The Authors Guild Loses (Again), and HathiTrust Wins–But What Does It Mean? | The Scholarly Kitchen

abernard102@gmail.com 2014-07-22

Summary:

" ... In affirming Judge Baer’s decision, the appellate court follows the same logic as that applied by Judge Baer in his initial finding, agreeing with him on a number of major points, some of which are worth discussing briefly here. First, libraries may take full advantage of fair use rights, despite what some (including the plaintiffs in this case) have interpreted as limitations on libraries’ fair-use rights outlined in section 108(f)(4) of the copyright law ... Second, mass digitization of in-copyright printed books, along with storage of the resulting digital copies, in itself represents fair use when undertaken by libraries. This finding may be startling to some observers, but it’s important to note that the court examined the question of digitization and storage separately from the question of access (about which, more in a moment) ... Third, digitizing the entirety of a copyrighted book is permissible under fair use, because the transformational use described above (text-mining) is only possible if the entirety of each book is digitized. And since text-mining poses no threat to the copyright holder’s ability to sell the book as a book rather than as a searchable database of words, the court found that the substantiality test is effectively made irrelevant in the case of mass digitization.  Fourth, keeping multiple copies of each digitized book is permissible under fair use, because redundant storage is needed both for keeping web traffic balanced and for backup in the case of data loss ... But what about access to the digital copies themselves? That, after all, is the big question—the reason the Authors Guild got upset about Google Books and HathiTrust in the first place is its fear that making these books widely available on a digital network will undermine the market for them. In fact, both the court and the defendants seem to agree on this point: there is no question that HathiTrust intends to make these digitized books as fully accessible as possible, within the law. From the beginning, HathiTrust has been (rightfully, in my view) clear on the fact that preservation without access offers no value to anyone.  But on the important question of access to digitized copies of in-copyright printed books—what kind of access may be provided, to whom, and under what circumstances—the court punted. Or half-punted, anyway. It addressed the easiest question: that of access for the print-disabled, which means not only those whose sight is impaired, but also those whose disabilities 'prevent (them) from holding a book or turning pages.' Unsurprisingly, the court held that making books digitally available to those who cannot use printed books weighed heavily in favor of a fair use ruling for HathiTrust.  On the question of broader access, the court offered little in the way of guidance. Although HathiTrust makes the text of in-copyright books available for searching, the search results do not (unlike the results in a Google Books search) return snippets of text—they show only the books in which the searched terms appear, along with information about how many times the terms occur and on what pages.  What will be very interesting to see, going forward, will be how individual libraries respond to this ruling—not so much in terms of their public rhetoric, but in terms of actual policies and programs ..."

Link:

http://scholarlykitchen.sspnet.org/2014/07/21/the-authors-guild-loses-again-and-hathitrust-wins-but-what-does-it-mean/

From feeds:

Open Access Tracking Project (OATP) » abernard102@gmail.com

Tags:

oa.new oa.comment oa.libraries oa.librarians oa.hathi oa.authors_guild oa.digitization oa.litigation oa.copyright oa.licensing oa.fair_use oa.libre

Date tagged:

07/22/2014, 07:05

Date published:

07/22/2014, 03:05