Authors Guild to Appeal HathiTrust Ruling

According to an article in today’s Publishers’ Weekly, the Authors Guilde announced its decision to appeal in a court filing late last week. A federal judge last month threw out the authors’ argument that HathiTrust Digital Library and its university partners had violated copyright law by scanning books and making them available for certain uses, a decision that observers hailed as a big victory for the principle of fair use.
Although few details were available at PW’s press time, it isn’t hard to imagine on what parts of the decision the Guild appeal might hinge: in a statement issued at the time of the decision, the Authors Guild said they “disagree with nearly every aspect of the court’s ruling.”

Another Fair Use Victory in the Courts

The cause of fair use at academic libraries got a big boost on Wednesday, when a federal judge handed the HathiTrust Digital Library and its university partners (including the University of California) a resounding victory in a copyright-infringement lawsuit brought by the Authors Guild and other groups. In a summary judgment, the judge threw out the authors’ arguments that HathiTrust and its partners had trampled copyright law by preserving and making scanned works available for certain uses.

In his ruling, Judge Harold Baer Jr. of the U.S. District Court in Manhattan agreed with the HathiTrust defendants that their handling of the scanned works did not violate the law. “Although I recognize that the facts here may on some levels be without precedent, I am convinced that they fall safely within the provision of fair use,” he wrote. “I cannot imagine a definition of fair use that would not encompass the transformative uses made” by the defendants’ mass-digitization project.

Those uses include making copies for preservation and full-text searching and indexing. HathiTrust does not make copyrighted material openly available to the public. “The copies serve an entirely different purpose than the original works,” the judge wrote. He noted that HathiTrust’s search functions “have already given rise to new methods of academic inquiry such as text mining.”

“On every substantive issue, HathiTrust won,” said James Grimmelmann, a professor of law at New York Law School, in an analysis posted on his blog.

–Adapted from a story by Jennifer Howard in the Chronicle of Higher Education.

Streaming Video Case Against UCLA Dismissed

A judge dismissed a lawsuit on Monday that had accused the University of California, Los Angeles of copyright infringement for streaming videos online. The lawsuit against UCLA was filed by the Association for Information Media and Equipment (AIME) and Ambrose Video Publishing Inc. in the U.S. District Court for the Central District of California. Those plaintiffs claimed that UCLA had violated copyright and breached its contract by copying DVD’s of Shakespeare plays acquired from Ambrose and streaming them online for faculty and students to use in courses.

U.S. District Court Judge Consuelo B. Marshall found multiple problems with these arguments. Among the most important: He didn’t buy the plaintiffs’ claim that UCLA had waived its constitutional “sovereign immunity,” a principle that shields states—and state universities—from being sued without their consent in federal court. The judge also held that the association, which doesn’t own the copyrights at issue in the dispute, failed to establish its standing to bring the case.

The decision means “universities will have a little more breathing room for using media,” says James Grimmelmann, an associate professor at New York Law School. But the more important implication is that the case will be a precedent that universities can cite in future copyright disputes, Mr. Grimmelmann says. The UCLA decision will make the Authors Guild case against HathiTrust more of a long shot, he speculates. That battle, which concerns a collection of digital books that Google scanned from university libraries, also involves an association suing on behalf of copyright owners, and the target of the lawsuit is a digital repository hosted by a state institution, the University of Michigan at Ann Arbor. In addition to Michigan, defendants in the HathiTrust case include Cornell University, Indiana University, the University of California, and the University of Wisconsin. “That suit has almost exactly the same sovereign-immunity and standing problems as this one,” Mr. Grimmelmann says. “If the HathiTrust suit were to be decided tomorrow by the same court, it would be dismissed.”

The Association of Research Libraries (ARL) hailed the UCLA victory as an especially welcome bit of good news, given all the copyright struggles dogging universities. But ARL pointed out in a blog post that the decision ”stops short of vindicating the strongest fair-use arguments in favor of streaming.” Kevin Smith, Duke University’s scholarly-communications officer, also noted in his own post that, because much of the dismissal hung on the sovereign-immunity question, “a major part of the decision applies only to state entities” and “does not translate to private universities.”

