Lawyers for the HathiTrust, the digitization initiative of some 40 university libraries, filed its answer to the Authors Guild lawsuit, asking the suit be dismissed for a variety of reasons and suggests it possible defenses. Meanwhile, just before Thanksgiving, the court issued a trial schedule. If the case is not dismissed or otherwise settled, discovery is set to wrap up on May 20, 2012, with a trial set for November.
On procedural grounds, lawyers for HathiTrust claim the Authors Guild suit should be dismissed because the libraries are protected by state sovereign immunity, and also that the HathiTrust is in fact “a service” of the University of Michigan, and not a “distinct legal entity that can be sued." On the merits, meanwhile, lawyers claim the libraries’ activity are permissible under fair use, section 107 of the Copyright Act, as well as sections 108, the library exemption, and sections 109, 110, and 121.
The Authors Guild filed suit in September, along with two other international writers groups and eight individual authors, alleging that HathiTrust is built with millions of “unauthorized” scans created by Google. The suit seeks an injunction barring the libraries from future digitization of copyrighted works; from providing works to Google for its scanning project; and from proceeding with its plan to allow access to “orphan works.” It also asks the court to “impound” all unauthorized scans and to hold them in escrow “pending an appropriate act of Congress."
Formed in 2008, HathiTrust was initially led by the University of Michigan, a pioneer in library digitization efforts, which aggressively opened its entire library collection to Google's scanners in 2005 in return for a so-called “library copy” of the books Google scanned. HathiTrust is a collaborative effort, though, and now numbers over 50 partners, with a digital collection of nearly 10 million digitized volumes, the bulk of which were created by Google's scanners, in concert with the librarians.