HathiTrust: A Landmark Copyright Ruling

My PW blog post on the HathiTrust ruling is up: HathiTrust: A Landmark Copyright Ruling. Some highlights:

The Authors Guild’s lawsuit against Google over book scanning is grinding on into its eighth year. After a settlement, an amended settlement, a rejection of the settlement, and a protracted procedural fight over certifying the case as a class action, it has made almost no substantive progress in front of Judge Chin. Meanwhile, the Authors Guild’s lawsuit against Google’s HathiTrust library partners has produced a definitive ruling from Judge Baer in little more than a year. What started as a sideshow has become the main event. …

Also notable about the decision is what was missing from it: orphan books. None of its conclusions about harm to book sales depend on whether the books are orphan or owned, in or out of print. It does refer to the inordinate expense of negotiating permissions for millions of books and drops an aside that it is “a tenuous assumption to say the least” that all copyright owners could be found. But this is a point about books overall, not about any specific book: the point is that there are orphan books in the collection, not that all or even most of the books in the collection are orphans. The opinion applies equally to all books.

Some highlights from my comments to Prof. Grimmelman’s article as above (awaiting moderation at PW):

If a public or private institution is under the mandate of the ADA to provide ‘equal access to copyrighted materials’, what’s the difference whether such use is considered fair use or not?

Does this now mean under fair use provisions that anyone can provide a copy of a book to a person who is disabled when that person who is disabled does not already own his/her own copy of that book without any substantiation as to whether that person is truly disabled or not … thus entering the realm of handicapped parking placards?

If the first 2 claims hold true, what’s the difference whether the University of Michigan is deemed an authorized entity or not?

Added note from Opinion & Order p23: Defendants may certainly rely on fair use … to justify copies … in the event that they are not authorized entities.

The HathiTrust Library Consortium began in OCT 2008. However, many of the HathiTrust member libraries have extensive collections of digital materials even prior to that year that they have made or will make available to the HathiTrust.

Partnership Community http://www.hathitrust.org/community

For example, from the Hathi Trust website above:

The (Arizona) University Libraries’ holdings include more than 5.8 million books (18% electronic), nearly 70,000 serials (94% electronic), and more than 195,000 digital items in campus repository collections.

or ..

(Texas A&M Library is the) University’s principal research and information center, providing 4.1 million volumes, 5.7 million microforms, 91,580 print and electronic serial titles, 557,777 electronic books and more than 600 databases.

So by the current Opinion & Order many of those Hathi Community libraries — as they have extensive digital holdings — have been in violation of ADA Titles II. (public institutions) or III. (private institutions) for years. Why did the NFB wait until late 2011 to make their claim that such institutions have a mandate under the ADA to provide materials to those students and maybe to other persons who are blind or have a print disability.

The NFB attorneys stated in their Motion to Intervene Item 25:

(Further,) requiring the University Defendants to argue that a decision for the Plaintiffs would violate the Proposed Intervenors’ rights under the ADA would place those defendants in a precarious legal position:

The University Defendants are responsible for ensuring that they do not violate Title II or Title III of the ADA, If the Plaintiffs were to prevail in this action and the Proposed Intervenors were required to institute a second lawsuit to ensure access to digital materials, the University Defendants could be the defendants in that action, Any admissions they made in this suit to the effect that preventing access to a digital library collection would violate the ADA would bind them in that suit.

The lead attorney for the NFB told the NFB Convention in 2008:

When a company believes that its existence in cyberspace immunizes it from the ADA, but it provides services to schools and universities, then we’ll sue the schools and universities under the Rehab Act to let the businesses know that, if they want to discriminate, we can destroy their business.

So what about the HathiTrust universities that maintain their own extensive library digital files who — by the ruling from last week — have discriminated and been in violation of the ADA and Rehab Act for years?

Why has the NFB never taken any action prior to the suit taken by the Authors Guild against the Hathi Trust consortium? … Why haven’t they already sued Hathi Consortium Members Harvard, or The University of Virginia, or The University of Maryland or Johns Hopkins both in NFB’s own backyard in Baltimore?

I am a New Zealand author. My interest in the Google Book Settlement began in August 2009 with the discovery that Google had digitized three of my books without my knowledge or consent. In December 2009 I developed a rare visual disorder that now makes reading a struggle. I can no longer keep up with the reams of written material related to the wider Google Book Settlement (or whatever it’s called these days). However, the volume of written material about the need for accessible formats for the print disabled is small by comparison. From a review of this material I would like to make the following comments.

Content creators and other rights holders want print disabled people to be able to read what they publish and print disabled people want the barriers that prevent them reading this material removed.

