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

Filing 89

DECLARATION of Erik Grundstrom 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 ERIK GRUNDSTRÖM
I, Erik Grundström, 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 novelist, short-story writer, playwright and former vice-president of

plaintiff Sveriges Författarförbund (“SFF”), a non-profit organization in Sweden dedicated to
securing reasonable remuneration and working conditions for professional writers and
translators. I am the former principal of Skrivarakademin, Sweden’s leading school for creative
writing, and winner of the Arnold Rörling literary prize in 1993.
The Work At Issue
3.

I am the sole author and copyright holder of the fictional work Oss Målvakter

Emellan (Goalkeeper Between Us), and holder of a valid copyright to it under Swedish law.
4.

Although I have licensed to my publishers certain exclusive rights in connection

with the commercial exploitation of Oss Målvakter Emellan, 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 Oss
Målvakter Emellan. I never assigned to any third party the copyright to Oss Målvakter Emellan.

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Unauthorized Uses Of My Work
5.

It has come to my attention that a print copy of Oss Målvakter Emellan 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 Oss Målvakter Emellan. To date, I
have received no compensation of any kind for Defendants’ digitization and various uses of Oss
Målvakter Emellan.
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 Oss Målvakter
Emellan 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)
my book is no longer in print and I have not yet chosen to make it available in digital form.
However, these differences do not change the fact that Defendants’ actions are causing and
threatening to cause damage to me and to the value of Oss Målvakter Emellan.
8.

While Oss Målvakter Emellan is no longer in print, the harms articulated in the

Declaration of T.J. Stiles nevertheless apply to me because Oss Målvakter Emellan is still
protected by copyright law and I still hold the copyright. Whether Oss Målvakter Emellan is in
print or not, I have the right choose whether or not to engage in licensing agreements for

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emerging uses of Oss Målvakter Emellan, be they digital archiving, non-consumptive research,
full-text searching, or other derivative uses. By preempting my right to make a decision as to
how I wish to exploit Oss Målvakter Emellan, Defendants have narrowed the scope of my rights
and lessened the strength of my control over my own work.
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 Oss
Målvakter Emellan, I am aware of this option and consider it a possibility for the future. This is
why even my currently out-of-print book is affected by the Defendants’ unauthorized copying.
10.

I believe that I also am entitled to determine whether, when and under what

circumstances Oss Målvakter Emellan is scanned, digitized, copied and used. Defendants’
insistence that the new, complex, technologically-enabled uses they intend to make of Oss
Målvakter Emellan 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, and it
certainly is not the law in Sweden.
11.

Defendants argue that uses of Oss Målvakter Emellan that do not allow

individuals to read the text, such as non-consumptive research and full text searching, do not
inhibit sales of Oss Målvakter Emellan 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 Oss
Målvakter Emellan, 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

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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 Oss Målvakter Emellan.
12.

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 Oss Målvakter Emellan 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.

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