• by Wendy Davis  @wendyndavis, October 11, 2012

In a blow to the Authors Guild, a federal judge dismissed the group's copyright infringement lawsuit against five universities that worked with Google to digitize millions of books. U.S. District Court Judge Howard Baer in New York ruled Tuesday that the universities' "mass digitization project" is protected by fair use principles. The project involves creating digital copies of books, making them searchable, and allowing blind people to access the books via software that converts text to speech or conveys it tactilely.

"I cannot imagine a definition of fair use that would not encompass the transformative uses made by defendants’ [mass digitization project] and would require that I terminate this invaluable contribution to the progress of science and
cultivation of the arts," Baer wrote in a sweeping 23-page opinion.

The litigation against the universities dates to September of 2011, when the Authors Guild brought a copyright infringement lawsuit against the HathiTrust --  a joint digital book-storage project of the University of Michigan, University of California, University of Wisconsin, Indiana University and Cornell University.

The National Federation of the Blind intervened in the lawsuit in favor of the universities. The organization argued that the HathiTrust's digital library was "revolutionary" for blind people. "Without the [HathiTrust], the blind are relegated to second-class academic citizenship -- one without the privilege of access to the print collections of university libraries. With the [HathiTrust], the blind have the same comprehensive access to the print collections of university libraries as the sighted," the group argued.

Baer agreed, ruling that the HathiTrust is protected by fair use principles. He ruled that one reason stems from the HathiTrust's nonprofit status. Another is that its digital copies "serve an entirely different purpose than the original works." Specifically, Baer ruled that the digital copies are searchable in a way that print copies are not, and that they "facilitate access for print-disabled persons." Plus, people who can't read print because of a vision impairment aren't "a significant market or potential market to publishers and authors," Baer wrote.

Some observers say that the decision could bode poorly for the Authors Guild in its related, long-running copyright infringement lawsuit against Google. "It's pretty good news for Google," says copyright expert James Grimmelmann, a professor at New York Law School. He adds that even though Circuit Court Judge Denny Chin -- who presides over the case against Google -- isn't legally required to follow Baer's decision, the two cases are similar enough that Chin might not want to reach a different conclusion than Baer.

At the same time, the cases differ in a few ways, Grimmelmann says. Unlike the HathiTrust, Google is a for-profit company. Also, Google displays snippets of the books in its search results.

But he says that neither of those differences are likely to carry much weight. "I don't think the commercial distinction matters paricularly much, given that the indexing is transformative and there's no market harm," he says. Also, he says, other courts have found that showing only small portions of a copyrighted work (such as thumbnails of photos) doesn't infringe copyright because they don't substitute for the original work.