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A Legal Sweep

October 12, 2012

They say bad news comes in threes. Based on the last six months, the authors and publishers fighting copyright battles in higher education might agree.

Copyright holders lost another battle this week in their legal war with universities over the boundaries of educational “fair use” in the digital age. A district court judge on Wednesday issued a decision in Authors Guild v. HathiTrust, a year-long lawsuit over a shared digital repository based at the University of Michigan.

The decision comes on the heels of a similarly disappointing decision for copyright holders in a landmark infringement case involving electronic reserves at libraries; and a second defeat in another copyright case involving online video streaming at the University of California at Los Angeles.

The Michigan library formed the HathiTrust with several other universities after Google scanned their print books and left them with a collection of digital copies. The guild sued HathiTrust and its partners last fall, objecting to the libraries’ decision to make limited use of its holdings — such as making digital book copies available to disabled students and allowing researchers to search the full digital texts for keywords — without paying for permission. Authors and publishers said such practices would essentially deprive them of potential sales.

District Judge Harold Baer ruled overwhelmingly in favor of the HathiTrust and the universities.

“I cannot imagine a definition of fair use that would not encompass the transformative uses made by defendants’ [mass digitization project] and would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts that at the same time effectuates the ideals espoused by the ADA [Americans with Disabilities Act],” wrote Baer in a 23-page decision.

Protecting the rights of disabled students appeared to play a crucial role in the judge’s decision. He praised the defense’s articulation of the plight of blind scholars as “eloquent” while dismissing the plaintiffs’ emphasis that only 32 disabled students had actually used the HathiTrust — perhaps not enough to justify the maintenance of 10 million unlicensed digital copies. “This argument overlooks the fact that it is minorities such as this that Congress sought to protect through enactments like the ADA,” wrote Baer. (The process of providing a disabled student with a digital copy that can be easily read by assistive software is much less arduous and time-consuming than procuring a hacked-and-scanned copy through a university's office for disabled student services, he said.)

The judge’s other key opinion was that using the digital copies to power a discovery tool that queries the full texts of all the works in the database was sufficiently “transformative” as to qualify it for exemption under the fair use provision.

Observers in academe, many of whom were rooting for HathiTrust, are describing Baer’s ruling as a definitive victory. The president of the Authors Guild did not respond to an e-mail requesting comment.

This is the third high-profile loss in the last year for major associations that have tried to bring the collective clout of their members to bear against universities and their libraries. In May three academic presses, acting as proxies for the Association of American Publishers and the Copyright Clearance Center, saw 95 percent of their infringement claims against Georgia State dismissed by a circuit court judge. (The publishers plan to appeal.) And earlier this year the Association for Information and Media Equipment, a trade group representing educational film companies, had a lawsuit against UCLA over unlicensed video streaming thrown out for a second time, according to several sources.

Peter Decherney, an associate professor of cinema studies, English, and communication at the University of Pennsylvania, says that taken together these three cases mark an historic moment for the definition of fair use in a world where educational materials are increasingly digital.

Decherney, an historian of copyright litigation, said that the HathiTrust, Georgia State and UCLA cases do not quite have the historic significance of the so-called “Betamax case” of 1984, which essentially made it legal to tape television programs and which Decherney calls the “Magna Carta” of the analog era. Nevertheless they do "signal a real shift in attitudes about fair use in the digital age," said Decherney. (This paragraph has been updated since publication.)

“I think at some point these [cases] will be considered a similar landmark and watershed,” he said.

 

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