In a major ruling, Federal judge Harold Baer this week tossed the Authors Guild case against the HathiTrust. In granting the HathiTrust’s motion for summary judgment, Baer ruled that the scan program was a clear fair use under the copyright law, and in the process dealt a potentially fatal blow to the Authors Guild’s other long-running lawsuit filed against Google over its scanning program.
“Although I recognize that the facts here may on some levels be without precedent, I am convinced that they fall safely within the protection of fair use,” Baer wrote in his opinion, adding that he could not imagine “a definition of fair use” that would compel him to shut down what he called an “invaluable contribution to the progress of science and cultivation of the arts.”
The Authors Guild filed its copyright infringement suit, in September of 2011, a parallel action to its case against Google, alleging that the HathiTrust, a digital preservation effort created by a collective of research libraries, was built with millions of “unauthorized” scans created by Google. Among its arguments, the Guild argued that the program’s mass digitization was unprecedented under fair use; that the HathiTrust exposed authors works to security risks; and that the program deprived authors of a potential licensing market.
In his final analysis, however, Baer rejected each argument, finding that the scanning of books for the purposes of indexing is indeed a transformative act, with Baer acknowledging that copying entire works is after all necessary to offer full-text searching and access to the print disabled. Baer clearly was impressed by the access the project affords to the blind and print disabled (who had intervened in the case via the National Federation for the Blind), citing it often in his opinion and at one point writing that the “unprecedented ability of print-disabled individuals to have an equal opportunity to compete with their sighted peers” was perhaps the “most important” transformative use of the scans.
Baer went on the dismiss the remaining Guild arguments as speculative. Regarding security issues, he noted there was no evidence of any breach, and seemed satisfied with the HathiTrusts security measures. And on the question of market harm, he rejected the notion that the scanning preempted a licensing market, calling the claim “speculative, and, at best, minimal,” while agreeing with HathiTrust attorneys that such a market for licensing works for search was unlikely to develop.
PW contributing editor and New York Law School professor James Grimmelmann said the decision was not “exhaustive,” like the recent 350-page decision in the Georgia State e-reserves case, but was emphatic. “Judge Baer was completely unconvinced by the plaintiffs' arguments,” Grimmelmann observed. And, he added, the decision stands a major win for libraries, universities, and proponents of digitization.
“It’s becoming well-established copyright law that the ordinary operations of a search engine don't infringe,” Grimmelmann said, adding that Baer's opinion extends that in two ways. “First, he takes it from digital media to analog. The fact that the books were being digitized for the first time didn’t faze him. And second, he draws on the Digital Humanities amici's argument that the non-consumptive research uses of a digital corpus, such as new kinds of analyses based on text mining, don't hurt the market for books. That's a big win for everyone looking to digitize books and do unexpected things with them.”
The verdict also suggests that the end could be near for the seven-year legal fight over Google’s book scanning program. Last week, U.S. publishers dropped their suit against Google after a bare bones settlement. And while the Authors Guild’s case against Google is currently stayed, pending a procedural appeal, this verdict cuts to the heart of their case.
“This is a pretty serious blow to the Authors Guild,” Grimmelmann said. “The fair use ruling is substantially applicable to Google: yes, Google is commercial, but the transformative use and market harm points stand, and that's enough for a solid fair use victory. This seems like an appropriate time for the Authors Guild to take stock of the litigation, ask what it's accomplished for authors, and consider what the consequences of pressing on would be.”
No one from the Authors Guild was available Thursday morning to comment on the decision or on the possiblity of an appeal.