HathiTrust Wins

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.

The most interesting thing here (from your summary, I haven’t read the opinion yet myself), is that “a search index is fair use” and “search indexing is a transformative use” —- you know, exactly what Google Books itself was doing with scanned in-copyright texts, in fact the ONLY thing Google was doing with them at the time the lawsuit against them was filed, the one that’s cost millions of dollars from both sides and many months in court and a rejected settlement and still isn’t over — was about something that THIS judge at least decided was fair use.

Although I guess it was a for-profit company doing it instead of a university, I don’t know if that changes the overall fair use balance calculation in this judge’s analysis.

But I would not be surprised to see the authors guild vs google books suit simply dropped at this point, post settlement rejection.

I have made several comments posted on Laboratorium.net not as to who is and who is not an Authorized Entity. I simply stated that the HathiTrust and the UMichigan Library have never bothered to say on their respective website’s ‘Mission & Goals’ pages that — amongst the many other stated missions & goals — one of their missions & goals IS in fact to assist those persons with a print disability. Also that in NFB President Dr. Maurer’s written testimony to the US Copyright office in 2009 that there was no ‘authoritative support’ as to the NFB’s contention as to who was and who was not an Authorized Entity under Section 121.

From AG v. HathiTrust Declaration 149, Page 9, NFB’s attorneys state:

“In short, NFB’s proposed definition (of an Authorized Entity) does not at present encompass any additional existing entities beyond the University Libraries participating through the HathiTrust.”

Judge Baer writes on page 22-23:

“The ADA requires that libraries of educational institutions have a primary mission to reproduce and distribute their collections to print-disabled individuals, making each library a potential “authorized entity” under the Chafee Amendment. So far, only UM has made its works available to print-disabled individuals…”

“I conclude that UM has ‘a primary mission’ to provide access for print-disabled individuals, and it is consequently an authorized entity.”

So by this ruling — and the word potential — has Judge Baer provided ‘authoritative support’ as to who is and who is not an ‘Authorized Entity’ or has the Judge ruled in the single instance of the University of Michigan (UM) Library and not even necessarily those libraries participating (as above) in the HathiTrust nor the HathiTrust itself?

As an individual with both legal blindness and dyslexia, I am very happy with the judge’s decision. I had all of my University materials read to me from freshman year to Ph.D. Thanks for equal opportunity to education.

It is interesting that Judge Baer found this scanning to be incontrovertibly a “transformative use” whereas Judge Evans in the GSU case declared that the digital copying done there was NOT transformative. Don’t we have a dispute here that cries out to be resolved by the Supreme Court eventually? Google has long relied on a series of decisions made in the Ninth Circuit to defend its functionalist view of fair use. A Fourth Circuit court followed its lead in the TurnItIn case, and now Judge Baer has accepted this interpretation also. But a good case can be made—as I have argued elsewhere—that the Second Circuit does not accept this kind of functionalist interpretation but instead hews to an older tradition of viewing “transformative” as necessarily entailing “value added” to the content itself, not just applying to a functional mechanism using it. So I strongly disagree that Judge Baer’s opinion settles the matter. It will be interesting to see what the Second Circuit has to say if the Authors Guild suit continues to play itself out there.

Sandy, the “transformative” decision is not related to the scanning but to the use of the scanned materials. In the GSU case, the scanned materials were to be read by the students in the same way that the hard copy materials would be read by human eyes and brains. In this case, the scans are being used “transformatively” to create indexes. See middle of the 2nd paragraph on page 16 where the judge explains that transformation can also be a use that serves a different purpose.

I understand that difference, Jim, but I still believe that there is a major difference between the Ninth and Second Circuits’ approaches, which I spell out in detail here: http://www.psupress.org/news/pdf/Transformative%20Use.pdf. The Second Circuit’s notion of value added making a use transformative has fundamentally to do with human creativity; the Ninth Circuit’s interpretation of value added opens the door to a purely mechanical procedure involving no human creativity whatsoever. I argue in this article that the Ninth Circuit’s idea of functionality and repurposing is quite different from the view of NIMMER ON COPYRIGHT, following Judge Posner. It is not easy to summarize it all here, but I urge you to read the article. I’d be interested in your take on it.

Question: Is the Hathi Trust use of the scans actually to be limited to the print disabled?

James, I believe that if I translate a copyrighted work, or adapt it from a novel to a play, those are transformative uses. But I also thought that I cannot circulate such works without the permission of the copyright owner?

Also, is not the judge confusing “in print” with “in copyright”? As the author of a book whose second edition has gone out of print but who wishes to wait for a better market till publishing a third edition, that concept is of great concern. Do I have to keep reissuing books immediately just to retain control over my copyrights?

I believe that if I translate a copyrighted work, or adapt it from a novel to a play, those are transformative uses

In the vocabulary of copyright law, those are “derivative works,” but they are not considered to be “transformative” for fair use purposes.

Also, is not the judge confusing “in print” with “in copyright”?

The opinion does not make any significant distinctions between in-print and out-of-print books.

From the floor remarks of Senator John Chafee as noted in The Congressional Record dated Monday, July 29, 1996, Senate Section:

Frequently, the National Library Service issues request after request only to wait months for a response from the publisher. These delays are not because the publishers have a desire to withhold permission; it is simply a low priority. They just set it aside.

There are still 17 books from the 1995 best seller list for which permission is still pending…

Added time consumed by trying to get permission from publishers makes it certain that the blind student is not in sync with his classmates.

Why did the NLS and other institutions — until the 1996 enactment of Section 121 — have to wait months for a publisher’s permission to make an accessible rendition of copyrighted material? To read Judge Baer’s opinion at III., all they had to do even prior to 1996 was say that it was ‘fair use’ and their obligation under the ADA (1990) and the Rehabilitation Act (1976) to make such accessible copies available to persons with a print disability.

