Authors Guild, Inc. v. Hathitrust

Filing 11

FORM C, on behalf of Appellant Australian Society Of Authors Limited, Australian Society Of Authors Limited, Authors Guild, Inc., Authors League Fund, Inc., Authors' Licensing and Collecting Society, Pat Cummings, Pat Cummins, Erik Grundstrom, Angelo Loukakis, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Helge Ronning, Andre Roy, Jack R. Salamanca, James Shapiro, James Shapiro, Daniele Simpson, Danielle Simpson, T.J. Stiles, Sveriges Forfattarforbund, Union Des Ecrivaines Et Des Ecrivains Quebecois, Fay Weldon and Writers' Union of Canada, FILED. Service date 11/27/2012 by CM/ECF.[779275] [12-4547]

ADDENDUM A
1.

The Nature of the Action
Plaintiff-Appellant The Authors Guild, Inc. is a not-for-profit

corporation which, along with its predecessor organization, has been a
leading advocate for authors' copyright and contractual interests for the past
100 years. The Authors Guild, along with seven other authors' rights
organizations (the "Associational Plaintiffs") and eight individual authors
from around the world (collectively, "Plaintiffs-Appellants") brought this
copyright infringement action in September 2011in the United States District
Court for the Southern District of New York (Baer, J.). The defendants
(collectively, "Defendants-Appellees") in the case are the University of
Michigan ("UM"), the University of California, the University of Wisconsin,
Indiana University, and Cornell University, along with HathiTrust, a service
of UM, in which defendant universities and other institutions participate.
In the Complaint, Plaintiffs-Appellants allege that DefendantsAppellees' unauthorized digitization and use of millions of copyrightprotected literary works as part of a mass digitization program ("MDP")
undertaken in partnership with Google Inc. ("Google"), and UM's launch of
an orphan works project ("OWP") infringed Plaintiffs-Appellants'
copyrights. Plaintiffs-Appellants seek declaratory and injunctive relief.
Plaintiffs-Appellants do not seek monetary damages against DefendantsAppellees, most of whom likely are immune from such relief due to their
sovereign status.

The gravamen of Plaintiffs-Appellants' complaint is that the mass
digitization of copyright-protected books by Defendants-Appellees,
accomplished in conjunction with Google, infringes the copyrights owned
by the individual Plaintiffs-Appellants as well as those owned by the
members of the various Associational Plaintiffs. Plaintiffs-Appellants claim
that the activities of Defendants-Appellees, including the digitization and
copying of more than seven million works protected by copyright, go far
beyond the limited rights granted to libraries and archives to reproduce
copyright-protected works for specified purposes in Section 108 of the
Copyright Act, 17 U.S.C. § 108. In addition, Plaintiffs-Appellants claim
that the OWP, under which UM and other Defendants-Appellees plan to
make so-called "orphan works" -- works still protected by copyright but
whose owners purportedly cannot readily be found -- available on the
Internet for tens of thousands of people to view, display, download and print,
infringes Plaintiffs-Appellants' copyrights.
Defendants-Appellants and Defendants-Intervenors answered the
complaint in December 2011 and, shortly thereafter, Defendants-Appellees
filed a motion for partial judgment on the pleadings on the ground that the
various Associational Plaintiffs lack standing to assert copyright claims on
their members' behalf and that Plaintiffs-Appellants' claims with respect to
the OWP are not ripe because Defendants-Appellees suspended the project
shortly after the lawsuit was filed (and after it became clear that DefendantsAppellees' list of "orphan candidates" included works whose owners easily
could be found). Defendants-Appellees also argued that PlaintiffsFKKS: 471403.v1

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Appellants lack standing to challenge the OWP because none of the works
owned by any of the Plaintiffs-Appellants had ever actually been made
available for use by users of the defendant libraries. Plaintiffs-Appellants
then moved for partial judgment on the pleadings on the ground that the
allegations in their pleading that had been admitted by Defendants-Appellees
established that Defendants-Appellees affirmative defenses, including the
defense of fair use, cannot stand as a matter of law.
Following briefing and oral argument, the District Court reserved
decision on the various motions for judgment on the pleadings and the
parties, Defendants-Intervenors, including, each proceeded to file a motion
for summary judgment. Oral argument was held on August 6, 2012, and on
October 10, 2012, the District Court issued the decision which is the basis
for this appeal and which is described below.
2.

The Result Below
In an Opinion and Order dated October 10, 2012, the District Court

granted the motions by Defendants-Appellees and Defendant-Intervenors for
summary judgment and denied Plaintiffs-Appellants' motion for summary
judgment. With respect to the motions for judgment on the pleadings, the
District Court granted Defendants-Appellees' motion in part, determining
that Section 501(b) of the Copyright Act 17 U.S.C. § 501(b) precludes the
U.S. Associational Plaintiffs from pursuing copyright claims on behalf of
their members, and that the claims with respect to the OWP are not ripe. The
District Court denied Plaintiffs-Appellants' motion for judgment on the
pleadings. In its decision, the District Court held that DefendantsFKKS: 471403.v1

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Appellees' MDP is protected by fair use and that UM could make works
available to the visually-disabled as an "authorized entity" under Section
121 of the Copyright Act, 17 U.S.C. § 121.
3.

The Notice of Appeal and Lower Court Docket Sheet
Attached hereto as Exhibit 1 is a copy of the Notice of Appeal, filed

on November 8, 2012
Attached hereto as Exhibit 2 is a copy of the current docket sheet for
The Authors Guild v. HathiTrust, No. 11 Civ. 6351 (HB) (S.D.N.Y.).
4.

The Relevant Opinions/Orders
Attached hereto as Exhibit 3 is a copy of the Opinion and Order dated

October 10, 2012, in The Authors Guild v. HathiTrust, No. 11 Civ. 6351
(HB) (S.D.N.Y.).
Attached hereto as Exhibit 4 is the Judgment entered in the District
Court on October 12, 2012.

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