The Electronic Frontier Foundation, Center for
Democracy & Technology and Public Knowledge say in a friend-of-the-court brief filed this week that the universities participating in the HathiTrust -- a joint digital storage project -- are
protected from copyright liability by fair use principles.
The group is asking the Second Circuit Court of Appeals to uphold U.S. District Court Judge Harold Baer's decision that the project is legal.
The HathiTrust's mass digitization initiative “furthers the fundamental aims of copyright law -- fostering the creation and dissemination of new ideas -- without unduly encroaching on (and, in fact, in many cases promoting) the economic interests of authors,” the groups argue.
The case dates to September of 2011, when the Authors Guild brought a copyright infringement lawsuit against the HathiTrust -- a project of the University of Michigan, University of California, University of Wisconsin, Indiana University and Cornell University. The National Federation of the Blind intervened in the lawsuit in favor of the universities. The organization argued that the HathiTrust's digital library was "revolutionary" for blind people.
Baer ruled last year that the HathiTrust is protected by fair use principles, describing the project as an "invaluable contribution to the progress of science and cultivation of the arts.” In his decision, he said that digital copies are transformative -- which is one of the factors looked at when deciding whether copies are fair use. Baer noted in his decision that digital copies are searchable in a way that print copies are not, and that they "facilitate access for print-disabled persons."
The Authors Guild appealed that decision to the New York-based Second Circuit Court of Appeals. The organization says that the libraries' actions “subvert the fundamental premises of copyright law,” and “threaten to decimate existing and developing markets for literary works.”
The digital rights groups argue that Baer correctly ruled that the project is transformative. “It is well-established that technological uses like the [HathiTrust Digital Library] are 'transformative' because they serve a new and different, albeit functional, purpose,” the groups argue. “Numerous appellate courts have found that using works for the specific technological purpose of indexing and search -- both as they are used in this case and even where they display the works -- are transformative.”
The appeal has drawn the interest of several outside organizations, including the Motion Picture Association of America. That group contends that Google's involvement with the HathiTrust gave the project a commercial purpose that weighs against the conclusion that it's protected by fair use.