nov12_b.indd


C&RL News November 2012 624

Corey Williams is associate director, ALA Office of 
Government Relations, e-mail: cwilliams@alawash.org

W a s h i n g t o n  H o t l i n eCorey Williams

Judge rules in HathiTrust copyright case
Another judge has weighed in on a copyright 
case involving libraries. On October 10, 2012, 
Judge Harold Baer of the U.S. District Court 
Southern District of New York, in his ruling, 
sided with the defendants and in favor of 
fair use in the Authors Guild, Inc. et al. v. 
HaithiTrust, et al. 

At the heart of the case was the Authors 
Guild’s assertion that the HathiTrust Digital 
Library’s (HDL) scanning and digitizing of 
works from several universities for inclusion 
into a digital library that allowed full-text 
searches, preservation of digitized works, 
and access for people with print disabilities 
violated copyright law. 

The Library Copyright Alliance (LCA), 
comprised of ALA, ACRL, and the Asso-
ciation of Research Libraries, released a 
statement: 

…[we] welcome Judge Baer’s de-
cision…that the HathiTrust Digital 
Library’s (HDL) use of digitized works 
is a fair use. Judge Baer’s key holding 
was: “I cannot imagine a definition of 
fair use that would not encompass the 
transformative uses made by [HDL] and 
would require that I terminate this in-
valuable contribution to the progress of 
science and cultivation of the arts that 
at the same time effectuates the ideals 
espoused by the ADA [Americans with 
Disabilities Act].” 

B a e r ’ s  r u l i n g  n o t  o n l y  a l l o w s  
HathiTrust to continue to serve scholars and 
the print-disabled, but also provides helpful 
guidance on how future library services can 
comply with copyright law.

Moreover, the LCA statement highlighted 
Baer’s numerous helpful holdings, most no-
tably including:

• An association does not have standing 
under the Copyright Act to bring infringement 
suits on behalf of its members.

• Library-specific exceptions in section 
108 do not restrict the availability to libraries 
of fair use under section 107.

• The creation of a search index is 
transformative use under the first fair use 
factor: “The use to which the works in HDL 
are put is transformative because the cop-
ies serve an entirely different purpose than 
the original works: the purpose is superior 
search capabilities rather than actual access 
to copyrighted material.”

• The use of digital copies to facilitate 
access for the print-disabled is also transfor-
mative. Because print-disabled persons are 
not a significant potential market for publish-
ers, providing them with access is not the 
intended use of the original work.

• The goals of copyright to promote the 
progress of science are better served by al-
lowing HDL’s use than by preventing it. 

In addition, Baer cited two amicus 
curiae or friend of the court briefs that 
LCA filed in the case (available at www.
librarycopyrightalliance.org/submissions 
/domestic/amicus.shtml).

This ruling is huge win for libraries and for 
digitization projects. It highlights that librar-
ians can lawfully leverage digital technology 
to advance access to information. The ruling 
is especially important because the print 
disabled are finally ensured equal access to 
the rich resources of the HDL.

Meanwhile, all eyes are on U.S. Supreme 
Court this fall with arguments scheduled to 
begin October 29, 2012, in the first-sale doc-
trine case, Kirtsaeng v. Wiley & Sons, Inc., 
featured in the September 2012 Washington 
Hotline.