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

Filing 86

DECLARATION of Pat Cummings 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
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THE AUTHORS GUILD, INC., et al.,
:
:
Plaintiffs,
:
:
- against :
:
HATHITRUST, et al.,
:
:
Defendants.
:
:
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Index No. 11 Civ. 6351 (HB)

DECLARATION OF PAT CUMMINGS
I, Pat Cummings, 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 and illustrator of numerous books for children and young adults. I

have made my living as a full-time illustrator and writer for over thirty-five years, and am also an
adjunct professor at Pratt Institute and Parsons The New School For Design, where I teach
classes on children’s book illustration and writing. In addition, I speak at many literary events
and conferences each year and conduct a Children’s Book Boot Camp, an annual five week long
summer workshop for writers and illustrators of picture books. I sit on the boards of The Society
of Children’s Book Writers and Illustrators and The Eric Carle Museum of Picture Book Art. I
am also a member of the Board of Directors of Plaintiff The Authors Guild.
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
each Work is attached hereto as Exhibit B.

19894.300

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 my 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 of the defendant universities (collectively
referred to herein along with HathiTrust as “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
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. Two differences between Mr. Stiles and me are that (as described below)
certain of my Works are no longer in print and I have not yet chosen to make any of my Works
available in digital form. These differences do not, however, change the fact that Defendants’
actions are causing and threatening to cause damage to me and to the value of my Works.
8.

While several of my Works are no longer in print, specifically C.L.O.U.D.S.,

Jimmy Lee Did It, and Talking With Artists: Volume 2, my other three works, Clean Your Room,

2

19894.300

Harvey Moon!, Talking With Artists: Volume 1, and Talking With Adventurers, are in print and
available for sale. In either case, the harms articulated in the Declaration of T.J. Stiles affect me
because these Works are still protected by copyright law and I still hold the copyright. Whether
my Works are in print or not, I should have the right to decide how these works are copied or
distributed and should have the option to resurrect these Works on my own terms, whether that
means self-publishing them, making new publishing deals, or anything else I choose.
9.

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 my out-ofprint Works, I am aware of this option and consider it a possibility for the future. This is why
even my currently out-of-print Works are affected by the Defendants’ unauthorized copying.
10.

Moreover, I have received an offer to make one of my Works available in digital

form. See Exhibit C. Despite this offer, I have chosen not to make my Works available in
electronic format yet, though I do intend to eventually. Digital marketplaces and security
protections are still developing, and I am waiting to enter this marketplace until I feel
comfortable with the arrangement and with security provisions.
11.

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.

3

19894.300

12.

Defendants 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 Works, or offered to purchase one or more additional copies of my in-print Works for their
library collections.
13.

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 Works 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

I declare under penalty of perjury that the foregoing is true and correct.
Dated:

New York, New York
June 28, 2012

_
________________________________
PAT CUMMINGS

5

19894.300

EXHIBIT A

EXHIBIT A

AUTHOR

TITLE

Cummings, Pat

C.L.O.U.D.S

Cummings, Pat

Clean Your Room,
Harvey Moon!

FIRST PUBLICATION

SUBSEQUENT
PUB(S).

1986-04-02/New
York: Lothrop, Lee &
Shepard Books
1991-03-01/New
1991-03-31/New
York: Bradbury Press York: Simon &
Schuster
1991/New York:
MacMillan
McGraw Hill
School Division
1991-09/New
York: Spoken
Arts (audiobook)
1994-01-01/New
York: Simon &
Schuster
1996/New York:
Houghton Mifflin

MOST RECENT
PUB. HARDCOPY
OR ELECTRONIC?
Hardcopy

U.S. COPYRIGHT
REGISTRATIONS OR
RENEWALS
TX0001806038
1986-04-15

Hardcopy

TX0003159777
1991-08-08

AUTHOR
Cummings, Pat

TITLE
Jimmy Lee Did It

FIRST PUBLICATION

SUBSEQUENT
PUB(S).

1985-08-08/New
1985/Littleton,
York: Lothrop, Lee & MA: Sundance
Shepard Books
Publishers
1993/Littleton,
MA: Sundance
Publishers
01-1995/New
York: Harper
Trophy
1997/New York:
Macmillan
McGraw Hill
School Division
2000/Sacramento:
Clearinghouse for
Specialized Media
& Technology
(computer disk)

12

MOST RECENT
PUB. HARDCOPY
OR ELECTRONIC?
Electronic

U.S. COPYRIGHT
REGISTRATIONS OR
RENEWALS
TX0001650936
1985-09-05

AUTHOR
Cummings, Pat

TITLE

FIRST PUBLICATION

SUBSEQUENT
PUB(S).

Talking With
Artists: Volume 1

1992-03-01/New
York: Bradbury Press

1992/Needham,
MA: Silver
Burdett Ginn

MOST RECENT
PUB. HARDCOPY
OR ELECTRONIC?

U.S. COPYRIGHT
REGISTRATIONS OR
RENEWALS
TX0003422950
1992-10-16

1999/New York:
Simon & Schuster
Books for Young
Readers (revised
cover edition)
Cummings, Pat

Cummings, Pat and
Cummings, Linda,
Ph.D.

Talking With
Artists: Volume 2

Talking With
Adventurers

1995-09-01/New
York: Simon &
Schuster Books for
Young Readers
1998-0810/Washington, D.C.:
National Geographic
Society

13

TX0004242559
1996-04-29

VA0000932461
1998-10-27
VA0000932460
1998-10-27

EXHIBIT B

EXHIBIT C

CONFIDENTIAL

AG 0000043

CONFIDENTIAL

AG 0000044