It’s a huge problem. Surveys have found that only five percent of the world’s literary heritage is available in accessible formats. Libraries and organisations for the visually impaired have been lobbying, separately and collectively, for action at an international level for years.

There many relevant treaty proposals on the World Intellectual Property Organisation website for which input from copyright holders appears to have been minimal or non-existent. These have resulted in a consensus among lobbyists that the cause of the book drought for print-disabled people is copyright, and the answer to the book drought is more copyright exceptions. Copyright is characterised as the enemy of literacy and freedom.

These proposals overlook the fundamental reality that content creators are not charities. We are entitled to a fair price for the use of a our work.

In my view, one of the reasons for the current book drought for the print disabled is that both the existing and proposed schemes come at a financial cost to authors and publishers. Unless there is a financial incentive, however modest, built into any future scheme authors and publishers will be unable to afford to take part, and the ideal - to have accessibility build into the publishing process - will never be reached.

I will keep this response to Ms. Linley Hood brief:

Those favoring a WIPO Treaty on Copyright Exceptions & Limitations for the Visually Impaired believe that the UN Convention on the Rights of Persons with Disabilities (CRPD) and ‘fundamental freedoms & human rights’ (as expressed in the Munich Convention) supersede any existing rights granted through Berne, TRIPS, or other international conventions granting ‘exclusive’ reproduction rights to authors and/or copyright holders.

I appreciate that’s what they believe. My point is that this belief is self-defeating. By treating copyright as the problem, and by exploiting content creators instead of working with them, the disability lobby is killing the goose that lays the golden egg.

I applaud Article 21 of the CRDP: “States Parties shall take all appropriate measures to ensure that persons with disabilities can exercise the right to freedom of expression and opinion, including the freedom to seek, receive and impart information and ideas on an equal basis with others and through all forms of communication of their choice….”

To achieve that goal we need publishers to release books in Braille, large print, e-book and audio at the time of publication of the standard print version, but under present and proposed copyright waiver schemes they cannot afford to do that - and thus the whole process of making books accessible is ghetto-ized, slow, expensive, inefficient.

I remember a time when people with arthritis could not use standard can openers. Now easy-grip kitchen utensils of every sort are mainstream, accessible for all. That’s how it should be for books.

Hello Ms. Hood — The following couldn’t be more timely. This may be the make-or-break session:

Inter-sessional Meeting on Limitations and Exceptions for Visually Impaired Persons/Persons with Print Disabilities, OCT 17-19, 2012 (Geneva, Switzerland)


OOPS — left off for the ‘creative industries’ response go to http://www.ifrro.org/ and scroll down to

Joint statement on the WIPO instrument on copyright limitations and exceptions for persons with print disabilities

I will go out on a limb here …

I think the Opinion & Order would have been much simpler if Judge HB had merely stated that any institution of higher learning that has students within its population with a print disability that require accessible renditions of copyrighted material should as a matter of course and as a de facto ‘primary mission’ provide such access to copyrighted material as an ‘authorized entity’ under the Section 121 Chafee Amendment.

I think agreeing with the NFB’s multiple positions as stated in Document 105 brings unnecessarily into the issue matters regarding fair use and requirements under the ADA.

The ADA issues have never been mentioned heretofore as specific requirements of the ADA although Senator Chafee himself was a co-sponsor of the 1990 ADA and principal sponsor of the Section 121 Amendment bearing his name.

The oft quoted — however rarely quoted in its entirety — HR 94-1476 page 73 (1976) says in the last sentence regarding the making a single copy as a free service for a blind person being properly considered a fair use under section 107 may be misinterpreted. It says in that same paragraph that the NLS of the Library of Congress was still required to obtain permission from the publisher before doing just that. One could interpret that the ‘free service for a blind person’ could be referring to making a Braille or phonorecord copy of a book that such person who is blind has previously purchased or been gifted a hard-copy version

— and that accessible copy is the one being referenced as fair use under 107.

A fact sheet issued by the American Library Association (ALA) says that there are about 104,000 academic and school libraries in the USA. I wonder whether the late Senator Chafee would consider such a number congruent with his statement regarding authorized entities in his 1996 Senate Floor remarks that

“It includes a very narrow definition of those who are eligible to undertake such production…”

@ Lynley Hood

is that both the existing and proposed schemes come at a financial cost to authors and publishers.
You do realize that the case in question has to do with an association of libraries, correct? I fail to see how, when a library digitizes a book in its holding, and provides access to the digitization to a visually impaired client of that library, there is any financial cost to either the author or the publisher (over and above the “cost” relating to the possibility that, if the library didn’t exist or contain the work in question, the clients might buy a new copy of the work itself from the publisher). Please explain.

