 I'm Jonathan Band. I'm a copyright lawyer with my own firm policy bandwidth and I do a lot of work for the Association of Research Libraries and also for the Library Copyright Alliance. So I'm going to talk to you a little bit today about the HathiTrust decision and what it means for libraries. So to start all the way at the beginning, the HathiTrust litigation grows out of the Google Books project. Google, as many of you will recall, started to scan all the books in research libraries, originally the University of Michigan but then several other research libraries. As part of the arrangement between Google and the libraries, Google agreed to make available to these libraries that were providing them with the books to scan. Google agreed to provide them with digital copies of the scans of the books that the libraries had made available to Google. So Google got sued for its project for its scanning of all these works and that led to a whole lengthy process. Again, they were scanning the books, they were sued, they entered into a settlement agreement. There were actually two lawsuits, one by the authors guild, one by the publishers. A settlement was reached, then the settlement was rejected. Now one of the parts of the litigation against Google resumed. Now one of the parts of the, one of the features of the settlement was that rather than each library having its own digital set of the books that it had made available to Google, the idea was that there would be one large database and that the libraries that participated would have access to that database. So you'd have the Google database and Google would be doing whatever it was planning on doing under the settlement with its database and then there would be the separate database and that really was the origin of Hathi trust or the part of the Hathi trust that was the subject of this litigation. Now the way this separate database worked, the Hathi trust database is Google basically again they had their database and then they, what they did is they sort of made those books, those digital scans available to Hathi trust and Hathi trust downloaded those digital copies and so there was a copy on computers at the University of Michigan and then there was a mirror copy at the, I believe at Indiana University and then there were also hard copies, several hard copies, I mean not printouts but they were offline copies on disks and secure locations at the University of Michigan. So once the settlement collapsed, there were, again there was the Google database and so the litigation against Google resumed and there was this Hathi trust database and the authors guild decided to sue the Hathi trust for its database. Now originally there was again another side issue, everything here is incredibly complicated. Originally there was a side issue there that Hathi trust had announced an orphan works project where they would after making some effort to identify the rights holders of some of the books and then publish a list of these books saying look we weren't able to identify the right, we couldn't locate the rights holders of these books then they were going to be make the full text of those books available. The authors guild complained about that, Hathi trust stopped that project but nonetheless the authors guild sued them over the this orphan works project that again had been suspended. In addition Hathi trust had several other intended uses of its database. So one of the uses was very similar to what Google was doing. So remember what Google was doing with its database is it just provided search functionality so that you could type in a term and then the Google database would return a list of all the books where that term appeared and also then indicating how many times the term appeared in any given book. So Hathi trust was doing the same kind of, it did the same kind of thing, it had the same kind of functionality where you could search, search terms and then identify what books contain that term and how often they appeared and where they appeared in the book. Now a big difference between Google's search functionality and Hathi trust's search functionality is that with Google they would display snippets so they would display the first three times that term appeared in the book and with a cup with basically like an eighth of a page where that term appeared. So you'd be able to get a little bit of sense of the context. Hathi trust did not display any text. It simply said this search term appears in the book and these following books and this number of terms at times providing bibliographical information and so forth but not actually providing any context. It just said these are the books that have the words and this is where the words appear. These are the page numbers where these words appear. Another thing that Hathi trust provided is based on that is you also would be able to do sort of digital research. You would be able to sort of search the whole database and determine when were certain words being used, that kind of data mining. Another function of the Hathi trust databases that they announced that they would make full text available to print disabled students who were enrolled in the Hathi trust institution so that they would be able to see, to read the full text, you would have sort of like text to speech functionality or other other functionalities to make these works more available to the print disabled. Now, so when the authors guild sued Hathi trust over the Orphan works project they also sued Hathi trust for maintaining the database for these other functions. Hathi trust responded that this was all protected under fair use. With respect to the Orphan works project they said that part of the claim was moot because they had suspended the project so that part of the case was moot but with respect to everything else they said it was all protected under the fair use doctrine. The lower court Judge Baer back in 2012 I believe found that it was in fact a fair use and he said the search functionality, the making access, full text access to the print disabled and he also said digital preservation that these are all uses that fall within