Author’s Guild v. HathiTrust

Author’s Guild, et al. v. HathiTrust, et al., no. 12-4547-cv, (2d Circ., June 10, 2014)

The second in a set of lawsuits commenced by the Author’s Guild in an attempt to stem the tide of mass violations of the copyrights of book authors, this one seems to be a much more reasonable application of the “fair use” doctrine than the Second Circuit’s decision in Author’s Guild v. Google last year was.

In 2004, the University of California at Berkeley and a few other universities embarked upon a program to create scanned digital copies of the books in their collections. Four years later, the HathiTrust was set up to manage this digital library. By 2013, more than 80 institutions were participating in the program, and over 10 million works had been added to the collection. Since permission to reproduce these books had not been obtained, the program appeared to involve as many as 10 million copyright violations. The Court held, however, that the copying fell within the “fair use” exception to copyright protection.

HathiTrust makes its digital collection available free of charge to readers with “print disabilities,” i.e., people whose physical condition (such as blindness or inability to hold a book) makes them unable to read printed books. The Court reviewed the legislative history demonstrating Congress’s intention to allow, as “fair use,” free copies of copyrighted works to be made available to blind individuals. The Court extended the rationale for this rule to bring individuals with any kind of “print-disability” within the “fair use” doctrine.

The Author’s Guild also complained that HathiTrust furnishes digital copies to libraries to replace lost, stolen or destroyed physical copies. The Court dismissed this latter set of claims for lack of standing and ripeness.

Next, the Author’s Guild made the same kind of claim as it did in the Google case, that copying for the purpose of creating a searchable database of books infringes on the rights of individual copyright owners. Unlike Google Books, though, HathiTrust search results do not display pages-long “snippets” of text. In fact, no text at all is displayed. Instead, the user is only told if and how often the term appears. The Second Circuit Court of Appeals appropriately ruled this to be a transformative use that is permitted as “fair use” of copyrighted material. This limited kind of use does not involve unnecessarily excessive copying , and does not dilute the market for the works.

It is difficult to argue with the Court’s decision in this case. Accordingly, the Second Circuit is now one-for-one on its decisions relating to the permissibility of engaging in mass copyright violations for the purpose of creating searchable databases of copyrighted works.