A ®

0

0

0

0

JIM Wensa.Fbur 2001 / -TeStte en-

Wednesday, February 20 , 2013 // The Statement B

ean of Libraries Paul Courant tossed an
academic journal on a table in his office.
The earwax-colored front cover read:
The National Tax Journal, March 1980.
"Read that for as long as you can before you
get bored," Courant, a silver-haired man with a
tiny earring in his left ear said, smiling.
Like most writing published in the past 100
years, the journal was printed on acid paper,
which quickly deteriorates. Its pages are already
yellow around the edges.
Courant said these pages will have the consis-
tency of corn flakes in 50 years. The knowledge
it holds, too, could evaporate like soggy cereal -
and so could countless other tomes.
And that's just one problem HathiTrust tries
to eliminate. The HathiTrust Digital Library, a
four-year-old initiative led by the University and
involving over 60 other research libraries, seeks
to digitize the record of human knowledge.
A hathi never forgets
The University was part of HathiTrust's
small founding group, according to Courant,
who is also a professor of economics and pub-
lic policy and a member of HathiTrust's Board
of Governors. It is the world's largest digitized
library collection with more than 10 million cur-
rent volumes, 3.7 trillion pages and 8,467 tons of
knowledge; Google Books, a wing of
the online giant founded in 2004,
digitized most of it.
President Emeritus James
Duderstadt - current director
of the University's Millennium
Project and the Program in Sci-
ence, Technology and Public Policy
- has watched digitization become part
of the University's culture since his tenure
as president from 1988 to 1996. Two projects in
the early 1990s, with the National Science Foun-
dation and the Andrew W. Mellon Foundation,
pioneered the concept.
Engineering alum Larry Page worked with
the University on the NSF project in 1994 and
1995. In 2004, Page, now the CEO of Google,
approached the University, offering to digitize
its collections. Google would shoulder the costs,
and no books would be destroyed in the process
- then a major advancement in the business of
digitization.
Google Books has more than 20 million vol-
umes, according to Duderstadt, and they aim for
30 million. Nearly five million are from the Uni-
versity's libraries.
After working with Google, the University
collaborated with 26 other research universi-
ties to combine their individual digital collec-
tions in one venue, creating HathiTrust in 2008.
"Hathi" is the Hindi word for elephant, a gentle

giant famed for its impressive memory. Google
digitized the work for universities involved in
HathiTrust, and both the libraries and Google
own a copy.
"Throughout most of human history we have
rationed access to knowledge," Duderstadt said.
"But now it all comes to you. And in a world
where knowledge is the ultimate power, we've
kind of redefined how the world works."
However, HathiTrust and Google Books have
raised intricate legal questions. These orga-
nizations do not ask the permission of authors
or publishers before digitizing their books, nor
do they compensate either party. Paul Aiken,
Authors Guild Executive Director, and others
aren't happy with this interpretation of copy-
right law.
"There are tens of thousands of out-of-print
books that are becoming available again," Aiken
said. "These are still literary works under copy-
right, the result of thousands of hours of hard
work, and they're entitled to copyright protec
tion."
Legal strife
The Authors Guild filed a federal copyright
infringement suit in September 2011 against
HathiTrust. In October 2012, Federal District
Court Judge Harold Baer ruled against AG,
which is currently devising an appeal. Baer
wrote in his ruling that digitization was a trans-
formative act, or one that does not infringe upon
copyright.
"I cannot imagine a definition of fair use that
would ... terminate this invaluable contribution
to the progress of science and cultivation of the
arts " Baer wrote in the decision. He defined "fair
use" as copyrighted material that benefits the
public in "scholarship, teaching and research."
HathiTrust also allows readers to view books
in large print or listen via text-to-voice technol-
ogies, which Baer championed as an expansion
of options for print-disabled readers.
In Aiken's opinion, copyright law does allow
libraries to duplicate and digitize work for pres-
ervation reasons, but on a book-by-book basis
rather than complete collections. Aiken said
nothing states that a company, like Google, may
keep a copy of the work as well.
"It's not about going from one end of the
stacks to the other," Aiken said. "The digital
copy is supposed to stay with the library."
. Law Prof. Jessica Litman - author of "Digital
Copyright" - said that before digitizing, Google
announced they would be undertaking the pro-
cedure and anyone who did not want their works
digitized could opt out. The process of asking
each author for permission would have been
immense.
Litman said HathiTrust is a sort of project

