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

Filing 94

DECLARATION of Roxana Robinson 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 ROXANA ROBINSON I, Roxana Robinson, 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 a novelist, short-story writer and biographer. Four of my works have been Notable Books of the Year by The New York Times, and my work has appeared in Best American Short Stories, The New Yorker, Harper’s, The Atlantic, The New York Times Book Review, The Wall Street Journal, The Boston Globe, Vogue, House and Garden, and other publications. I have received Fellowships from the Guggenheim Foundation, the National Endowment for the Arts, and the MacDowell Colony. I have also taught creative writing workshops at Bennington College, the University of Southern Indiana, George Mason University, the Wesleyan Writers’ Conference at Wesleyan University, and in the Creative Writing Department at the University of Houston. 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 19894.300 each Work is attached hereto as Exhibit B. My Works include both works of fiction and nonfiction. 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 the 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 the defendant universities (collectively referred to herein along with HathiTrust as “Defendants”) in partnership with Google, as part of the HathiTrust and/or 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. One difference between Mr. Stiles and me is that (as described below) I have not yet chosen to make certain of my Works (specifically, A Glimpse of Scarlet And Other Stories, Asking For Love And Other Stories, Georgia O’Keefe: A Life and Summer Light) 2 19894.300 available in digital form. This difference does not, however, change the fact that Defendants’ actions are causing and threatening to cause damage to me and to the value of my Works. Moreover, certain of my Works are available for sale in digital form at online retailers such as Amazon.com and others, as shown in the attached Exhibit A. 8. 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. While certain of my Works are not yet available in digital form, I reserve the right to license the creation of digital versions of these Works when I choose to. 9. Defendants apparently 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 work, or offered to purchase one or more additional copies for their library collections. 3 19894.300 10. 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 Work 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 EXHIBIT A EXHIBIT A TITLE Robinson, Roxana Robinson, Roxana Robinson, Roxana Robinson, Roxana AUTHOR FIRST PUBLICATION SUBSEQUENT PUB(S). A glimpse of scarlet and other stories 1991-05/New York: E. Burlingame Books (an imprint of HarperCollins) 1991/London: Bloombsury A perfect stranger: and other stories Asking for love and other stories 2005-04-25/New York: Random House 1996-03-12/New York : Random House Georgia O’Keeffe: a 1989-10-25/New life York: Harper & Row 1992-06/New York: HarperPerennial 2006-03-14/New York: Random House 2007-12-18/New York: Random House 1996-06-27/London: Bloomsbury 1989/London: Bloomsbury 1990/New York: HarperPerennial 1991/London: Bloomsbury 1992/Spain: Circe 1999-01-01/University Press of New England MOST RECENT PUB. HARDCOPY OR ELECTRONIC? Hardcopy U.S. COPYRIGHT REGISTRATIONS OR RENEWALS TX0007502287 2012-03-13 Electronic TX0007502294 2012-03-13 Hardcopy TX0004268621 1996-04-18 Hardcopy TX0002736171 1990-01-18 TITLE Robinson, Roxana AUTHOR Summer light FIRST PUBLICATION SUBSEQUENT PUB(S). 1987-06-25/London: J.M. Dent 1988-06-29/New York: Viking MOST RECENT PUB. HARDCOPY OR ELECTRONIC? Hardcopy 1991/New York: Harper Collins U.S. COPYRIGHT REGISTRATIONS OR RENEWALS TX0002260701 1988-03-03 TX0002346979 1988-07-05 1995-08-15/University Press of New England Robinson, Roxana Sweetwater: a novel 2003-05-13/New York: Random House 1996-06-27/London: Bloomsbury 2005-03-08/New York: Random House 2007-12-18/New York: Random House Electronic TX0005905727 2004-01-27 EXHIBIT B