Third, by preserving the copyrighted books in digital form, the HDL permits members to create a replacement copy of the work, if the member already owned an original copy, the member’s original copy is lost, destroyed, or stolen, and a replacement copy is unobtainable at a “fair” price elsewhere.
The HDL stores digital copies of the works in four different locations. One copy is stored on its primary server in Michigan, one on its secondary server in Indiana, and two on separate backup tapes at the University of Michigan.[1] Each copy contains the full text of the work, in a machine readable format, as well as the images of each page in the work as they appear in the print version.
B. The Orphan Works Project
Separate and apart from the HDL, in May 2011, the University of Michigan developed a project known as the Orphan Works Project (or “OWP”). An “orphan work” is an out-of-print work that is still in copyright, but whose copyright holder cannot be readily identified or located. See U.S. Copyright Office, Notice of Inquiry, Orphan Works and Mass Digitization, 77 Fed. Reg. 64555 (Oct. 22, 2012).
The University of Michigan conceived of the OWP in two stages: First, the project would attempt to identify out-of-print works, try to find their copyright holders, and, if no copyright holder could be found, publish a list of orphan works candidates to enable the copyright holders to come forward or be otherwise located. If no copyright holder came forward, the work was to be designated as an orphan work. Second, those works identified as orphan works would be made accessible in digital format to the OWP’s library patrons (with simultaneous viewers limited to the number of hard copies owned by the library).
The University evidently became concerned that its screening process was not adequately distinguishing between orphan works (which were to be included in the OWP) and in-print works (which were not). As a result, before the OWP was brought online, but after the complaint was filed in this case, the University indefinitely suspended the project. No copyrighted work has been distributed or displayed through the project and it remains suspended as of this writing.
C. Proceedings in the District Court
This case began when twenty authors and authors’ associations (collectively, the “Authors”) sued HathiTrust, one of its member universities, and the presidents of four other member universities (collectively, the “Libraries”) for copyright infringement seeking declaratory and injunctive relief. The National Federation of the Blind and three print-disabled students (the “Intervenors”) were permitted to intervene to defend their ability to continue using the HDL.
The Libraries initially moved for partial judgment on the pleadings on the ground that the authors’ associations lacked standing to assert claims on behalf of their members and that the claims related to the OWP were not ripe. See Fed.R.Civ.P. 12(c). The Libraries then moved for summary judgment on the remaining claims on the ground that their uses of copyrighted material were protected by the doctrine of fair use, see 17 U.S.C. § 107, and also by the Chafee Amendment, see id. § 121.
- ↑ Separate from the HDL, one copy is also kept by Google. Google’s use of its copy is the subject of a separate lawsuit currently pending in this Court. See Authors Guild, Inc. v. Google, Inc., 721 F.3d 132 (2d Cir. 2013), on remand, 954 F.Supp.2d 282 (S.D.N.Y.2013), appeal docketed, No. 13-4829 (2d Cir. Dec. 23, 2013).