From Note 20, Page 15 of Judge Baer’s ruling:

The ADA also provides strong support for the conclusion that the provision of access to print-disabled persons is a protected fair use.

I hope if there ever would be a legal action challenging whether a US Authorized Entity can export (especially to lesser-developed countries) ‘specialized format’ renditions of copyrighted material under Sections 121 & 602 of The US Copyright Act — as was claimed in a written response by the US Copyright Office itself to a World Intellectual Property Organization (WIPO) questionnaire — Judge Baer is assigned the case.

Just wondering re published ebooks, they are sold as searchable digitised products, would a library be able to lend out multiple copies of a eBook they had purchased a single copy of?

This decision does not apply to lending, except for the print-disabled. The decision makes clear that no excerpts from the books are ever shown to sighted patrons.


Unless, of course, the vision impaired pass scans to their sighted friends.


If the HathiTrust permissions are only for small excerpts shown in searches and then only to the vision impaired, why should the Author’s Guild settle with Google regarding a much wider set of uses for everyone, including people whose vision is not impaired?

The vision impaired do not get scans. They get text streams that are optimized for braille readers.

From AAP report 2004 on the Chafee Amendment and Fair Use:

In the absence of the Chafee Amendment, the reproduction and distribution of copyrighted works in, e.g., Braille or audio text, without the permission of the copyright owner, would infringe the copyright owner’s exclusive legal rights to control the reproduction and distribution of copies of the works at issue. Although such reproduction and distribution probably would qualify in most instances for a “fair use” defense against a claim of infringement by the copyright owner, enactment of the Chafee Amendment was intended to authorize such activity under a general rule, rather than leave the legal authorization issue to the uncertainties of the “fair use” doctrine, which relies upon case-by-case determinations and analysis of the particular facts and circumstances in each instance.

As implied in earlier references to its built-in limitations, the Chafee Amendment clearly was not intended to serve as the foundation for a mass-scale content distribution enterprise.


As implied in earlier references to its built-in limitations, the Chafee Amendment clearly was not intended to serve as the foundation for a mass-scale content distribution enterprise.

Judge Baer noted that the total number of print-disabled individuals who have signed up for the University of Michigan’s program is thirty-two. The only way in which this is a “mass-scale content distribution enterprise” is that those thirty-two individuals have access to a tremendous corpus of books. Perhaps someone will try to leverage the opinion into a much broader program serving the print-disabled, but this one is not large.

Presumably the number of individuals who signed up for the U 0f M program will increase. Besides, is the distribution permanently limited to U of M students?

Well, then, that would be a different case, and any copyright owners who would like to keep blind people from reading would be welcome to bring that lawsuit. But the present case involved distribution only to a small number of UM students.

From JG above: But the present case involved distribution only to a small number of UM students.

From NFB.org Press release 11OCT2012:

As a result, the University of Michigan will now be permitted to make its entire 10 million volume digital collection available to all blind Americans, revolutionizing access to digital books by the blind and print disabled.

PR Newswire http://s.tt/1pOJy

As per the mention above of ‘print disabled’ in the NFB Press release, the following comment was made by the Royal National Institute for the Blind (RNIB) to the UK Intellectual Property Office:

Many people with disabilities who are excluded from the current exception do need accessible format versions of a work in order to read.

RNIB therefore supports a broad definition along the lines of the Right to Read Alliance definition of print impairment, i.e. which covers the estimated one in eight of us who cannot read standard print due to sight problems, dyslexia, or a disability which makes it difficult for us to hold a book or turn a page.

So much for the small numbers — UK, USA, or otherwise.

A publisher/author makes and sells a ebook that has a vision impaired option- would that ebook fit within or outside the boundaries of this ruling?

The ruling of fair use for the blind seems fair enough to me, but was it based on the international definition of Legally Blind -I.e the test for most government pension welfare systems or what ?

Re: John Walker’s query above —

Copyrighted materials are made available to “blind or other persons with disabilities” under Section 121 who are defined at 121(d)(2).

If they are made available to persons with a print disability as ‘fair use’ — as was mentioned in the 1976 House Report 94-1476 Page 73 on the new 1976 Copyright Act — that report only mentions ‘blind persons’ in connection with ‘Fair Use’ as in Section 107.

the University of Michigan will now be permitted to make its entire 10 million volume digital collection available to all[emphasis mine] blind Americans
Never thought of it exactly this way, but I suppose that “inter-library loan” was a pre-digital peer-to-peer network.

From The Authors Guild 12 OCT 2012:

We disagree with nearly every aspect of the court’s ruling…

We’ll be discussing the decision with our colleagues and co-plaintiffs in Europe, Canada, and Australia and expect to announce our next steps shortly.

Stay tuned.


I do think this use would infringe on the publisher’s sales of e-books and audio books, which many publishers are producing. Much of this rhetoric blithely assumes no one is producing such versions.

Also, when I register copyright, on the form I am asked to check a box stating whether I give permission for uses by the blind. So if it’s legal to do this anyway, why are copyright holders asked for permission?

Politically incorrect as it may seem, I think “uses for the blind” are being used as a toehold to get uses for everybody.

From Judge Baer’s Opinion-&-Order page 22-3:

The ADA requires that libraries of educational institutions have a primary mission to reproduce and distribute their collections to print-disabled individuals …

The term ‘primary mission’ does not occur in the text of the AMERICANS WITH DISABILITIES ACT OF 1990, AS AMENDED

I think some commentators here are confusing the two different uses involved here: The indexing/searching use, and the materials-to-visually-impaired use. While the judge was particularly struck by the visually impaired use, the opinion seems to say that both uses are indpedently ‘fair use’.

