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

Filing 99

DECLARATION of Fay Weldon 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, S. Martin Taylor, 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 (part 1), # 3 Exhibit B (part 2), # 4 Exhibit B (part 3))(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 FAY WELDON
I, Fay Weldon, 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, essayist and playwright. I am also a professor

of creative writing at Brunel University in London and have served as the Chair of Judges for the
Booker Prize for Fiction.
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”). True and correct copies of the copyright registrations for
the twenty-two of my Works that are registered with the U.S. Copyright Office are attached
hereto as Exhibit B.
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 the Works.

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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 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 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. One difference between Mr. Stiles and me is that (as described below) I
have not yet chosen to make certain of my available in digital form, as shown in the attached
Exhibit A. This difference does not, however, change the fact that Defendants’ actions are
causing and threatening to cause damage to me and to the value of my Works. Moreover, certain
of my Works are available for sale in digital form at online retailers such as Amazon.com and
others, as shown in the attached Exhibit A.
8.

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

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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. While many of my Works are not yet
available in digital form, I reserve the right to license the creation of digital versions of these
Works when I choose to.
9.

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 work, or offered to purchase one or more additional copies for their library collections.
10.

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. When I have licensed the digital rights in
certain of my works, for example to Amazon for sale on the Kindle, my representatives have
been careful to ensure that I obtained appropriate financial benefits and other contractual
protections. When Defendants make digital copies without my consent and without a contract, I
am rendered powerless to dictate terms as to how my Work 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

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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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