Bloomington Herald-Times
October 17, 2012
IU, universities claim victory in HathiTrust lawsuit dismissal
By Mike Leonard
October 17, 2012, last update: 10/16 @ 5:47 pm
A federal court ruling in New York last week is being hailed as a big win for universities including Michigan and Indiana, higher education in general, students with print disabilities and Google, which has scanned more than 10 million books in its partnership with an organization called HathiTrust.
Brad Wheeler doesn't discount any of the above. But he emphasizes: "It's a big victory for students who need access to these materials," said Indiana University's vice president for information technology.
And while last week's court decision leaves several questions open to interpretation or further litigation, it also appears to give a green light to the kind of meta-analysis of millions of books that was impossible before the digital age.
Hathi means "elephant," and about five years ago, Michigan, Indiana and several other major research universities formed the HathiTrust to take on an elephant of a job -- the digitization of their massive library collections. The effort took off in a big way when Google joined the partnership and began tackling the digitization.
A year ago, The Author's Guild and other co-litigants sued the HathiTrust for violation of copyright laws. Michigan, where the HathiTrust is located, took up defense of the lawsuit and leading partners such as IU filed amicus briefs supporting the trust's defense.
U.S. District Court Judge Harold Baer Jr. threw out the law suit last week, asserting that the digitization process constitutes a "transformative use" of the materials in question and therefore falls under the "fair use" legal doctrine. Moreover, the New York judge said the Americans With Disabilities Act not only allows adapting copyrighted materials for people with print learning disabilities but might even require it.
"I cannot imagine a definition of fair use that would not encompass the transformative uses made by defendants' [mass digitization project] 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 ADA [Americans with Disabilities Act]," Baer wrote.
"We have been very, very careful to follow copyright law and protect the legitimate rights of authors and publishers," Wheeler said. "We've looked at this with our partners for a long time and felt all along we were on the right side with fair use."
Wheeler said providing alternative versions of even copyrighted materials to people with print disabilities (ranging from vision to other written language disabilities) looked clear from the start. It also seemed clear to the HathiTrust and universities that their focused interpretation of copyright law was proper. "Even if it's an Indiana book, we don't share that with you (digitally) if it's a copyright volume." What Indiana and other institutions can do is share information about volumes that tell students and researchers what a text includes.
Google scans books of all kinds, keeps a copy for itself and gives another to the universities. Google uses the information for a "snippet view" of what a book contains.
Wheeler said he is optimistic that the court's ruling last week will enable the expansion of a vast new field of research under the judge's "transformative use" language. Similar to data mining in other fields, text mining might open up the field of "non-consumptive research" that could use super-computing to find words or descriptors within millions of volumes to come up with new theories or analysis. "It's a young field but it's very exciting," Wheeler said. "We took the tone of the judge's opinion to affirm what we have been doing and are doing is thoughtfully and carefully within the framework of copyright law."