I think the ‘transformative’ case for the search-indexing use (in which NO actual text is shown to any user) is pretty strong, and as Grimmelmann notes in his PW essay, consistent with other cases on search engines.

I think it’s true that the ‘transformative’ case is less strong for the visually-impaired use — although that’s the one that tugs at one’s social conciense more, as it appears’s to have done to the judge. However, despite the existence of ebooks, I think the “(no) effect on the market” case is still quite strong for the visually-impaired case. A tiny minority of the digitized materials are available as ebooks at all; publishers have on the whole been divided lately about whether to sell to libraries at all, and the judge notes historically uninterested in the visually impaired market specifically; even when an ebook is available, that doesn’t mean it’s actually accessible to the visually impaired — different ebook products work on specific ebook readers, which may or may not provide an actual accessible interface. The way UM/HT is actually providing materials to the visually impaired, in a format actually convenient, usable, and accessible for the visually impaired — there simply isn’t an available market to purchase such materials or rights.

I think the judge gets it right that the ‘market’ factor in fair use balancing has to be an actually existing market, not a hypothetical one rights-holders wish existed (let alone say they wished existed but have intentionally not entered). Otherwise, as Judge Baer notes, the ‘market’ factor would always be decided in favor of the rights holder, and would be meaningless as a fair use balancing factor.

While the opinion did spend some time on the Chafee ammendment and deciding that the U of M was an ‘authorized entitity’ — it also seemed to say independently that both uses were fair use regardless. You don’t need to be a Chafee ammendment ‘authorized entity’ to exercize your fair use rights. The Chafee ammendment ‘authorized entity’ is just icing on the cake for HathiTrust’s case, in the judge’s legal opinion it seems not even to be required.

The judge’s suggestion that the ADA actually requires universities to make materials available to the visually impaired is an interesting one. I have no idea what would happen if a different judge (or eventually established law) determined both that the ADA required it and that it was not a fair use and thus violated copyright law.

But I think the visually impaired case is in some ways legally weaker — but it’s also the one that plays the best in the court of public opinion. (Do the publishers really want to be known as the folks who said universities couldn’t supply visually impaired students with accessible copies of the course materials already legally purchased and available to non-impaired students?) Contrarily, the search/index fair use case is pretty darn strong — and is probably the one that actually bothers the plaintiffs the most. I can’t imagine them being bothered by supplying materials to the visually impaired minority — although really, I’m not sure WHAT bothers the plaintiffs exactly, since none of HT’s uses seem plausibly to effect the market for books or ebooks. That’s part of the legal justification for fair use — but aside from legal justifications, I honestly have no idea what damage to themselves the plaintiffss think they trying to prevent.

From Mr. Rochkind above:

You don’t need to be a Chafee amendment ‘authorized entity’ to exercise your fair use rights. The Chafee ammendment ‘authorized entity’ is just icing on the cake for HathiTrust’s case, in the judge’s legal opinion it seems not even to be required.

So what you are saying , maybe, is that all those attorneys from congressional staffs, the AAP, the NFB, the Library of Congress, the US Copyright Office, etc. who worked on the drafting of the 1996 Section 121 ‘Chafee Amendment’ including — as in the floor remarks I quoted above — the late Senator Chafee himself just didn’t realize at the time that such legislation was totally unnecessary as any person who wanted to create a specialized-format copy of copyrighted material for the benefit of a person who is ‘blind’ (as in the 1976 House report) could have done so without the permission of the copyright holder pre-enactment of the 1996 section 121 legislation and without regard to that pesky ‘Authorized Entity’ qualification?

The following is excerpted from National Federation of the Blind (NFB) Press release upon the enactment of the July 29, 1996, Section 121 ‘Chafee Amendment’:

Important Notice on Copyright Changes

When the legislation is signed by President Clinton, which is expected, the changes in the copyright law resulting from the Chafee amendment will go into effect immediately. This will mean the following:

The permission of publishers or copyright owners is now not required if an authorized entity reproduces or distributes a nondramatic literary work in a specialized format for the exclusive use of blind persons or others with physical disabilities.

The important, bottom line result of the new legislation is that the copyright permission process is now a thing of the past. The procedures and delays involved in securing copyright clearance are also now in the past. In the short run, this should mean much faster service for readers. As for the future, the Chafee amendment will very likely prove to be crucial as the national information infrastructure evolves.

@ john e miller

I am impressed with your (naive?) belief that just because the separation of powers gives Congress the power to enact legislation, it necessarily means that Congress (and in particular, every member of Congress) understands all of the ramifications of the laws it enacts.

Unfortunately, the way checks and balances works is exactly opposite. The judiciary ends up actually deciding what Congress meant, and applying it on a case by case basis.

Anyway, what is more likely the reason for the Chafee amendment is simply an ubiquitous legal one. Lawyers are constantly arguing things like: “X applies, but if for some reason you decide that X doesn’t, then Y would instead”. The Chafee amendment was most likely just intended to give blind people an additional “Y” argument, over and above fair use.

When I am at a loss for worrds in the legal arena, I often resort to courtroom movie dramas:

(from the screenplay for ‘My Cousin Vinny’)

Vinny Gambini: [opening statements] Uh… everything that guy just said is bullshit… Thank you.

I am not a lawyer, and I may also be horribly naive, but I guess that’s why they have the Court of Appeals - 2nd Circuit as well.

Most students buy books—and so can the visually impaired. And I saw no assessment whatever of whether the books scanned were already available as e-books and/or audiobooks from the publisher.

