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

Filing 93

DECLARATION of Isabel Howe 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. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(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 ISABEL HOWE
I, Isabel Howe, hereby declare as follows:
1.

I am the Director of the Authors League Fund, Inc. (the “ALF”), one of the

plaintiffs in the above-captioned action.
2.

I submit this declaration in support of Plaintiffs’ motion for summary judgment. I

have personal knowledge of the facts set forth in this Declaration and could testify competently
at a hearing or trial if called upon to do so.
The Authors League Fund
3.

Since its founding in 1917, the ALF, which provides assistance to professional

writers and dramatists in severe financial need because of health problems, temporary loss of
income or other misfortune, has drawn most of its support from authors, some of whom leave
their literary estates to the ALF.
The Works At Issue
4.

Unlike the other associations that are plaintiffs in this action, the ALF is not

seeking to assert claims on behalf of any of “members.” Rather, the ALF itself owns the
copyrights in and to several works that were scanned and incorporated into HathiTrust without

the ALF’s knowledge or consent. Attached as Exhibit A is a schedule of works whose
copyrights are owned by the ALF and have been infringed by Defendants (the “ALF Works”).
Attached as Exhibit B is documentation evidencing the transfer of the relevant copyrights from
each respective author to the ALF. A copy of the copyright registration certificate for each ALF
Work is attached hereto as Exhibit C.
Harm Resulting From Defendants’ Use Of The Work
5.

I have reviewed the declarations of several individual authors who are plaintiffs in

this litigation, including the declarations of T.J. Stiles, Pat Cummings and Roxana Robinson. I
agree with and incorporate by reference the description in those declarations of the various harms
and potential harms that result from Defendants’ unauthorized digitization and use of
copyrighted works. Those descriptions need not be repeated here in full, but can be summarized
as follows.
6.

First, each digital copy of an ALF Work that is created by Defendants without

purchase or license represents a lost sale to the ALF. Defendants could have purchased a copy
but instead had it scanned without compensating the ALF.
7.

Second, Defendants’ storage of the ALF Works in an online digital repository

exposes that property to security risks for which the rightsholders receive no commensurate
remuneration. Unauthorized access to copyrighted books leading to widespread piracy would
gravely impact the market for those works.
8.

Third, Defendants’ various uses of the ALF Works undermine various licensing

opportunities for the ALF. For example, authors routinely grant online distributors like Amazon
a license to index their books and make them searchable as part of a commercial arrangement
targeted at promoting book sales. Defendants do the same thing, but without a license and

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without the search function being part of an effort to sell the books and provide revenue to the
author. Defendants also permit the books to be used for non-consumptive research, an emerging
field that represents another potential licensing stream for authors.
9.

Fourth, Defendants’ mass digitization and orphan works programs undercut

opportunities for authors to generate royalty streams by entering into collective licensing
agreements.
10.

Fifth, as explained in more detail below, making books available through the

Orphan Works Program will directly undermine efforts to revive out of print books and will
impact future book sales.
11.

In short, Defendants activities have harmed or have the potential to cause

enormous harm to the rights of authors.
The Orphan Works Project
12.

In addition to the harms outlined above and discussed in the individual author

declarations I reviewed, the ALF was directly impacted by Defendants’ Orphan Works Project,
as well as by mistakes in the HathiTrust database.
13.

The ALF became the owner of the copyrights in and to the works of Gladys

Malvern when she passed away in 1962, having left a Last Will and Testament designating ALF
as the beneficiary of “all rights and royalties and revenues from any sale of rights of any of [her]
books.” See Exhibit B.
14.

In the summer or fall of 2011, I became aware that one of Ms. Malvern’s books,

entitled Good Troupers All, had been listed as an “orphan candidate” in connection with
HathiTrust’s “Orphan Works Program.” It was my understanding that HathiTrust intended to
make a digital copy of the book available October 13, 2011, ninety days after the book was listed

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as an orphan candidate. The book was to be made available on the Internet for students, faculty
and users of the University of Michigan library to view, download, print and copy without
providing any compensation to the ALF. Fortunately, after HathiTrust was informed that the
copyright owners of Good Troupers All and other words could be found and objected to the
HathiTrust’s plans, the Orphan Works Project was “suspended.
15.

I was particularly troubled by HathiTrust’s plans to distribute electronic copies of

Good Troupers All for free because I had recently been contacted by a publisher, Digital Pulse,
which expressed an interest in republishing certain of Ms. Malvern’s works, including Good
Troupers All, in print and digital formats. Attached as Exhibit D is an email in which a
representative of Digital Pulse recounts some of those discussions and reiterates his interest in
bringing Ms. Malvern’s works back into print. Defendants’ missteps are indicative of a
concerning lack of thoroughness on their part and an ineffective system of notice for authors
whose works are listed as orphans.
16.

Had Plaintiffs not intervened to stop the Orphan Works Program and, as

Defendants had planned, digital copies of Good Troupers All were made available for others to
view, print and/or download in full, the ALF may have lost the opportunity to license the work
for print and digital distribution. In addition, it is likely that Defendants’ unauthorized digital
release of Good Troupers All would have adversely impacted the ALF’s anticipated revenues
from future sales of both the paper and electronic versions of the re-released novel.
17.

While this lawsuit apparently caused HathiTrust to halt its Orphan Works

Program and prevented Ms. Malvern’s works from being distributed online, I am deeply
concerned about the potential harm to the ALF and others if the program resumes, as Defendants
have indicated that they plan to do so.

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18.

It is my understanding that Defendants’ carelessness also led HathiTrust to

misidentify two of Ms. Malvern’s books – Curtain Going Up! and Valiant Minstrel – as works in
the public domain. Before the ALF’s attorneys advised HathiTrust of this error, these works
were available in “full view” on HathiTrust’s website, which I understand to mean that an
electronic copy of the book could be viewed, downloaded and printed in full. See Exhibit E. I
do not know what led HathiTrust to believe that these books were in the public domain, but they
are still under copyright, as evidenced by the copyright registration renewal certificates for the
works that are annexed as Exhibit C.

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I declare under penalty of peijury that the foregoing is true and correct.

Dated: New York, New York
June
, 2012

ISABEL HOWE

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