HathiTrust Conundrum

Last week I gave an invited talk on copyright at John Cabot University in Rome, Italy. Before I left Ithaca on Wednesday, news of the suit by the Author’s Guild against Hathiway Trust and a number of universities, including Cornell, made higher education journals. I read with interest, of course, and included mention of this suit in the talk that I gave on Thursday. This morning, in my father’s ancestral home of Gaeta, I read about the developments regarding Orphan Works. Now is the time for higher education to lead copyright reform.

This call to action is true not only for the United States but also internationally. The issues are the same, the risk of doing nothing affects higher education similarly, and because we are the proverbial canaries in the coal mines we have an obligation to education the international public about these issues and generate the kind of necessary debate to get the attention of legislatures, world courts and treaty makers focused on the meaning of copyright for democratic societies and free market economies.

At this juncture, I will address only the issues that have emerged as represented in the article today in IHE. This piece would suggest that one the one hand, a supporter of copyright reform, James Grimmelmann, is giving points to the Author’s Guild for the “gotcha” mistakes they revealed in the procedures of HathiTrust. Kevin Smith, on the other hand, moves away from law to policy to suggest that the test case, a novel by Professor Salamanca, is better served by the exposure HathiTrust provides putting it on line.

From the strict legal position, Grimmelmann is not wrong. In making that evidentiary point, his comments play into the public relations hand of the plaintiffs. And let’s remember: the law is often played like a game. Smith, although also a lawyer, but perhaps because he works in libraries, speaks to the larger meaning of these developments, also correctly. This perspective does not have winners and losers, as does our adversary system to which Grimmelmann speaks, but should be in the interest of everybody.

If both positions are true, what is higher education to make of it? First, let us note that the Author’s Guild is taking advantage of a weakness that is also a strength of higher education: it includes both consumers as well as producers of intellectual property. On this point, then, let us consolidate our position around the strength: we have standing in the society to speak on these issues and represent a balanced perspective because we can see both sides.

Second, let us categorize separately the legal from the policy perspective. Being a defendant means that one must enter into the increasingly arcane and costly word of legal process. HathiTrust and the University of Michigan must, therefore, take action as they have, in this moment, withdrawing orphan works until it can remaster the process. To do so does not mean, however, that its policy goals are wrong. To the contrary, let’s keep our eye on what is best for society.

This point Smith makes well. Cleverly manipulated by the Author’s Guild, Professor Salamanca was taken by surprise. But does he have all the facts? For example, does he understand that the access is to the same constituency as it would be in physical space, faculty and students? Has he had time to consider Smith’s main point: that, sadly, and perhaps in part because the physical material collects dust on a self in the library, a whole generation has passed without anyone looking at his book. Surely this limited position in a world that technology has altered dramatically has not given his work the kind of exposure that his public relations statements suggests he would like it to have.

Overall, the attention to this issue must now be the crisis we turn into an opportunity. Higher education leaders – associations, administrators and presidents – must work thoughtfully together on their outreach missions to stimulate the debate in the society, to educate legislators about all the purposes and effects that copyright has on our political and economic future and to balance the perspective that, like the law itself, is out of balance in favor of content holders like that of Author’s Guild. No one wants to be sued. No one wants to be found to be wrong, especially when, in this case, the goal is to make library resources accessible to people in the way that takes advantage of current technologies.

It will not be difficult to fix procedural challenges. It will be more difficult to change the law, especially if we in higher education allow those uninterested in social policy to play us off against each other. There has never been a time more important than to live out our missions, demonstrating, once again, that not-for-profit higher education adds value to the public good of all democratic, free market societies.