This ruling also does nothing for the totally blind. When I was in college (decades ago) I had a totally blind friend. He said most of the texts were not available in Braille, so the blind students had them read out loud by other students. There was some office set up at the college to facilitate this, to collect volunteers and/or students who did it for token payment. The blind students also asked their friends directly to read to them and I did a bit of this.

The part of the Opinion-&-Order that deals with a potential authorized entity which — as much of Judge Baer’s ruling on issues raised by the NFB as Intervening Defendants — comes nearly verbatim from the NFB Document #105 MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT.

It kinda reminds me of the old legal saw about being ‘a little bit pregnant’.

“publishers have on the whole been divided lately about whether to sell to libraries at all”

In Australia publishers are required to supply a copy to our major public libraries of everything they publish(consequently our National libraries have extraordinary holdings of things like ‘pig hunters monthly’) Is it different in the US?

Frances Grimble: I’m not sure what you mean about the ‘totally blind’ not being served by the materials HathiTrust prepares. You mean someone that wants braille rather than audio? (Is there some reason to think the ‘totally blind’ prefer braille?) I believe there are digital braille output devices, that could output the HT formats. My understanding from visually impaired friends (who are not neccesarily ‘totally blind’) is that most people prefer audio output, in part because of the expense of the braile output devices. At any rate, the National Federation for the Blind seems to think HT helps the ‘totally blind’ in their brief. I’m not quite sure where you are coming from about making a distinction about ‘totally blind’.

John Walker: In the US, no publisher is required to deposit anything with the Library of Congress (which is not technically a ‘national library’ but is as close as we’ve got). However, most publishers DO deposit a printed copy with the LC (and I think they may get certain additional legal protection by doing so). However, I must admit I don’t know if the LC even accepts ebook formats, if they do if most publishers of ebooks deposit (It doesn’t surprise me if Australia is ahead of the US on ebooks; believe it or not, Australia and New Zealand library/archives sector is one of the more successfully technologically innovative and forward-thinking on the planet!)

— but either way, copies at the LC are not actually available for lending to the general public, I’m not sure how it matters for this discussion. What I was referring to about publishers ambivelence to selling ebooks to libraries can be read about here: http://www.ala.org/news/mediapresscenter/americaslibraries/soal2012/new-focus-on-ebooks Note that four of the ‘big six’ american publishers refuse to sell ebooks to libraries at all; the others are raising their prices by huge amounts.

I am also somewhat curious why commentors on this blog are MORE fired up by the “accessible copies for the blind” use than by “providing a search index” use.

I agree the for-the-visually-impaired use is somewhat less legally defensible; but I’d also think it would be less objectionable. What about it angers you so much?

Frances Gimble says: “Most students buy books—and so can the visually impaired”

I don’t think we’re talking about textbooks here, which most students buy. Most academic libraries don’t even hold print copies of textbooks (although sometimes a course might use a text which happens to be on the shelves, the expensive ‘textbooks’ are not generally). We’re talking about the collection of the U of M library, on the shelves, which sighted users can browse in the library and check out, but which blind users previously could not — only a tiny minority of a large academic libraries print collection was previously available (anywhere, in existence) in a format accessible to the visually imparied.

Francis Grimble’s post emphasizes the dangers of judging present value (in this case, of the digitized texts to the totally blind) based on the state of technology (or even society) in the past. “Decades ago” there weren’t ubiquitous, inexpensive computers which are capable of doing a fairly good job of translating (already digitized) text to speech.

BTW, this also means that it is not that accurate to judge the future value of things based on present-day technology.

@ john e miller

I’m sorry if my post stepped on your “virtual toes”…

Er, Vinny isn’t really your cousin, right?

That’s OK Ron — I’ve developed a tough skin in this legal copyright realm. I am well aware that Judge Baer can issue any kind of order he so chooses without regard to what Congress has said but that HIS rulings are still subject to review by appeal.

And to respond in part as to why I may be one of those ‘fired up’ over the current ruling, I think that parts over the ruling will relegate copyright exemptions and ‘fair use’ for the visually impaired to the realm of handicapped parking placards … and to diagram the gist of the ruling regarding fair use, ADA, Chafee, 1976 Copyright Act House Report, etc. would resemble a Rube Goldberg cartoon.


Major public library polices re dig-publications vary, the last I heard was that the State library of Victoria requires things (such as economic research reports) solely published as pdfs to be submitted as printed paper :-).

Not sure what the policy of National library of Australia is, but it is likely to be more up to date .
However the government is spending a lot on a national broad band network and is also funding a lot of digitising of many major public collections. Would expect the interesting question of ebooks and the future of publicly funded libraries will come up.

The recent high court ruling on the inet case to a degree reversed the rulings in the 70s that led to our current system dealing with how to pay for copying in University and public library’s. What approach and how it will play out , time will tell.

At the moment things can get a bit strange, I was recently in a major archive for historic docs (the Mitchel library in Sydney) was looking at some historic hand drawn bush walking maps- never in print. One of them was a copy of a 1925 map, drawn by the son of the original cartographer and the donor of this and other maps. I could not use the library photocopier but I could use my own camera .

The strangest thing about all of this library , digital and epub stuff is that hardly gets a mention in Australia as a public political legal brawl sort of issue.

“copy of a 1925 map, drawn by the son of the original cartographer and the donor of this and other maps. I could not use the library photocopier but I could use my own camera .” Should have added ;This was because the copy ,of the original map, had been drawn in 1960. If this map (or any other map in the collection) had been made/copied prior to 1957 it would have been fine to photocopy it.


Although you could argue that potentially US publishers are not required to deposit copies with the Library of Congress, in practice, they are required to.

