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

Filing 83

DECLARATION of T.J. Stiles 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 T.J. STILES I, T. J. Stiles, 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 of numerous books about American history. I have made my living as a full-time writer for over ten years, and I put tremendous effort, care, and creativity into my works, be they full-length biographies or short-form pieces for the New York Times Book Review, the Washington Post, the San Francisco Chronicle, the Minneapolis Star-Tribune,, The Atlantic online, or the New York Observer. Although my writings are based on intensive historical research and are considered scholarly in their rigor, I believe a biography to be a creative endeavor. I approach the task of crafting a nonfiction narrative as an author of a novel might, making conscious artistic decisions about style, narrative flow, pacing, perspective, thematic development, and description to write works that are as literary as they are scholarly. I endeavor to create vivid, fully realized worlds on the page that shed light on the human condition. FKKS: 460668.v1 19894.300 3. My first biography, Jesse James: Last Rebel of the Civil War, (“Jesse James”) was named a New York Times Notable Book, a finalist for the Los Angeles Times Book Prize in Biography, one of the Five Best Books of the Year by the London Sunday Times, an American Library Association Notable Book, one of the New York Public Library’s 25 Books to Remember, and a Best Book of the Year by Library Journal, the Chicago Sun-Times, the Cleveland Plain Dealer, Bookpage, and the London Independent. It also won the English Speaking Union's Ambassador Book Award, the Peter Seaborg Award for Civil War Scholarship, the James-Younger Gang's Perry Award, and the Friends of the James Farm's John Newman Edwards Award. 4. My second biography, The First Tycoon: The Epic Life of Cornelius Vanderbilt, won the 2010 Pulitzer Prize for Biography and the 2009 National Book Award for Nonfiction. It was also named a New York Times Notable Book and one of the best books of the year by The New Yorker, the Financial Times, the Christian Science Monitor, the Boston Globe, the Philadelphia Inquirer, and other publications. 5. I have received many honors and awards in my career. In 2011 I was named a fellow of the John Simon Guggenheim Foundation. From 2004-05, I held the Gilder Lehrman Fellowship in American History at the Dorothy and Lewis B. Cullman Center for Scholars and Writers at the New York Public Library. I have also received a Distinguished Alumni Award from Carleton College. Additionally, I am an elected member of the Society of American Historians, sit on the Advisory Council of the Biographers’ International Organization, and have a seat on the Board of Directors of Plaintiff The Authors Guild. I am also a member of the American Historical Association, the Organization of American Historians and the Western History Association. FKKS: 460668.v1 2 19894.300 The Work At Issue 6. I am the sole author and copyright holder of Jesse James, which was registered with the U.S. Copyright Office on or about February 4, 2002 and assigned Registration Number TX0005703845. A true and correct copy of the copyright registration is attached hereto as Exhibit A. 7. Although I have licensed to my publisher certain exclusive rights in connection with the commercial exploitation of Jesse James, 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 Jesse James. I never assigned to any third party the copyright to Jesse James. 8. Jesse James was first published in hardcover format in 2002 by Alfred A. Knopf, Inc., and in paperback form in 2003 by Vintage Books. It is a nonfiction biography that is, as of this writing, available for sale in paperback and electronic formats, including on the Amazon Kindle, the Barnes & Noble Nook, and others. Jesse James was published in at least three countries, including the United States, the United Kingdom and Italy, where it was translated to and published in Italian. Unauthorized Uses Of My Work 9. It has come to my attention that a print copy of Jesse James was copied without my permission when it was digitized by one the defendant universities (collectively referred to herein along with the HathiTrust as the “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 FKKS: 460668.v1 3 19894.300 to digitize or make any other use of Jesse James. To date, I have received no compensation of any kind for the Defendants’ digitization and various uses of this work. Harm Resulting From Defendants’ Use Of My Work 10. As an author who depends on the value of my writings to earn a living, I brought this action because the Defendants’ unauthorized digitization and use of Jesse James has harmed or threatens to harm me in a number of ways. 11. First, each digital copy of Jesse James that Defendants created without authorization represents a lost sale. Simply put, Defendants could have purchased a digital copy of Jesse James (which is readily available through a number of commercial outlets) rather than scanning a print copy to create an unauthorized digital version, whether for preservation, archival or any other purpose. Just as libraries purchase or otherwise lawfully acquire print copies of books for their physical archives, libraries should purchase digital copies for their digital archives. 12. I authorized my publisher to digitize and sell Jesse James as an electronic book in exchange for 25% of the amount the publisher receives from the sale of the book, as shown on the agreement attached hereto as Exhibit B. By scanning Jesse James, Defendants avoided having to pay the retail cost of Jesse James which, according to a recent print-out from attached hereto as Exhibit C, is approximately $13.00 per copy. Thus, Defendants deprived me of a sale and the revenue that would have resulted from it. Attached hereto as Exhibit D is a copy of the most recent royalty statement I received for Jesse James, which shows that over 650 copies of the electronic book have been sold, generating almost $1,500 in revenue for me. To the extent that an electronic copy was not available at the time Defendants sought to FKKS: 460668.v1 4 19894.300 digitize Jesse James, they could have requested a license to do so. However, no such license ever was requested or granted. 