Authors, Copyright, and HathiTrust

by Kenneth Crews on September 13, 2011

On September 12 of this year The Authors Guild, Inc. and other societies and individual authors filed a copyright infringement lawsuit against HathiTrust and five universities over making, storing, and providing access to scans of digital books.  HathiTrust may be well known among library professionals, but this lawsuit is certain to draw considerable new attention to the initiative.  HathiTrust is a tremendously valuable resource, offering the ability to search a vast collection of digitized books, and in many cases retrieve the full text and have access to the full scan.

These links offer some background:

The allegations of infringement are based on a series of actions by the university libraries and HathiTrust, much of it as an outgrowth of the Google Books project.  The libraries have since 2004 allowed Google to digitize many of their books, and in return the libraries have received a copy of the electronic files.  The libraries have contributed many of the Google digital files to the collection of HathiTrust.  Pooling the digital books in one location has had several benefits, including efficiencies of scale for digital storage and an interface for searching the full collection simultaneously.  The original scanning, the duplicate files, the mirror storage of HathiTrust all involve reproductions of the books, and that copying is the leading grounds for the claim of infringement.

As in any case, one should refrain from judgment based on only the complaint.  But this case promises to stir interesting and important issues about reproduction and copies, and about fair use and Section 108 of the Copyright Act—the statute that allows libraries to make copies for preservation and other purposes.  It is also about orphan works.  American copyright law has no provision to safeguard the users of orphan works, other than an interpretation of fair use.  Under the auspices of fair use, HathiTrust is currently preparing to launch an initiative to permit libraries and their users to access some digital files of books in the library collections that are deemed to be orphans.

If the litigation progresses, fair use will figure prominently.  In the meantime, these two issues of complication are dominant:

Orphan Works.  The complaint is about much more than just the orphan work initiative at HathiTrust, but orphan works receive ample attention.  Orphans seem to be emphasized in the complaint as an example of the expanded use of the digital files that HathiTrust is clearly willing to pursue.  For the libraries and users, that may be a good thing.  For the rightsholders in this complaint, it is far overreaching.  Moreover, the complaint cites the Google Books case and the failed efforts by Congress to enact orphan works law to argue that orphans need a legislative solution—not a private innovation.

Google Books Settlement.  This case may mean nothing or everything.  We will know soon.  The parties to the Google Books case are due in court this week, on September 15.  The Authors Guild is bringing the case against HathiTrust, and Guild is also a party to the Google Books case.  The HathiTrust case probably signals that the Google parties have not reached a new settlement, and libraries and universities will be pulled into the renewed litigation.  It could by contrast signal that the parties have reached a settlement and want steer all e-book activity away from HathiTrust into a licensing system that will be part of the settlement.  Stay tuned.

This case raises many more issues, but these are my initial thoughts.  The opinions here are not necessarily the views of Columbia University.  I welcome your thoughts.

Kenneth Crews
September 12, 2011

Want to read more?  Here is a sampling of other reports and summaries about the lawsuit:

 

When making use of this page under the terms of the CC license, please include this form of attribution: "Used under a Creative Commons BY-ND license from Kenneth D. Crews."  If your needs for the material are outside the scope of the license, please consider fair use or simply asking for permission.

 

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