Fair Use: Appeals Court Rules in Favor of HathiTrust in Authors Guild Case

UPDATE (June 11, 2014): The HathiTrust Ruling and What You Should Know About It (by Carrie Russell via ALA District Dispatch)
UPDATE (June 11, 2014): Authors Guild Statement On Court Decision
From the AG Web Site, “Narrow Fair Use Ruling Permits Limited Library Uses, Shoots Down Replacement Copying”

While the Court, over our objections, allowed HathiTrust to maintain its database of digitized books in light of the present security protections, the Court was clear that any breach of that security leaves HathiTrust at risk of future litigation.
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Overall, we also were heartened that the Court, while approving two very limited uses of the database—for word search and display to the disabled—emphasized that the decision did not extend to the display of the text of the books to all HathiTrust users, or even authorize universal display of snippets.
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Our pursuit of this claim led directly to HathiTrust’s abandonment of the Orphan Works Project, which would have posed a major threat to authors’ rights by allowing these libraries to fully display their digital copies of in-copyright works with no more basis than the bare claim that they couldn’t find the rights-holders.  The related case against Google will come before the Court next.  We continue to believe that it is fundamentally unfair for Google to make use of the entire text of copyrighted books for its own commercial purposes without any compensation to authors.

UPDATE (June 10, 2014): National Federation For the Blind: Ruling is Victory for the Blind and Print Disabled
UPDATE (June 10, 2014) Comments From HathiTrust

Today the Second Circuit of the US Court of Appeals upheld critical points of decision issued by Judge Howard Baer, Jr. in Author’s Guild et al. vs HathiTrust et al., finding that digitization for full-text search and access for print-disabled readers is fair use under US law.
HathiTrust has to an unprecedented degree expanded access to the collections of our partner libraries, making them accessible in new ways to researchers and readers around the world. We are especially proud of our services to provide access for print-disabled persons. We would like to extend a special thanks to the many researchers, legal scholars, libraries, and other individuals and organizations for their continued support and use of HathiTrust. Although the court returned one matter to the lower court, we are very happy with today’s ruling and feel confident that future decisions will continue to uphold the work that we do.

Library Organizations React to Decision
From a Library Copyright Alliance Statement:
LCA consists of ALA, ARL, and ACRL.

Jonathan Band, counsel for the Library Copyright Alliance, said, “The decision is a significant victory for the public.”
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The Library Copyright Alliance believes the Second Circuit rightly concluded that HDL’s activities are protected by fair use, ensuring the “safety valve” of fair use is well functioning and providing meaningful balance through limitations on the copyright holder’s rights. Fair use has long been relied upon to provide important protections for the public and promote new and transformative uses of copyrighted works, such as those facilitated by HDL.

Read the Complete Statement (386 Words)
From the American Library Association

ALA President Barbara Stripling released the following statement in response to the ruling:
“The Second Circuit today affirmed more than a lower court decision—it affirmed that the fair use of copyrighted material by libraries for the public is essential to copyright law. ALA is pleased that the court recognizes the tremendous value of libraries in securing the massive record of human knowledge on behalf of the general public and in providing lawful access to works for research, educational, and learning purposes, including access for people with disabilities.
“The continued acknowledgement of the importance of fair use to enable learning and support for the development of a well-informed citizenry makes the U.S. copyright law unique and well-functioning.”
This decision affirms that libraries can engage in mass digitization to improve the discovery of works and provide full access to those works to students with print disabilities enrolled at the respective HathiTrust institutions.
The general public can search the database using keywords and locate titles held in 80 member institutions. Full text access to the underlying works is allowed only for students with print disabilities enrolled at the University of Michigan and certified as disabled by a qualified expert. Students with print disabilities are blind or have a handicap that prevents them from reading printed text. Because of the full conversion of the texts to digital format that is accessible, these students can use adaptive technologies, such as text-to-speech, to read.
ALA will continue its defense of fair use in the HathiTrust case, should additional appeals be filed.

From the California Digital Library

We believe this judgment is a significant affirmation of the role of digital technologies in assuring the vitality of our intellectual heritage while protecting the interests of authors and other copyright holders. UC Libraries have been leaders in the effort to convert major research library collections to digital form, digitizing more than 3.6 million volumes from our collections to date and depositing the volumes in HathiTrust for long-term preservation and access. By digitizing our collections and opening them up to new forms of scholarly inquiry through HathiTrust, we are making the intellectual treasures in our nation’s libraries more discoverable in the digital age and connecting these books to new generations of readers and scholars. Bringing this rich heritage into greater public awareness serves the shared interests of all who seek to advance human knowledge and understanding, including libraries, authors, and the reading public.

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The 34 page opinion was handed down today.
From the US Circuit of Appeals, 2nd Circuit Opinion (Full Text Embedded Below):

The judgment of the district court is AFFIRMED, in part, insofar as the district court concluded that certain plaintiffs‐appellants lack associational standing; that the doctrine of “fair use” allows defendants‐appellees to create a full‐text searchable database of copyrighted works and to provide those works in formats accessible to those with disabilities; and that claims predicated upon the Orphan Works Project are not ripe for adjudication.
We VACATE the judgment, in part, insofar as it rests on the district court’s holding related to the claim of infringement predicated upon defendants‐appellees’ preservation of copyrighted works, and we REMAND for further proceedings consistent with this opinion.

Coverage, Analysis, Opinion, and Reaction

From a Courthouse News Service Report: “Hathitrust Library’s Fair-Use Win Survives Appeal

A federal judge in Manhattan concluded in October 2012, however, that digitizing the books to enhance research and access qualifies as “transformative” use.
“I cannot imagine a definition of fair use that would not encompass the transformative uses made by defendants’ MDP [mass digitalization project] 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],” Baer wrote.
A three-judge panel with the 2nd Circuit upheld most of Baer’s findings on Tuesday but disagreed with the lower court’s reasoning.
“Contrary to what the District Court implied, a use does not become transformative by making an ‘invaluable contribution to the progress of science and cultivation of the arts,'” Judge Barrington Parker wrote for the court. “Added value or utility is not the test: a transformative work is one that serves a new and different function from the original work and is not a substitute for it.”
Making texts available to the blind is akin to language translation, the court found.

Read the Complete Article
“Google Books Round 86: Libraries Win Yet Again” (by Professor James Grimmelmann, University of Maryland)
“HathiTrust Digital Library Wins Latest Round in Battle With Authors” (via COHE)
HathiTrust Wins Big Victory For Authors In Authors Guild Case  (via Pam Samuelson, Authors Alliance)
“Court: Searchable Books Database Is ‘fair Use'”(via AP)

In a decision written by Circuit Judge Barrington Parker, the three-judge panel said it concluded that the creation of a full-text searchable database was a “quintessentially transformative use” of a copyrighted work, a legal principle necessary to be established before the court could find that it was lawful to copy and store the books electronically without the permission of the authors and publishers.
“There is no evidence that the authors write with the purpose of enabling text searches of their books,” Parker wrote. He added that enabling the full-text search “adds to the original something new with a different purpose and a different character.”

Opinion: Authors Guild v. HathiTrust; June 10, 2014; United States Court of Appeals For the Second Circuit

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