Schnader Harrison Segal & Lewis LLP
Schnader
attorneys at law
New York
PeNNsYlvaNia
CaliforNia
washiNgtoN, D.C.
New JerseY
Delaware
(continued on page 2)
June
2014
Opening the Library Doors to the World:
Second Circuit Finds Universities’
Book Scanning Project Constitutes “Fair Use”
of Copyrighted Materials
By Thomas W. Hazlett
not reach the merits of plaintiffs’ claims on this conduct
because the University of Michigan announced it was in-
denitely suspending the Orphan Works Project.
Plaintiff individual authors and author groups sued Ha-
thiTrust and several of its constituent members for copy-
right infringement, seeking a declaratory judgment that the
Library infringed their exclusive rights as owners of copy-
righted works and injunctive relief to stop the Library’s
conduct. The parties both moved for summary judgment in
the district court, which was granted to HathiTrust and its
members in 2012 based on the district court’s conclusion
that the Library’s activities were a protected “fair use” of
the copyrighted materials. See Authors Guild, Inc. v. Ha-
thiTrust, 902 F. Supp. 2d 445 (S.D.N.Y. 2012). The authors
and author groups appealed the district court’s ruling to the
Second Circuit Court of Appeals.
The Court of Appeals began its analysis by reviewing the
scope of copyright protections, one limitation of which is
the “fair use” doctrine, which was incorporated into the
Copyright Act in 1976. When deciding whether the use
of a copyrighted work is “fair,” courts consider four non-
exclusive factors: (1) the purpose of the allegedly infring-
ing use (commercial, educational, etc.); (2) the degree
to which copyright is intended to protect works like the
copyrighted work (for example, creative ction is pro-
tected more than factual reporting); (3) the amount of the
copyrighted work that is included in the allegedly infring-
ing use; and (4) the impact of the allegedly infringing use
on the potential market for the copyrighted work.
As to the rst factor — the “purpose” of the use — the
Court of Appeals noted the importance of examining
whether the allegedly infringing use is “transformative;”
that is, whether it “adds something new, with a further pur-
On June 10, 2014, the United States Court of Appeals for
the Second Circuit issued its decision in Authors Guild, Inc.
v. HathiTrust, No. 12-4547, 2014 U.S. App. Lexis 10803
(2d Cir. Jun. 10, 2014), a case in which a group of authors
and author associations sued a consortium of universities
for copyright infringement based on the consortium scan-
ning its members’ libraries’ collections, and retaining the
scanned images and searchable text renderings for several
uses. The Court of Appeals held that the consortium did not
infringe the authors’ copyrights because creation of elec-
tronic images and searchable text for the intended purposes
were “fair uses” of the copyrighted works.
The facts from which this litigation arose are familiar to
many in higher education, and reect the challenges and
opportunities of the digital age. In October 2008, a group
of 13 universities announced the creation of HathiTrust, an
entity whose purpose was to create and operate the Ha-
thiTrust Digital Library. The Library was to contain digi-
tal copies of the library collections of all the HathiTrust
participants. As of June 2014, there were 80 universities,
colleges and other non-prot organizations participating in
HathiTrust, and over 10 million works — of various ages,
languages and subject matters — available in the Library.
The Library makes its combined digital collection avail-
able for three purposes: (1) full-text word searching of the
works by the public; (2) access to the works by those with
certied “print disabilities” (for example the blind or those
with severe visual impairments); and (3) under certain cir-
cumstances, creation of replacement copies of works.
On a side note, one member of HathiTrust, the Univer-
sity of Michigan, planned a separate so-called “Orphan
Works Project” in which the University would try to iden-
tify copyright holders for aged works and, if no copyright
holder could be identied, the work would be made avail-
able to the public in digital form. The Court of Appeals did
high er educ ation
ALERT
