The first suit, in 2005, challenged the scanning, arguing that the creation of digital copies was in itself a violation of copyright. (The Association of American Publishers filed a similar suit.) In 2008, a settlement was reached—or so everyone thought. Google agreed to pay $125 million to the authors and publishers, to sell copyrighted works on their behalf, and to fund a registry to protect authors’ copyrights. But Amazon, Microsoft, Yahoo, and other companies objected, and in March of last year, the settlement was rejected by a New York federal judge.
Just five months later, Courant was blind-sided by the news that the Authors Guild was again suing the U-M, along with four other universities and HathiTrust. Organized and led by Michigan, the trust now includes more than fifty universities that have agreed to pool their online resources to create one vast shared archive. The guild’s press release specifically cited the trust’s announcement that it would allow faculty and students at member schools to access “orphan works” that could still be in copyright.
Michigan was “bold” to take on the Google project, says former law library director Margaret Leary. “Other libraries were nervous—they just wanted Google to do parts of their collections.”
The Authors Guild shows no sign of backing down. The group recently asked New York federal judge Harold Baer to reject the schools’ argument that digitization is “fair use” of copyrighted material.