October 11, 2012
For more information, contact:
Jonathan Band
policybandwidth
202-296-5675
jband@policybandwidth.com

LCA Comments on Authors Guild v. HathiTrust Decision

Washington, DC—The Library Copyright Alliance (LCA) welcomes Judge Harold Baer's decision yesterday that the HathiTrust Digital Library’s (HDL) use of digitized works is a fair use permitted under the Copyright Act. Judge Baer's key holding was: "I cannot imagine a definition of fair use that would not encompass the transformative uses made by [HDL] and would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts that at the same time effectuates the ideals espoused by the [Americans with Disabilities Act]." Judge Baer's ruling not only allows HathiTrust to continue serving scholars and the print disabled, it also provides helpful guidance on how future library services can comply with copyright law.
The HathiTrust Digital Library is operated by a consortium of universities, including the University of Michigan, the University of California, the University of Wisconsin, Indiana University, and Cornell University. Many of the 10 million digital volumes in HDL were provided by Google in exchange for the universities' allowing Google to scan books in their collections for the Google Library Project. The Library Project is the subject of two separate cases, one of which settled last week. In the case that Judge Baer decided yesterday, HathiTrust was sued by the Authors Guild (AG) and several other authors' associations in 2011. HDL is used in three ways: full-text searches; preservation; and access for people with print disabilities.
In his decision, Judge Baer cited the two amicus briefs that LCA filed in Authors Guild v. HathiTrust. First, when rejecting the AG's contention that the library exceptions in section 108 somehow limit the fair use privilege in section 107, Judge Baer stated that the LCA brief "further convince[s] me that fair use is available as a defense for the Defendants." Then, when balancing the fair use factors, Judge Baer observed that the LCA brief "further confirm[s] that the underlying rationale of copyright law is enhanced by the HDL."
Judge Baer made numerous helpful holdings:

• An association does not have standing under the Copyright Act to bring infringement suits on behalf of its members.
• As noted above, the library specific exceptions in section 108 do not restrict the availability to libraries of fair use under section 107.
• The creation of a search index is a transformative use under the first fair use factor: "The use to which the works in the HDL are put is transformative because the copies serve an entirely different purpose than the original works: the purpose is superior search capabilities rather than actual access to copyrighted material."
• The use of digital copies to facilitate access for the print disabled is also transformative. Because print-disabled persons are not a significant potential market for publishers, providing them with access is not the intended use of the original work.
• The AG failed to show that HDL created any security risks that threatened AG's market.
• AG's suggestion that HDL undermines existing and emerging licensing opportunities is "conjecture."
• The goals of copyright to promote the progress of science and useful arts are better served by allowing HDL's use than by preventing it.
• The University of Michigan is an authorized entity under the Chafee Amendment, 17 USC 121, because it has "a primary mission" to provide access for print-disabled individuals.
• The Americans with Disabilities Act "requires that libraries of educational institutions…reproduce and distribute their collections to print-disabled individuals."

Resources

• Judge Baer's decision (PDF)
• First LCA amicus brief (PDF)
• Second LCA amicus brief (PDF)
• Google Books Litigation Family Tree, infographic by Jonathan Band (PDF)

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The Library Copyright Alliance (LCA) consists of three major library associations—the American Library Association, the Association of Research Libraries, and the Association of College and Research Libraries. These three associations collectively represent over 300,000 information professionals and thousands of libraries of all kinds throughout the United States and Canada. http://librarycopyrightalliance.org/.