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Summary:

The Authors Guild has lost yet another legal battle in a long-running dispute over who can access digital copies of library books created under Google’s book-scanning program.

A federal appeals court ruled on Tuesday that the HathiTrust, a searchable collection of digital books controlled by university libraries, does not violate copyright, and that the libraries can continue to make copies for digitally-impaired readers.

The decision is a setback for the Authors Guild and for other groups of copyright holders who joined the lawsuit to shut down the HathiTrust’s operations. By contrast, it is a victory for many scholars and librarians who regard the database as an invaluable repository of knowledge.

More broadly, the appeals court decision is the latest in a series of rulings about how copyright law should apply to digital versions of the tens of millions of library books scanned by Google.

Access to millions of books

The unanimous ruling this week by three judges of the U.S. Second Circuit Court of Appeals affirmed a 2012 decision that preceded last year’s landmark ruling that declared that Google’s Book scanning project was fair use and had “many benefits.”

The HathiTrust itself is an offshoot of the Google project, which involved the search giant paying workers to scan the collections of major university libraries like Stanford University and the University of Michigan. Under the scanning arrangement, Google provided the partner libraries with a digital copy of each book it scanned.

A group of the university libraries, in turn, grouped their collection together under the HathiTrust name. The Trust retains four copies of each digital book: one copy on servers at the University of Michigan and at Indiana University, and two that it keeps as encrypted back-up tapes.

The HathiTrust allows the general public to search the contents of its entire collection but doesn’t display pages or even “snippets” as Google Books does. Instead, it only shows how many times a given search query appears in a book and on what page. And in a related program, the HathiTrust allows the visually impaired to obtain a large print or spoken-word version of the books in its collection.

Under the terms of the HathiTrust, a library can also turn to the collection to reproduce a new physical copy in the event that a book it once possessed is lost, destroyed or unavailable at a reasonable price.

Despite the limited availability of the HathiTrust collection, the Authors Guild and other writers’ organizations have been waging a prolonged legal campaign against it, arguing that the university libraries violated authors’ copyrights and that the HathiTrust is insecure and susceptible to hacking.

A searchable database is “quintessentially transformative”

The appeals court’s decision to uphold the lower court’s finding of “fair use” was widely expected, especially after the same court last year more or less instructed the judge presiding over the Google Books case to declare the scanning didn’t infringe copyright.

In the new ruling, the court recites a familiar four-part test that looks at factors like the “purpose of the use” and the effect the use has on the market for the original work.

Unsurprisingly, the appeals court concludes that “the creation of a full‐text searchable database is a quintessentially transformative use” that doesn’t pose any harm to existing or future markets of the copyright owners. The court also concluded that the HathiTrust’s policy of providing access to visually-impaired patrons was also a fair use — and that, in any case, the libraries were protected by the “Chafee Amendment,” which is a law that permits libraries to make reproductions to help “print-disabled individuals.”

Other portions of the ruling swatted away the Authors Guild’s objection that the creation of four copies was excessive, and pointed to “extensive security measures the Libraries have undertaken to safeguard against the risk of a data breach.”

The court, however, declined to rule on whether the HathiTrust’s preservation policy was fair use, instead sending it back to the lower court to determine if any of the copyright owner’s works had actually been affected by the program.

And, in a final blow to the Authors Guild, the appeals court ruled that the group had no standing to bring the case in the first place, and that such lawsuits have to be filed by actual copyright owners like publishers or writers. The judges did, however, let writers groups from Quebec and Scandinavia continue to pursue part of the case in the lower court.

It’s unclear if the Authors Guild, which is in the midst of an improbable appeal of last year’s Google Books decision, will challenge the ruling that it has no standing. The group has come in for criticism for its aggressive approach in the Google case and for its decision to sue the libraries:

Fate of “orphans” unclear, defining “transformative”

The appeals court’s decision in HathiTrust is mostly a dry and mechanical affair, but it does contain a nugget or two that will be of interest to copyright geeks and publishing types. These include a discussion of the HathiTrust’s aborted program to address “orphan works,” which is the term used to describe books whose copyright owner can’t be located.

As the court explains, the HathiTrust attempted to push some of the “orphan works” into broader circulation by first calling for the copyright owners to come forward and then, after a period of time, releasing the books to the general public. The Authors Guild had sought an order forbidding the HathiTrust from doing that, but the court declined to rule on the issue since the orphan program has been discontinued. This means the HathiTrust could relaunch the initiative (though the authors could then sue it anew).

Finally, the decision provides new guidance about the concept of “transformativeness,” a notion that some have come to consider (wrongly) as synonymous with fair use.

While upholding large parts of the initial judge’s decision, the appeals court did take issue with his definition of “transformative,” noting that:

Contrary to what the district court implied, a use does not become transformative by making an “invaluable contribution to the progress of science and cultivation of the arts.” [...] Added value or utility is not the test: a transformative work is one that serves a new and different function from the original work and is not a substitute for it.

The “transformative” comments may be welcomed by some lawyers, who are even debating among themselves about what exactly the concept means in a digital age.

You can read more details in the ruling below. I’ve underlined some of the relevant parts:

2nd Circuit on Hathi – Authors Guild

  1. Ha..Ha..Ha..In short Google can copy any book they want to whether you give permission or not. Hmmm…..

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  2. The ruling pertained more to the HaithiTrust which is an initiative of the National Digital Library, a group that was created in opposition to what Google was doing. The issue is not so much the copying as what you do with the copy once it’s created. Frankly, I think the Authors’ Guild is missing a golden opportunity to get more royalties for its authors. They should have applauded the digitization and worked out a deal to collect royalties for each access. Instead, they chose to try to shut down the whole digitization movement, extremely short-sighted, in my view.

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