HathiTrust Digital Library Wins Latest Round in Battle With Authors

In what legal observers and fair-use advocates are calling a victory for libraries, a federal appeals court has upheld most of a lower court’s 2012 ruling in favor of the HathiTrust Digital Library in a copyright-infringement lawsuit brought by the Authors Guild and other plaintiffs.

The decision is another legal setback for the Authors Guild, which has also been fighting a long court battle over Google’s mass digitizing of books. But the appeals court’s move will encourage both scholars who want to text-mine digitized works and libraries that want to give print-disabled patrons greater access to content, among others.

Together with its partner institutions, the digital library holds millions of copies of digitized works, many of them still under copyright. In the ruling, handed down on Tuesday, the U.S. Court of Appeals for the Second Circuit, in New York, agreed with the late Judge Harold Baer Jr. of the U.S. District Court in Manhattan that HathiTrust’s creation of a searchable, full-text database of those works counts as fair use. So does making texts available in different formats for the vision-impaired and other users with disabilities that make it hard to use print, the appeals court said.

“That one’s going to have a very large impact because now we have a court of appeals on record holding that providing copies to the print-disabled is fair use,” said James Grimmelmann, a professor of law at the University of Maryland and an expert on intellectual-property issues. “The holding that search is transformative fair use is basically the same” as the lower court’s, he said. The Second Circuit ruling notes that users doing searches in HathiTrust’s database don’t have access to the full text of the works, which “fairly refutes the notion that this is a market that book authors could have hoped to license,” Mr. Grimmelmann said.

In another blow to the guild, the appeals court also agreed with the lower court that the group does not have the “associational standing” or legal right to make copyright-infringement claims on behalf of its members. Individual authors could still sue, but “in the broader perspective this is a blow to the Authors Guild, which was basically told, ‘No, you can’t speak for authors,’” Mr. Grimmelmann said.

Foreign authors’ groups, several of which joined the guild in the lawsuit, do have standing to sue under their countries’ laws, the court said. It’s not clear what effect that might have on the final outcome of the case.

The appeals court did vacate one part of Judge Baer’s decision. The Authors Guild had argued that HathiTrust’s holding digital copies of works for long-term preservation didn’t count as fair use. The higher court said that the lower court didn’t consider whether the plaintiffs had the standing to make that claim, and it sent that part of the ruling back to the lower court for further consideration. The court also said that claims over orphan works—those with uncertain copyright status, a subject of great interest to both libraries and authors—”are not ripe for adjudication.”

All told, the ruling is “a huge win for HathiTrust and for libraries generally,” said Brandon Butler, an intellectual-property expert and practitioner in residence at the Glushko-Samuelson Intellectual Property Clinic at American University. Taken together with other major decisions at the appeals-court level nationally, he said, Tuesday’s ruling solidifies the idea that “putting a bunch of stuff in a computer and asking the computer to read it” without giving the user full-text access counts as fair use. “If there was ever any doubt about search engines, that’s gone,” Mr. Butler said.

The Authors Guild did not immediately respond to requests for comment. It remains to be seen whether the group will let the case drop or try to take it to the Supreme Court.

In a statement in response to the ruling, HathiTrust underscored its role in expanding access to its partner libraries’ collections. “We are especially proud of our services to provide access for print-disabled persons,” the statement said. “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.”

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