Authors Guild v Hathi Trust: do accessible repositories harm copyright owners?

You may have seen the most recent development in the Google Books litigation: Authors Guild v Hathi Trust. There’s plenty of commentary around, including from the EFF here (full judgment).

One of the interesting points to come out of the case is Judge Baer’s finding that creating accessible digital repositories, in order to give access to people with print disabilities, is clearly fair use. One of the difficult questions in this realm is whether accessible repositories cause harm to copyright owners. There are two main arguments that they might be harmful: first, they might undermine a nascent market in accessible ebooks; second, accessible ebooks might ‘leak’, causing harm to primary markets.

Judge Baer rejected the first argument quite strongly:

“Plaintiffs’ argument about a potential market [for providing digital access to people with print disabilities] is conjecture.”

The defendant libraries argued that the costs of digitising books in order to provide access to people with print disabilities would be prohibitive – it would like not be a “commercially viable endeavor”. Judge Baer agreed, finding that a potential licensing market was unlikely to emerge to serve the needs of a small proportion of people with a print disability.

Judge Baer also rejected the second argument, noting that the defendant libraries were trustworthy and had security measures in place to limit distribution of digitised books, and that plaintiffs had not addressed the adequacy of those measures.

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