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

Filing 94

DECLARATION of Roxana Robinson 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 ROXANA ROBINSON
I, Roxana Robinson, 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 and biographer. Four of my works have been

Notable Books of the Year by The New York Times, and my work has appeared in Best American
Short Stories, The New Yorker, Harper’s, The Atlantic, The New York Times Book Review, The
Wall Street Journal, The Boston Globe, Vogue, House and Garden, and other publications. I
have received Fellowships from the Guggenheim Foundation, the National Endowment for the
Arts, and the MacDowell Colony. I have also taught creative writing workshops at Bennington
College, the University of Southern Indiana, George Mason University, the Wesleyan Writers’
Conference at Wesleyan University, and in the Creative Writing Department at the University of
Houston.
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

19894.300

each Work is attached hereto as Exhibit B. My Works include both works of fiction and nonfiction.
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.
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 Works (specifically, A Glimpse of Scarlet And Other
Stories, Asking For Love And Other Stories, Georgia O’Keefe: A Life and Summer Light)

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19894.300

available in digital form. 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
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 certain 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 apparently 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.

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19894.300

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. Without such 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 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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19894.300

EXHIBIT A

EXHIBIT A

TITLE
Robinson, Roxana

Robinson, Roxana

Robinson, Roxana

Robinson, Roxana

AUTHOR

FIRST PUBLICATION

SUBSEQUENT PUB(S).

A glimpse of scarlet
and other stories

1991-05/New York:
E. Burlingame Books
(an imprint of
HarperCollins)

1991/London:
Bloombsury

A perfect stranger:
and other stories

Asking for love and
other stories

2005-04-25/New
York: Random House

1996-03-12/New
York : Random
House
Georgia O’Keeffe: a 1989-10-25/New
life
York: Harper & Row

1992-06/New York:
HarperPerennial
2006-03-14/New
York: Random House
2007-12-18/New
York: Random House
1996-06-27/London:
Bloomsbury
1989/London:
Bloomsbury
1990/New York:
HarperPerennial
1991/London:
Bloomsbury
1992/Spain: Circe
1999-01-01/University
Press of New England

MOST RECENT
PUB.
HARDCOPY OR
ELECTRONIC?
Hardcopy

U.S. COPYRIGHT
REGISTRATIONS OR
RENEWALS
TX0007502287
2012-03-13

Electronic

TX0007502294
2012-03-13

Hardcopy

TX0004268621
1996-04-18

Hardcopy

TX0002736171
1990-01-18

TITLE
Robinson, Roxana

AUTHOR
Summer light

FIRST PUBLICATION

SUBSEQUENT PUB(S).

1987-06-25/London:
J.M. Dent

1988-06-29/New
York: Viking

MOST RECENT
PUB.
HARDCOPY OR
ELECTRONIC?
Hardcopy

1991/New York:
Harper Collins

U.S. COPYRIGHT
REGISTRATIONS OR
RENEWALS
TX0002260701
1988-03-03
TX0002346979
1988-07-05

1995-08-15/University
Press of New England

Robinson, Roxana

Sweetwater: a novel

2003-05-13/New
York: Random House

1996-06-27/London:
Bloomsbury
2005-03-08/New
York: Random House
2007-12-18/New
York: Random House

Electronic

TX0005905727
2004-01-27

EXHIBIT B