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

Filing 96

DECLARATION of Andre Roy 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
----------------------------------------------------------------X
THE AUTHORS GUILD, INC., et al.,
:
:
Plaintiffs,
:
:
- against :
:
HATHITRUST, et al.,
:
:
Defendants.
:
:
----------------------------------------------------------------X

Index No. 11 Civ. 6351 (HB)

DECLARATION OF ANDRÉ ROY
I, André Roy, 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 poet, literary critic, film critic, and Vice President of the Plaintiff Union

des Écrivaines et des Écrivains Québécois (“UNEQ”). I won the Canada Council for the Arts
Governor General’s Poetry Award for Action Writing, and I have twice been a finalist for that
award.
The Work At Issue
3.

I am the joint author and joint copyright owner of the non-fiction work

Marguerite Duras à Montréal.
4.

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

with the commercial exploitation of Marguerite Duras à Montréal, 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
Marguerite Duras à Montréal. I never assigned to any third party the copyright to Marguerite
Duras à Montréal.

19894.300

Unauthorized Uses Of My Work
5.

It has come to my attention that a print copy of Marguerite Duras à Montréal 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 Marguerite Duras à Montréal. To
date, I have received no compensation of any kind for Defendants’ digitization and various uses
of Marguerite Duras à Montréal.
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 Marguerite
Duras à Montréal 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)
Marguerite Duras à Montréal is out-of-print and I have not yet chosen to make it 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 Marguerite Duras à
Montréal.
8.

While Marguerite Duras à Montréal is no longer in print, the harms articulated in

the Declaration of T.J. Stiles nevertheless apply to me because Marguerite Duras à Montréal is
still protected by copyright law and I still hold the copyright. Whether Marguerite Duras à

2

19894.300

Montréal is in print or not, I have the right choose whether or not to engage in licensing
agreements for emerging uses of Marguerite Duras à Montréal, be they digital archiving, nonconsumptive research, full-text searching, or other derivative uses. By preempting my right to
make a decision as to how I wish to exploit Marguerite Duras à Montréal, 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 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 book is affected by the Defendants’ unauthorized copying.
10.

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

circumstances Marguerite Duras à Montréal is scanned, digitized, copied and used. Defendants’
insistence that the new, complex, technologically-enabled uses they intend to make of
Marguerite Duras à Montréal 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 Marguerite Duras à Montréal is not yet available in digital form, I reserve the right to
license the creation of digital versions of Marguerite Duras à Montréal when I choose to.
11.

Defendants argue that uses of Marguerite Duras à Montréal that do not allow

individuals to read the text, such as non-consumptive research and full-text searching, do not
inhibit sales of Marguerite Duras à Montréal 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

3

19894.300

Marguerite Duras à Montréal, 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 Marguerite Duras à
Montréal, but did not do so.
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 Marguerite Duras à Montréal 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