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Take One: October 15, 2012 (What the HathiTrust Suit means to Cornell)

I’m giving over this week’s Take One to Peter Hirtle, who has provided this insightful description of the implications of Judge Baer’s dismissal of the HathiTrust law suit last week. Peter has been bird-dogging this and other cases related to educational fair use on behalf of the library and I’m grateful to him for his consistently good advice in this area.

Peter Hirtle writes:
People are still excited about the judge’s opinion dismissing the HathiTrust lawsuit and the good news this represents for fair use. Libraries have traditionally been highly respectful of copyright while at the same time trying to do all they can to foster research and learning. Judge Baer realized this.
There is always the possibility that the Author’s Guild, the plaintiff in the case, may appeal the decision. But one might also ask “What does this mean immediately for CUL?”
First of all, the library will not lose the volumes that have been digitized by Google. Over 400,000 works from CUL have been scanned and added to the 10 million+ volumes in the HathiTrust. They had been scanned for preservation purposes and to make the full text searchable (if not immediately readable). The Author’s Guild wanted to have these titles taken off-line pending Congressional action on whether they could continue to exist or be destroyed. That won’t happen for now.
Second, the judge gave tacit approval to text-mining and other forms of scholarly research that do not use the expressive content of books but rather treat the words in them as data. For example, he cited the interesting research that tracks when usage changed from “the United States are” to “the United States is” (suggesting a change to a more centralized vision of the country). This kind of computational research, which can be carried out in the HathiTrust Research Center, will continue to be possible.
Thirdly, the judge was excited by the potential the HathiTrust holds for visually-impaired students. While it may be difficult to provide the full-text of in-copyright books to most users, the Americans with Disabilities Act (ADA) and Section 121 of the Copyright Act expand the fair use of copyrighted works on behalf of those who have difficulty seeing. In principle, it may be possible to let certain students listen to the 10 million volumes in the HathiTrust corpus. Prior to the filing of the lawsuit, the library had been exploring how it could use the volumes scanned by Google on behalf of students with visual impairments; I anticipate that those investigations will now resume.
Lastly, the decision could have broad ramifications in other areas of the university. There are relatively few decisions that address what constitutes educational fair use. This decision does, and it comes from a federal district court in New York. The judge’s analysis may be applicable to a wide range of university activities.
The judge’s opinion, in short, is a win for libraries and higher education. The judge could find no reasonable harm that could accrue to authors from the libraries’ actions. And for Cornell students and researchers, the benefits that arise from the mass digitization of our printed collections -- which were the reason why Cornell joined the Google Books Project in the first place -- are now closer to realization.  
Special thanks should go to the lawyers and staff of the Office of the University Counsel. From the beginning, they recognized the importance of the case to the university and the justness of the library’s cause. Their input into the development of the defense strategy was invaluable, and their support of library personnel caught in the web of litigation was unwavering. ~ PBH

Have a healthy and productive week,
Anne R. Kenney
Carl A. Kroch University Librarian
Cornell University Library

201 Olin Library
Ithaca, New York 14853-5301
t. 607.255.6875
f. 607.255.6788

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