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Donna Wentworth
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Alan Wexelblat
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About this weblog
Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

Disclaimer: the opinions expressed in this weblog are those of the authors and not of their respective institutions.

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In the Pipeline: Don't miss Derek Lowe's excellent commentary on drug discovery and the pharma industry in general at In the Pipeline

Copyfight

« Google Wins Again In Ongoing Google Books Litigation | Main | Amazon UK About-Faces »

October 23, 2012

HathiTrust, Copyright, and Electronic Library Media

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Posted by Alan Wexelblat

I wanted to take a separate blog entry to talk about HathiTrust. This is related to the previous entry about Google Books, in that the actual case in question was not a suit against Google itself, but was instead the case known as Authors Guild v. HathiTrust.

HathiTrust is the online resource formed by several libraries to hold the digital editions of books created from Google's scanning. HathiTrust uses these scanned book copies in several ways, including allowing searches against them and providing the electronic sources to vision-impaired users who can't access the printed copies. HathiTrust does not pay anyone for rights to do this and the question that Judge Baer ruled on was really the question of whether or not what HathiTrust is doing is fair use. Of course, this has significant implications for Google, which also makes scanned digital text copies searchable and readable, but Google was not formally a defendant in this case.

Steve Kolowich at Inside Higher Ed does a great job tying this decision to other cases that have come down in the past year in favor of fair use defenses asserted by educational institutions. For example, back in May, three major publishers lost a case against Georgia State University over its policy of allowing limited use of digitized portions of texts.

The case (PDF link) is a little complicated because the Court had to deal with other matters such as whether a state university enjoyed 11th Amendment immunity and what scope of possible copyright violations could be the subject of the suit. GSU has tried to self-police via a "Fair Use" policy that requires professors who want to make electronic elements available to justify their use of the copyrighted material on fair use grounds. The court generally upheld that approach, though it did put limits on what percentage of a book could be offered fairly by the library. In addition, the judge appears to have given the publishers an "out" in that if they were themselves to offer a reasonably priced excerpting service online that might preempt what libraries are now doing. However, in the absence of such things (or a reversal on appeal) this one is marked as a win for libraries that want to do a limited form of e-lending in support of research and class materials.

The third case that Kolowich notes as related came last year. In Association for Information Media and Equipment v University of California (PDF link) a U.S. District Court Judge appeared to buy UC's argument that a library streaming video off a secure server to authorized users, not the general public, was fair-use equivalent to showing that same video in a classroom. Since UC had an agreement that permitted showing the DVDs in an educational context, the judge reasoned that it didn't matter whether the students were sitting in the same physical classroom or in distributed virtual classrooms - the use of the stream was still part of the educational agreement and thus permitted.

As Kolowich notes, the suit was actually dismissed on technical grounds and so there isn't a standing ruling on the fair use issues, and there are certainly many more fair use practices that HathiTrust are going to have to navigate. But still, it's looking like a winning year for the Trust and other library/educational users.

Of course, that may change with Kirtsaeng about which more tomorrow.

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