Narrow Fair Use Ruling Permits Limited Library Uses, Shoots Down Replacement Copying

We received yesterday’s Second Circuit decision in Authors Guild v. HathiTrust with mixed feelings.  The decision was not a total victory for either side.  While the Court, over our objections, allowed HathiTrust to maintain its database of digitized books in light of the present security protections, the Court was clear that any breach of that security leaves HathiTrust at risk of future litigation.  We also were pleased that the Court refused to issue the blanket approval HathiTrust requested to use the database to replace books in its holdings that had reached the end of their physical life and vacated the District Court decision on that point.  Overall, we also were heartened that the Court, while approving two very limited uses of the database—for word search and display to the disabled—emphasized that the decision did not extend to the display of the text of the books to all HathiTrust users, or even authorize universal display of snippets.

The Authors Guild remains committed to the notion that the digital revolution cannot come at the cost of authors’ rights to preserve writing as a livelihood.  Our pursuit of this claim led directly to HathiTrust’s abandonment of the Orphan Works Project, which would have posed a major threat to authors’ rights by allowing these libraries to fully display their digital copies of in-copyright works with no more basis than the bare claim that they couldn’t find the rights-holders.  The related case against Google will come before the Court next.  We continue to believe that it is fundamentally unfair for Google to make use of the entire text of copyrighted books for its own commercial purposes without any compensation to authors.