• by Wendy Davis  @wendyndavis, March 1, 2013

The Authors Guild is asking an appeals court to revive its lawsuit against five universities that worked with Google to digitize books.

The authors' organization is asking the 2nd Circuit Court of Appeals to rule that the digitization initiative is not protected by fair use principles. "The Libraries’ actions subvert the fundamental premises of copyright law and, unless enjoined, threaten to decimate existing and developing markets for literary works," the Authors Guild argues in its legal papers.

Last year, U.S. District Court Harold Baer in New York rejected that argument, ruling that the project was "transformative," and therefore met the criteria for fair use. He characterized the project as an "invaluable contribution to the progress of science and cultivation of the arts," in a ruling granting summary judgment to the HathiTrust.

The case 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 Authors Guild sought an injunction barring the universities from continuing with the project. While the case is separate from the Authors Guild's long-running copyright litigation against Google, the two matters present questions about fair use.

The National Federation of the Blind intervened in favor of the universities, arguing that the HathiTrust was "revolutionary" for blind people who couldn't access print versions of books. Once books are digitized, blind people can access them via software that converts text to speech or conveys text tactilely. Baer agreed with that argument, ruling that digital copies facilitate access for people who can't read print because of vision impairments.

But the Authors Guild says in its appellate papers that the libraries are making more copies than necessary to make the works accessible to people with vision impairments. The group says that the digitization process results in at least five digital copies of each book -- including a copy kept by Google. "To the extent that any of the libraries’ goals fit within the rubric of fair use, the libraries should be permitted to do no more than is necessary to accomplish that particular purpose," the Authors Guild argues.