–Adapted from an article by Marc Perry in The Chronicle of Higher Education, October 4, 2011

Duke U. Press to make backlist available via HathiTrust

As many as a thousand titles from the backlist of Duke University Press will be made available via HathiTrust, in a deal announced between the two and in cooperation with Google. Like most university presses, Duke doesn’t have the resources to digitize its entire backfile itself, but will leverage the digitization capabilities of Google and the repository infrastructure of HathiTrust. Duke’s expenses will be in the area of attempting to locate all copyright holders and obtain their permission to have their books digitized and made available under a Creative Commons noncommercial license. In return, Duke will obtain digitized files of all the books that have already been scanned by Google and/or are already available in HathiTrust.

Making money is not the goal of the project, according to Steve Cohn, the press’s director; there is very little demand for most academic titles that are more than a decade old. Instead, the project is a way to archive the scholarly content and make it more widely available, Cohn says. A print-on-demand option will be made available, with Google’s blessing, for those who discover the content online and wish to have a print copy. “We very much support Duke getting them to extend their archive and make scholarly uses” of that material, according to Tom Turvey, Director of Strategic Partnerships at Google. Google will benefit by having Duke assume the burden of rights clearances and legal liability.

For its part, HathiTrust has been seeking “a framework for university presses to open up materials in ways that are sympathetic to what they’re trying to do—both protect their bottom line and disseminate scholarly information,” according to John Wilkin, its Executive Director. Both he and Mr. Cohn believe that the Duke-HathiTrust partnership should prove to be a workable model for other presses.

Adapted from a story by Jennifer Howard published in the Chronicle of Higher Education on September 12, 2011.

University of Michigan’s MLibrary launches project to identify orphan works

The University of Michigan Library’s Copyright Office is launching the first serious effort to identify orphan works among the in-copyright holdings of the HathiTrust Digital Library, which is funding the project.

The vast majority of HathiTrust’s holdings are in-copyright (73%). An unknown percentage of these are so-called “orphans,” that is, in-copyright works whose owners cannot be identified or located. The lack of hard data on the number of orphans in the corpus is a significant impediment to the creation of a legal or policy-based framework that would allow scholars and researchers to access these works.

In a paper recently published by the Council on Library and Information Resources (CLIR), John Wilkin, Executive Director of HathiTrust, extrapolates from known statistics about the corpus, and speculates that the majority of works published since 1923 may in fact be orphans (“Bibliographic Indeterminacy and the Scale of Problems and Opportunities of ‘Rights’ in Digital Collection Building”; http://www.clir.org/pubs/ruminations/01wilkin/wilkin.html).

If that’s indeed the case, Wilkin says the implications for scholars and researchers, particularly those studying the 20th century, are enormous. The Copyright Office’s work to identify orphans will more precisely ascertain the scale of the problem Wilkin calls “bibliographic indeterminacy.” The project will also advance the efforts of an informal but growing group of libraries seeking to develop best practices for identifying orphans.

Melissa Levine, U-M Library’s lead copyright officer, says that the project will initially focus on 1923-1963 US works, specifically those determined to be in-copyright by the U-M’s Copyright Review Management System (CRMS). Among the more than 100,000 works thus far examined by the CRMS, which is funded by a grant from the Institute of Museum and Library Services (IMLS), 45% have been determined to be in copyright.

This first phase of the orphan works identification project will develop procedures that can eventually be used by other HathiTrust partner institutions to expedite a task that will ultimately require the hand-checking of millions of volumes.

“We’re also going to create a mechanism to publicize bibliographic information about the orphans, to give their ‘parents’ the opportunity to claim them,” says Levine. She hopes that all extant copyright holders will come forward, and make informed decisions about the status of their work in the HathiTrust Digital Library. But it’s highly likely that the majority of orphans are just that—without any surviving person or entity to claim ownership.

The Copyright Office is part of MPublishing, the primary academic publishing enterprise of the University of Michigan. It offers copyright information and assistance to the U-M community, and participates in the global conversation about copyright and libraries.

–MLibrary News Release, May 16, 2011

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