Copyright fight: Authors Guild v. HathiTrust

Disclaimer: I am not a lawyer! This summary is written in good faith and any errors are my own (let me know and I’ll correct ’em).  Carry on…

HathiTrust is a collaborative project between a number of university libraries and other institutions to establish a repository to digitise (archive) and share access to their collections.

The HathiTrust collection includes both public domain and in-copyright content from a variety of sources, including Google, the Internet Archive, Microsoft, and partner institution projects.

Public domain content from HathiTrust is publicly accessible, and in-copyright content is accessible to authenticated users.

The main aims of digitisation projects like HathiTrust include ensuring long-term preservation of the materials (waiting until the works pass into the public domain often means the opportunity for scanning them in good condition has passed); making the content of books and journals more discoverable; opening up library content to students and others with print disabilities; and ensuring the continued relevance of the book culture in an increasingly digital age (list taken from the Committee on Institutional Co-operation, a HathiTrust partner).

The Authors Guild Lawsuit

(surely that should be Authors’ Guild? #pedant)

In September 2011, the Authors Guild, the Australian Society of Authors, the Union Des Écrivaines et des Écrivains Québécois (UNEQ), and eight individual authors filed a lawsuit against HathiTrust and a number of American universities, citing gross copyright violation.

In October 2012, a federal court ruled against the Authors Guild, finding that HathiTrust’s use of books scanned by Google was fair use under US law.

The HathiTrust repository contains over 10.5 million scanned books, most of which were created as part of the Google Books project.  Of these, about 31% are in the public domain, meaning that the remaining 69% are still in copyright.

Some of the main issues in the case were:

  1. The storage of scanned book images and text files for preservation purposes
  2. Indexing the full-text of the files for search purposes (though the search results show only where search terms appear in the catalogued items and do not allow the full text of the item to be read)
  3. Format-shifting to make works accessible to users with disabilities (e.g. creating a digital copy of a work that can be read by a person with visual impairment using screen reading software, even if digitising the work for other reasons is not permitted)

Main outcomes of the case for information professionals

Sections 107 and 108 of the US Copyright Act

Section 108 of the US Copyright Act allows libraries to make copies (within limits) for preservation and research.  It includes an explicit statement preserving the application of fair use:

Nothing in this section . . . in any way affects the right of fair use as provided by section 107.

The copyright owners argued that because one specific statute (108) applies to libraries, the general statute on fair use (107) cannot apply.  The court ruled that libraries may apply Section 108 and Section 107 on fair use: section 108 on library privileges doesn’t limit the scope of fair use (section 107).

Search indexing

Although the defendants argued that creating copies for preservation is “transformative,” the court did not agree.

Maintaining text files for searching is a transformative use, because the copies serve an entirely different purpose from the original works, but as the files were only for search and not for full-text access, no copyrighted content was accessible.

Search indexing is a transformative use, and it is a fair use.

Accessibility

American educational institution are mandated to serve needs under the Americans With Disabilities Act.

Section 121 of the US Copyright Act permits an “authorized entity” to make formats of certain works available to persons who are visually impaired.  An “authorized entity” is one that has a “primary mission” to serve those needs.  The court decided that although libraries and universities have many functions, they do have a “primary mission” to serve those needs.

There is no conflict of interest with commercial use, as there is no market for scanning and making materials available to people who are print-disabled, nor is one likely to develop.

Access for people who are print-disabled is a transformative use, and it is a fair use.

Commercial use

The court decided that the HathiTrust partner libraries weren’t making materials available for commercial use, even though they partnered with Google to carry out the scanning.

This is important for UK copyright holders whose works in US libraries have been digitised via Google Books or similar projects.

See this summary from Columbia University on “Effect on the Market for the Works”:

  • For noncommercial uses, the plaintiff must show “by a preponderance of the evidence that some meaningful likelihood of future harm exists.”
  • The court rejected the argument of lost sales, finding that sales of books would have not served text searches or access for persons who are print disabled.
  • The court found that the copies in HathiTrust were not a security risk, noting the evidence presented about the security measures in place.
  • The court also found assertions of future licensing revenue to be “conjecture” without evidence of some actual harm.
  • In broad terms, the court also ruled that copyright owners “cannot preempt a transformative market” and uses that are in a “transformative market” do not cause a loss of license revnue.
  • The projected high cost of any possible license market would also be cost prohibitive for an initiative such as HathiTrust, and it may not be possible at all given the numerous works and the need to locate copyright owners.
  • Regarding the needs of the print-disabled, the evidence showed that they are a “tiny minority” and a market to allow them access to millions of books “is consequently almost impossible to fathom.”

Digitisation projects such as those carried out by HathiTrust and its partner universities are non-commercial.

Other reports and opinions on the case

United States District Court, Southern District of New York: The Authors Guild, Inc., et al., against Hathitrust, et al. 11 CV 6351 (HB) Opinion & Order

The Chronicle of Higher Education – Judge Hands HathiTrust Digital Repository a Win in Fair-Use Case

Columbia University Libraries/Information Services Copyright Advisory Service –  Court Rules on HathiTrust and Fair Use

Copyright Librarian – Author’s Guild v Hathi Trust: A Win for Copyright’s Public Interest Purpose

HathiTrust – Information about the Authors Guild Lawsuit

The Michigan Daily – ‘U’ wins copyright lawsuit against Hathitrust digitalization project

Wired – Judge Says Fair Use Protects Universities in Book-Scanning Project

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