In a ruling that’s sure to please Google Inc., an appeals court ruled Tuesday that a group of universities didn’t infringe copyrights by creating a digital library similar to the Google Books project.
In a 34-page decision, the U.S. Court of Appeals for the Second Circuit affirmed the dismissal of infringement claims by the Authors Guild against the universities and a digital library they created called HathiTrust. Affirming a 2012 decision by recently deceased U.S. District Court Judge Harold Baer Jr. in Manhattan, the appeals court held that HathiTrust is protected by the fair use defense.
HathiTrust and the universities, which include Cornell University and the University of Michigan, are represented by lawyers at Kilpatrick Townsend & Stockton, including Joseph Petersen and Joseph Beck. The Authors Guild is represented by Edward Rosenthal of Frankfurt Kurnit Klein & Selz.
HathiTrust is something of a proxy for Google. The library is filled mostly with books scanned by Google as part of its long-standing effort to digitize the world’s books, known as the Google Books project. When the universities created the library, they said their goal was partly to ensure the preservation of Google’s digital copies in case the company ever folded.
The Authors Guild brought a class action on behalf of authors against Google over its project in 2005. The parties reached a proposed settlement in 2008, but then-U.S. District Court Judge Denny Chin rejected the deal in 2011 because he thought it gave too much power to Google.
Still mired in litigation with Google, the guild brought a similar case against HathiTrust in 2011. The trade group was concerned about HathiTrust’s “orphan works” program, which would take works for missing copyright holders and make them freely available to students and faculty. Calling the program a “haphazard mess,” the Authors Guild claimed HathiTrust incorrectly labeled works as orphans. The universities leading that effort have since put it on hiatus.
The HathiTrust case eventually focused on three main aspects of the library: a full-text search feature that allows users to find titles; the fact that HathiTrust will reproduce works for university libraries if they become lost or damaged; and HathiTrust’s decision to make full works freely available to the blind, who use software that converts text into speech.
The Authors Guild argued that none of HathiTrust’s uses are transformative, and therefore don’t qualify for fair use protection. “[HathiTrust] offers itself as a market substitute and in that fashion harms the market value of the original works,” the trade group’s lawyers wrote.
The Second Circuit disagreed, finding that HathiTrust’s search feature and its efforts on behalf of the blind are protected by fair use. The court declined to rule on HathiTrust’s replacement book program, finding the issues aren’t ripe.
The Authors Guild’s class action against Google over its books project is still pending. In November 2013 a federal judge ruled that Google is protected by fair use. That ruling is on appeal, and will be decided by two of the three judges that issued Tuesday’s HathiTrust decision. Google lawyer Joseph Gratz of Durie Tangri said Tuesday’s decision “helps Google’s arguments.”