Image from "That public domain diva" blog
The court ruled that the HathiTrust project is fair use and that they can continue with the orphan works project. Below are some details from the court's opinion, which is an interesting but sometimes hard-to-process read.
Several universities partnered with Google to digitize their collections (the Mass Digitization Project). The HathiTrust partnership is creating a shared digital repository, with approximately 73% of it protected by copyright. After digitization, Google retains a copy of the book and the universities get of each scanned work, which includes images of the pages and text. After that the universities "contribute" their digital copies to the HathiTrust Digital Library ("HDL"). The works are used within the HDL in three ways: full-text search; preservation; and access for people with certified print disabilities.
In addition to this, four of the HathiTrust Universities (all except Indiana University), participate in the Orphan Works Project (OWP), an initiative that provides full copies of works that are protected by copyright but whose rights holders cannot be located.
Problem / Motions
According to The Authors Guild (plaintiffs), the digitization creates two reproductions of the original (images and text? I didn't understand this). And in total, 12 unauthorized digital copies are created. Plaintiffs sought to prohibit the universities from a) provision of works to Google, b) the reproduction, distribution and display of copyrighted works, c) proceeding with the orphan works, and to impound all unauthorized digital copies within their possession.
There are many arguments in the opinion, but the most important were that associations cannot enforce the rights of their members with regard to copyright, that the orphan works project is not ripe for adjudication, so the universities can continue working on it, and that the way HathiTrust library uses the digitized material can be accepted as fair use.
The totality of the fair-use factors suggest that copyright law’s "goal of promoting the Progress of Science . . . would be better served by allowing the use than by preventing it. ... The enhanced search capabilities that reveal no in-copyright material, the protection of Defendants’ fragile books, and, perhaps most importantly, the unprecedented ability of print-disabled individuals to have an equal opportunity to compete with their sighted peers in the ways imagined by the ADA protect the copies made by Defendants as fairuse.
While I think that the arguments for further digitization and more access to copyrighted material could've been stronger, it's a good start. I hope sooner or later more authors see the benefit of providing access to digital copies of their materials through the libraries and we'll develop better business models to satisfy the goals of providing access, promoting creativity, and making sure authors get paid for their work.