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Fair Use Victory in HathiTrust Litigation

Brian Carver, assistant professor, School of Information | June 10, 2014

Today the University of California, Berkeley shared in a legal victory as the United States Court of Appeals for the Second Circuit issued its decision in Author’s Guild, Inc. v. HathiTrust. The court held that the doctrine of fair use allows HathiTrust to create a full‐text searchable database of copyrighted works and to provide those works in formats accessible to those with disabilities. All ten UC campuses and the California Digital Library are part of the HathiTrust partnership of more than eighty academic and research institutions.

The members of HathiTrust collaborated to create the HathiTrust Digital Library (“HDL”) and made the books in their collections available for inclusion in the HDL. The HDL contains digital copies of more than ten million works, published over many centuries, written in a multitude of languages, covering almost every subject imaginable.

The court held that two practices of HathiTrust were a fair use of the underlying copyrighted works, and thus did not amount to copyright infringement. First, HathiTrust provides a search interface that allows users to search for terms across the entire repository. The search results will typically only show the page numbers on which the search term is found and the number of times the term appears on the page, unless the copyright holder has authorized broader use. For example, one could use this functionality to determine whether a book discusses “Mario Savio” and if so, what pages might contain the most detailed discussion.

See, for example, this search:


Second, the University of Michigan’s library, as a HathiTrust member, provides patrons having certified print disabilities access to the full text of copyrighted works. Not only patrons that are blind, but also those patrons that may be incapable of physically holding a book or turning pages can obtain certification of such a print disability from a qualified expert and then obtain access to the digital library utilizing adaptive software that reads aloud or magnifies the text.

The court held that each of these activities was a fair use and reserved judgment on a third library preservation activity in which member institutions could print a replacement copy of a lost or damaged book in their collection should one not be available at a fair price. The court did not believe there was presently evidence that the current plaintiffs might be subject to such preservation activities and so this issue was referred back to the District Court.

The court saw the HathiTrust full-text search as another example of information-location technologies that had previously been found to be a fair use, such as the image-based search engines at issue in Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2003) and Perfect 10, Inc. v., Inc., 508 F.3d 1146 (9th Cir. 2007).

The court noted that access for the print disabled was specifically cited as an example of fair use by Justice Stevens when he wrote the Supreme Court’s landmark opinion in Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984) and that the House Committee Report on the Copyright Act of 1976 expressly stated that making copies accessible “for the use of blind persons” posed a “special instance illustrating the application of the fair use doctrine…”

Today’s decision is an important reaffirmation of the fair use doctrine’s role in enabling transformative uses of copyrighted works that enable the creation of new information-location tools and in the ability of libraries to serve the needs of their print disabled patrons.

This author hopes the UC libraries will, bolstered by today’s legal victory, move swiftly to join the University of Michigan in implementing access to the HDL for UC library patrons with print disabilities.

Comments to “Fair Use Victory in HathiTrust Litigation

  1. The 2nd Circuit decision states: “the making of a single copy or phonorecord by an individual as a free service for a blind persons [sic] would properly be considered a fair use under section 107.

    However that same paragraph in House Report 94-1476 also states:

    “For the most part, such copies and phonorecords are made by the Library of Congress’ Division for the Blind and Physically Handicapped with permission obtained from the copyright owners, and are circulated to blind persons through regional libraries covering the nation.”

    So from 1976 until the Chafee Amendment was passed in 1996, even the LOC was required to obtain permission to make copies of a copyrighted work in accessible format that would be distributed to more than one person. When the intervenor NFB sat down at the table in 1996 with the Publishers representatives, LOC staff and others to craft the Chafee Amendment, why didn’t they say: You know this bill is really not necessary as we can do anything we need under fair use?

    Maybe because the Library of of Congress wanted to distribute *multiple* copies rather than a single copy for an individual as would also seem to be implied for HathiTrust under the 2nd Circuit ruling.

  2. This is a bad day for copyright maximalists whose modest proposal was to have the academy pull the plug on millions of books we have indexed and preserved. People who do not need to find information in libraries and authors who hope their works will be forgotten might not care. But for the rest of us, a victory for searchable records controlled by the academy is a big deal. The million volumes that Berkeley contributed to HathiTrust have a new lease on life.

    Many Berkeley faculty can take credit for this victory for scholarship. I include the acute critics of the digitizing partnership with Google who made practical suggestions to improve the project. The new Authors Alliance took shape in these conversations and offers a practical way to defend Fair Use and to see that one’s own books have a chance to matter in our digital future.

    There is also good news locally on serving readers with print disabilities. With this status, a Berkeley user has the same rights as a Michigan user to gain full access to works that are in copyright (with nuances that it took lawyers many months to shape). (See the HathiTrust accessiblity policy.)

    As University Librarian, I am always interested in hearing about your experiences in gaining access to our collections.

    Tom Leonard
    Professor, Graduate School of Journalism

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