Background of the HathiTrust

As an offshoot of the Google Books Search project, the HathiTrust was founded in 2008.  According to the HathiTrust website:

HathiTrust Digital Library is a digital preservation repository and highly functional access platform. It provides long-term preservation and access services for public domain and in copyright content from a variety of sources, including Google, the Internet Archive, Microsoft, and in-house partner institution initiatives.

HathiTrust is a partnership of many major academic research libraries.  It relies on Google Books Search to create the digital archive of library materials. 

The Lawsuit

The Authors Guild had sued Google in 2005 over Google Books Search.  After a proposed settlement between The Authors Guild and Google was rejected in March 2011, The Authors Guild then sued HathiTrust in September 2011.   Authors Guild v. HathiTrust thus presents a similar issue as the more famous Google Books lawsuit: whether digitization of books is a legal fair use of copyrighted material.  It was a puzzling suit to bring -- if anything, the libraries have an even stronger fair use defense than does Google.

EFF then joined the American Library Association, the Association of College and Research Libraries, and the Association of Research Libraries in an amicus brief urging a federal court to find that the fair use doctrine permitted the creation of a valuable digital library, the HathiTrust Digital Library (HDL).  Via the HDL, more than 60 university and research libraries can store, secure, and search their digital collections.  EFF argued that the copying of books for a database like the HDLibrary is a clear case of fair use, and obviously in the public interest.

On October 10, 2012, the district court agreed, and granted summary judgment for HathiTrust.  Nicely summing up his ruling, Judge Harold Baer declared that he could not "imagine a definition of fair use that would not encompass the transformative uses made by" the HDL.  The court paid close attention to the public interest in the project, recognizing that it actually served the purposes of copyright: to promote the progress of science and the useful arts.  Citing EFF's amicus brief, the court recognized that the HathiTrust project efforts helped, rather than hindered, access to creative works.  That public benefit, the court said, meant that the HDL supported “the underlying rationale of copyright law".

The Authors Guild appealed this ruling to the Second Circuit Court of Appeals.  EFF (along with Public Knowledge and the Center for Democracy and Technology) filed an amicus brief supporting HathiTrust.  Among other things, EFF urged the appeals court to reject an argument raised in another amicus brief from the Associated Press arguing that fair use should only protect copies that are somehow "expressive" and limited to "non-commercial" uses. This would drastically, and improperly, narrow the scope of fair use protection.

On October 30, 2013, the appeals court heard oral argument.  On June 10, 2014, the Second Circuit ruled in favor of HathiTrust on most issues.  The Court's opinion was a major victory for fair use.  The Court upheld HathiTrust's right to maintain a full-text database to search for books, stating that "the creation of a full‐text searchable database is a quintessentially transformative use." The Court also approved, as fair use, HathiTrust's service to make text available in formats accessible to print-disabled people. Finally, the Court remanded the case to the district court regarding the long-term preservation of books.