October 11, 2012
Authors Guild Loses Its Suit Against HathiTrust
The lawsuit filed by the Authors Guild, foreign associations, and individual authors against the HathiTrust and university defendants came to an unceremonious close yesterday. I’ll start with the conclusion of Judge Harold Baer’s opinion:
I have considered the parties’ remaining arguments and find them to be without merit. For the foregoing reasons, Plaintiffs’ motions are DENIED. Defendants’ motion for judgment on the pleadings is GRANTED in part and DENIED in part: the Associational Plaintiffs have Article III standing; the U.S. Associational Plaintiffs lack statutory standing; and Plaintiffs’ OWP claims are not ripe. Defendants’ and Defendant Intervenors’ motions for summary judgment are GRANTED: their participation in the MDP and present application of the HDL are protected under fair use. The two unopposed motions for leave to file briefs as amici are GRANTED. The Clerk of Court is instructed to close the seven open motions, close the case, and remove it from my docket.
How’s that for finality. The case came about through the agreement several university libraries made with Google to scan their collections as part of the Google Book Project. The defendant universities were free to make use of these scans under the agreement. This birthed the HathiTrust Digital Library. The parallel litigation against Google continues, though the plaintiff publishers recently dropped out leaving the Authors Guild as the principle antagonist Plaintiff in that case. I note that the publishers declined to join this suit. The case against the HathiTrust was designed to secure a ruling that the scan and possible distribution of library collections was not fair use. As we can see, that goal failed. Several issues presented themselves in this case
To make clear, the abbreviated references in the quoted paragraph, MDP means Mass Digitization Project, OWP means Orphan Works Project and HDL means HathiTrust Digital Library. Judge Baer addressed several issues, one of which is whether the trade associations had standing to file suit on behalf of their members. The answer to that question was essentially yes, via the Constitution rather than the Copyright Statute itself. While important to the litigation, it is not the central issue to the broader library community.
The Orphan Works Project was intended to make available scanned titles that were in copyright though the copyright holder could not be identified. One of the individual author plaintiffs was misidentified as not findable by the University of Michigan. The mistake caused the University to halt the program and re-evaluate the process it used to designate a work as orphan. The Authors Guild sought a holding that the OWP violated the copyright law. The University argued and Judge Baer agreed that such a ruling would be based on something speculative since there was no current program in place and there was no replacement in the office. This was resolved by the ruling that the issue was not ripe for adjudication.
The first real issue was whether Section 108 of the Copyright Act precluded the library from utilizing fair use as a defense to a prima facie claim of copyright infringement. The section defines what libraries can do with the materials in their collections. Creating archival copies is allowed when an item is damaged or lost. The Guild essentially argued that the scanning project more than exceeded the allowable uses under Section 108. Section 108(f)(4) states however:
(f) Nothing in this section—
* * * *
(4) in any way affects the right of fair use as provided by section 107, or any contractual obligations assumed at any time by the library or archives when it obtained a copy or phonorecord of a work in its collections.
Judge Baer said the argument failed on the clear statutory text. The next question was whether the activity of the library qualified as fair use. It did as Judge Baer balanced the four non-exclusive factors listed in Section 107. I won’t go through the detailed analysis. One of the main reasons used by Judge Baer was the transformative nature of the scans. They did not act as an alternative to the book in the market. The transformation came in the digital index created out of the scans. Scholars and researchers could make use of the index to search for word occurrences and references to pages with an indication as to how many hits appeared on a page. The Guild argued that it contemplated the creation of a licensed service that may offer the same capability. Judge Baer, citing case law, said the courts do not preclude an allowable alternative because something may happen in the future.
One of the other major factors in Judge Baer’s decision is the relevance of the Americans With Disabilities Act to the case. The University used the digital collection to make works more easily available to blind and seeing-impaired students. While the scanning project was not mandated by the Act, the use of the materials once scanned was authorized. I won’t go into the arguments raised by the Guild, but I will offer part of Judge Baer’s response from footnote 25:
25Plaintiffs suggestion at oral argument that print-disabled individuals could have “asked permission” of all the rights holders whose works comprise the HDL borders on ridiculous. Aug. 6, 2012 Tr. 11:13–12:8.
There were other parts of the opinion where the Guild’s arguments received similar (and deserved) treatment.
So what is next? I assume the Guild will appeal to the Second Circuit. There is no statement on the Guild’s web site (at least of this writing) on the outcome. I would suspect this ruling would bolster Google’s defense against the Guild in the parallel litigation in Judge Chin’s courtroom. The case is not quite the same in that Google claims indexing and providing snippets is fair use. The use made by the HathiTrust defendants does not offer snippets or make the underlying scan available otherwise. Assuming this case holds up on appeal, Google would be safe to do the same if it came to that.
Further analysis is available from Kevin Smith on the Scholarly Communications @ Duke blog. There are links to a copy of the opinion. Both are well worth reading. [MG]