• by Wendy Davis , Staff Writer @wendyndavis, July 18, 2013

The Authors Guild, which is battling the book storage project HathiTrust in court, now says that digitization of books in and of itself can pose a risk to authors, given how easily digital books can be transferred.

Only Congress is equipped to strike the right balance between the promise and dark underbelly of mass digitization, the organization says in papers made public last week.

The Authors Guild made that argument as part of its attempt to revive a copyright infringement lawsuit against the HathiTrust -- a digital book storage project of the University of Michigan, University of California, University of Wisconsin, Indiana University and Cornell University. The writers organization sued the HathiTrust in September of 2011; the National Federation of the Blind later intervened in the lawsuit in favor of the universities, arguing that the HathiTrust's digital library would revolutionize access to books.

Last year, U.S. District Court Judge Harold Baer in New York ruled against the Authors Guild. He called the HathiTrust an "invaluable contribution to the progress of science and cultivation of the arts,” and said it was protected by fair use principles. Baer noted that digital copies are searchable in a way that print copies are not, and that they "facilitate access for print-disabled persons."

The Authors Guild appealed that decision to the New York-based Second Circuit Court of Appeals. Digital rights activists weighed in on the side of the HathiTrust, arguing that the project makes fair use of books.

But the Authors Guild contends that the libraries have no right to make digital copies of books that are under copyright. The Authors Guild has raised a number of arguments, but its latest papers emphasize the risk of piracy. “Even if the libraries have thus far avoided a data breach, there is no assurance they will succeed in the future. Security could be compromised by increased pressure from hackers, foreign governments or private actors determined to disrupt American interests, budget cuts, a disgruntled employee or mistakes that lead to the release of copyright-protected materials.”

Somewhat surprisingly, the Authors Guild's latest papers draw attention to deceased activist Aaron Swartz, who hanged himself while awaiting trial for having downloaded scholarly articles.

Many people believe that Swartz did so in order to make the articles available to the public. His death early this year has spurred a movement to reform computer fraud laws.

But the Authors Guild has a different take on Swartz. “There are people who specifically target digital libraries and similar databases, and they have succeeded,” the Authors Guild argues. “Two months before the filing of this lawsuit an activist was indicted for hacking into a proprietary database of journal articles by sneaking into a network interface closet in the MIT library, hooking his laptop directly into the network and downloading over 4.8 million articles, with the intent to disseminate the archive throughout the Internet.”

In an argument sure to inflame Swartz's supporters, as well as digital rights advocates everywhere, the Authors Guild says that Swartz's case shows the potential “devastating impact” that could result from book digitization.