The Authors Guild, Inc. et al v. Hathitrust et al

Filing 113

RULE 56.1 STATEMENT. Document filed by Hathitrust. (Petersen, Joseph)

KILPATRICK TOWNSEND & STOCKTON LLP
Joseph Petersen (JP 9071)
Robert Potter (RP 5757)
1114 Avenue of the Americas
New York, NY 10036
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Joseph M. Beck (admitted pro hac vice)
W. Andrew Pequignot (admitted pro hac vice)
Allison Scott Roach (admitted pro hac vice)
1100 Peachtree Street, Suite 2800
Atlanta, Georgia 30309-4530
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorneys for Defendants
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
THE AUTHORS GUILD, INC., ET AL.,
Plaintiffs,

Case No. 11 Civ. 6351 (HB)

v.
HATHITRUST, ET AL.,
Defendants.

THE LIBRARIES’ STATEMENT OF MATERIAL FACTS
IN SUPPORT OF THEIR
MOTION FOR SUMMARY JUDGMENT
ON FAIR USE AND LACK OF INFRINGEMENT
UNDER SECTION 106 OF THE COPYRIGHT ACT

Pursuant to Rule 56.1 of the Local Rules of the United States District Courts for the
Southern and Eastern Districts of New York, the Defendants in the above captioned action (the
“Libraries”) respectfully submit, in connection with their motion for summary judgment on fair
use and lack of infringement under Section 106 of the Copyright Act, the following statement of
material facts as to which there is no genuine issue to be tried.
The Core Functions of Academic Libraries
1.

Academic libraries buy works for academic and scholarly pursuits. (June 28, 2012

Declaration of John Wilkin (“Wilkin Decl.”) ¶ 11.)
2.

Academic libraries curate, maintain, and preserve works in their collections. (Id.)

3.

Academic libraries help scholars and students identify works pertinent to their

pursuits. (Id.)
4.

Academic libraries make works within their collections available and accessible

consistent with applicable law. (Id.)
5.

The Libraries are non-profit educational institutions. (Id. ¶¶ 8, 55, Ex. B.)
Acquisition of Works by the Libraries

6.

Academic libraries acquire works to satisfy anticipated future demand by their

patrons. (Id. ¶¶ 13, 17–19, 21.)
7.

When there is increased demand for a particular work, academic libraries will try

to purchase additional copies of that work. (Id. ¶ 13.)
8.

Each year the Libraries spend tens millions of dollars acquiring new works. (Id. ¶

14.)

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9.

Most works go out of print after the initial print run and once that print run is sold

out, it can be difficult if not impossible for libraries to obtain additional copies of the work. (Id.
¶¶ 20–21.)
Deterioration of Works in the Libraries’ Collections
10.

Books, in their physical form, are inherently subject to damage, deterioration and

loss. (Id. ¶ 22.)
11.

Books published between 1850 and 1990 are particularly at risk of damage,

deterioration and loss because books published during this time period were generally published
on paper with high acid content. (Id.)
12.

Paper with high acid content degrades far more quickly than paper with low acid

content because the fibers that comprise paper degrade when acid meets the moisture in the air.
(Id. ¶ 23.)
13.

As of 2004, the University of Michigan library (the “UM Library”) estimated that

about half of its collection—approximately 3.5 million books—was printed on paper with high
acid content, i.e. on paper that is particularly vulnerable to deterioration and, ultimately, loss. (Id.
¶ 25.)
14.

The process of searching the vast collections of academic libraries such as the

UM Library can take so long that by the time the library identifies the most imperiled books
from the millions potentially at risk, it is too late and the books is lost. (Id. ¶ 26.)
15.

Gradual disintegration is not the only threat to books in the academic libraries.

Loss from theft, vandalism, fire, and floods presents an ever-looming threat. (Id. ¶¶ 30–31.)

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16.

Just last week the library at the University of Wisconsin Superior (“UW

Superior”) suffered a catastrophic loss of a portion of its collection as a result of flooding. (June
28, 2012 Declaration of Faith Hensrud (“Hensrud Decl.”) ¶¶ 6–20.)
17.

The flooding of the UW Superior library destroyed approximately 25-30% of the

books in the library’s collection, and approximately 70% of the periodicals. (Id. ¶ 17.)
In The Past It Has Been Difficult and Sometimes Impossible
for Academic Libraries to Help Scholars Identify Works of Potential Interest
18.

Academic libraries aid scholars in the identification of relevant works. (Wilkin

Decl. ¶ 33.)
19.

