Print Disabilities Support Fair Use Judgment in New York Copyright Case against Universities’ HathiTrust

Print Disabilities Support Fair Use Judgment in New York Copyright Case against Universities’ HathiTrust

Recently, the Southern District of New York granted defendants summary judgment in a copyright case attacking the HathiTrust Digital Library (HDL). The HDL, which houses digitized works from university libraries, is used for: (1) full-text searches; (2) preservation; and (3) to provide access for people with certified print disabilities.  The court determined that defendants' present application of the HDL is protected by fair use. Authors Guild, Inc. v. Hathitrust, 2012 U.S. Dist. LEXIS 146169 (S.D.N.Y. Oct. 10, 2012) [enhanced version available to subscribers].

Early in its opinion, the court cited the intervenors' "eloquent oral argument" on where blind scholars stood before digitalization:

"Prior to the development of accessible digital books, the blind could access print materials only if the materials were converted to braille or if they were read by a human reader, either live or recorded." ... Print-disabled individuals read digital books independently through screen access software that allows text to be conveyed audibly or tactilely to print-disabled readers, which permits them to access text more quickly, reread passages, annotate, and navigate, just as a sighted reader does with text.

(citations omitted)

Plaintiffs identified 116 works as to which they asserted direct ownership of the copyrights and alleged that defendants had copied the works. Defendants conceded that plaintiffs had established a prima facie case of infringement as to some of these works. However, defendants moved for summary judgment that there was no genuine issue of material fact as to the fair-use factors.

In granting defendants summary judgment, the court stated:

they [the facts] fall safely within the protection of fair use such that there is no genuine issue of material fact. I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendants' MDP [Mass Digitization Project] and would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts that at the same time effectuates the ideals espoused by the ADA.

Fair use was found from the following facts:

  • the purpose of the use was for scholarship and research, including the efficient identification of relevant works, the preservation of collections, and the accessibility of library collections to print-disabled individuals. Also, the HDL gave rise to several transformative uses (superior search capabilities and access for print-disabled persons);
  • entire copies were necessary to fulfill defendants' purposes of facilitation of searches and access for print-disabled individuals. Plaintiffs argued that defendants did not need to retain copies to facilitate searches; however, the maintenance of an electronic copy was necessary to provide access for print-disabled individuals; and
  • developing a market to license the use of works for search purposes, access for print-disabled individuals, or preservation purposes would be prohibitively expensive.  Print-disabled individuals were defined as a "tiny minority." Consequently, the development of a market to provide them with access on the scale of the MDP was "almost impossible to fathom."


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