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) under certain circumstances, creation of replacement copies of works.

On a side note, one member of HathiTrust, the University of Michigan, planned a separate so-called "Orphan Works Project" in which the University would try to identify copyright holders for aged works and, if no copyright holder could be identified, the work would be made available to the public in digital form. The Court of Appeals did not reach the merits of plaintiffs' claims on this conduct because the University of Michigan announced it was indefinitely suspending the Orphan Works Project.

Plaintiff individual authors and author groups sued HathiTrust and several of its constituent members for copyright infringement, seeking a declaratory judgment that the Library infringed their exclusive rights as owners of copyrighted works and injunctive relief to stop the Library's conduct. The parties...