October 14, 2012

‘Watershed’ Ruling on Lawsuit Advances Cornell’s Digital Library Project

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Closing a lawsuit that could have brought a halt to Cornell scanning and uploading eight million library books to the web, a federal district court ruled last week that the University has the right to make digital copies of its books.

Since sealing an agreement with Google in 2007, Cornell has used its technology to scan and store — or digitize — more than 400,000 of its own books in an online repository called HathiTrust. The process, University Librarian Anne Kenney said in court documents, provides an “inestimable … potential benefit to research.”

But The Authors Guild, Inc., and other organizations representing authors, sued Cornell, four other universities and HathiTrust September 2011 for creating digital copies of the books, an act that they said amounted to “one of the largest copyright infringements in history.” By digitizing the works, the plaintiffs alleged, the universities collectively infringed copyright laws for a staggering seven million books.

Quashing the plaintiffs’ arguments, District Judge Harold Baer Jr. ruled Wednesday that the universities did not break the law by digitizing their works — a process he called an “invaluable contribution to the progress of science and cultivation of the arts.”

The court’s decision may set precedent in future battles that erupt over copyright laws, as libraries around the country increasingly look to digitize their collections. It also roused the relief and praise of the Cornell Library, which risked losing its ability to continue digitizing works if the lawsuit had favored the plaintiffs.

“We were all thrilled by the judge’s decision and believe the outcome of this suit represents a major watershed in supporting fair use and the ‘progress of science and useful arts,’” Kenney wrote in an email Sunday. “Digitization is valuable for Cornell students and faculty because it breathes new life into historical scholarship.”

In his written judgment, Baer Jr. dismissed the plaintiffs’ argument that Cornell did not fairly use digitization to advance “scholarship, teaching and research.”

Rather than give universities license to unfairly distribute content, as the guild asserted, digitization has allowed universities to preserve their library collections and protect works from “the face of normal deterioration” that would occur when books are used, lost, stolen or damaged in a natural disaster, Baer Jr. said in his summary judgment.

Adding to Baer Jr.’s point, Kenney said that because physical copies of books can deteriorate over time due to the acidity in paper pages, digitization is a valuable means by which Cornell can preserve and replace such works.

Baer Jr. also threw out The Authors Guild’s claim that the universities digitized books instead of purchasing additional copies of them simply to save money. In a jab at the logic of the plaintiffs’ argument, the judge characterized the claim as being “off the mark.”

While universities could have purchased extra copies of books — rather than digitizing existing books — to preserve their library collections, their goal was not just to preserve texts; it was also to advance research through technological innovations, Baer Jr. said in his judgment.

For instance, through HathiTrust, professors and researchers can rapidly comb through massive amounts of texts, search for keywords and find out how often they appear in texts, an innovation that Kenney said has paved the way for “new forms of scholarly inquiry not possible in the print originals.”

By being able to search through the full text of digitized books from a computer at any time and place, researchers can rapidly “pinpoint when particular concepts first entered public consciousness” in texts — a process that would otherwise be “extremely time-consuming given the volume of material available,” Kenney said.

By digitizing texts, universities can also give the visually impaired access to millions of works that the sighted can read in print, a move that Kenney also applauded.

“Digital versions of print content hold great potential to support visually-impaired students,” she said, noting that digitized works can enlarge text size or even translate text into audio for visually-impaired scholars.

The plaintiffs alleged that every time a university digitizes a text instead of re-purchasing it, an author loses an opportunity to sell the work. Baer Jr., however, said that scenario was unrealistic. Because texts in their physical form do not allow universities to aid the visually impaired or let researchers rapidly search through works, digitized texts do not detract from the sales of physical texts, he said.

Baer Jr. also rejected the plaintiffs’ question of whether copying texts — even to make them available to the blind — was legal, citing a past case that stated “a copy of a copyrighted work for the convenience of a blind person is expressly identified by the House Committee Report as an example of a fair use.”

Especially since the blind are not considered to make up a significant or lucrative market for publishers and authors, Baer Jr. said, the universities gave sufficient proof to argue that they are digitizing texts not for monetary profit but for scholarly purposes.

“It is minorities such as this that Congress sought to protect through enactments like the [Americans With Disabilities Act],” he said.

While Cornell and other universities celebrate the victory, for The Authors Guild, the legal battle to stop digitization is unlikely to be over.

The organization released a statement Friday saying it “disagree[d] with nearly every aspect of the court’s ruling.”

It added that its members will be discussing Baer Jr.’s decision with partners in Canada, Europe and Australia and “expect[s] to announce our next steps shortly.”

Original Author: Akane Otani

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