The inherent dangers of digitized collections have been massively over-hyped

Introduction and Necessary Disclaimer 

This one of a series of posts concerning the Authors Guild v. Hathitrust case, specifically these posts take the form of commentary on the Authors Guild Appeal Brief (February 25, 2013). The views expressed on this site are purely my own.

Today’s topic …

Digital Copies Are Dangerous!

They must be, the Authors Guild keeps saying it.

“ … the Libraries expose the Authors’ property to immense security risks by digitizing, copying, transferring, storing and allowing various levels of online access to millions of copyright-protected books. … A breach has the potential to cannibalize the book market through the same type of widespread Internet piracy that decimated the music industry. … Although a breach has yet to occur, the Libraries are playing with fire.” (Authors Guild Appeal Brief, Page 40)

Whose property?

The first thing to notice about the above quote is that the grounding assertion about the “authors’ property” is a little off base. The actual physical books were purchased by the defendants at a cost of hundreds of millions of dollars. It is convenient for the Authors Guild to overlook this fact, but in the most literal (but not the literary) sense, the books are the property of the libraries.

Assuming, as I believe and the district court held, the defendants are entitled to scan their paper collections to enable disabled access, text-mining, computational analysis, and full-text searching, then there is no sense in which the copies so made are the property of the copyright owners. Of course, other uses of the digitized corpus might be infringing, but no more so than placing a book on a library shelf exposes it to certain acts of piracy.

Tension, if not blatant contradiction

The ‘digital is dangerous’ argument exposes a tension in the Authors Guild’s legal argument. The Guild argues that plaintiff approved digitization will indeed take place following the spontaneous appearance of collective licensing organizations to manage these new rights (more on this in a future post); and yet, the Guild also argues that digitization will lead inexorably to massive piracy, which suggests that they would not approve digitization under any terms. Can these both be true?

The inherent dangers of digitized collections have been massively over-hyped

The inherent dangers of digitized collections have been massively over-hyped. (See, I said it twice, so it must be true.) Yes, as e-book readers become more and more widely used, there is a risk that pirate copies will substitute for legitimate sales. But this risk is entirely independent of library digitization. It is not just that it is usually bad policy to restrict A’s freedom because based on the hypothetical illegal acts by B later down the track. The real issue is that library digitization is totally irrelevant to e-book piracy – works of commercial value for which sales could be lost are already available in digital form on scofflaw file sharing websites. Run a search for “bittorrent harry potter book” on Google and you will see what I mean.

Prohibiting universities from digitizing library books to advance the state of human knowledge will do nothing to stem the problem of online piracy, except perhaps giving people one more reason to reject the legitimacy of copyright law altogether.

The Authors Guild argues even if the defendants’ security practices are in fact adequate, that a fair use ruling in favor of the universities would “encourage far less sophisticated providers to digitize, copy, store and make similar uses of books.” (Authors Guild Ap. Br. Page 40) This appears to fall well short of establishing the likelihood of any harm cognizable under copyright law. Mass digitization is a resource intensive undertaking, the public and private institutions that undertake it will no doubt be mindful of their tort liability for any failure to take standard precautions.