• by Wendy Davis  @wendyndavis, June 10, 2014

Libraries that digitize books in order to make them searchable don't infringe copyright, a federal appellate court ruled on Tuesday.
 
The decision, issued by the 2nd Circuit Court of Appeals, marks a major defeat for the Authors Guild. That organization contended that the HathiTrust -- a joint digital book-storage project of 13 universities -- infringes writers' copyright by making digital copies of the books.
 
A three-judge panel of the appellate court said the libraries and HathiTrust are protected by fair use principles, because the digital copies, which enable people to search through books online, are “transformative.”
 
“The creation of a full-text searchable database is a quintessentially transformative use,” the appellate said in its decision, which largely upheld a previous ruling by U.S. District Court Judge Howard Baer in New York. “By enabling full-text search, the HDL (HathiTrust Digital Library) adds to the original something new with a different purpose and a different character.”
 
The litigation against the universities dates to September 2011, when the Authors Guild brought a copyright infringement lawsuit against the HathiTrust and a group of research libraries, including the University of Michigan, the University of California at Berkeley, Cornell University and the University of Indiana -- that worked with Google to digitize books. The National Federation of the Blind intervened in the lawsuit in favor of the universities, arguing that the HathiTrust's digital library was "revolutionary" for blind people.
 
The HathiTrust Digital Library, founded in 2008, currently includes more than 80 institutions and boasts digital copies of more than 10 million books. The organization allows people to search for words or phrases contained in any of its digital books and displays the page numbers where the words appear.
 
The HathiTrust also allows its libraries to provide the complete text of books to “print-disabled” patrons, including the vision-impaired.
 
The appellate court sided with HathiTrust on its digitization efforts, as well as its move to provide the books to blind readers. “The doctrine of fair use allows the libraries to provide full digital access to copyrighted works to their print-disabled patrons,” the court wrote.
 
The HathiTrust also theoretically allows libraries to create replacements for books that are destroyed or lost. The Authors Guild alleged that prospect also infringed copyright, but the 2nd Circuit ruled that the issue was too speculative to warrant a decision at this time. The court sent the matter back to Baer for further proceedings about whether the Authors Guild should be allowed to proceed with that claim.
 
The ruling could have an impact on the Authors Guild's litigation against Google, which worked with the libraries to digitize books. U.S. Circuit Court Judge Denny Chin in New York dismissed that lawsuit last year, ruling that the company's book digitization project was protected by fair use principles.
 
The Authors Guild appealed to the 2nd Circuit, which is still considering the matter. Tuesday's ruling is seen as boding well for Google, largely because the Authors Guild's lawsuit includes allegations that Google scans books and makes them searchable.
 
At the same time, there are a few differences between HathiTrust's activities and Google's, including that Google displays snippets of the books in the search results. It's not clear whether those distinctions will change the appellate court's analysis.
 
But University of Maryland law professor James Grimmelmann, who has followed the litigation, says the decision could pave the way for a Google victory. “The ruling gives the Google court significant room to say Google is facilitating fair uses by the libraries,” he says.
 
He adds: “The set of possible decisions that don't contradict this one is very small.”