University of Michigan Law School
Civil Rights Litigation Clearinghouse
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Case Name The Authors Guild v. HathiTrust, Inc. DR-NY-0004
Docket / Court Case 1:11-cv-06351-HB ( S.D.N.Y. )
State/Territory New York
Case Type(s) Disability Rights-Pub. Accom.
Case Summary
On September 12, 2011, the Authors Guild and several other national and international organizations representing the interest of authors filed this lawsuit in the U.S. District Court for the Southern District of New York. The plaintiffs sued the HathiTrust, the President and Regents of the ... read more >
On September 12, 2011, the Authors Guild and several other national and international organizations representing the interest of authors filed this lawsuit in the U.S. District Court for the Southern District of New York. The plaintiffs sued the HathiTrust, the President and Regents of the University of Michigan (the lead institution behind the HathiTrust), and the presidents, trustees, and regents of several other universities participating in the HathiTrust.

The HathiTrust runs the HathiTrust Digital Library (HDL), a digital archive reproducing and making available online a substantial part of the collections of the libraries of the defendant universities. The HDL was produced in cooperation with Google, Inc.; in exchange for providing the digital scanning service and related services, the HathiTrust allowed Google to retain digital copies of all books. Google made these books searchable via its Google Books service, where non-copyrighted works are available for viewing and downloading in their entirety to any Google user. Users can search for terms even in copyrighted works, seeing an index of each occurrence of the term, with a small "snippet" of the text immediately surrounding it to provide context. A separate suit was filed by the Plaintiffs against Google. That case can be found at DR-NY-0006 in this Clearinghouse.

The books digitized by the HathiTrust, numbering close to ten million volumes at the time of the suit, are all scanned by Optical Character Recognition (OCR) software so that their full text can be searched and so that they are accessible to blind and visually impaired readers by way of text-to-speech software and/or braille displays. The HDL makes out-of-copyright books in its collection fully available to its users. The HDL has an initiative called the "Orphan Works Project", which identifies works likely to be under copyright and seeks attempts to locate the copyright holder; if the copyright holder cannot be identified through the HDL's procedures, HDL then makes the work available to its users. The Plaintiffs alleged that the Orphan Works Project and the HDL more generally were in violation of the United States Copyright Act, 17 U.S.C. § 101 et seq., and sought a declaration to this effect and an injunction that would effectively stop the HathiTrust from operating the HDL. Neither the original complaint nor an Amended Complaint addressed the issue of accessibility for blind users.

On December 12, 2011, the National Federation of the Blind and several related individuals (NFB) filed a motion to intervene as defendants. This motion was granted with the consent of the plaintiffs on January 24, 2012. On June 29, 2012, the NFB and related intervenor defendants moved for summary judgment. In their motion the NFB argued that under the Americans with Disabilities Act and the Rehabilitation Act Extension of 1976, universities are required to afford equal access to their libraries and that prior to the HDL, blind patrons did not have such access. They further argued that the legislative history of § 107 of the Copyright Act showed that Congress specifically considered making copies of works available to the blind to be an example of fair use. Prior to the creation of the HDL, the NFB argued, it was impossible for blind students and scholars to use effectively university libraries for research, even when the libraries offered scanning services for blind patrons, which would make specific works available to the blind, because this service was usually reserved for books assigned on class syllabi, and because the libraries often lacked indexes of the portions of their collections available to blind patrons. The NFB cited the Chafee Amendment to the Copyright Act, 17 U.S.C. § 121, which specifically authorizes the reproduction of copyrighted material when "information access needs of blind or other persons with disabilities" are "a primary mission" of a institution making the material available. They documented that the University of Michigan did consider the accessibility to be one of their primary goals motivating the HDL project.

On the same day the NFB's motion was filed, the original defendants separately filed two additional motions for summary judgment, arguing that the activities of the HDL were permissible under the fair use exception of the Copyright Act, and that the plaintiffs lacked the necessary standing under the Act to bring the case.

On October 10, 2012, U.S. District Judge Harold Baer granted the Defendants and intervening defendants motions for summary judgment, finding that specifically that the University of Michigan's participation was authorized under the ADA and the Chafee Amendment, and also that the HDL as a whole was authorized more broadly under the general fair use provisions of the Copyright Act. 902 F. Supp. 2d 445 (S.D.N.Y. 2012).

The defendants and intervening defendants filed motions to recover costs and attorneys' fees from the plaintiffs. On February 15, 2013, these motions were denied. The court reasoned that although the court found for the defendant intervenors regarding the larger question of how copyright should account for the advance of technology, the plaintiffs acted reasonably.

The plaintiffs appealed the district court's grant of summary judgment to the U.S. Court of Appeals for the Second Circuit. On June 10, 2014, the Second Circuit entered its decision. Going through a classic four-factor analysis under the fair use doctrine, the Circuit held that the doctrine of fair use allowed defendants to create a full‐text searchable database of copyrighted works and to provide those works in formats accessible to those with disabilities. Plus, the Circuit concluded and that claims predicated upon the Orphan Works Project are not ripe for adjudication.

The Second Circuit remanded in part to the district court, however, on the issue that whether the remaining plaintiffs had standing to challenge the defendants making replacement copies of books that have been lost, destroyed, or stolen. On December 30, 2014, the district court entered a stipulation on this remanding issue and dismissed the this case. Specifically, the parties stipulated that defendants would only make copies when the original copy was damaged, deteriorating, lost, or stolen and that an unused replacement could not be obtained at a fair price. Within a five-year term, the defendants agreed to promptly notify plaintiffs if the policies were changed.

