Opening The Library Doors To The World: Second Circuit Finds Universities’ Book Scanning Project Constitutes 'Fair Use' Of Copyrighted Materials

On June 10, 2014, the United States Court of Appeals for the Second Circuit issued its decision in Authors Guild, Inc. v. HathiTrust, No. 12-4547, 2014 U.S. App. Lexis 10803 (2d Cir. Jun. 10, 2014), a case in which a group of authors and author associations sued a consortium of universities for copyright infringement based on the consortium scanning its members' libraries' collections, and retaining the scanned images and searchable text renderings for several uses. The Court of Appeals held that the consortium did not infringe the authors' copyrights because creation of electronic images and searchable text for the intended purposes were "fair uses" of the copyrighted works.

The facts from which this litigation arose are familiar to many in higher education, and reflect the challenges and opportunities of the digital age. In October 2008, a group of 13 universities announced the creation of HathiTrust, an entity whose purpose was to create and operate the HathiTrust Digital Library. The Library was to contain digital copies of the library collections of all the HathiTrust participants. As of June 2014, there were 80 universities, colleges and other non-profit organizations participating in HathiTrust, and over 10 million works of various ages, languages and subject matters available in the Library. The Library makes its combined digital collection available for three purposes: (1) full-text word searching of the works by the public; (2) access to the works by those with certified "print disabilities" (for example the blind or those with severe visual impairments); and (3)...