Say it ain't so.
When I saw that the Authors' Guild had filed suit against the HathiTrust and five major university libraries over the issue of orphan works (i.e., copyrighted works for which the copyright owner cannot be contacted or identified), I was surprised to say the least. After all, hadn't Duke University's copyright guru Kevin Smith just reassured the library community that the HathiTrust and its partners were exercising due diligence in their efforts to preserve orphan works and make them accessible to scholarly researchers and the public alike? When I learned that you were the current Vice President of the Authors' Guild, my shock turned to disbelief. Now AG President Scott Turow I can understand-- heck, the guy's a lawyer, isn't he? But librarians getting sued by Superfudge? Try as I might, I could not wrap my brain around this, and I still can't.
Is this what it's finally come to?
I'm not going to argue the legal merits of your case, because people with a better grasp of U.S. Copyright Law have already done so elsewhere. If you're interested, check out the aforementioned Kevin Smith's post, or James Grimmelman's "The Orphan Wars," or Christine Ross' excellent "The 'Guilded' Age" at Copyright on Campus. The consensus seems to be that you're massively overreaching here, but given the recent court decisions backing some fairly counterintuitive readings of copyright maybe you'll get lucky and successfully bar the HathiTrust and its library partners from rescuing forgotten books from oblivion.
The irony, of course, is that would there even be an orphan work problem, if not for libraries? These books would have long since been remaindered and pulped, if libraries like the ones you sued had not graciously given them the precious shelf space to endure through the years past their popularity. That's what we're good at, you see: the long haul. And now you say that you don't trust the same librarians who dutifully preserved these books for decades to make a fair and honest determination of orphan work status? I understand that you believe that Google crossed the line, but the HathiTrust is not Google. Libraries are not Google. Have you been so jaded by the publishing industry that you refuse even to entertain the possibility that librarians might just have authors' best interests at hand here?
(BTW, I know that part of your objection is that these are Google's scans that are being used here. But whereas Google sought to digitize any book it could get its hands on, every digital copy stored in the HathiTrust on behalf of a participating library is backed by a physical copy. Orphan works can only be accessed by the libraries which actually own the item. This kind of "space-shifting" is the same principle that allows you to rip music to your MP3 player. Also, if you're worried about digital copies of your books leaking out to the internet, that ship has sailed- just Google "superfudge torrent" and you'll see what I mean.)
I know you're scared. Do you think we librarians aren't? The same technological revolution that is upending the publishing industry is wreaking an equal amount of havoc here in libraryland, and yet we all know that this is just the tip of the iceberg. What happens when every book begins and ends its life as a series of ones and zeros, and trees no longer have to worry about being cut down to print several million copies of the next legal thriller by your President Scott Turow? Amazon's plans to offer Netflix-style subscriptions to entire catalogs of books-- or "libraries," if you will-- has the Annoyed Librarian already sounding the death knell of the public library, and academic libraries aren't exactly faring all that well either right now. I'm usually more of an optimist about these things myself, but in light of your lawsuit I'm not so sure anymore.
Is this really how you want to be remembered by the library community? I don't think there's a librarian out there who didn't grow up on your books. The American Library Association routinely goes to bat for you, not only during Banned Books Week but every other week of the year, to keep your books on library shelves. My daughter- who is eight years old and just discovering your works- proudly informed us that for reaching her reading achievement goals in school she was choosing Fudge-a-Mania as her "reward" book. Only a week ago this would have tickled me pink, but now it just leaves a bad taste in my mouth. Authors and libraries have always enjoyed a special bond, but the Authors' Guild seems hell-bent on throwing this longstanding and mutually beneficial relationship under the bus rather than trust librarians to do the right thing. I know that you're only trying to look out for authors, but going after libraries like this is as surprising as it is disappointing.
Maybe I'm just being naïve, but I expected a little more from Superfudge...
UPDATE: Through James Grimmelmann's Laboratorium I've just learned that the Authors' Guild has been crowdsourcing the verification of the HathiTrust's list of orphan work candidates, leading to four of the 166 books being pulled from the list.
This is a good thing, folks.
The stated purpose of the Orphan Candidate list is "to help and encourage possible copyright holders to identify themselves so that we can identify them in the record." Due diligence does not equal infallibility. So far from proving that the HathiTrust's ineptitude or bad faith, this is a further demonstration of the HathiTrust and its partners' ongoing willingness to respect the intellectual property rights of authors and legitimate copyright holders.
UPDATE #2: The HathiTrust has announced that it will be suspending its Orphan Works program "indefinitely" in light of the Authors' Guild lawsuit and the discovery of at least one in-copyright item on the list of orphan works scheduled for release later this Fall. The University of Michigan, one of the five academic libraries partnering with the HathiTrust that was also named in the suit, made its own announcement as well to the same effect:
It was always our belief that we would be more likely to succeed with the cooperation and assistance of authors and publishers. This turns out to be correct. The widespread dissemination of the list has had the intended effect: rights holders have been identified, which is in fact the project's primary goal. And as a result of the design of our process, our mistakes have not resulted in the exposure of even one page of in-copyright material.I know that the last sentence (emphasis mine) was meant to be in the spirit of CYA, but to me it represents a perfect illustration of the absurdity of this situation. When a senior library administrator feels the need to reassure authors that university students were not accidentally permitted to access their books, something has gone horribly, horribly wrong.