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Bożena Bednarek-Michalska b.michalska w bu.uni.torun.pl
Pon, 19 Lis 2012, 09:23:25 CET

HathiTrust Prevails in Landmark Fair-Use Decision; Authors Guild  
Appeals; LCA Comments

In a landmark decision concerning fair use and accessibility issues,  
on October 10 Judge Baer of the District Court for the Southern  
District of New York ruled in favor of HathiTrust Digital Library  
(HDL) and the National Federation of the Blind (NFB) in the suit  
brought by the Authors Guild (AG). For several years, HDL and its  
member libraries have worked to index and preserve digitized works  
from library collections to foster research, teaching, and learning.  
The Authors Guild, with other associations and a handful of individual  
authors, sued HDL claiming that its mass digitization program, in  
collaboration with Google, constituted copyright infringement. The NFB  
and three individuals with print disabilities intervened in the case.

First, the court held that fair use is a supplement to Section 108 of  
the Copyright Act, and, contrary to the AG's arguments, libraries are  
entitled to a full fair-use defense and are not required to rely only  
on Sections 108 and 121 to preserve and provide access to library  
collections. Second, the court held that mass digitization for search,  
preservation, and accessibility is a fair use and two of HDL's  
purposes (search and accessibility) are "transformative," because the  
works are used for a different purpose from the original, intended  
purpose. The court found that use of the entire work is fair where  
appropriate to the purpose. Moreover, the court pointed to evidence  
showing that a market likely could not develop for licensing these  
kinds of uses, and that, because they are transformative, these uses  
cannot be subject to licenses. The Americans with Disabilities Act  
(ADA) requires, and fair use and the Chafee Amendment allow,  
digitization for accessibility.

Finally, the court determined that making library collections equally  
accessible is required for equal access to education for the print  
disabled. The market will not satisfy the need. The court found that  
the Chafee Amendment applies because the ADA makes accessibility a  
"primary mission" for all libraries. And Judge Baer noted that, even  
if the Chafee Amendment does not apply, fair use does. This landmark  
ruling is powerful evidence that the law will strongly favor libraries  
when they do what is necessary--up to and including digitizing  
millions of books--in order to provide equitable access to materials.

The Library Copyright Alliance filed two amicus briefs before the  
court in support of HDL. Judge Baer cited LCA's amicus briefs in his  
decision. For more information on the decision and its implications  
for libraries, see the LCA comments on the decision and watch the ARL  
webcast about the case.

In a subsequent filing, the HDL and its partner libraries have asked  
the court to award them $1.7 million in costs and attorneys' fees.

On November 8, the Authors Guild appealed the court's decision. The  
following day, the Library Copyright Alliance issued a statement about  
the appeal, noting that it was "deeply disappointed by the Authors  
Guild's decision to appeal Judge Baer's landmark opinion acknowledging  
the legality, and the extraordinary social value, of the HathiTrust  
Digital Library." Read the complete LCA statement on the appeal.

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Bożena Bednarek-Michalska
Biblioteka Uniwersytecka w Toruniu
Zastępca dyrektora ds. Informacji i Innowacji
87-100 Toruń
ul. Gagarina 13
tel.: (48+56) 6114417
komórka: 669601898.

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