In the light of Judith Sullivan’s 2006 WIPO Study on Copyright Limitations and Exceptions for the Visually Impaired, the HathiTrust ruling appears to be fundamentally flawed.

Sullivan examines exceptions for the benefit of visually impaired people in the laws of 57 countries and provides case studies illustrating the problems and solutions involved.

She notes: “The ideal is for accessibility to be built into the ordinary publishing process” and “Although exceptions to copyright are unlikely to deliver full accessibility…. they may nevertheless be justified, but need to balance the interests of all stakeholders and work in ways that encourage rather than deter more comprehensive solutions.”

Instead of encouraging more comprehensive solutions the HathiTrust ruling excludes those involved in the ordinary publishing process (the rights holders) apparently in the belief that there is no market, there never has been a market, and there never will be a market, for accessible books. This belief is open to challenge.

Sullivan gives many examples of mainstream publishers who work with disability organisation to provide books in accessible formats at the time of publication. Her examples show that good things can happen when everyone works together (and presumably everyone in the production chain is paid a fair price for their work).

A further irony is that the HathiTrust ruling has consigned accessible book production to a disability ghetto at a time when, thanks to the new technology and our rapidly ageing population, the market for books in accessible formats has never been greater.

Talking books are no longer the preserve of the blind. The commercial market for audiobooks is thriving among people of all age groups and abilities.

Apple has created a gold standard in accessible devices for the commercial market. Today the iphone, with its built-in VoiceOver and screen reading technology, is the most popular phone with the blind community.

The business case for accessible publishing outlined on the RNIB website (the UK equivalent of America’s NFB) makes the following points: * in 2008 mature book buyers (aged 61+) accounted for around a third of all books purchased, despite representing only a fifth of the population. * the proportion of people with sight problems rises steeply from about 1 in 30 in the population as a whole to around 1 in 5 in the older age group. * research shows that mature buyers were early adopters of e-readers. Anecdotal feedback suggests that the ability to increase font size was a big factor in their adoption.

Add in the spending power (the ‘silver dollar’) of all the baby boomers now reaching retirement age in both the developed and developing worlds, and the business case for accessible publishing becomes even stronger.

Research shows that baby boomer retirees are likely to be longer lived, more active, wealthier, better educated and more tech savvy than their predecessors. When one in five of them develops irreversible vision loss (most commonly glaucoma or macular degeneration) the market for books in accessible formats will escalate.

These economic, technological and demographic factors provide strong incentives for a thriving market in accessible books for people with a wide range of print disabilities. It would be a pity if organisations committed to making accessible books on a not-for-profit basis for a very small section of the disability community found themselves locked out of taking advantage of this opportunity by their copyright exempt status.

As note to Ms. Hood’s comment above, the following is from the website of the University of California Press:

Print-Disability Policy

It is the policy of the University of California Press to provide electronic files of adopted textbooks that have been assigned to the print-disabled. We will provide such a copy free of charge upon receipt of a formal request on letterhead from the student’s campus disability service office… Please verify that the student has purchased a copy of the book.

While audiobooks and e-books are indeed useful to the vision impaired, they have always been popular with many people who are not. Audiobooks are popular with people who drive long commutes and want entertainment or education that does not impair their driving. They are also popular with people performing activities with their hands, and who want entertainment or education while they work. Then there are audiobooks where the audio process is essential, for example the ones used as aids in learning foreign languages.

I am not sure where the line for “vision impaired” is drawn. However, everyone over 50 or so begins to have vision problems even without having glaucoma or macular degeneration. It becomes harder for the muscles of the eye to focus, and to adjust for close vision versus distance. This is why people wear bifocals and trifocals, but e-books are a good reading solution. It is a major reason why Baby Boomers like e-books.

Prior to e-books, the standard solution for the over-50 set was large-print paper books. And magnifying bars used with smaller-print books. Both methods still work.

Publishers have long been producing audiobooks and have been producing e-books ever since the technology became viable. They are always alert to opportunities for extra revenue. And authors whose rights have reverted to them are increasingly turning to publishing e-books to make always welcome extra money from work they did long ago, as well as self-publishing new e-books.

I have not heard that anyone scanning books for the Google project, or wishing to use those books for the vision impaired ever checked whether an e-book and/or audiobook was already available, or whether the publisher (or author) had one in the works. Whether there is an existing e-book or audiobook or not, preemptively scanning and distributing millions of copyrighted works without permission or payment would kill the market for e-books and audiobooks issued by or with permission of the copyright owners. Or perhaps, it would move the profits for those books from the copyright holders to those who had scanned the work without permission, while destroying the market for new books to be issued by their copyright holders.