The immense collections housed by academic libraries would be significantly

diminished without reliable and efficient search methods and related technology. (Id.)
20.

Until relatively recently, most searches of a library’s collection relied on a

physical card catalog. (Id. ¶ 34; June 26, 2012 Declaration of Dr. Stanley N. Katz (“Katz Decl.”)
¶ 5.)
21.

Each card contained limited information concerning a particular work, including

its title, author, publication date and publisher and limited information concerning the work’s
subject matter. (Wilkin Decl. ¶ 34; Katz Decl. ¶ 5.)
22.

Online catalogs emerged in the 1970’s but searches of such databases were still

limited to the work’s basic bibliographic data, namely, author, title, subject. (Wilkin Decl. ¶¶ 35–
36; see also Katz Decl. ¶ 8.)
23.

A work that contained information of great importance to a researcher would not

be discoverable by that researcher unless the work’s title, subject headings, or other limited
bibliographic data happened to contain certain key words or other evidently pertinent
information. (Wilkin Decl. ¶¶ 36–37.)

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Digitization of Works With the Libraries’ Collections
24.

In the late 1980’s academic libraries such as the UM Library began converting

works at risk of damage, deterioration and loss to digital format. (Id. ¶ 39.)
25.

Academic libraries began digitizing at risk works in order to ensure that they

would be available for future scholarly pursuits even in the event that the work in physical form
was lost and the libraries could not find a replacement copy at a fair price. (Id. ¶ 41.)
26.

Academic libraries such as the UM Library found that given the enormous size of

their collections they could not digitize and, thereby, preserve deteriorating works quickly
enough. (Id. ¶ 42.)
27.

During this time period academic libraries lost irreplaceable volumes which, as a

result, have vanished from the academic and cultural landscape. (Id.)
Google’s Involvement in the Libraries’ Digitization Efforts
28.

Prior to Google Inc.’s (“Google”) involvement in the UM Library’s digitization

efforts, at its then rate of scanning, it would have taken the UM Library more than 1,000 years to
digitize the UM Library’s then over 7 million volumes. (Id. ¶ 44.)
29.

In 2002, the UM Library began speaking with Google about its interest in

digitizing the UM Library’s entire library collections in less than a decade. (Id. ¶ 45.)
30.

In late 2004, the University of Michigan entered into an agreement with Google

under which Google would convert hardcopy books from the UM Library collections to a digital
format and provide digital copies of those books to the University of Michigan. (Id. ¶ 46, Ex. A.)
31.

In return for giving Google access to books in the UM Library collection, Google

was required to give the UM Library a digital copy of the works digitized by Google. (Id. ¶ 47.)

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32.

The University of Michigan bargained for this right because it was important to it

that it had the right to control its own uses and satisfy its primary missions of providing
specialized services to the blind or other persons with disabilities. (Id.)
33.

If the Libraries digitized only select portions of their collections they would not

have achieved their goals of providing a comprehensive search tool; nor would they have
accomplished their goals of providing equal access to students with print disabilities or
preserving all imperiled works. (Id. ¶¶ 48–51.)
34.

While the University of Michigan’s library was the first academic library to work

with Google in connection with what would become the “Google Book Project,” Google
ultimately partnered with each of the Libraries as well as such universities as Harvard
University, Stanford University, Oxford University, Columbia University, Princeton University,
the University of Virginia, and the University of Texas at Austin, among others. (Id. ¶ 52.)
35.

The benefits to society—in preserving books, making them accessible to people

with print disabilities, and enabling people to find them—increased significantly with each
institution that digitized books from its collections. (Id.)
The Formation of HathiTrust
36.

In 2008, the University of Michigan formed HathiTrust, named for the Hindi

word for elephant, “hathi,” evoking the qualities of memory, wisdom, and strength symbolized
by elephants. (Id. ¶ 53.)
37.

HathiTrust was formed because the Libraries concluded that by working together

and pooling resources they could better serve their common goals of collecting, organizing,
securing, preserving and, consistent with applicable law, sharing the record of human
knowledge. (Id. ¶ 54.)

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38.

Pursuant to the HathiTrust mission, participating members combined their

digitized collections in order to provide more secure, long-term storage for the works, more
comprehensive research and discovery tools, improved access to works in the public domain and
improved access to works for students and faculty with print disabilities. (Id. ¶ 55.)
39.

