( 8 January 2015) The ARL reports that for the past several years, HathiTrust and five of its member universities have been engaged in litigation after being sued by the Authors Guild. On 6 January 2015, the parties entered a settlement on the sole issue remaining before the district court, ending the litigation in a victory for HathiTrust and fair use.
In its litigation, the Authors Guild alleged that HathiTrust Digital Library’s (HDL) digitization of works for the purposes of use in a full-text search database – providing access for the print disabled, and preservation, as well as the Orphan Works Project developed by the University of Michigan – constituted copyright infringement. The Orphan Works Project was abandoned and not considered ripe for adjudication, while the other issues advanced. The district court found in favor of HDL’s motions for summary judgment on the remaining three issues.
In June 2014, the Court of Appeals for the Second Circuit strongly affirmed fair use, finding that HathiTrust Digital Library’s creation of a full-text search database and providing access for the print disabled constituted fair use. On the issue of preservation, the Second Circuit remanded back to the district court – without determining the merits of whether such preservation constituted fair use – to determine whether the plaintiffs had standing to bring the claim. In its press release on the opinion, the Library Copyright Alliance applauded the decision, noting:
[T]he 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.
Summaries and analysis of the Second Circuit’s opinion are available in the ARL Policy Notes blog post, “Second Circuit Affirms Fair Use in Authors Guild v. HathiTrust,” and in Jonathan Band’s analysis, “What Does the HathiTrust Decision Mean for Libraries?” (PDF).
On January 6, 2015, the Authors Guild and HathiTrust settled the preservation issue (PDF), with the defendant libraries stipulating that they have complied with Section 108(c) of the Copyright Act and have only made replacement copies where the original was damaged, deteriorating, lost or stolen, and that an unused replacement could not be obtained at a fair price. The defendant libraries further agreed that for a period of five years, if the libraries do not comply with the stipulation, it will notify the Authors Guild, “which, although not a Remaining Plaintiff in this Action, will accept notice.”
While an appeal to the Supreme Court would still be possible, it appears from a release issued by the Authors Guild on January 8, 2015, that the Authors Guild will not pursue this path. The Authors Guild begins its release noting that the settlement “brought to an end the Guild’s copyright infringement lawsuit against the group of research libraries known as the HathiTrust.”
Ultimately, the Authors Guild v. HathiTrust saga ended in a strong victory for fair use as the Second Circuit opinion will now stand. The library community applauded this opinion when it was released. The opinion had a number of notable implications. It strongly affirmed the use of mass digitization for purposes of facilitating fair uses (such as creation of a full-text search database or access for the print disabled). The Second Circuit also endorsed a “functional transformation” approach in conducting its fair use analysis, finding that a use is transformative if the work is used for a significantly different purpose than its original market purpose. Additionally, the Second Circuit, in a quick footnote, rejected the Authors Guild’s repeated claims that Section 108 of the Copyright Act restricts fair use.
Furthermore, while the parties settled the issue of preservation for purposes of use as a replacement copy, essentially noting that the parties will comply with Section 108(c) of the Copyright Act, practically speaking, as noted by Jonathan Band in “What Does the HathiTrust Decision Mean for Libraries?” (PDF), libraries engaged in the activities of HathiTrust can make digital copies:
Because providing full-text search capability justifies the creation and maintenance of a database of text files, a library could create and maintain a database of text files if the library provided full-text search capability of those text files. Likewise, because access to the print disabled justifies the creation and maintenance of a database of image files, a library could create and maintain a database of image files if the library provided the print disabled with access to those image files. Additionally, the library could create appropriate backup copies of these databases.
In short, the HathiTrust decision indicates that a library could make digital copies of all the analog works in its collection, and store those copies as text and image files, if the library provided full text-search capability and full-text access to the disabled.
This article by Krista Cox originally appeared on the ARL Policy Notes blog on January 8, 2015.