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

Filing 97

DECLARATION of James Shapiro in Support re: 81 MOTION for Summary Judgment.. Document filed by Authors' Licensing and Collecting Society, Pat Cummings, Erik Grundstrom, Sherry L. Lansing, 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 JAMES SHAPIRO I, James Shapiro, 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 Professor of English and Comparative Literature at Columbia University specializing in Shakespeare and the Early Modern period. The Work At Issue 3. I am the sole author and copyright owner of the non-fiction work Oberammergau: The Troubling Story of the World’s Most Famous Passion Play (hereafter “Oberammergau”). A true and correct copy of the copyright registration for Oberammergau is attached hereto as Exhibit A. 4. Although I have licensed to my publishers certain exclusive rights in connection with the commercial exploitation of Oberammergau, 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 Oberammergau. I never assigned to any third party the copyright to Oberammergau. 19894.300 Unauthorized Uses Of My Work 5. It has come to my attention that a print copy of Oberammergau was copied without my permission when it was 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 Oberammergau. To date, I have received no compensation of any kind for Defendants’ digitization and various uses of Oberammergau. Harm Resulting From Defendants’ Use Of My Work 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 Oberammergau 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. Oberammergau is available for sale in digital form at online retailers such as Amazon.com and others. 8. I believe that I am entitled to determine whether, when and under what circumstances Oberammergau is scanned, digitized, copied and used. Defendants’ insistence that the new, complex, technologically-enabled uses they intend to make of Oberammergau 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. 2 19894.300 9. Defendants argue that uses of Oberammergau that do not allow individuals to read the text, such as non-consumptive research and full-text searching, do not inhibit sales of Oberammergau 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 Oberammergau, 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 Oberammergau, or offered to purchase one or more additional copies for their library collections. 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 Oberammergau 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] 3 19894.300 EXHIBIT A