Alex Colbert-Taylor - 06/06/2013
Sihang Zhang - 11/02/2016


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Issues and Causes of Action
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Issues
Defendant-type
College/University
Disability
Visual impairment
Discrimination-basis
Disability (inc. reasonable accommodations)
General
Access to public accommodations - governmental
Access to public accommodations - privately owned
Disparate Impact
Screen readers and similar accessibility devices
Plaintiff Type
Private Plaintiff
Type of Facility
Government-run
Non-government non-profit
Causes of Action Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12111 et seq.
Defendant(s) Board of Regents of the University of Wisconsin System
Cornell University
HathiTrust
National Federation of the Blind
Regents of the University of California
Regents Of The University Of Michigan
Trustees of Indiana University
Plaintiff Description The Authors Guild and other national and international organizations claiming to represent the interests of authors and publishers, alleging that the defendant HathiTrust violated the Copyright Act by scanning and making available copyrighted works. The case is listed in the Clearinghouse because the defendants and intervening defendants (The National Federation of the Blind) successfully argued that this was permissible under the ADA and the fair use provisions of the Copyright Act.
Indexed Lawyer Organizations None on record
Class action status sought No
Class action status granted No
Prevailing Party Defendant
Public Int. Lawyer No
Nature of Relief None
Source of Relief None
Form of Settlement None on record
Order Duration not on record
Case Closing Year 2015
Case Ongoing No
Case Listing DR-NY-0006 : The Authors Guild v. Google, Inc. (S.D.N.Y.)
Docket(s)
1:11-cv-6351 (S.D.N.Y.) 01/06/2015
DR-NY-0004-9000.pdf | Detail
PACER [Public Access to Court Electronic Records]
General Documents
Complaint 09/12/2011
DR-NY-0004-0002.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
First Amended Complaint 10/05/2011
DR-NY-0004-0003.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Notice of Motion to Intervene (Oral Argument Requested) 12/09/2011 (2011 WL 7096304)
DR-NY-0004-0006.pdf | WESTLAW | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Stipulation [Dismissing Certain Defendants] 12/16/2011 (S.D.N.Y.)
DR-NY-0004-0004.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Opinion & Order 10/10/2012 (902 F.Supp.2d 445) (S.D.N.Y.)
DR-NY-0004-0007.pdf | WESTLAW| LEXIS | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Civil Judgment 10/12/2012 (S.D.N.Y.)
DR-NY-0004-0008.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Memorandum Order 02/14/2013 (2013 WL 603193) (S.D.N.Y.)
DR-NY-0004-0009.pdf | WESTLAW | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Opinion 06/10/2014 (755 F.3d 87)
DR-NY-0004-0010.pdf | WESTLAW| LEXIS | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Stipulation 01/06/2015 (S.D.N.Y.)
DR-NY-0004-0011.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Judges Baer, Harold Jr. (S.D.N.Y.)
DR-NY-0004-0004 | DR-NY-0004-0007 | DR-NY-0004-0009 | DR-NY-0004-9000
Buchwald, Naomi Reice (S.D.N.Y.) [Magistrate]
DR-NY-0004-0011 | DR-NY-0004-9000
Parker, Barrington Daniels Jr. (Second Circuit, S.D.N.Y.)
DR-NY-0004-0010
Monitors/Masters None on record
Plaintiff's Lawyers Goldman, Jeremy Seth (New York)
DR-NY-0004-0002 | DR-NY-0004-0003 | DR-NY-0004-0004 | DR-NY-0004-9000
Pequignot, W. Andrew (Georgia)
DR-NY-0004-9000 | DR-NY-0004-9000
Rosenthal, Edward Henry (New York)
DR-NY-0004-0002 | DR-NY-0004-0003 | DR-NY-0004-0004 | DR-NY-0004-0011 | DR-NY-0004-9000
Defendant's Lawyers Abelson, Laura G (Maryland)
DR-NY-0004-9000
Beck, Joseph M (Georgia)
DR-NY-0004-9000
Bernstein, Robert Jay (New York)
DR-NY-0004-0006 | DR-NY-0004-0011 | DR-NY-0004-9000
Fonoroff, Alex Seth (Georgia)
DR-NY-0004-9000
Goldstein, Daniel F (Maryland)
DR-NY-0004-0006 | DR-NY-0004-0011 | DR-NY-0004-9000
Jaszi, Peter (Maryland)
DR-NY-0004-0006 | DR-NY-0004-0011 | DR-NY-0004-9000
Petersen, Joseph E (New York)
DR-NY-0004-0011 | DR-NY-0004-9000
Potter, Robert Nathan (New York)
DR-NY-0004-9000
Raider, Ronald Lee (Georgia)
DR-NY-0004-9000
Roach, Allison Scott (Georgia)
DR-NY-0004-9000
Roth, Nelson E (New York)
DR-NY-0004-9000
Weber, Jessica P (Maryland)
DR-NY-0004-9000
Other Lawyers Band, Jonathan (District of Columbia)
DR-NY-0004-9000 | DR-NY-0004-9000
Colman, Charles Edward (New York)
DR-NY-0004-9000 | DR-NY-0004-9000

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