Peter Hirtle: “A court victory for libraries”
The ongoing saga of the lawsuit against the HathiTrust is one step closer to ending. On Tuesday, 10 June, the court in New York that has been hearing the appeal of the decision that found for HathiTrust and Cornell issued its opinion. On almost every issue, the Court found in favor of HathiTrust. It concluded that creating an index of copyrighted works was a transformative use; keeping multiple copies of those works for security was not infringing; keeping image files of the books for the use of the visually impaired, while not transformative, was still a fair use; and the now-suspended Orphan Works Project was not ripe for litigation. In sum, the Court recognized the immense public value of the HathiTrust Digital Library and that the project is entirely compliant with copyright law.
The only issue not decided in the HathiTrust’s absolute favor was the question of whether the plaintiffs could challenge the HathiTrust’s preservation functions. The district court said that the plaintiffs could argue the issue but concluded in the HathiTrust’s favor. The Appeals Court said that given the evidence presented at trial, it was not even sure that the plaintiffs could raise the question. It therefore sent the issue back to the district court for further consideration. In practice it shouldn’t make much difference what the district court concludes since all of Hathi’s actions have been found to be non-infringing fair uses under other precepts.
What happens next? The Authors Guild could appeal those parts of the decision that found for HathiTrust to the entire Appeals Court for reconsideration. If it is turned down, the next step would be an appeal to the Supreme Court. But let’s hope that it realizes that the HathiTrust is not doing anything that infringes on copyright and drops this ill-conceived litigation.
- Peter Hirtle
CUL Intellectual Property Officer
Digital Scholarship and Preservation Services
Cornell University Library
Via Cornell University Library. Reproduced with the author’s permission.