March 17, 2018

Appeals Court Upholds Wins for Fair Use in HathiTrust Case

Hathi Trust logoOn June 10, the U.S. Second Court of Appeals handed down its latest decision in the continuing legal battle between the HathiTrust and the Authors Guild, and it is good news for fair use advocates. A three judge panel largely confirmed the decision handed down in 2012, which found that the HathiTrust’s activities of digitizing books from its member libraries and increasing their discoverability by letting users search for key terms within titles are fair use. The court also upheld Baer’s finding that the Guild lacks standing to bring cases as an association, though individual members can do so.

In its lawsuit, the Authors Guild claimed that the HathiTrust was overstepping the bounds of fair use and infringing on author’s copyrights by digitizing millions of books from the collections of its member libraries, as well as by making the titles accessible to disabled readers. A 2012 decision by Judge Harold Baer, Jr. found that HathiTrust’s activities were protected by fair use principles, and was appealed by the Guild, sending it to the panel that handed down its decision earlier this week. .

HathiTrust executive director Mike Furlough characterized the confirmation of Baer’s ruling as a big win for the organization, but not one that necessarily said a lot new about fair use generally. “We have been working for years to expand the access to the collections of our membership,” Furlough told LJ. “This ruling says to us ‘you are doing what you need to do, and it is lawful.’”

Taken alongside the recent Google Books decision issued earlier this year by Judge Denny Chin, Furlough said the courts have recently confirmed what fair use advocates have been saying for years, giving HathiTrust and similar organizations the confidence to double down in their work. “It provides that much more certainty that we have legal space in our mission to be able to preserve and make accessible collections we already hold,” Furlough said. While upholding making works accessible, as well as empowering full text searches, the panel declined to address the part of the case that concerned preservation, on the grounds that the issue is speculative.

Baer’s holding that libraries could replace old or worn out copies of books they owned with copies obtained from HathiTrust’s digitization efforts, was therefore returned to the lower court. Though what court that decision will end up in is an open question following Baer’s death earlier this year.

The Authors Guild, meanwhile, was more circumspect about what the appeal ruling represented for publishers and fair use advocates. “The decision was not a total victory for either side,” Guild representatives wrote in a statement. “While the Court, over our objections, allowed HathiTrust to maintain its database of digitized books in light of the present security protections, the Court was clear that any breach of that security leaves HathiTrust at risk of future litigation.” The Authors Guild did not respond to requests from LJ for a comment on this story, and whether the Guild intends to pursue the litigation in a further appeal is unclear.

University of California Berkeley law professor and co-founder of the newly formed Author’s Alliance Molly Van Houweling contends that the current ruling is a win for fair use advocates and authors alike, saying that, rather than demonstrating harm to publishers’ bottom lines, the HathiTrust case actually shows how fair use applications can be a boon to authors. “Fair use serves authors who want to be found, not forgotten. HathiTrust allows readers to find books that might otherwise be forgotten in its collections to either check it out from the library or purchase it,” Van Houweling told LJ. Helping readers find relevant resources is a classic function of libraries, and shows what a friend to authors libraries are, not only in acquiring authors’ books, but also helping readers find them. For authors who want to find new readers, that’s a critical function.”

While it is too early to call the case over—the Authors Guild could still appeal the most recent ruling to the U.S. Supreme Court—Furlough is hoping that the decision will allow HathiTrust to focus on other aspects of its mission going forward. These include the organization’s continuing efforts to help coordinate the digitization of government documents and its work in establishing the HathiTrust Research Center, which aims to improve the searchability of documents and help researchers and academics turn the Trust’s significant resources into new scholarship.

Ian Chant About Ian Chant

Ian Chant is a former editor at LJ and a freelance journalist whose work has appeared in Scientific American and Popular Mechanics and on NPR.

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  1. From the above Second Court of Appeals Ruling at 28-24:

    ‘In light of its understanding of the market (or lack thereof) for books accessible to the blind, the
    Committee explained that “the making of a single copy or phonorecord by an individual as a free service for a blind persons [sic] would properly be considered a fair use under section 107.” Id.
    We believe this guidance supports a finding of fair use in the unique circumstances presented by print‐disabled readers.’

    From the same HR 94-1476 paragraph from which the above was quoted:

    “For the most part, such copies and phonorecords are made by the Library of Congress’ Division for the Blind and Physically Handicapped with permission obtained from the copyright owners, and are circulated to blind persons through regional libraries covering the nation.”

    From 1976 until the Chafee Amendment was enacted in 1996 — and drafted with the help of the intervenor NFB — the Library of Congress itself was still required to obtain permission from the Publisher to make an access copy.

    • Pursuant to above, Senator John Chafee’s 1996 Senate Floor remarks upon the introduction of the ‘Chafee Amendment’:

      The National Library Service (Library of Congress) selects the books to reproduce in these specialized formats.

      Frequently, the National Library Service issues request after request only to wait months for a response from the publisher. These delays are not because the publishers have a desire to withhold permission; it is simply a low priority. They just set it aside.

      There are still 17 books from the 1995 best seller list for which permission is still pending.