that copyright should not and does not illegal-
ize.
"It seems to me that it was a very clear fair
use argument," Litman said. "The only thing I
can speculate about is that the authors felt so
strongly that the existence of a digitized copy
was a dignitary wrong."
In Litman's view, the authors were inaccu-
rate about this interpretation of the law, adding
that organizations do not need to ask permission
when digitizing a work.
Aiken argues that digitization is a duplication
of work, which necessitates the copyright hold-
er's consent. Without this, some writers don't
profit from their work.
Edward Hasbrouck, co-chair of the Book
Division in National Writer's Union, said many
authors support the creation of a digital copy of
their writings. But the fact that they cannot give
their permission is unlawful.
"If you have read many of the legal cases,
Google Books and HathiTrust have tried to cre-
ate an entirely false impression that authors
oppose the scanning of the books and want to
oppose digitization," he said "We very strongly
endorse and support digital libraries."
Many authors don't agree with Google and
HathiTrust bypassing them when digitizing
works, which he feels denies authors and pub-
lishers their fair compensation.
"It's profoundly disingenuous for Google to
claim a benign public purpose in its efforts,"
Hasbrouck said. "They are investing lots of
money in this project because they can make lots
of money in this purpose."
According to Courant, however, most of the
works in HathiTrust lack profit possibilities.
"Most ofthe books in the HathiTrust are long,
long out of print," Courant said. "Nobody's been
making any money to speak of in a long time.
There really isn't much of an income stream at
risk here."
While both Google Books and HathiTrust
will take down works if asked, Hasbrouck said
this is problematic. For instance, an academic
author with hundreds of works would have to
demand each work be removed. It may be an
endless battle if projects like Google Books goes
international.
The HathiTrust case is an echo of a previ-
ous class action suit filed in 2005 by the AG and
the Association of American Publishers against
Google Books.
The agreement reached involved a retail

product of Google's digitized works, Courant
said, where 37 percent of profits went to Google
and the rest to the right holders. The product
required that readers would pay to read online
works and those readers affiliated with certain
research institutions could access works for
free.
The U.S. Court of Appeals rejected the settle-
ment in 2008 on the basis that too many people
- holders of books not inAG or AAP - were not
represented, adding settlement ought to rep-
resent the opinions of all people who would be
affected by it.
Hasbrouck said the settlement tapped into
the question of whether the author or publisher
holds electronic rights.
Google and AAP have since settled out of
court, while Google and AG are still at odds.
Google declined to comment due to ongoing liti-
gation.
Aiken stressed that this settlement would
have allowed AG to distribute their work to
libraries and students in an equitable way.
"It (mass digitization) should be done by con-
tractual agreements," Aiken said. "It should be
done so the value of the books are recognized by
the owners of the works."
Pamela Samuelson, director of the Berkeley
Center for Law and Technology, said the 2012
ruling in favor of HathiTrust improves the out-
looks for Google's litigation.
"The underlying issue of fair use is pretty
similar, so I would think that if the HathiTrust
victory is affirmed by the Second Circuit Court
- good news for Google," Samuelson said.
Who holds the rights?
Even once it's decided if the -?
consent of right holders - who-
ever can license a work for certain
uses, often the author or publisher
- is needed for digitization, two little
words destroythe concordance: orphan
works. These are works that have no
owner because the publisher is out of
business, the author is deceased or there
are other complications.
Samuelson said these works might be digi-
tized after "due diligence" has been served to
find thecopyright holders.
That may involve researching the author, the
publisher, the relatives of the author and so on,
but the legal term is subjective.
SEE HATHI PAGE 6

I