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U.S. appeals court rules against authors in book-scanning lawsuit

By Joseph Ax

NEW YORK (Reuters) - Universities and research libraries that created a searchable online database for millions of books did not violate copyright protections belonging to authors whose works were scanned, a U.S. appeals court ruled on Tuesday.

Rejecting an appeal by authors' groups, the 2nd U.S. Circuit Court of Appeals in New York said the HathiTrust Digital Library, which began in 2008 and has scanned more than 10 million works, constituted a "fair use" of copyrighted works.

The library has 80 member institutions including Cornell University, Indiana University, the University of California at Berkeley, the University of Michigan and the University of Wisconsin, all of which were named as defendants.

It allows users to search for page numbers where specific text can be found, though they cannot see text from the books themselves unless authorized by copyright holders.

Writing for a unanimous three-judge panel, Circuit Judge Barrington Parker said the database did not simply reproduce the books but offered a "transformative use" of them.

“By enabling full‐text search, the HDL adds to the original something new with a different purpose and a different character," Parker wrote.

The court also said the authors had to show how the library harmed them economically, because the search function is not a substitute for the books themselves.

A lawyer for the authors did not immediately respond to a request for comment.

Joseph Petersen, a lawyer for HathiTrust, said in a statement, "Our clients are grateful that the court recognized the immense public value of the HathiTrust Digital Library and the fact that the project entirely comports with copyright law."

The lawsuit was filed in 2011 as part of a longstanding fight by authors against large-scale digitizing and archiving of copyrighted books.

In November, Google Inc won the dismissal of a long-running lawsuit by authors who challenged the search company’s Google Books project, which has scanned more than 20 million books. The authors have appealed that decision to the 2nd Circuit.

Tuesday’s decision also allows disabled users who cannot read printed material to gain access to copies of the works in alternative forms, including using software that converts the text into spoken words.

"Never before has disability been irrelevant to the opportunity to conduct library research," lawyer Daniel Goldstein, who argued the case on behalf of the National Federation for the Blind, said in an email. "Until now, the number of library books available to the blind were minuscule."

The decision largely affirmed an October 2012 dismissal of the case by the late U.S. District Judge Harold Baer.

The appeals court returned the case to district court to determine a narrow issue over whether authors can challenge the library’s policy of offering replacement copies to member libraries if their copies are destroyed and cannot be obtained at a fair price.

Baer died last month at age 81. The case will be reassigned to another judge.

(Reporting by Joseph Ax; Editing by Tom Brown)

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