Unbeaten Streak

HathiTrust’s book digitization and accessibility efforts have once again been found to be fair uses of copyrighted works, as a federal appeals court on Tuesday dealt a further blow to authors’ groups and publishers.

The opinion, delivered by a three-judge panel in the U.S. Court of Appeals for the Second Circuit, affirms nearly all of a lower court’s ruling that praised the “transformative uses” of HathiTrust and its “invaluable contribution to the progress of science and cultivation of the arts.”

James Grimmelmann, a professor of law at the University of Maryland at Baltimore who has followed the case, said he thought the court may be sending a message to the plaintiffs through its straightforward opinion.

“This is not a decision that is wrestling with its conclusions,” Grimmelmann said.

HathiTrust is a consortium of about 80 member institutions working with Google to digitize the books in their libraries. The HathiTrust Digital Library hosts those books -- there are more than 10 million in total -- and if a member loses a book in its collection, it can get a replacement copy if one isn’t available at a fair price.

Scholars can also search the database for content, but unless the copyright holder authorizes broader use, results only show page numbers and where search terms appear. That information can still be useful for researchers conducting text analysis -- or as an indicator of which sources they should track down.

The digital library offers additional features to scholars with disabilities, who can access complete copies if they can show that they are unable to read a work in print.

The Authors Guild sued HathiTrust in 2011 for copyright infringement, and was later joined by several other authors' groups. Meanwhile, the members of HathiTrust found allies in the National Federation of the Blind and a group of disabled students, who were allowed to intervene in the case. Tuesday’s ruling marked the latest in a series of defeats for the plaintiffs.

“The case always seemed to me to be unbalanced, with the feckless Authors Guild defending copyright holders against sophisticated IP attorneys that are strong advocates of fair use,” Joseph J. Esposito, a digital media, software and publishing consultant, said in an email. “It's a ‘plague on both your houses’ litigation.”

The appeals court affirmed that mining digital copies of printed works for data and making them searchable and available to readers with disabilities does not violate copyright law, but left the question of preservation up for a lower court to potentially decide in the future. At the moment, the opinion reads, the court doesn’t have any evidence to decide one way or the other.

Further complicating the case’s legal future is the fact that copyright law prevents three of the authors' groups -- the Authors Guild, the Australian Society for Authors Limited and the Writers’ Union of Canada -- from representing their members in court. Still, Grimmelmann said there are enough remaining plaintiffs to reach the fair use issue.

However, the ruling shoots down some of the other arguments the plaintiffs have used against HathiTrust. The authors' groups have, for example, expressed concerns that a hacker may gain access to the digitized texts and distribute them. After HathiTrust administrators explained how the data is kept secure -- claims that were “essentially unrebutted,” the decision said -- the court found “no basis in the record on which to conclude that a security breach is likely to occur.”

The Authors Guild did not respond to a request for comment on Tuesday. Library groups, on the other hand, made themselves heard. The Library Copyright Alliance, which consists of the American Library Association, the Association of College and Research Libraries and the Association of Research Libraries, called the decision “a significant victory for the public” in a statement.

Dan Cohen, executive director of the Digital Public Library of America, said the ruling strengthens the case for HathiTrust as an important library resource.

“I think we’ve now had multiple courts affirm that digitization for search and text mining ... is valid under the fair use argument,” Cohen said. “As a digital humanities scholar, it’s certainly been transformative of the completely new ways we are able to look through history and a mass of textual evidence at a scale that's never been done before.”

Separate from the digital library, the University of Michigan also began work on the Orphan Works Project, which aimed to identify out-of-print works still covered by copyright and ask copyright holders to come forward. If no one did, digital copies would be made available to HathiTrust members. When Michigan’s process of discovering these “orphan” works turned out to be seriously flawed, the university suspended the project.

Since the Orphan Works Project never launched, the district court said the plaintiffs couldn’t make it a part of the lawsuit. The appeals court agreed, but in Tuesday’s ruling, it may have left the door open for the project to resume, Cohen said.

“It is conceivable that, should the University of Michigan ever revive the OWP, the procedures it ultimately implements to identify orphan works would successfully identify and exclude works to which a plaintiff in this suit holds a copyright,” the opinion reads.

Grimmelmann disagreed, saying it appeared the court was declining to say anything about the project.

“This is a firm decision that search engines and providing access to the print disabled are fair uses,” Grimmelmann said. “Other than that, it’s not a very dramatic decision.”