The University of Michigan and HathiTrusts’s purposes are non-profit,

educational purposes. (Id. ¶¶ 8, 55, Ex. B.)
40.

The Libraries’ digitization efforts do not diminish their acquisitions of in-

copyright material (digital or otherwise). (Id. ¶¶ 16, 69.)
The Composition of the HathiTrust Digital Library (“HDL”)
41.

The combined corpus of the HDL now totals more than 10 million works. (Id. ¶

42.

At least 30% of the corpus consists of material that is clearly within the public

57.)

domain. (Id. ¶ 62.)
43.

Works published between 1923 and 1963 entered the public domain unless they

were renewed, and according to a 1960 Copyright Office study only 7% of books were renewed.
(See Staff of S. Comm. on the Judiciary (Barbara Ringer), 86th Cong., Renewal of Copyright 31,
at 220 (Comm. Print 1960).)
44.

The vast majority of works in the HDL corpus are now out of print (and, in fact,

for older works within the collection, have been out of print for decades). (Wilkin Decl. ¶ 66; see
also Mem. of Law in Supp. of Pls.’ Mot. For Prelim. Settlement Approval at 27, The Authors
Guild, Inc. v. Google Inc., No. 05-cv-8136 (S.D.N.Y. Oct. 28, 2008) (The Authors Guild
confirms that “[a]pproximately 75% of the Books in United States libraries are out-of-print and
have ceased earning any income at all for their Rightsholders”).)

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45.

Less than 9% of the HDL corpus consists of prose fiction, poetry and drama.

(Wilkin Decl. ¶ 67.)
46.

Approximately 90% of the HDL corpus consists of factual works such as books

and journals in many disciplines of the arts, humanities, social sciences and sciences. (Id.)
47.

The security employed with respect to the HDL meets, and in many ways

exceeds, the specifications developed by the parties in the Google Books proposed settlement.
(Id. ¶ 93.)
The Limited Uses of the Works within the HDL
48.

The Libraries permit only three categories of uses of works within the HDL that

are presumed to be in-copyright: (1) full text search; (2) preservation; and (3) access for people
with certified print disabilities. (Id. ¶ 68.)
49.

Through the Internet, users of the HathiTrust website may search for a particular

term across all works within the HDL. (Id.)
50.

For those works that are not in the public domain or for which the copyright

holder has not expressly authorized use, the search results indicate only the page numbers on
which a particular term is found within a particular book or periodical, and the number of times
that term appears on each page. (Id.)
51.

Unlike Google’s service, the search results do not show portions of text in

“snippet” format. (Id.)
52.

When searching in-copyright material, at no time does the user have digital access

to any of the actual written content within such works (unless he/she is afforded access as a
certified print disabled user). (Id.)

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53.

The HDL is not a substitute, in any respect, for the Libraries’ acquisitions of in-

copyright material and does not diminish the Libraries’ purchases of in-copyright works. (Id. ¶¶
16, 69).
54.

The HDL represents protection against the prospect of damage, deterioration and

loss in circumstances where the Libraries cannot obtain a replacement copy at a fair price. (Id. ¶
68.)
55.

For decades, the Libraries have converted works in their collection to alternative

formats for the blind and other persons who have disabilities that prevent them from accessing
printed materials. (Id.)
56.

Digitization has significantly improved the quality of access for print-disabled

readers. (Id.)
57.

Through digitization, an authorized patron with a print disability can have

immediate access to a work in a format that can be made accessible through a variety of
technologies, including software that translates the text into spoken words. (Id. ¶ 105.)
58.

The HDL was designed specifically to enable libraries to make their collections

accessible in digital format to print-disabled readers. (Id.)
59.

The HDL has a positive effect on purchasing of in-copyright works because

scholars, students, and other patrons are more likely to discover, purchase and use works that
they can locate through digital search. (Id. ¶ 70–74; June 29, 2012 Declaration of Dr. Joel
Waldfogel (“Waldfogel Decl.”) ¶¶ 7, 48–50; June 26, 2012 Declaration of Margaret Leary
(“Leary Decl.”) ¶ 15.)

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The Immense Public Benefits of the HDL
60.

The HDL offers immense public benefit. (Wilkin Decl. ¶¶ 75–77, 83–86, 100–

102, 106); (Katz Decl. ¶¶ 9–17); (Leary Decl. ¶¶ 9–14.)
61.

One of the primary goals of HathiTrust has always been to enable people who

have print disabilities to access the wealth of information within library collections. (Wilkin
Decl. ¶ 100.)
62.

