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

Filing 98

DECLARATION of Daniele Simpson 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)

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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 DANIÈLE SIMPSON I, Danièle Simpson, 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 children’s book author, novelist, short-story writer and poet. I am also the President of the Plaintiff Union des Écrivaines et des Écrivains Québécois (“UNEQ”). The Work At Issue 3. I am the sole author and copyright owner of the collection of poetry Je Cours Plus Vite Que La Lycose: Poèmes (hereafter “Poèmes”). 4. Although I have licensed to my publishers certain exclusive rights in connection with the commercial exploitation of Poèmes, 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 Poèmes. I never assigned to any third party the copyright to Poèmes. Unauthorized Uses Of My Work 5. It has come to my attention that a print copy of Poèmes was copied without my permission when it was digitized by one the defendant universities (collectively referred to 19894.300 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 Poèmes. To date, I have received no compensation of any kind for Defendants’ digitization and various uses of Poèmes. 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 Poèmes 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) Poèmes is no longer in print and I have not yet chosen to make Poèmes 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 Poèmes. 8. 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 Poèmes, I am aware of this option and consider it a possibility for the future. This is why even my currently out-of-print work is affected by the Defendants’ unauthorized copying. 9. I believe that I am entitled to determine whether, when and under what circumstances Poèmes are scanned, digitized, copied and used. Defendants’ insistence that the new, complex, technologically-enabled uses they intend to make of Poèmes should be permitted 2 19894.300 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 my Poèmes is not yet available in digital form, I reserve the right to license the creation of digital versions of Poèmes if and when I choose to. 10. Defendants argue that uses of Poèmes that do not allow individuals to read the text, such as non-consumptive research and full-text searching, do not inhibit sales of Poèmes 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 Poèmes, 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, but did not do so. 11. 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 Poèmes 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. 3 19894.300