The Second Circuit of Appeals released a ruling this morning which largely upheld Judge Harold Baer’s October 2012 decision in The Authors Guild v HathiTrust, and went one step better. The court affirmed that the HathiTrust’s book scanning efforts were fair use, and they also ruled that The Authors Guild had no standing to sue in the first place.
The HathiTrust Digital Library is a consortium of universities and public libraries. Firmed in 2008, this group had the goal of digitizing out of print and rare tomes in their collections in order to preserve the works and make them more widely available. A number of these organizations have also participated in the similar Google Books project, but unlike Google HathiTrust has no plans to commercialize their efforts.
The Authors Guild, along author groups in Canada, Norway, Australia, and Sweden, sued the HathiTrust in 2011, alleging that the book scanning amounted to copyright infringement. In October 2012 Judge Baer ruled in favor of the HathiTrust, issuing a summary judgement which stated, in part, “Although I recognize that the facts here may on some levels be without precedent, I am convinced that they fall safely within the protection of fair use”.
The author groups of course appealed the ruling, and today they lost.
The Appeals Court ruled that “the doctrine of fair use allows defendants-appellees to create a full-text searchable database of copyrighted works and to provide those works in formats accessible to those with disabilities”, thus giving the HathiTrust a green light to continue their work.
In addition, the Appeals Court also sidestepped one of the issues, noting that the HathiTrust’s intention to let member organizations create a replacement copy of a scanned book was outside the scope of this trial. The Appeals Court pointed out that it’s not clear “whether the plaintiffs own copyrights in any works that would be effectively irreplaceable at a fair price by the Libraries and, thus, would be potentially subject to being copied by the Libraries in case of the loss or destruction of an original”.
And finally, the Appeals Court declined to rule on the University of Michigan’s related Orphan Works Project, stating that “the infringement claims asserted in connection with the OWP were not ripe for adjudication because the project has been abandoned and the record contained no information about whether the program will be revived and, if so, what it would look like or whom it would affect”.
It’s also worth noting that the Appeals Court also ruled that 3 of the author groups who were plaintiffs (The Authors Guild, Australian Society of Authors Limited, and Writers’ Union of Canada) did not have standing to sue under US law. As was pointed out by the Appeals Court, US, Canadian, and Australian copyright law “does not permit copyright holders to choose third parties to bring suits on their behalf”. Only 4 of author groups are ruled to have standing to proceed on this claim based on their respective national copyright laws.
It’s a shame no one noticed that years ago when the Google Books lawsuit was originally filed; it would have short-circuited years of litigation.
image by archer10 (Dennis)