the fair use rubric and so are non infringing. Authors Guild appealed to the Second Circuit. There were a lot of amicus briefs both in favor of the authors guild and in favor of Hathi trust and what the Second Circuit, the U.S. Court of Appeals for the Second Circuit just did a couple of months ago is it affirmed the lower court's decision and it found that Hathi trust was a fair use. So with respect to the search functionality it said that this was a transformative use that what Hathi trust is doing is creating a new, using these works in a new way to provide the search functionality and that new way because it's transformative it doesn't supersede the original use that the authors intended for these works and so the first fair use factor the nature and purpose of the work weighed in favor of the use. Also with respect to the fourth factor which is the impact on the market the court basically said look if it's a transformative use we really don't care about the market impact. There is, and that was sort of like a building on earlier decisions but that's a very important holding long term that the reinforcing the notion that if it's a transformative use, if the use is transformative and the fact that you could theoretically have licensed it is not really relevant and so all that weighs in favor of a finding of fair use. With respect to the print disabled the court actually found that that was not a transformative use but even though it wasn't transformative and it wasn't transformative because the the print disabled would use the works in the manner that the authors intended in other words they would just read the books it's just a different market so the court said that that was not a transformative use but nonetheless it was a fair use under the four factors set forth in the statute that in particular that Congress had expressed an interest in making sure that the print disabled had access to the materials and also because this is a it's a small market and it was the publishers had not served the market then there really was no adverse market impact and so so so the the court ruled with respect to that use that it was a fair use. Now with respect to digital preservation there's the what the court did was interesting and a little confusing so the district court simply said ah you know preserving these works digitally that's a good thing and that's a fair use has no negative market impact and the court really didn't spend much time talking about it this is the lower court in the second circuit they didn't look about at digital preservation generally sort of the or the issue of mass because to some extent that was subsumed by the other holdings meaning you can only have a search index you can only do the search function if you already have this digital database and you can only provide access to the print disabled if you already have this digital database and so if you already have this database the database of all these books and we're talking about over 10 million digitized books then then obviously if you already have the database and then it's already preserving this preservation function so so what the what the second circuit was looking at was a narrower issue meaning under what circuit you know could you basically give access to those preserved works in the event that the hard copy had had deteriorated and was no longer available in other words the kinds of uses that are permitted under section 108c and the of the copyright act and so so that that's what it ended up that sort of ended up being what the second circuit looked at and it said in essence it was it was remanding that issue was sending that issue back to the district court because there wasn't any evidence that there were going to be any books under copyright owned by these the authors who were remaining in the litigation who would be affected by it so it was kind of a very technical issue very technical ruling it sounds like they remanded digital preservation but again it's not the big digital preservation issue about whether you know you can engage in mass digitization because to some extent again as I indicated for the for the first two parts of the case for the first parts of the holding with respect to search functionality and access to the print disabled you already needed to have this digital database that could serve this preservation function so the the remand is on this much narrower issue so we now have this basically a very very clear strong victory for libraries with respect to mass digitization where does this case go from here well as always it's complicated it could go in several different directions it is conceivable still that they might that the authors guild might ask the supreme court to review the case right now alternatively they could go back to the district court and go through the remand so it's a little uncertain at this point what direction the case will go and I think at least that threshold issue should be resolved timing wise in the next in the next in the near future but I think overall the the case is a very very positive a very very positive one for libraries it should give great comfort to libraries that want to engage in digitization projects again here it was Google that was doing the initial scanning but then the libraries were sort of downloading these scans into their own databases and so but the holding would apply if the libraries were going to be doing their own scanning in the first instance so so I think that it does it should give libraries great comfort with respect to mass digitization projects and then the sort of the big question is is is access under what conditions can the library provide access to those scanned files so we know access to the print disabled is okay other kinds of access I think have to be looked at on a more fine grained fine-tuned basis but I think that that is something that libraries that's an activity libraries should be doing they should be sort of talking and thinking and analyzing and seeing what other forms of access can they make both with respect to this specific Hathi trust database but also their own mass digitization projects