13. It is my understanding that Defendants make various uses of Jesse James without permission. These unauthorized uses, both individually and in the aggregate, undermine existing, emerging and potential markets for Jesse James. For example, I understand that HathiTrust has a service that allows certain users to conduct so-called “non-consumptive research” on the corpus of digital works, including my own, stored in the HathiTrust database. From what I’ve learned about it, non-consumptive research represents a potentially exciting field for academics and therefore an emerging licensing opportunity for authors at a time when revenues are decreasing. Indeed, it is my understanding that the Amended Settlement Agreement entered into by The Authors Guild and Google would have permitted the defendant libraries to engage in non-consumptive research activities using works such as Jesse James – but pursuant to a license that included a mechanism to compensate authors. 14. I further understand that Defendants have made my work available for full text searching. Again, this undermines a potential source of revenue for me and for other rights holders. For example, my publisher has granted licenses to companies such as Amazon and Ebrary to store a digital copy of Jesse James and allow users to search through the full text of my work. But those uses are authorized for the purpose of driving sales of my book as reflected on the royalty statement. See Exhibit D at 2-3 (ebook sales) and 4 (Ebrary revenue). 15. Moreover, as a copyright owner, I (not Defendants) should be allowed to decide whether or not my works are copied and included in a database used for non-consumptive research, full text search indexing or other uses. My understanding is that one of the fundamental rights of copyright is to decide whether or not I want my work to be copied, FKKS: 460668.v1 5 19894.300 distributed or displayed. And, if I am inclined to grant permission, I should be able to negotiate the terms thereof. 16. Finally, by digitizing and storing Jesse James in a digital archive, Defendants subjected, and continue to subject, Jesse James to security risks. Every digital archive runs some risk of being accessed without authorization, and it is common knowledge that even the most secured networks in the world have been victims of cyberattacks. Defendants made no effort whatsoever to inform me of any security measures they may have taken, and they never sought permission to expose Jesse James to whatever risks their system poses. Once an unauthorized, unprotected digital version of Jesse James is released online, it becomes vulnerable to unlimited, instantaneous copying and distribution - in other words, unstoppable piracy. Should the Defendants’ security be compromised, it would negatively impact future sales of Jesse James and damage my livelihood. 17. For each of the uses above, including full text searching, digital archiving, and non-consumptive research, Defendants are seeking to establish that as a matter of law they have the right to use my work without my permission and without compensating me. If Defendants are allowed to do this, there will be little to stop other people or entities from making digital copies of copyrighted works and using them for these same (and possibly other) reasons. In other words, if Defendants and Google can do this, what is to stop anyone else in the market from doing the same thing and depriving me of the opportunity to exploit new potential revenue streams?. 18. This is a difficult and complicated period of uncertainty for the future of publishing and professional authorship, and copyright law’s carefully-drawn incentive structure has been jeopardized by the changing technological landscape. I, and many other authors, see FKKS: 460668.v1 6 19894.300 these new uses for books as a ray of hope and a potential revenue stream to allow authors to continue to be compensated as traditional print publication suffers. By deciding unilaterally, on my behalf, that I am owed nothing for these uses, Defendants cripple this hope and preempt my rights to demand compensation for these new kinds of uses. 19. It is my hope that this action will help ensure that future generations of authors will continue to have the financial incentive to write books. I declare under penalty of perjury that the foregoing is true and correct. Dated: New York, New York June 26 2012 __, _________________________________ T.J. STILES FKKS: 460668.v1 7 19894.300 EXHIBIT A EXHIBIT B CONFIDENTIAL AG 0000141 EXHIBIT C Jesse James: Last Rebel of the Civil War (9780375705588):... Today's Deals Shop by Department Books Advanced Search Gift Cards Help Hello. S Search Browse Subjects Your A New Releases Best Sellers The New York Times® Best Sellers Children's Books Tex Jesse James: Last Rebel of the Civil War and over one million other books are available for Amazo Jesse James: Last Rebel of the Civil War [Paperback] T.J. Stiles (Author) (70 customer reviews) | (11) S List Price: $17.00 $12.75 & eligible for FREE Super Saver Shipping on orders over $25. Details You Save: $4.25 (25%) Price: In Stock. Ships from and sold by Gift-wrap available. Only 17 left in stock--order soon (more on the way). Want it delivered Friday, April 6? Order it in the next 0 hours and 44 minutes, and choose One-Day Shipping at checkout. Details 39 new from $8.61 Share your own customer images Start reading Jesse James: Last Rebel of the Civil War on your Kindle in under a minute. Don't have a Kindle? Get your Kindle here, or download a FREE Kindle Reading App. Amazon Price New from Used from -- $12.99 Formats Library Binding $25.00 $25.00 $22.50 $12.75 $8.61 $3.40 -- -- (You -- Paperback Search inside another edition of this book K 83 used from $3.40 -- Kindle Edition Unknown Binding Also 1 Hav Book Description Publication Date: October 28, 2003 In this brilliant biography T. J. Stiles offers a new understanding of the legendary outlaw Jesse James. Alt portrayed as a Robin Hood of the old west, in this ground-breaking work Stiles places James within the co conflicts of the Civil War to reveal a much more complicated and significant figure. Raised in a fiercely pro-slavery household in bitterly divided Misssouri, at age sixteen James became a bu savage Confederate guerrillas that terrorized the border states. After the end of the war, James continued and murder into the brutal era of reconstruction, when his reckless daring, his partisan pronouncements, sympathetic editor John Newman Edwards placed him squarely at the forefront of the former Confederate power. With meticulous research and vivid accounts of the dramatic adventures of the famous gunman, T. resembles not the apolitical hero of legend, but rather a figure ready to use violence to command attentio many ways, a forerunner of the modern terrorist. Frequently Bought Together AG 0002676 1 of 9 4/5/2012 4:45 PM EXHIBIT D CONFIDENTIAL AG 0002434 CONFIDENTIAL AG 0002435 CONFIDENTIAL AG 0002436 CONFIDENTIAL AG 0002437

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