For centuries, libraries have been inaccessible to people who have a broad range

of disabilities because library collections have not been available in accessible formats. (Id. ¶
101.)
63.

The HDL was constructed with the objective of making the world’s first

accessible research library. (Id. ¶ 100.)
64.

To obtain access to digital versions of in-copyright works in the HDL, a student,

faculty member, or staff member at the University of Michigan with a print disability must
obtain certification from a qualified expert who in turn informs the UM Library that the
individual has a certified print disability for which digital access is a reasonable accommodation.
(Id. ¶ 105.) The University of Michigan explains the digital library to the patron, describes
appropriate uses of the service (including warnings about copyright infringement), and enables
the patron to get secure digital access to the HDL corpus. (Id.)
65.

With digital access, a print-disabled patron can perceive the works within the

HDL using adaptive technologies such as software that translates the text into spoken words.
(Id.)
66.

The HDL makes it possible for students with certified print disabilities to achieve

their full academic and scholarly potential. (Id. ¶ 106.)

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67.

Full-text searching such as the search functionality offered through the HDL

constitutes the most significant advance in library search technology since the 1960s. (Wilkin
Decl. ¶ 75; see also Katz Decl. ¶ 9.)
68.

Rather than combing through electronic cataloging records and attempting to

discern which works in the collection may be of interest, scholars can access the HDL website
and search the actual text of over 10 million books and journals. (Wilkin Decl. ¶ 76; see also
Katz Decl. ¶¶ 9–10.)
69.

The HDL has made it possible for university students, faculty, and staff, as well

as the general public, to search the combined digital collections contributed by the HathiTrust
members. (Wilkin Decl. ¶ 77.)
70.

The search results display bibliographic information—including title, author,

publisher, and publication date—for books containing the search term, as well as the page
numbers on which the term is found and the number of times the term appears on each page,
giving some clues as to how useful the book might be. (Id.; Katz Decl. ¶¶ 10–11; Leary Decl. ¶¶
9–11.)
71.

Without the ability to search the entire full text of in-copyright materials, the

content within these resources—as distinct from basic bibliographic information describing that
text—is invisible, or nearly so, to the majority of researchers. (Wilkin Decl. ¶ 82; Katz Decl. ¶¶
11–17; Leary Decl. ¶¶ 9–13.)
72.

The HDL empowers scholars to perform types of research on a scale that simply

could not be performed before the HathiTrust libraries digitized their collections. (Wilkin Decl. ¶
84; see also June 26, 2012 Declaration of Dr. Neil Smalheiser (“Smalheiser Decl.”) ¶¶ 27–29.)

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73.

For example, a digital research method called “text mining”—which has the goal

of finding patterns and connections from large databases of textual material—is already proving
itself a powerful and important tool for scholarly research. (Smalheiser Decl. ¶¶ 3–6.)
74.

The HDL offers the promise to yield breakthrough research discoveries—

including lifesaving scientific discoveries—that simply would not be possible if the HDL corpus
and HathiTrust services ceased to exist. (Wilkin Decl. ¶ 77; Smalheiser Decl. ¶¶ 25–29.)
75.

The HDL helps to ensure the preservation of the published record of human

knowledge through the creation of reliable and accessible electronic representations of the works
within the corpus. (Wilkin Decl. ¶ 86.)

The Orphan Works Project
76.

Orphan works are works which are presumed to be in-copyright and for which a

rights holder cannot be identified. (Id. ¶ 108.)
77.

The University of Michigan developed a project that it called the “Orphan Works

Project” (the “OWP”). (Id. ¶ 109.)
78.

The OWP contemplated two distinct phases. (Id. ¶ 110.)

79.

In the first phase of the OWP the goal was to identify potential orphan works

through a diligent, reasonable process that eliminates works that are claimed by a putative rights
holder or that are otherwise found not to be orphans. (Id.)
80.

Under the second phase of the project, the University of Michigan considered

making limited uses of works identified as orphans through the first phase of the project. (Id.)
81.

The uses that the University of Michigan contemplated making of works

identified as orphans were limited to allowing access to orphan works for the purpose of online

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Joseph M. Beck (admitted pro hac vice)
W. Andrew Pequignot (admitted pro hac vice)
Allison Scott Roach (admitted pro hac vice)
KILPATRICK TOWNSEND & STOCKTON LLP
1100 Peachtree Street, Suite 2800
Atlanta, Georgia 30309-4530
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorneys for Defendants

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