[Libs-Or] LCA Comments on Authors Guild v. HathiTrust Decision

Diedre Conkling diedre08 at gmail.com
Thu Oct 11 12:23:48 PDT 2012

You have probably been reading all day about the decision in Authors Guild
v. Hathi Trust all day but I thought I would still send you the information
from the ALA Washington office in "District Dispatch."


LCA Comments on Authors Guild v. HathiTrust Decision
Posted on October 11, 2012 by Corey Williams |

The Library Copyright Alliance <http://librarycopyrightalliance.org/> (LCA)
welcomes Judge Baer's
yesterday that the HathiTrust Digital Library's (HDL) use of
digitized works is a fair use permitted under the Copyright Act. Judge
Baer's key holding was:

I cannot imagine a definition of fair use that would not encompass the
transformative uses made by [HDL] and would require that I terminate this
invaluable contribution of the progress of science and cultivation of the
arts that at the same time effectuates the ideals espoused by the ADA.

Judge Baer's ruling not only allows HathiTrust to continue serving scholars
and the print disabled, but it also provides helpful guidance on how future
library services can comply with copyright law.

The HathiTrust Digital Library is operated by a consortium of universities,
including the University of Michigan, the University of California, the
University of Wisconsin, Indiana University, and Cornell University. Many
of the 10 million digital volumes in HDL were provided by Google in
exchange for the universities' allowing Google to scan books in their
collections for the Google Library Project. The Library Project is the
subject of two separate cases, one of which settled last week. HDL is used
in three ways: full-text searches; preservation; and access for people with
print disabilities. HathiTrust was sued by the Authors Guild (AG) and
several other authors' associations in 2011.

Judge Baer cited the two amicus briefs that LCA filed in this case. First,
when rejecting the AG's contention that the library exceptions in section
108 somehow limit the fair use privilege in section 107, Judge Baer stated
that the LCA brief "further convince[s] me that fair use is available as a
defense for the Defendants." Then, when balancing the fair use factors,
Judge Baer observed that the LCA brief "further confirm[s] that the
underlying rationale of copyright law is enhanced" by the HDL.

Judge Baer made numerous helpful holdings:

   - An association does not have standing under the Copyright Act to bring
   infringement suits on behalf of its members.
   - As noted above, the library specific exceptions in section 108 do not
   restrict the availability to libraries of fair use under section 107.
   - The creation of a search index is a transformative use under the first
   fair use factor: "The use to which the works in HDL are put is
   transformative because the copies serve an entirely different purpose that
   than the original works: the purpose is superior search capabilities rather
   than actual access to copyrighted material."
   - The use of digital copies to facilitate access for the print-disabled
   is also transformative. Because print-disabled persons are not a
   significant potential market for publishers, providing them with access is
   not the intended use of the original work.
   - The AG failed to show that HDL created any security risks that
   threatened AG's market.
   - AG's suggestion that HDL undermines existing and emerging licensing
   opportunities is "conjecture."
   - The goals of copyright to promote the progress of science are better
   served by allowing HDL's use than by preventing it.
   - The University of Michigan is an authorized entity under the Chafee
   Amendment, 17 USC 121, because it has "a primary mission" to provide access
   for print-disabled individuals.
   - The Americans with Disabilities Act "requires that libraries of
   educational institutions...reproduce and distribute their collections to
   print-disabled individuals."

The Library Copyright Alliance (LCA) consists of three major library
associations--the American Library Association, the Association of Research
Libraries, and the Association of College and Research Libraries. These
three associations collectively represent over 300,000 information
professionals and thousands of libraries of all kinds throughout the United
States and Canada.

*Diedre Conkling**
Lincoln County Library District
P.O. Box 2027
Newport, OR 97365
Phone & Fax: 541-265-3066
Work email**: **diedre at lincolncolibrarydist.org*<diedre at lincolncolibrarydist.org>
Home email: **diedre08 at gmail.com* <diedre08 at gmail.com>

 "If you don't like something, change it. If you can't change it, change
your attitude."--Maya Angelou
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