Digital Book Storehouse Defended for Societal Value

MANHATTAN (CN) - The Electronic Frontier Foundation and three library groups urged a federal judge to let a multimillion-volume-strong database of digital books remain a "great storehouse of human knowledge."

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On Friday, the American Library Association, Association of College and Research Libraries, Association of Research Libraries and the EFF submitted an amicus, or friend-of-the-court, brief supporting the defendants in The Authors Guild v. Hathitrust.

In that September 2011 case, several authors and writers' advocacy groups sued HathiTrust, a library partnership organization, and several universities for teaming up with Google to provide full-text access to so-called "orphan works" whose copyright owners could not be located.

The writers contend that neither Google nor the universities got the copyright owners' permission to digitize their books.

An earlier claim of massive copyright infringement against Google failed to settle that same year when U.S. District Judge Denny Chin said that the creation of a universal digital library would give Google an unfair advantage over competitors and would reward the company for exploiting unclaimed books and copyrighted works.

But the EFF says that decision should not impact the case at hand, which is pending before U.S. District Judge Harold Baer.

"Judge Chin rejected the settlement," the brief states. "But that does not mean that this valuable resource ... should be destroyed or 'mothballed' until Congress takes action. The court has the equitable power to find that the existence and use of HDL (HathiTrust Digital Library) is a fair use. As explained above, the public interest and core fair use principles counsel firmly in favor of doing so."

HathiTrust's supporters say that the database has created "a resource of world historic significance."

"The HathiTrust Digital Library ('HDL') consists of more than 10 million digitized volumes gathered from the collections of many of the nation's leading research libraries," the brief states. "HDL assures the preservation of this great storehouse of human knowledge, while simultaneously giving scholars and students an unparalleled ability to search and access the information it contains."

HathiTrust inarguably owes a debt to Google Books, but the two systems are different, according to the organization's supporters.

"HDL is not Google Books: it does not provide snippets as part of its search results," the brief states. "However, it could easily begin to do so and offer the same benefits. Moreover, some of the benefits described above can be achieved through HDL's existing search functionality, without snippet display. HDL directs the user to the book and page number where the information sought may appear. The user still has to consult the physical book to obtain the information, but HDL greatly assists the user by pointing her to the appropriate books and pages."

A footnote states that "amici expect that Google will prevail in its fair use litigation," but that the public interest in HathiTrust's alternative "becomes all the more compelling" if Google loses.

The EFF's press release describes how the HathiTrust resource functions.

"Via the HDL, more than 60 university and research libraries can store, secure, and search their digital collections," the release states. "With the exception of some patrons who have disabilities, HDL does not allow for users to access books in their entirety - it simply does a search for keywords and delivers titles and page numbers as results."

EFF Intellectual Property Director Corynne McSherry said that the writers' fear of lost compensation derives from a misunderstanding.

"The HDL doesn't give most users whole copies of a book," McSherry said in a statement. "Instead, libraries use the HDL to search for books titles that they should borrow or purchase for their users. This is a highly detailed map - a reference tool - and doesn't take the place of book sales. This is just the kind of fair use that copyright law is supposed to protect."

McSherry co-authored the brief with Jonathan Band, who represents the library foundations.

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