Monday, October 3, 2011

Copyright Infringement by State Schools: Authors Guild Might Have a Problem

Alexandra Mackey at the Washington College of Law has written an interesting article about a copyright suit by the Authors Guild against quite a few state universities here in the U.S. Apparently, a bunch of authors, many foreign, are unhappy about a digital archive of library materials including, allegedly, books written by the author-plaintiffs.
Without anything else, this is just another one of the interesting cases about the relative rights of authors versus those who create digital archives of the authors' books. Fair use seems to be the normal defense. The cases against Google are probably the most notable.
The one big difference between the cases against Google and most other defendants is that unlike those defendants, state universities enjoy something called 11th Amendment immunity. Under the 11th Amendment of the U.S. Constitution, a state cannot be sued in federal court for money damages. The only place you can bring a copyright infringement suit is federal court. This means that even if the Authors Guild wins this case, they cannot recover any money for the infringement.
There is lots of law on this, and I'm sure the lawyers who filed the case know this. In fact, I'm certain they do since the complaint they filed doesn't even request money damages, only an injunction. Well, they do ask for attorneys fees, but they probably wouldn't get those either. Still, it's an interesting twist on copyright infringement law.
The case is Authors Guild v. HathiTrust, et al. and was filed in New York.