On September 12, 2011, the Authors Guild and several other national and international organizations representing the interest of authors filed a suit against the HathiTrust, the President and Regents of the University of Michigan (the lead institution behind the HathiTrust), and also against the presidents, trustees, and regents of several other universities participating in the HathiTrust. The suit was filed in the United States District Court for the Southern District of New York.
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 (see "related cases").
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 consent of Plaintiffs on January 24, 2012. On June 29, 2012, the NFB and related intervenor defendants filed a Motion for Summary Judgment. On the same day, 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 Copy Right Act, and that the Plaintiffs lacked the necessary standing under the Act to bring the case.
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 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 October 10, 2012, the Court (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. Authors Guild, Inc. v. HathiTrust, 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 (2013 WL 603193).Alex Colbert-Taylor - 06/06/2013