A lawsuit filed by the Authors Guild in the fall of 2011 against five HathiTrust Digital Library institutions, including the University, formally concluded Jan. 6.
According to Mike Furlough, the University’s executive director of HathiTrust, the lawsuit has been formally settled.
HathiTrust is a coalition that compiles millions of digitized titles from its 100-plus academic and research library partners and the University is one of its founding members. Its website, hathitrust.org, gives users around the world the ability to conduct full-text searches of its 13 million volumes. It further preserves works —many of which would otherwise only be available in their print copy forms — by maintaining them online and provides book access to people with certified print disabilities.
The original lawsuit cited allegations of copyright infringement against the University and four other HathiTrust contributors — Indiana University, University of Wisconsin, Cornell University and the University of California system.
Similarly, the Authors Guild filed an additional lawsuit against Google for its digitization of works.
The Authors Guild filed the lawsuit believing that these universities’ digital HathiTrust collections infringed upon copyright laws, citing the fact that HathiTrust did not ask the permission of copyright holders before digitizing their works.
In a 2012 decision, Judge Harold Baer of the U.S. District Court for the Southern District of New York ruled all of HathiTrust’s endeavors fall under fair use.
Fair use is a provision of copyright law that allows for the use of copyrighted works provided their use is for nonprofit educational purposes or that it doesn’t affect the market value of the copyrighted work, among other criteria.
Though the U.S. District Court for the Southern District of New York ruled in HathiTrust’s favor in 2012, the Authors Guild appealed the ruling. Ultimately, the U.S. Court of Appeals for the 2nd Circuit evaluated the case in 2014. Again the court ruled in HathiTrust’s favor, stating that no copyright laws had been violated. However, the court remanded the case back to the district court to settle disagreement over HathiTrust’s practice of replacing works that are lost or destroyed.
To resolve this element of the lawsuit, Furlough said the University cited Section 108 of the Copyright Act. This section states “it is not an infringement of copyright for a library or archives, or any of its employees acting within the scope of their employment, to reproduce no more than one copy or phonorecord of a work.”
Furlough said the Authors Guild accepted the stipulation, which led to the lawsuit’s official resolution.
The Authors Guild was unavailable for comment.
Paul Courant, a professor of public policy, economics and information who previously served as the University’s dean of libraries from 2007 to 2013, said he was glad to see the case officially come to a close.
“I’m very pleased that it’s over,” he said. “We’ve agreed to continue to make legal uses and to be careful. We were doing that all along and that now seems to be satisfactory. It concludes what has been a long and arduous experience of dealing with this lawsuit.”
Courant added that only occasionally have individual authors objected to having their pieces copied for HathiTrust’s digitization.
“Part of our point defined in this suit is that we haven’t done anything that would cut into the ability of authors, members of the Authors Guild and other copyright holders to do what they’re doing,” he said. “We never actually made anything openly available, except to people with print disabilities.”
For the general public, the only service that HathiTrust offers is the full-text search research capability. This service allows anyone on the web to search through digitized works and find where in the work their search item appears.
However, the full work itself is generally not made available. The only works that are made fully accessible are already available in the public domain or those whose copyright holders have granted explicit permission.
For Jack Bernard, the University’s associate general counsel, the end of this case means more time to focus on HathiTrust’s initiatives — one of which is its commitment to making works accessible for people with print disabilities.
“Until HathiTrust came along, the library was not equally accessible to patrons who had print disabilities,” Bernard said.
He noted that while other people are able to go to the library and easily access research materials, people with print disabilities are not.
“It may take a couple of months for someone to digitize those works or to read them into a tape recorder for you to even decide if you want to use those works,” he said.
Bernard, who is legally blind, said HathiTrust provides immediate accessibility to the books in its digitized collection and enlarges print in a way that makes accessing works efficient for him.
HathiTrust also provides people who cannot see at all the ability to listen to its books and read them in braille when using refreshable braille on their keyboards.
“It’s amazing technology that enables these 13 million volumes to be available to the people who need them,” Bernard said. “Think about what this means for scholars, researchers, students … anyone who has to interact with an academic library really for the first time in history will have access to the full library, or at least in every part of the library that’s already been digitized.”
“It’s not that we couldn’t have digitized the books before, it’s that they’re already digitized, that they’re there and available just like they are to the average patron who walks into the library who wants to work,” he added. “The National Library for the Blind and Handicapped has somewhere between 25 and 30 thousand digitized books. We have over 13 million digitized books. This is an enormous step forward that the University of Michigan heralded.”
Melissa Levine, the University’s lead copyright officer, said she was disappointed that the lawsuit was filed at all — constructive conversation, she said, would have been preferred.
“I am moved by the University of Michigan’s vision in creating HathiTrust, the vision that partnership represents, and the willingness of the University to fight for principles of central value and interest to the academy,” Levine said. “The University’s commitment to the principles at stake is inspiring — freedom of inquiry and the progress of knowledge, discovery as well as the fundamental need for preservation of the scholarly record in a way that makes possible access now and into the future.”