Although the Google Book Settlement has been rejected by the court, one reason the parties were even able to reach an agreement was by avoiding the question of whether Google’s scanning of copyrighted books was a violation of fair use. The issue came up late last year when the Authors Guild led a group of copyright holders in filing a lawsuit against HathiTrust contending that its scanning program in which Google has converted millions of books into digital files stored by the Trust was copyright infringement. Now the Guild is placing the question of fair use front and center in a motion filed February 28 that asks the judge hearing the case to issue a “partial judgment on the pleadings,” and rule that the unauthorized digitization is in fact not protected by fair use.

According to the Guild, they are filing the motion because the group of university libraries and the HathiTrust “not only concede that they have engaged in the mass book digitization project at issue, but admit to acts that Congress has expressly prohibited under Section 108 of the Copyright Act.” The motion asks Judge Baer to order that the “Defendants’ admitted systematic reproduction, distribution, and use of millions of copyright-protected books are not shielded by the First Amendment, the fair use defense, or any other provision of the Copyright Act.”

In the filing, the Guild attorneys assert that Section 108 of the Copyright Act permits libraries and archives to reproduce copyright-protected literary works for two limited purposes: to maintain a library’s existing collection and to fulfill the requests of readers and researchers using a library or, through interlibrary loan arrangements, to fulfill the requests of researchers using other libraries. But, according to the motion, the “Defendants admit to a mass book digitization program and ‘orphan works’ project that violate nearly every restriction imposed by Section 108.” After giving a number of examples where the Guild says the HathiTurst and its partners either “admit” violations of Section 108 (“Where Section 108 permits a library to create at most, and under limited circumstances, three duplicates of a work, Defendants admit to routinely making five (actually ten, as shown below) or “threaten” to violate the section (“where Section 108 authorizes a library to make uses of “orphan works” during the last twenty years of their copyright term, Defendants threaten to begin exploiting purported orphan works decades before they are permitted to do so,” the motion states that “given Defendants’ admitted conduct, there is no reason for the parties to engage in extensive discovery regarding the defenses they assert. Plaintiffs respectfully urge the Court to hold that Defendants’ mass book digitization and orphan works projects are not protected by any defense recognized by copyright law.”

If Judge Baer decided to rule on the motion he will make a decision based on the Guild's original complaint and the HathiTrust's answer. Even if he grants the motion, other parts of the case will move forward. The HathiTrust has about three weeks to reply to the Guild.