Judge Baer issued his decision in the HathiTrust case, and it’s a near-complete victory for HathiTrust and its print-disabled codefendants. The opinion doesn’t even make it seem like a close case. On every substantive copyright issue, HathiTrust won:
- Section 108 on library privileges doesn’t limit the scope of fair use.
- A search index and access for the print-disabled are both fair uses.
- Search indexing is a transformative use.
- The libraries aren’t making commercial uses, even though they partnered with Google to get the scans.
- The plaintiffs haven’t proven that HathiTrust is creating any security risks.
- There is no market for scanning and print-disabled access, nor is one likely to develop.
- UM is required under the ADA to provide equal access to the print-disabled, and is allowed to under Section 121 of the Copyright Act.
Judge Baer did find that some of the associations had standing to represent their members, but in the context of the fair-use victory he handed to HathiTrust, this is bad news for the plaintiffs, not good news. I’m not sure what the plaintiffs’ next move is. An appeal is possible: it would go to the Second Circuit, where the Google class-certification appeal is pending. But this opinion makes the case seem so lopsided that it makes the appeal into an uphill battle. Perhaps together with the AAP settlement, this is a moment for a reevaluation of the Authors Guild’s suit against Google. My estimate of the likelihood of settlement just went up substantially.
Also, this opinion together with the Georgia State e-reserve opinion and the UCLA streaming-video opinion strike me as a real trend—universities making internal technological uses of copyrighted works are doing quite well in court of late. Something significant in judicial attitudes towards copyright, computers, and education has clicked into place of late.