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Amicus Briefs Piling Up in HathiTrust Digital Library Appeal

By William Peacock, Esq. on June 14, 2013 | Last updated on March 21, 2019

Imagine e-book utopia. Billions of books, nearly every significant work ever written, available electronically through an electronic library. Want to flip through some Faulkner? Click. Peruse Peruvian history? Click. Find the answer to the meaning of life and everything? It’s 42, and you can find that with a click or two too.

The HathiTrust is not that utopia, nor is Google Books. They could be, but the restrictions placed upon them in the name of copyright protection limits their use to that of a glorified catalog. The user inputs a search query and the HathiTrust digital library will tell them where to look, down to the book and page number. The user can then find the book in a library or purchase it elsewhere. The only exception is for print disabled individuals, who are granted full access to the library’s catalog.

One would think that such a limited, yet incredibly beneficial use of these books' contents would be a satisfactory solution for the copyright holders. They do, after all, have rights to protect and deserve compensation for their work. The HathiTrust system simply points users to their works, and in the end, probably leads to more book sales.

The Author's Guild disagreed, and lost in the district court last year. The court ruled that the trust's usage of the materials amounted to fair use, stating:

"I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendants' MDP and would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts that at the same time effectuates the ideals espoused by the [Americans with Disabilities Act]."

Feeling unsatisfied, the Author's Guild appealed to the Second Circuit. So far, it appears that parties are lining up on the other side, including some authors that the Guild purports to represent via associational standing.

The Electronic Frontier Foundation has, of course, chimed in. Their amicus brief argues that searching and indexing the materials is a transformative use and falls under the Fair Use doctrine. They also highlight the benefits to print-disabled individuals.

Our personal favorite, however, has to the amicus brief brought by 133 academic authors, who argue that the Authors Guild does not speak on their behalf, that the HathiTrust advances their interests, and that the Guild's 116 copyrights out of 7.3 million potentially in-copyright books in the library's collection is insufficient to assert associational standing. The 55-page brief was authored by two Boalt Hall professors.

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