It is also an example predicated on copyright’s limitations and exceptions — in this case, on 
U.S. fair use. While the Authors Guild ﬁled a copyright infringement suit against HathiTrust, 
federal courts in 2012 and 2014 ruled that HathiTrust’s use of books was fair use.  32
A nonproﬁt founded in 2008, HathiTrust grew out of a partnership among major US university 
libraries and today is “an international community of research libraries committed to the 
long-term curation and availability of the cultural record.”  It started in what it calls the “early 33
days of mass digitization” — that is, at a time when it started to become economical to take 
existing physical artifacts in libraries and turn them into digital ﬁles at a large scale.  
The founding members of HathiTrust were among the initial partners for Google’s Book 
Search product, which allows people to search across and view small snippets of text from 
in-copyright books  and read full copies of public domain books scanned from libraries’ 34
collections. The libraries provided Google with books from their collections, Google would 
then scan the books for use in Book Search, and return to the libraries a digital copy for their 
own uses. These uses included setting up HathiTrust not only to ensure long-term 
preservation of the digital books and their metadata, but also to facilitate other uses, 
including full text search of books and accessibility for people with print disabilities. In 
separate court cases, both Google and HathiTrust’s uses of the books were deemed 
consistent with copyright law. 
The uses most relevant to this paper are those enabled by what HathiTrust refers to today as 
the Research Center. The Center grew in part out of a research discipline called “digital 
humanities,” which, among other things, seeks to use computational resources or other 
digital technologies to analyze information and contribute to the study of literature, media, 
history, and other areas. For instance, imagine you want to understand how a given term 
(e.g., “war on drugs”) became used; one might seek to analyze when the term was ﬁrst used 
and how often it was used over time by analyzing a vast quantity of sources, searching out 
the term’s use. The insight here is that there is much to be learned not just from reading or 
otherwise consuming speci ﬁc material, but also from “non-consumptive research,” or 
"research in which computational analysis is performed on one or more volumes (textual or 
image objects)" to derive other sorts of insights. AI training is a type of non-consumptive use. 
Today, the Center “[s]upports large-scale computational analysis of the works in the 
HathiTrust Digital Library to facilitate non-proﬁt and educational research.” It includes over 18 
million books in over 400 languages from the HathiTrust Digital Library collection. Roughly 
58% of the corpus is in copyright. HathiTrust notes that, while this corpus is large, it has 
limitations in terms of its representation across subject matter, language, geography, and 
other dimensions. In terms of subject matter, the corpus is skewed towards humanities 
(64.9%) and social sciences (14.3%). In terms of language, 51% of the books are in English, 
 Authors Guild v. HathiTrust, 902 F.Supp.2d 445 (SDNY October 10, 2012) and Authors Guild v. 32
HathiTrust, 755 F.3d 87 (2d Cir. 2014).
 See https://www.hathitrust.org/member-libraries/member-list/ — the membership is principally US 33
institutions, and most of the non-US members are from English speaking countries or institutions that 
use English as the primary language of operations.
 This functionality is limited to scanned books provided by library partners in the US.34
Towards a Books Data Commons for AI Training 14