Frances Grimble wrote:

I am not sure where the line for “vision impaired” is drawn.

The difficulty in drawing that line is another good reason for allowing the market to decide where the line lies (i.e. for allowing people to buy books in whatever format suits them best).

Under existing laws in the 57 countries reviewed by Judith Sullivan, copyright exemptions for the production of accessible books are available to a very narrowly defined group of readers (usually “the blind”). These laws date back to a time when producing accessible books was far more expensive and time consuming than it is now. It made sense to focus on the most severely disabled. Under the circumstances, authors and publishers were happy to donate their books and forgo royalty payments.

The downside of these laws in our present technological and demographic climate are: they create the impression that the market for accessible books is very small; they perpetuate the notion that authors and publishers are happy to give their books away; they prevent the equipment and expertise used to produce accessible books and the accessible books thereby produced from being used to address the escalating demand for accessible books; and they create time-consuming and expensive difficulties for those charged with policing the boundary between those eligible or ineligible for inclusion in the copyright exempt schemes.

In addition to all the able bodied people who read e-books and audiobooks, the market for accessible books includes the overwhelming majority of visually impaired and print-disabled people who fall outside the narrow medico-legal definition of blindness/print disability used in current legislation and implicit in the HathiTrust ruling.

New Zealand copyright law is comparable to that in most Western countries, so the NZ experience is probably typical. In NZ only 12 percent of people with irreversible vision loss severe enough to prevent them from reading ordinary newsprint are blind enough to qualify for inclusion in the copyright-exempt accessible books scheme.

The problem of definition also applies to other forms of print-disability. Should dyslexia be included? If so, how do you define it? Where do you make the cut?

A further complication is that most definitions of disabilities require the condition to last for at least six months. This means that most people housebound or bedridden and unable to hold a book or turn a page for weeks or months due to accidents or illnesses do not qualify as print disabled at a time when they are most in need of accessible books.

IMO creating a scheme for accessible books that excludes most people who would benefit from it is contrary to both the spirit and the letter of the ADA and the UNCRPD.

The following is the current version of definition of print disability at the WIPO session 17-19 OCT 2012 ‘Working Document’ SCCR 24/10:

ARTICLE B BENEFICIARY PERSONS A beneficiary person is a person who

(a) is blind

(b) has a visual impairment or a perceptual or reading disability which cannot be improved to give visual function substantially equivalent to that of a person who has no such impairment or disability and so is unable to read printed works to substantially the same degree as a person without an impairment or disability; or’

(c) is otherwise unable, through physical disability, to hold or manipulate a book or to focus or move the eyes to the extent that would be normally acceptable for reading,

regardless of any other disabilities.

Whether the above will be the final version or will ever going into effect all is yet to be determined.

Correction: The above quote is from ‘Revised Working Document’ WIPO SCCR 24/9

And the garbled last sentence should read:

Whether the above will be the final version or will ever be going into effect at all is yet to be determined.

For those like myself who are unfamiliar with judicial procedures, Justia has posted as Document 157 the requisite court documents for appeal at the Southern District Court in New York.

An appeal must be filed within 30 days of the notice of judgment with penalty provisions for any filing past that date.

I just listened to the ARL interview with the 4 HathiTrust-side attorneys.

It makes no sense to say what a library or an educational institution can do regarding section 107 ‘fair use’ accessible copies for a person who is blind or print-disabled; if they can do it, anyone can do it.

Definition of a person who is print-disabled under Section 107: Anyone who says that they are print-disabled.

To simultaneously claim that anyone who says they are print-disabled can use the HathiTrust collection, and that there is no market for the HathiTrust collection, is absurd.

The following is my transcription of the comments made by the National Federation of the Blind’s (NFB) chief outside counsel to an ARL interview featuring 4 attorneys involved with the case but not the HathiTrust attorneys themselves:


24:20 The universities did not object to (the NFB’s) intervening because they realized we could with far greater authenticity and knowledge make the argument that digitizing print books so that they can be made available to blind scholars is a ‘fair use’ and a compelling one …

24:26 So that’s where the ADA plays into this case. It legitimated the creation of this corpus — this digital corpus because it was done with the intention of meeting civil rights obligations and that legitimate use translated very easily in the judge’s mind to a ‘fair use’.

So if the digitizing of the HathiTrust was done under Civil Rights obligations, what’s the difference whether it was ‘fair use’ or not?

… and if the Civil Rights obligations ‘legitimated’ the entire digitization project, but on appeal such Civil Rights obligations are undermined, where then stands the legitimacy of the HathiTrust digitization project?