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‘U’ wins copyright lawsuit against Hathitrust digitalization project

By Austen Hufford, Daily Staff Reporter
Published October 11, 2012

In a judgment issued Wednesday, the University won a lawsuit brought against it and other schools by The Authors Guild, Inc. and other author associations in September 2011 challenging the legality of its HathiTrust digitization program.

Federal District Court Judge Harold Baer, Jr. of the Southern District of New York ruled in a written opinion that HathiTrust — designed to digitize the books at the libraries of the University and other collaborating colleges — was an example of fair use and did not infringe upon copyright laws.

When copyrighted material is ruled to be in fair use, the work is legally permitted for use in certain circumstances — generally to benefit the public in “scholarship, teaching, and research,” Baer wrote in his ruling.

“The (Hathitrust program) allows scholars to identify relevant works far more efficiently,” Baer wrote. “In addition, the program helps Defendants preserve their collections in the face of normal deterioration during circulation, natural disasters, or other catastrophes that decimate library collections, as well as loss due to theft or misplacement.”

The Authors Guild, Inc., The Writers’ Union of Canada, the Australian Society of Authors and 12 individual authors filed the suit against the University, and other HathiTrust participant schools such as the University of Wisconsin and Indiana University.

The judge wrote that the case may set an important precedent for future digital copyright laws, noting there are comparatively few prior standards regarding digitization and its fair use.

“I cannot imagine a definition of fair use that would not encompass the transformative uses made by (the Hathitrust program) and would require that I terminate this invaluable contribution to the progress of science … ” Baer wrote.

When someone uses the database to search a word in a copyrighted book, the full text is not available; only the page number and number of occurrences in the book is shown. The defendants claimed this does not infringe on copyright law because copyrighted books cannot be read in their entirety through the Hathitrust system.

The system is also used for preserving physical texts in case the originals are somehow lost or destroyed. It already contains nearly 10 million volumes and about 73 percent of those are copyrighted, the ruling stated.

In order to actually digitize the works, the universities signed an agreement with Google. The company is being sued in a separate lawsuit by the same plaintiffs for adding parts of the scanned books to its Google Books online service. According to Wired Magazine, the lawsuit with Google is ongoing, and settlement talks are in the works.

The Orphan Works Project intended to allow full and free access to books with indeterminable copyright information. When the lawsuit was filed the program had not launched, and after a review of the program, the universities involved decided to postpone its debut. It is unclear if or when the program will launch in the future.

The judge wrote he could not rule on the legality of the Orphan Works Project because it never went into effect and is currently undergoing evaluation.

If a student is blind, the student is able to access all of the books in the system beyond only non-copyrighted works. Baer said giving access to copyrighted material for blind individuals was acceptable because the Americans with Disabilities Act allows libraries and other institutions to create blind-accessible copies of copyrighted works.

Baer added that the digitization program did not economically harm the plaintiffs and that establishing a similar commercial system would be too expensive and not commercially viable.

He also ruled that the plaintiffs had no legal standing to sue, noting that the authors associations and guilds could not sue for copyright violations on behalf of the authors who are the actual copyright holders.

“(The plaintiffs) can win on behalf of only themselves, but can lose on behalf of their members as well,” Baer wrote.

In a tweet, Jeff MacKie-Mason, the dean of the School of Information, expressed elation about the decision.

“Big win for searchable digital library of world's books: Judge Says Fair Use Protects Universities,” he tweeted.

Clarification: this article has been updated as of to more clearly reflect the University’s actions after the suit was first filed.


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