Authors Guild v. Hathi Trust: A Big Victory?

Read the headlines and short phrases from these posts and let me know what you think

What did you get from them? Even if you didn’t click on any of the links and read anything more than what I’ve provided here, you probably got that a) there was a lawsuit between the Author’s Guild and Hathi Trust (if you were versed in the conventions of how court case names are written, you may have gotten that the plaintiff in this case is the Author’s Guild and the defendant Hathi Trust) and b) Hathi Trust won the case and this smashing victory was much heralded. You would’ve been right on both counts, but just to add a little to the bare bones to the case, the background is this

Defendants [Hathi Trust, the University of Michigan, California, Wisconsin, Indiana, and Cornell] have entered into agreements with Google that allow Google to create digital copies of works in the Universities’ libraries in exchange for which Google provides digital copies to Defendants . . .

For works with known authors, Defendants use the works [i.e. the digital copies] within the HDL [Hathi Trust] in three ways: (1) full-text searches; (2) preservation; and (3) access for people with certified print disabilities. The full-text search capabilities allow users to search for a particular term across all the works within the HDL. For works that are not in the public domain or for which the copyright owner has not authorized use, the full-text search indicates only the page numbers on which a particular term is found and the number of times the term appears on each page. (From Judge Baer’s ruling)

So to recap, nonprofit university libraries have digital copies of copyright materials for which they made the following uses: (3) they let blind students registered on their campuses have access to the digital copies which — unlike the print copies — the students can “read” via a tactile screen, (1) they indexed the digital copies so that your can search for particular terms and get a frequency count as well as the locations within the book that those terms appear (e.g. “Daniel” 4 times, p. 2, 5, 17, 80), and (2) they kept the digital copies for preservation. The preservation copies are secured and non-circulating.

For doing this libraries got sued by the Author’s Guild. Now, I agree with James Grimmelmann, Nancy Sims, and Kevin Smith, the authors of the posts linked to above, that Judge Baer’s decision ruling that libraries do not infringe on copyright holders’ rights when they make the digital copies and use them in these ways is a great victory. It’s a great victory in that if the Judge had ruled against the libraries and Hathi Trust, then these entities would’ve been in big trouble. Hathi Trust probably would have had to limit its operations from now on to only public domain works, or even more narrowly pre-1923 published works given the difficulties/costs of assessing copyright registration and renewals. Libraries and students would’ve lost out on any actual and potential benefits these digital copies of in-copyright works could’ve provided. It’s also a great victory because Judge Baer used very strong language in his decision; for instance, writing “I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendants’ MDP 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 ADA”.

That said, I’m dismayed that at how limited are the uses of the copyright materials that Hathi Trust made and still got sued. How could authors have objected to print-disabled students getting access to books that they can now read? Do they want to take away the proverbial candy from the blind kids? Didn’t they think of the bad press that such objection would’ve created? Even if they had succeeded in their suit, would they really have made enough money from providing access to these blind students under their own terms to make the effort worth the lawyers’ fees as well as bad publicity?

Even leaving aside the blind students — what a publicity nightmare — the fact that this suit was even brought is hardly encouraging news. Hathi Trust had ambitions to do much more than it is currently doing. For example, the organization was looking to allow access to the full-text to students from those campuses that contributed the print copies. On the theory that because the print copies would’ve been withdrawn and perhaps no more than one student would’ve been allowed to access the digital text at one time, then even though reproduction (copying) of the content was made, no more copies of the text exists than before and so a use would’ve deemed fair. Hathi Trust never made such use of the copies. It shied away from doing this partly because of technical difficulties but also partly because of fear of litigation. Yet a lawsuit still ensued.

Moreover, we have no more insight into how to deal with orphan works — works still in copyright but for which the rights holders cannot be identified — than before. This is because although Hathi Trust briefly attempted to make some headway with orphan works, it scrapped the program after the Author’s Guild reaction and lawsuit. As a result, Judge Baer made no ruling on the issue of orphan works (he could hardly have done otherwise under the circumstances), but it means we’re left with the same body of works for which no uses can be made and no case law to illuminate the way out. This is just money being left on the table! How inefficient!

Judges and many people in-the-know have said that the orphan works problem is something that our legislature has to deal with. The Register of Copyrights has also made the effort to  “create a legal framework to facilitate the authorized use” of orphan works a priority. Despite all this talk, however, I’m not very optimistic that our deadlocked Congress is going to get to the problem any time in the near to medium-term future.

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