The cause of fair use at academic libraries got a big boost on Wednesday, when a federal judge handed the HathiTrust Digital Library and its university partners a resounding victory in a copyright-infringement lawsuit brought by the Authors Guild and other groups. In a summary judgment, the judge threw out the authors’ arguments that HathiTrust and its partners had trampled copyright law by preserving and making scanned works available for certain uses.
“On every substantive issue, HathiTrust won,” said James Grimmelmann, a professor of law at New York Law School, in an analysis posted on his blog.
In his ruling, Judge Harold Baer Jr. of the U.S. District Court in Manhattan agreed with the HathiTrust defendants that their handling of the scanned works did not violate the law. “Although I recognize that the facts here may on some levels be without precedent, I am convinced that they fall safely within the provision of fair use,” he wrote. “I cannot imagine a definition of fair use that would not encompass the transformative uses made” by the defendants’ mass-digitization project.
Those uses include making copies for preservation and full-text searching and indexing. HathiTrust does not make copyrighted material openly available to the public. “The copies serve an entirely different purpose than the original works,” the judge wrote. He noted that HathiTrust’s search functions “have already given rise to new methods of academic inquiry such as text mining.”
The Greater Good
The HathiTrust repository holds more than 10 million digitized works, many of them scanned as part of Google’s partnerships with academic libraries. The guild, along with other professional groups and individual authors, filed the lawsuit in September 2011, seeking to shut down what it called “the systematic, concerted, widespread, and unauthorized reproduction” of copyrighted material.
The suit named HathiTrust and five university-system partners—the University of Michigan, the University of California, Indiana University, Cornell University, and the University of Wisconsin. The defendants argued that educational fair use allowed them to scan the material and make it available. Several other groups, including the Library Copyright Alliance, the National Federation of the Blind, and some legal and digital-humanities scholars, weighed in on the defendants’ side, arguing that HathiTrust’s activities counted as fair use and contributed to the greater good.
The judge agreed, describing the defendants’ mass-digitization work as an “invaluable contribution to the progress of science and cultivation of the arts that at the same time effectuates the ideals espoused by the ADA,” the Americans With Disabilities Act.
The Library Copyright Alliance, which includes the American Library Association, the Association of College and Research Libraries, and the Association of Research Libraries, applauded the decision and said it would be useful to libraries. “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 group said in a statement.
Paul N. Courant, dean of libraries at the University of Michigan, HathiTrust’s parent institution, said that all along the defendants had believed that their work was valuable as well as legal. “The judge basically said everything we’re doing is in compliance with copyright law,” he said.
Mr. Courant said the ruling would allow the HathiTrust partners to carry on with their primary mission of supporting scholarship and access. ""On the things that matter most, it basically says that academic libraries are free to be academic libraries if they take appropriate care, and that’s good news,” he said. “It’s not just good news for us, of course; it’s good news for the entire scholarly community in the United States, and it’s good news for the community of print disabled.”
John P. Wilkin is executive director of HathiTrust and Michigan’s assistant university librarian for publishing and technology. The decision “doesn’t materially change what we’re doing,” Mr. Wilkin said. “One of the nice stories here is that we did set out to do this, and we didn’t flinch from doing it, and we’ve been doing it along the way.” He said the outcome might encourage other academic libraries to be bolder in making their own cases for fair use and access.
As Mr. Wilkin sees it, Judge Baer’s decision also undercuts the idea that scholarship and business are at odds—that when one wins, the other loses. The judge did not see market harm or security risks for copyright holders in what HathiTrust is doing.
“Fair use, I believe, can only stimulate sales and interest in the materials,” Mr. Wilkin said. “I hope we can get beyond that polarization of commerce and scholarship, and the purported threat that these sorts of uses have for the viability of publishing.”
Issue of Orphans Remains
Judge Baer’s decision leaves open the question of “orphan works,” whose rights holders cannot be identified or located. That uncertain status makes it difficult to figure out how the works may be legally used. HathiTrust and the University of Michigan’s library set up an Orphan Works Project to try to identify orphans from the period 1923 to 1963, and sort out their copyright status. The project came under fire from the Authors Guild and others for not doing an effective job of finding rights holders.
The judge said he didn’t have enough information to rule on that project. “Were I to enjoin the OWP, I would do so in the absence of crucial information about what that program will look like should it come to pass and whom it will impact,” he wrote.
Mr. Wilkin said the Orphan Works Project is not about “liberating” works but getting a clearer sense of the rights landscape. “Unencumbered by the lawsuit, we can move forward with the work at hand, and that is copyright determination,” he said.
Mr. Courant said he’d like to proceed with the orphan-works conversation. “I certainly am very interested in working with the community of academic libraries and other interested parties to put together a viable way of getting at orphan works, making them usable to our community,” he said.
He added that the HathiTrust side’s lawyers are studying the ruling for its full implications. The Authors Guild did not immediately respond to requests for comment about the decision, and whether it would appeal Judge Baer’s ruling.
In his analysis, Mr. Grimmelmann of New York Law School saw the outcome as part of a judicial trend that favors higher education. He also mentioned the Georgia State University e-reserves case, in which three publishers have mostly been unsuccessful in proving copyright infringement by the university, and a case involving the use of streaming video at the University of California at Los Angeles. That case was quietly dismissed for the second time last week.
“Universities making internal technological uses of copyrighted works are doing quite well in court of late,” Mr. Grimmelmann wrote. “Something significant in judicial attitudes towards copyright, computers, and education has clicked into place of late.”
