The HathiTrust is a partnership of major research institutions and libraries working to ensure that the cultural record is preserved and accessible long into the future. There are more than sixty partners in HathiTrust, and membership is open to institutions worldwide. The HathiTrust digital library is comprised of nearly 10 million scans that resulted from the Google Library Project and other digitization efforts by research libraries.
Digitizing these works has made identifying and locating high quality sources of information—both copyrighted and public domain works—far easier, thereby significantly increasing the value of library collections in support of research, teaching, and learning. The collection also enables cutting edge data mining and textual analysis by making the corpus of printed books intelligible to computer algorithms. Finally, because the HathiTrust digital library consists of high-quality digital files which are in specialized formats enhanced with tagging and metadata that render them accessible to the print disabled, for the first time in human history, members of the HathiTrust can provide patrons with qualifying disabilities equitable access to their research collections.
In addition to preservation, search, and accessibility, there is long-standing interest in identifying books whose rightsholders (publishers and authors) are difficult to identify or locate, leaving libraries as the sole custodians. These "orphan works" comprise a significant percentage of ARL collections, and there is deep interest in making these works discoverable and more accessible. Toward that end, the University of Michigan announced the initiation of an Orphan Works Project. The Project sought to identify US digitized books held by HathiTrust whose owners were difficult or impossible to find.
On September 12, 2011, the Authors Guild, together with authors’ associations from Australia and Quebec and eight individual authors, filed suit against HathiTrust and five universities claiming that the making, storing, and providing access to digital scans of copyrighted works is illegal, objecting particularly to the Orphan Works Project. The suit targets Orphan Works Project participants who are also library partners in the Google Books project, leaving out institutions that participated in only one of the two projects. The suit asked a federal court to bar HathiTrust and its partners from going forward with the Orphan Works Project, but it goes much further, asking the court to “impound” all copyrighted works in the HathiTrust collection, placing them in a dark archive with no network connection pending any relevant legislation. This would affect roughly two-thirds of the works in the HathiTrust collection. The suit does not seek money damages, but it does ask the judge to award legal fees.
Given the extraordinary benefits of HathiTrust for the blind and print disabled, the National Federation of the Blind, together with several individual print disabled persons, intervened in the case *as defendants*. The NFB's compelling briefing and participation in the oral argument of the case was certainly a key factor in the HathiTrust's eventual victory in the district court.
Shortly after the suit commenced, Michigan suspended the Orphan Works Project indefinitely.
As part of the Library Copyright Alliance, ARL filed two friend-of-the-court briefs in the district court. The LCA's first amicus brief focused on the question of whether libraries had any fair use rights at all; the Authors Guild argues (contrary to the history and text of the Copyright Act) that libraries must rely entirely on the narrow exceptions described in Section 108. The LCA's second amicus brief, which was joined by the Electronic Frontier Foundation, made the broader case that the HathiTrust's activities were legitimate fair uses.
On October 10, 2012, Judge Harold Baer of the Southern District of New York handed down a total victory for the HathiTrust and its partners. Judge Baer began by dismissing the Guild's claims about the Orphan Works Project, saying that the issue was moot until Michigan or another library decides to recommence the Project. He also held that each of the disputed activities of HathiTrust and its partners (preservation, search, access for the print-disabled) is a transformative fair use, a finding that tracks Principles Three, Five, and Seven of the ARL Code of Best Practices in Fair Use for Academic and Research Libraries. On the fair use issue, Judge Baer concluded that,
I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendants’ [mass digitization project] and would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts that at the same time effectuates the ideals espoused by the Americans with Disabilities Act.
Finally, Judge Baer found that the services that HathiTrust provides to print disabled users are protected by Section 121, the Chafee Amendment, which allows creation and distribution of accessible books without copyright holder permission. Judge Baer held that because of the requirements of the Americans with Disabilities Act, every library is a potential "authorized entity" under Section 121, a powerful holding that solidifies the right of libraries to serve all their patrons.
The Authors Guild appealed the decision to the Federal Court of Appeals for the Second Circuit. Once again, ARL participated as part of the Library Copyright Alliance, filing an amicus brief reiterating all of the arguments from the district court and defending Judge Baer's compelling decision, relying in part on the strong statement of shared library norms in the ARL Code.
On June 10, 2014, the Court of Appeals for the Second Circuit affirmed the lower court decision in Authors Guild v. HathiTrust in favor of HathiTrust Digital Library. The Second Circuit found that creating a full-text search database and providing access to the print disabled were clearly transformative fair uses. The court remanded the issue of preservation back to the district court to determine the standing of the plaintiffs to bring the claim; in doing so, the court did not express any opinion as to whether or not the preservation function was a fair use.
The Second Circuit began its fair use analysis by noting that while the Copyright Act certain exclusive rights, "there are important limits to an author's rights to control original and derivative works. One such limit is the doctrine of 'fair use,' which allows the public to draw upon copyrighted materials without the permission of the copyright holder in certain circumstances." In finding in favor of fair use, the Second Circuit noted that with respect to the fourth factor—effect on the potential market—"the copyright holder must point to market harm that results because the secondary use serves as a substitute for the original work."
Appeal Amicus Briefs from Other Organizations
Boards of trustees and regents of the University of Illinois, Michigan State University, University of Minnesota, University of Nebraska, Northwestern University, Pennsylvania State University, Purdue University (PDF) (June 4, '13)