Commentary
Authors Guild Ends Battle With HathiTrust Over Digital Books
- by Wendy Davis , Staff Writer @wendyndavis, January 9, 2015
The move closes the door on a battle about digital books dating to 2011, when the Authors Guild alleged that universities participating in the HathiTrust (a joint digital book-storage project of 13 universities) infringed copyright by working with Google to digitize books in order to make them searchable.
The libraries argued that they made fair use of the books; The National Federation of the Blind intervened in favor of the libraries, arguing that the HathiTrust's digitization initiative was "revolutionary" for blind people.
In 2012, U.S. District Court Judge Harold Baer ruled against the Authors Guild. Going by the language in his opinion, it doesn't seem like the matter was even a close call for him. "I cannot imagine a definition of fair use that would not encompass the transformative uses made by defendants’ [mass digitization project] and would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts," Baer wrote.
He said in the ruling that digital copies "serve an entirely different purpose than the original works,” noting that digital books are searchable in a way that print copies aren't, and that digitized books "facilitate access for print-disabled persons."
The Authors Guild appealed to the 2nd Circuit, which largely upheld of Baer's ruling. But the appellate court remanded the case back to the District Court for further proceedings on a minor point centering on whether libraries infringe copyright by creating replacements for books that are destroyed or lost.
The stipulation filed in court this week provides that the HathiTrust will only create a replacement copy of a damaged or lost book if no unused replacements can be purchased at a “fair price.”
The Authors Guild's 10-year-old lawsuit against Google for digitizing books is still pending in the appellate court. U.S. Circuit Court Judge Denny Chin in New York dismissed the case, ruling that the company's book digitization project was protected by fair use principles. But the Authors Guild appealed to the 2nd Circuit, which heard arguments about the matter last month.
Wendy Davis is a Senior Writer at MediaPost. You can reach Wendy at wdavis@mediapost.com
The June 10, 2014 2nd Circuit ruling in the above case, in quoting a US Supreme Court decision, states at page 28:
“Making a copy of a copyrighted work for the convenience of a blind person is expressly identified by the House Committee Report as an example of fair use, with no suggestion that anything more than a purpose to entertain or to inform need motivate the copying.”
Neither the 2nd Circuit ruling not the US Supreme Court opinion referenced said anything about the person making a copy for the convenience of the bind person getting to keep a separate copy for themselves.