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The HathiTrust Case and Appeal: Fair Use and Technology

In October 2012, Judge Harold Baer of the U.S. District Court in New York ruled in favor of the HathiTrust Digital Library (HDL) and its university partners in a copyright infringement suit brought by the Authors Guild (AG) and other groups. In his ruling the judge dismissed the AG’s arguments that the HathiTrust had violated copyright law by making scanned works available for certain uses.  The plaintiffs have filed an appeal in the Court of Appeals for the Second Circuit.  (Note: For an extended examination of the case see the EDUCAUSE Policy Brief on this topic.)

For the EDUCAUSE community it is important to recognize that this decision was a decisive win in favor of fair use and the transformational use of technology within the educational enterprise.  This opinion along with the Georgia State electronic reserves opinion and the UCLA streaming video opinion seem to show a favorable legal pattern that colleges and universities making technological uses of copyrighted works for educational purposes are not violating the law.  As James Grimmelmann, Professor of Law at New York Law School, writes, “Something significant in judicial attitudes towards copyright, computers, and education has clicked into place of late.”

A consortium of universities operates the HathiTrust Digital Library, including the University of Michigan, the University of California, the University of Wisconsin, Indiana University, and Cornell University.  Google partnered with these universities in 2005 to scan millions of books in these universities’ libraries and to make “snippets” of those books available online via Google’s search engine.  After Google scanned each book, it provided a digital image and a text version of the book to the library that owned the original.  In turn, the libraries contributed the files to the HDL, which uses them for three purposes:

  • full-text searches
  • preservation
  • access for people with certified print disabilities

According to the Authors Guild, this process created two unlawful copies of the original and, therefore, violated copyright.  The Authors Guild sued the HathiTrust in 2011. 

While the judge did not rule that all scanning for every purpose by universities should be considered fair use, he instead focused on the transformative nature of the libraries' use.  Overall the opinion offers an analysis of and an insight into fair use that should be helpful to higher education when evaluating potential digitization projects in fulfillment of its teaching and research mission.

The Second Circuit will decide later in 2013 whether or not to hear the appeal. EDUCAUSE has signed on to an amicus brief in support of the HathiTrust that was filed on June 4, 2013 by the American Council on Education (ACE), the Association of American Universities (AAU), the Association of Public and Land-grant Universities (APLU), the American Association of State Colleges (AASC), the American Association of Community Colleges (AACC), and the National Association of Independent Colleges and Universities (NAICU), which comprise seven non-profit associations whose members include the majority of American public and private colleges and universities.  As stated by the signers, the primary reason for the brief is that "copyright fair use issues presented here profoundly affect the public interest mission of amici and their members," and the belief that the "effort of the Authors Guild and its amici [distorts] the copyright fair use right into a narrow exception that does not encompass the hugely beneficial non-profit educational activities of HathiTrust and the university defendants would greatly impede teaching, learning, research, and scholarship – the very “Progress of Science” that the Constitution commands copyright laws to promote.  The Amici have a fundamental interest in protecting the higher education system against this result."

Fair use has been reaffirmed in the HathiTrust case as a critical social compact to further the creation of new knowledge.  Colleges and universities continue to lead the way in standing up for the open sharing of knowledge as this case demonstrates.  The fair use doctrine, however, is being challenged in the appeal, which is why EDUCAUSE joined in the amicus brief.

EDUCAUSE will continue to monitor and report on this issue.