  1. Books required cataloging data to be acceptable to most libraries and to the wholesalers who sell to those libraries. The Library of Congress provides cataloging data free of charge to most large publishers, although some use in-house catalogers instead because the LOC is very slow. The Library of Congress will not catalog books by self-publishers or most micropresses, forcing them to pay catalogers to create the data. If the cataloging data is not done by the LOC, it still must contain a card number issued by the LOC. This is done free of charge, BUT, in order to get the data the publisher must deposit one copy of the finished book with the LOC.

  2. The copyrights to most books created for sale are registered. The registration requirements of the US Copyright Office for published books include submission of two copies of the best edition of the work with the registration form and check. If you don’t include the two copies, you don’t get registration. The Copyright Office does not retain these copies after they finish examining the book. They pass them on to the Library of Congress.

Therefore in practice, the Library of Congress receives three copies each of most books published in the US.


The reason copyright holders are upset by giveaways of entire books to the visually impaired (or those who merely claim to be) is that this cuts far more into the market for the book than search engine results do. Again, publishers produce e-books and audiobooks and they need to make money from them. And there is no reason the blind would be any more ethical than everyone else in terms of uploading books to torrent sites, or at least passing them on to friends who then do so.

Most creators of works create them because they want to benefit other people, but that does not mean they don’t need to be paid. Doctors, lawyers, plumbers, and many other professionals do considerable good, but they also expect to be paid. And people who create works tend to have considerable sympathy for the blind because it’s one of the worst things they can imagine than might occur to themselves. That still does not mean they don’t object to wholesale seizure of their books without their permission.


I will also add that there is considerable controversy over library lending of e-books even to the sighted, with publishers needing to impose DRM or a licensing arrangement to preserve sales. Seizing millions of books and lending them without the copyright holders’ permission is highly objectionable.

As I tell people, their desire for free books does not trump my need to pay for my housing and groceries, nor does their desire render my considerable labor and financial investment valueless. As Lynn has said, writers have become the enemy. Everyone wants their work—search engine companies, libraries, and readers. They just want it all free of charge. This is both theft and exploitation.

Hello Frances — This is how ‘civil society’ (third parties) these days views copyright … the ‘3-step test’ being the TRIPS/Berne prescription that (very roughly paraphrasing) any exceptions to copyright should not impinge on the legitimate rights of the copyright holder

The Three-Step Test should be interpreted in a manner that respects Blockquote

the legitimate interests of third parties, including

  • interests deriving from human rights and fundamental freedoms;

(from the Munich Declaration on 3-step test / Max Planck Institute) http://www.ip.mpg.de/en/pub/news.cfm

You guys all realize, right, that for 200 years in America, libraries have been in the business of buying books and loaning the same copy out to multiple people, and that this didn’t require the permission of copyright holders? Do you find this objectionable and think it (libraries) never should have been, or libraries should have had to pay copyright owners per-loan or work out some other deal, instead of just buying a book and loaning it out with no permission needed?

I ask, because many of the reasons given for anger at libraries seem to apply to traditional print lending too — after all, what’s print lending but pre-computer ‘file sharing’.

JR above: ” …and loaning the same copy out to multiple people ..”

But maybe the rub is not loaning out the same single copy to multiple people at the same time. And at least for the ‘fair use’ provisions for persons who are print disabled, the issue is not ‘loan’ but a copy for each person who is print-disabled to keep … and maybe share with family and friends.

Print books wear out and need to be replaced. E-books don’t, so the library needs only one copy for the entire length of the copyright term.

Then there are huge library consortiums—the Hathi Trust is one—where the libraries all share books with each other instead of buying. Every library who belongs to or later joins the Hathi Trust gets copies of all the Google scans, whether the books were in that library’s collection or not.

So publishers are looking at selling only a handful of copies to libraries, who give copies to readers who give them to their friends. In other words, publishing changing so that in future, there are not enough revenues to support publication of new books.

Scale matters. A lot.

In other words, publishing changing so that in future, there are not enough revenues to support publication of new books.
Similar to the way the Boston-Strangler-like VCR killed the woman-at-home-alone-like movie industry?
Scale matters. A lot.
I fully agree. The current enormous media cartels will, most probably, collapse under their own weight —- because their scale is not really fitting today’s technological reality. It used to be absolutely necessary to have enormous budgets to distribute media to the mass market. And in the recording and film industries, it used to be necessary to have hard-core financial backing even to produce the product.

Change is in the wind. This change, however, is unlikely to lead to a future without books —- unless, of course, the public, en masse, decides it is no longer interested in consuming them.

Frances Grimble: Every library who belongs to or later joins the Hathi Trust gets copies of all the Google scans, whether the books were in that library’s collection or not.

HathiTrust’s Access and Use Policies explain that books under copyright are made available to the print-disabled only when print copies are or were owned by the library system. Also, I am curious about the source for your statement that the digital copies are made available to the print-disabled in formats that permit them to “give them to their friends.”

books under copyright are made available to the print-disabled only when print copies are or were owned by the library system
One would think that it would only be just that print-disabled users could benefit from inter-library loan on an equal footing with non-disabled users. This could easily be accomplished if the rules enabled a remote “debiting” of the number of print copies at the lending institution.


The whole purpose of the Hathi Trust, as a consortium, is to exchange scans with all the other libraries in the trust and all those who may join the trust. In addition, some of the Google-library scanning agreements published publicly explicitly permit the libraries to exchange scans with other libraries in the Google program. A narrower set of libraries, but still a huge exchange of copyrighted books.

Hathi Trust will certainly distribute the scans to readers (vision impaired or not) if and when they can. Surely you don’t really believe the libaries set up a massive scan-exchange program just for the heck of it? For example, the University of Michigan initially claimed they would put the Google scans of copyrighted books in a “dark archive” only for preservation. And now, apparently not.

