In its suit against HathiTrust the three authors guilds claim that there are digitized copies of millions of copyrighted books in HathiTrust, and that these should be removed from the database and stored in escrow off-line.
A relevant question is: who do the authors guilds represent, and how many of those books belong to the represented authors?
The combined members of the three authors guilds is about 13,000. That seems like a significant number, but the Library of Congress name authority file has about 8 million names. That file also contains name/title combinations, and I don't have any statistics that tell me how many of those there are. (If anyone out there has a copy of the file and can run some stats on it, I'd greatly appreciate it.) Some of the names are for writers whose works are all in the public domain. Yet no matter how we slice it, the authors guilds of the lawsuit represent a small percentage of authors whose in-copyright works are in the HathiTrust database.
The legal question then is: does this lawsuit pertain to all in-copyright works in HathiTrust, or only those by the represented authors? Could I, for example, sue HathiTrust for violating Fay Weldon's copyright?
Reply to this from James Grimmelman on his blog:
Good question, Karen, and one I plan to address in more detail in a
civil procedure post in the next few days. In brief, you couldn’t sue
to enforce Fay Weldon’s copyright, as you aren’t an “owner” of any of
the rights in it. The Authors Guild and other organizations can sue on
behalf of their members, but the details of associational standing are
complicated. There is also the question of the scope of a possible
injunction (e.g. could Fay Weldon win as to one of her works and obtain
an injunction covering others, or works by others), where there are also
significant limits on how far the court can go. Again, more soon.
As I suspected, the legal issues are complex. Keep an eye on James' blog for more on this.