A Federal judge has found in favor of defendant HathiTrust’s (HT) request for summary judgment on Fair Use grounds against the Authors Guild (AG), delivering a victory for those seeking new uses for digitized material. The AG had filed suit against HathiTrust and several public universities alleging widespread copyright infringement through Hathi’s mass digitization project (MDP) with Google.

Judge Baer ruled that the MDP was transformative; the uses made of the digital copies for search, analysis, and facilitating access for the reading disabled all clearly fell within Fair Use. In his ruling, which eliminates the need for a jury trial, Baer’s language was emphatic: “Although I recognize that the facts here may on some levels be without precedent, I am convinced that they fall safely within the protection of fair use such that there is no genuine issue of material fact. I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendants’ MDP … “.

Although the AG could appeal the HT ruling, PW contributor and legal scholar James Grimmelmann notes that the “opinion makes the case seem so lopsided that it makes the appeal into an uphill battle.” Judge Baer clearly felt that some of AG’s assertions – e.g., proclaiming that Section 108 worked precisely opposite the way it clearly states it works with Fair Use, were frivolous. Legal fees are routinely assessed against the losing party in copyright cases, and the AG should offer not to appeal the case in exchange for the defendants agreeing not to seek attorneys’ fees. Whether defendants would accept such a trade given the low odds of a successful appeal is open to question.

The Court’s straightforward and clean ruling provides the AG with very little room to maneuver in its continuing case against Google, which is currently stayed on a procedural issue at the Appeals Court. Notably, Judge Baer found that the AG, as an authors association, lacked the ability to represent its members’ individual copyright claims in AG v. HathiTrust. This suggests that only class action certification, which now must be upheld at Appeals, would permit it to have a compelling footprint in its case before Judge Chin.

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Two years ago, in September 2009, the National Federation of the Blind (NFB) testified in front of the Judiciary Committee of the United States House of Representatives, urging support for the proposed Google Book Search (GBS) settlement between Google, the Authors Guild, and the AAP. Nearly one year previously, in October 2008, the University of Michigan, one of the participating GBS libraries, had demonstrated to the NFB how they would make their digital collection accessible to the print disabled. In the GBS settlement, the NFB saw the means to daylight millions of books that otherwise would remain unavailable to the visually impaired, never having been made accessible by their publishers.

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