BTW, the University of Michigan and the University of California libraries already have publishing programs for selling print-on-demand, bound PDFs of the scans. They’ve been available on eBay for years. I’ve only seen public-domain works published by them on Amazon, but it’s clear the libraries do also have a publish-for-profit motive.

And you’re the one who is so happily saying that “The last year has been a very good one for universities putting copyrighted materials online for their students. Last October, UCLA won a case challenging its practice of copying DVDs to make them available via streaming. In May, Georgia state won a case challenging its e-reserves system. And now the HathiTrust universities have won a case challenging their book digitization. Professor Michael Madison says that these educational uses of computer technology are “becoming the new copyright normal.” You do skirt openly advocating the posting of entire copyrighted books for students, including those with no visual impairments, but surely your predictions of such use are not merely limited to search snippets for the vision impaired?

Sorry, I meant that the print-on-demand books published by those libraries are available on Amazon. I have not checked for them on eBay. The scans have not been cleaned up—the books were obviously printed straight from Google’s abysmally bad PDFs—hut the universities are selling them.

Note that I also mentioned sharing books with ‘family and friends’ but in the context of fair-use provisions as mentioned on P33 of the O&O “… in the event that they are not Authorized Entities”

In the original widely reference and quoted post, Prof. Grimmelman states that an Appeal is possible “But this opinion makes the case seem so lopsided that it makes the appeal into an uphill battle.” Maybe so.

I recently read an Amicus brief filed in the current term US Supreme Court case Kirtsaeng v. Wiley by Ms. Krista Cox, Counsel of Record, Knowledge Ecology International (KEI) in which she employs the word ‘absurd 9 times in the following type usages:

If the Second Circuit decision is permitted to stand, manifestly absurd consequences will result impacting consumers, businesses and the United States economy.

This result is manifestly absurd and Congress surely did not intend for such consequences. The Second Circuit opinion should therefore be overturned.

And finally as stated by Ms. Cox:

CONCLUSION For the reasons stated above, this Court should reverse the opinion of the Second Circuit.


The way Google and the Hathi Trust proceed is to do something and reassure copyright owners they won’t do anything more. Google was only going to scan the books, but reassured publishers nothing detrimental to copyright owners would be done to the scans. Google put up a reassuring database where copyright owners could list books they did not want scanned, then Google went right ahead and scanned them anyway. Google was only going to have a “library,” not a bookstore. The University of Michigan was only going to put scans of copyrighted books in a dark archive and not use them. The Hathi Trust was only going to preserve scans. not use them.

Now it’s just search results only, and only for the vision impaired. Right. Uh-huh. Pull the other leg.

Frances — The unofficial Google corporate slogan is “Don’t be evil”.

My rendition is: Do enough good so you can get away with a bit of evil.

Google is probably delighted with the “transformative use” search ruling, because Google openly wants to import all the material from all those books into their search engine, meaning that there will be little reason for anyone to buy a nonfiction book if they can get the same material free in a Google search. Microsoft (with whom James Grimmelmann is connected) is probably also delighted.

The way Google has proceeded for years, at least re the scanning project, is do what they want and see if anyone can afford to sue them, spend the other party down, and hope to get a favorable settlement or court ruling. The next logical step for Google might be to import a large quantity of copyrighted books into their search engine and wait for a lawsuit.

Oh yes—any authors who have books on Google with a voluntary setting of “partial view” might want to check the current status of their books. There are self-publishers on a forum I belong to who are saying Google reset that to “full view” without notifying them.

To Frances Grimble:

I’m not sure where you are getting your information about ebooks and their availability to persons with print disabilities. Only about 5% of all books published annually are subsequently translated into an accessible format version. This includes digital audio, refreshable braille, traditional hard copy braille and other accessible formats.

ebooks are not inherently accessible. There are accessible publishing standards that are beginning to be in use, including E-Pub 3, but for the most part e-books are inaccessible to persons with print disabilities.

This is not an area that publishers have traditionally been interested in. There has been complete market failure in the case of accessible editions of books. This is why this issue is being addressed internationally at WIPO. The formats used for accessible books are not the same you would illegally download from a torrent site. They are not dramatic audiobooks, or the kindle book you would license from Amazon. They are formats optimized for accessible readers.

Further, the World Blind Union and other disabled persons organizations would welcome a market in accessible format books if the publishers would be willing to create them. Their desire has always been “same books, same day same price.” Unfortunately this does not appear to be the case yet.

Accessible publishing is costly and limited to organizations working through exceptions to copyright, unless and until the publishers step up. This court decision will open up many more books for persons with disabilities, books that previously they have had no option to access unless they paid someone to read to them.

I understand your skepticism of the motives of Google and HathiTrust, but when it comes to access to books for persons with disabilities, there has been complete market failure and this doesn’t seem likely to change any time soon.

I understand your concerns. But we copyright holders cannot allow our copyrights to be chipped away at with one excuse after another, because that means our incomes are chipped away with one excuse after another. I suspect the financial value of this ruling to Google and other search engines may be that “transformative use” opens the door to pouring millions of entire copyrighted books into search engines used by everyone, without getting permission from or paying the copyright holders. Which in turn, would massively reduce the paying market for nonfiction books.

Sorry to sound harsh, but your need for books doesn’t trump my need to earn a living and run my business. Because if I can’t earn a living and run my business, I can’t produce any more books, nor can I pay for my own groceries.

You’re defending your interests, and I’m defending mine.

There is a perfectly legal and fair way for books for the vision impaired to be produced, that does not violate any copyrights whatever, and that does not require any legal precedents or lawsuits whatever.

