Authors Guild Drops HathiTrust Case

BY ANDREW ALBANESE
PUBLISHERS WEEKLY

After suffering two major defeats in its legal battle with the HathiTrust (a consortium of Google’s library scanning partners) the Authors Guild this week finally did what many expected them to do long ago: they declared victory, and ended the litigation.

In a stipulation filed with the court this week, the Authors Guild v. HathiTrust was officially dismissed, by agreement of the parties. In a concession, HathiTrust officials agreed that the organization would, for a five-year period, notify the Authors Guild if it decides to change its practices.

The resolution comes after the Second Circuit Court of Appeals in June, 2014, forcefully affirmed Judge Harold Baer’s October 2012 verdict in favor of the HathiTrust, and as the Second Circuit is reviewing the Authors Guild’s main suit against Google.

The copyright infringement suit was first filed by the Authors Guild in September, 2011, as a parallel action to the Guild’s suit against Google. Guild attorneys argued that the HathiTrust, a digital preservation effort created by a collective of research libraries, was built with millions of “unauthorized” scans created by Google, putting the authors work at risk, and depriving them of a potential licensing market.

District Court Judge Harold Baer rejected the Guild’s arguments, however, writing that he could not imagine “a definition of fair use” that would compel him to shut down what he called an “invaluable contribution to the progress of science and cultivation of the arts.” And, in June, a three-judge panel of the Second Circuit upheld Baer’s fair use analysis, holding that the scanning of entire works for the purpose of creating a full‐text searchable database was “a quintessentially transformative use.”

In a minor point, the appeals court also upheld the lower court’s decision that an Orphan Works project undertaken by the HathiTrust (and since voluntarily discontinued) was not ripe for adjudication—a point new Authors Guild executive director Mary Rasenberger seized upon to claim victory. “Our pursuit of this claim was ultimately a success,” Rasenberger said in a statement on the Authors Guild website. “It led directly to HathiTrust’s 2011 abandonment of the Orphan Works Project.” The June, 2014 appeals court decision did leave open a few minor issues for the district court, however, which this week’s agreement now puts to rest.

“Now that the plaintiffs aren’t going to win on their more expansive theories that the database itself is a harm, this is a reasonable compromise,” notes University of Maryland law professor and PW contributor James Grimmelmann. “It lets HathiTrust go ahead with its permitted [Copyright Section 108] uses while giving the authors some assurances that HathiTrust won’t in secret start making other print uses the authors are more concerned about.”

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