 1997/New York: Macmillan McGraw Hill School Division 2000/Sacramento: Clearinghouse for Specialized Media & Technology (computer disk) 12 MOST RECENT PUB. HARDCOPY OR ELECTRONIC? Electronic U.S. COPYRIGHT REGISTRATIONS OR RENEWALS TX0001650936 1985-09-05 AUTHOR Cummings, Pat TITLE FIRST PUBLICATION SUBSEQUENT PUB(S). Talking With Artists: Volume 1 1992-03-01/New York: Bradbury Press 1992/Needham, MA: Silver Burdett Ginn MOST RECENT PUB. HARDCOPY OR ELECTRONIC? U.S. COPYRIGHT REGISTRATIONS OR RENEWALS TX0003422950 1992-10-16 1999/New York: Simon & Schuster Books for Young Readers (revised cover edition) Cummings, Pat Cummings, Pat and Cummings, Linda, Ph.D. Talking With Artists: Volume 2 Talking With Adventurers 1995-09-01/New York: Simon & Schuster Books for Young Readers 1998-0810/Washington, D.C.: National Geographic Society 13 TX0004242559 1996-04-29 VA0000932461 1998-10-27 VA0000932460 1998-10-27 EXHIBIT B EXHIBIT C CONFIDENTIAL AG 0000043 CONFIDENTIAL AG 0000044