It’s licensing subsidiary rights from the publisher, or from the author if the author holds those rights. If a publisher wants to produce a paperback of a hardcover published by another publisher, the paperback publisher pays for that license. If a French publisher wants to translate an American book into French and publish it in French, they license the appropriate rights. If a magazine wants to reprint a short story originally published in a book, they license reprint rights from the book publisher.

Of course, not every publishing deal that is negotiated goes through. But it is unlikely that, if a publisher of books for the vision impaired, or an organization for the vision impaired that also published books, approached the original publisher and offered to pay a fair amount for appropriate rights and sign a contract spelling out those rights, that the original publisher would refuse.

It’s not that you can’t get the books legally; it’s that you need to license and pay for rights. As this ruling does not apply specifically to so-called orphan works, there is nothing to stop publishers or organizations for the vision impaired to approach specific publishers, with a list of specific books and a check in hand, and offer to cut a deal.

A nonprofit organization for the vision impaired could even start a charity drive, “Help us get funding to license book rights!” It could approach publishers and authors and urge them to donate the rights free.

But in the world of publishing, if you want a deal you don’t wait for the publisher to approach you. But you don’t, until recently, merely do whatever you want and wait to see if they sue you. You approach them and ask to cut a deal with them, and if they don’t want to cut the deal you want, you have to accept that.

But I have not heard that anyone involved with this project even once tried to approach publishers, authors, or other copyright holders with offers to fairly license the rights.

That’s three posts in half an hour, Frances. I will be less indulgent towards repeat commenting from now on. It is inimical to conversation. Please hold your fire until your comment says everything you would like it to say; second and successive bites at the apple may be deleted.

This goes for everyone.

Sorry, James. What are the technical length limits/word counts for posting on this forum? I keep thinking I will run into them.

Also, what if multiple comments are responses to different messages posted by different people?

It also would be helpful if you added your rules as to number of comments in what time period to the official guidelines, as otherwise no one will know how many they can post in an hour, or other time periods.

Thanks for clarifying this issue—I was not aware of it and am still unclear on it.

The blog software can handle comments of 5,000 words. (Or more: that’s just what I’ve tested).

As for comment frequency, a good rule of thumb is that there’s ordinarily no reason to follow up one’s own comment at all. Replying to someone else is dialogue; replying to oneself is a monologue. There are exceptions, of course, but that’s a good starting point.

That’s way more than I thought the software could handle. Sorry for the dribble effect.

Providing special versions of books for the blind/impaired, when the commercial sector has failed to do so, obviously passes the three step test.

However there is a potential problem/fear lurking underneath all of these discussions about books and digitising: the web is a web of Indra style thing- once a book is digitised for a particular purpose, there is a good? chance that it might end up everywhere, in unpredictable ways.


Publishers are not under any obligation to provide books in any specific format, whether this be hardcover, paperback, e-book, audiobook, a specific language, or whatever. Most are businesses and their purpose is to make a profit. Although some publishers are connected with nonprofit organizations and publish books to further the agendas of those nonprofits (for example Sierra Club Books), no publisher is obligated to “serve” all and sundry. (And I once worked for Sierra Club Books; they did care about profits as well.)

You cannot describe a publisher not having produced a book in a given format as a failure, any more than you can say they have failed by not producing a book on a given subject. Note also that many publishers are producing e-book editions of backlist titles, but this takes money, and putting too many books on the market at one time can dilute sales. But publishers are not obligated to produce e-books, any more than they are obligated to produce hardcovers.

As I said above, when an entity wants a specific edition produced it is quite usual for them to approach the publisher and make an offer to license rights. Because unfair as it is to expect a publisher to bend their entire business strategy to every else’s desires, it’s even more unfair to seize property without any permission or payment just because you want it, however noble you may think your purpose is.

JW from above: “Providing special editions for the blind/impaired … obviously passes the three-step test.”

Maybe. That is one of the main points of contention in the treaty discussions for the visually impaired at WIPO in Geneva. Those favoring a copyright exemption treaty for the visually impaired just last week argued that such a treaty should not be subject to the TRIPS/Berne three-step test at all.

So, yea or nay, there are a whole bunch of international IP lawyers and WIPO Member State delegations that met last week in Geneva — and will meet again toward the end of next month (SCCR25) — who are at loggerheads over the 3-step test and do not consider anything as you mention to be ‘obvious’.

john The 3 step test is not that popular in the IP services industry, after all there are no management fees in ‘fair use’.

However the proviso is: That there is no reasonable (or likely) commercial supply of ‘impaired sight’ editions and the supply of these alternative editions is reasonably confined to the special situation/need that begins the three step test procedure- A question that will I expect be sorted out in time.

Once again, persons of a much higher pay grade than mine are in a quandary at WIPO over the three-step test so I will defer any comment.

John e Miller As best as I understand it, the HathiTrust case turned on fair use . With all respect it was you who introduced the 3 step test as to restrictions of exclusive rights for special cases, into this conversation.

The Australian law reform Commission is currently seeking submissions on Copyright and the Digital Economy.

The issues paper seeks Submissions and comments on any of its 55 questions.www.alrc.gov.au/sites/default/files/pdfs/…/wholeip42_4.pdf This particular issues paper makes a good fist of dealing with a complex many voiced reality with clarity. The closing date for submissions to this Issues Paper is 16 November 2012.

JW — I ‘introduced’ on this blog 16OCT2012 the three-step test in citing The Munich Declaration on 16OCT2012 as a key point of ‘civil society’ views on copyright. I did not then or subsequently offer any opinion.

And you may very well be right that the HathiTrust case ‘turned’ on fair use — that may also be its eventual undoing.

From the Australian Law Reform Commission (ALRC) paper ‘Copyright and the Digital Economy’ as introduced by John Walker above:

19 - The ALRC has been asked not to duplicate work relating to certain existing discussions at international level. … (In addition) work is being undertaken by the World Intellectual Property Organization (WIPO) in relation to exceptions for persons with print disabilities.

John e miller

That is standard government speak, we always express polite respect for international inter-government things. “Not duplicate” does not preclude taking a different approach to the subject.

Fair use is a case by case sort of thing, as it should be when it comes to questions of economic rights i.e questions of power.

PS the Planck institute deceleration is in part a proposal for a fairly large reworking of the 3 step test, I am not surprised that it might be thought controversial or even courageous by some.

Of the 55 questions for which the (Australian) ALRC requested a response, none specifically deal with copyright exceptions for those persons with a print-related disability — so I guess that topic was precluded. If one still would want to respond to that topic one could maybe do so under fair use (questions 52 & 53).

… and to keep this all on topic, one reason the AG v HathiTrust case has international ramifications is — whether as a by-product of the current case or some eventual WIPO international instrument or treaty — the USA will undoubtedly be the single largest exporter of copyrighted works in a ‘specialized format’ to those persons worldwide with a print-related disability.

If you read the introduction , Australia has for some time had a system of restrictions of exclusive rights (statutory licensing) for the purpose of producing material for the blind. It is possible that adopting a US style fair use approach may be more efficient ,I believe it is being considered.

Australia has also dealt reasonably well with issues such as time shifting , parody and so on. None of this has required radical rewriting of the 3 step test or of the berne convention in general.

‘Copyright’ is a land full of stalking horses

I was once offered a license to make Braille renditions of copyrighted material for an Australian publisher so I became familiar with Australian copyright exception procedures. The license required that I edit out large parts of their publications and would only be valid for one year so I politely (or maybe not so politely) declined.

BTW The next WIPO copyright (SCCR) session is late November in Geneva with a special SCCR General Assembly scheduled for DEC 17-18 to determine whether to convene a Diplomatic Conference toward an international treaty for the visually impaired in 2013.

Better access for the blind to material that is not otherwise available is fair enough.

This a bit old but hopefully you get the spirit. As you surely know Australia alongside the US is not keen on the redefinitions being pushed by some interest groups.

However, in summary, we do not support the proposed treaty for the following reasons:

• We believe that the proposed treaty is not an effective way to bring about a substantial increase in access to published books for the reading disabled. Rather, we think better access will be more readily achieved through a range of technological and administrative measures – some of which are currently underway in Australia – to facilitate greater cooperation between publishers and organisations working with people with a print disability.

•Secondly, we see little value in putting in place a new treaty when there are a number of existing international treaties, to which Australia is a signatory, containing provisions that allow member countries to legislate at the national level to provide timely and cost-effective access to copyright material for people with a print disability.

• Further to the above, while some have expressed concerns that existing international frameworks prevent the sharing of accessible files between jurisdictions, we believe that this is a matter of national law rather than a necessary corollary of international obligations.

•Finally, the proposed treaty in its current form is inconsistent in a number of areas with current Australian law and with international treaties to which Australia is a signatory. These inconsistencies would create very substantial difficulties for Australia if it decided to participate in such a treaty. [emphasis mine]

Australia’s constitution was consciously designed to make many of the more undesirable practices of the older world very hard to do down under.

The correct link for the Issues paper is this

Hello JW — The report that you quote from above is the Australian Copyright Council’s Response to AG’s Department on World Blind Union’s Proposed WIPO Treaty dated NOV 2009 … things have obviously much progressed from that time.

BTW the current President of the World Blind Union (WBU) is Ms. Maryanne Diamond of Vision Australia.

You cannot describe a publisher not having produced a book in a given format as a failure, any more than you can say they have failed by not producing a book on a given subject.
From the point of view of the publisher, this is obviously true. From the point of view of society, this obviously could be false (especially if we are talking about the whole of the publishing industry).
it’s even more unfair to seize property without any permission or payment just because you want it, however noble you may think your purpose is.
Again, this is obviously dependent from who’s point of view one considers this. It’s not equally unfair to “seize” the right of a blind person to equal access to works in a library, by making it contingent on being economically beneficial to the creator of the work? And even if, for example, there was magically no economic problem to pay the publisher whatever amount of money they wanted to produce the special edition for the blind for every work which the blind person wanted access to in the library, I hardly would call the resulting situation “equal access”. To make an analogy which would be understandable to my children, who (unlike me) never have done research in a library, I daresay that the feeling would be rather analogous to browsing the Internet, but having to wait 24 hours to follow each and every hyperlink.

The problem with using connotation-laden words like “property” and “right” in discussions like this, is that it masks the reality in which we live, in which there are no absolute “rights”.

Could somebody in authority inform me regarding a digital library for patrons with good vision: owning a print copy of a book in copyright; then digitizing the book; making the book available to only one patron at a time?

I would expect a court to declare that such a library is not protected by fair use or by first sale. There are some who think this model ought to be legal, but on the law as it currently stands, I don’t think it is.

James me be right as to the legal argument, but what Nahamha proposes sounds very close in practice to the Internet Archive’s Lending Library: see http://archive.org/details/lendinglibrary and http://openlibrary.org/borrow. Some of the titles have been made available with the permission of the publisher, but some are in-copyright books that are digitized by the Internet Archive and then made available for a digital loan, one person at a time. I assume that IA feels that if you can loan a book in print, you should be able to loan a digital copy of that book - but I have not seen a legal analysis from them for the program.

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