Digital Databases in Danger: Authors Wage War on Libraries’ and Archives’ Digital Collections

We live in a world where much of life is digitized: meetings take place over the Internet without needing to leave home, bills are paid without the use of stamps or checks, and books can be read without turning a single page.  While for a great many of us this digitization makes life simpler and more streamlined, eight authors are watching their copyrights trampled as a result of such digitization.

Eight authors and three authors’ groups have filed a copyright infringement suit against HathiTrust, a research library partnership, and several universities for their digitized book collections.  The plaintiffs claim HathiTrust and the universities have violated the Digital Millennium Copyright Act (DMCA).  The plaintiffs seek injunctive relief stopping the defendants from distributing the digitized copies and declaratory relief stating that the defendants have infringed copyrights.  Moreover, the plaintiffs do not seek any monetary damages for the alleged infringements.

The DMCA was created to strike a balance between the copyright interests of authors and libraries’ desires to make information widely available to the public.  The DMCA allows libraries to make digital copies of their works for preservation purposes but prohibits further distribution.  The DMCA also prohibits the digitized works from being viewed outside of library premises.

In response to the lawsuit, many of the defendants have made public statements defending their digitized collections.  For example, HathiTrust calls the digitization “a reflection of library prudence.”  HathiTrust explains that the digitization is an effort to preserve the works before they have deteriorated and to make the material widely and easily accessible to the public.

HathiTrust maintains it does not provide the full text formats for every piece of literature in its database, making full digital works available only where the organization has obtained express consent or the work is in the public domain.  The complainants, on the other hand, are concerned that such wide public availability is in complete derogation of their copyrights.

When a search is performed in the HathiTrust database for a book in its digital collection, the full text of the book is often unavailable with a disclaimer reading, “Full view of this text is not available due to copyright © restrictions.” Yet, the authors and organizations allege in the complaint that the digitized collection is “one of the largest copyright infringements in history.” HathiTrust and its member universities are left scratching their heads regarding which aspects of the collection are so offensive, especially in light of the libraries’ ability to circulate the books when bound between two covers.

The issue appears centered on the DCMA’s prohibition on “further distribution of the digital format ” and “use outside the presence of the library or archives.” Statutory interpretation of these phrases could ultimately determine the outcome of the case.  The two phrases seem to be in conflict.  Additionally, there are very few judicial interpretations of the DCMA currently in case law.

The first clause prohibits distribution of the digital work.  This could be understood to mean the only use of the digital copy is for preservation or replacement of the original work; however, it could also mean no distribution outside normal library loaning.

The second clause supports the second interpretation of the previous clause because it allows for the works to be used within library premises.  For the purposes of an online library, use could be permitted “on library premises” through the use of a username and password, like many universities currently employ.  The username and password allow the reader to “enter” the library and use the items in the collection, but not every member of the general public is granted access.

Congressional intent will also likely come into play if the case fails to settle before trial.  The Section 108 Study Group has collected background material in an effort to glean legislative intent and maintain the balance of interests between libraries and authors.

The case has the potential to reshape digital libraries and will likely call upon the federal district court to clearly define the purposes and meaning of the DMCA.

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* Sarah R. Riedl is a second year law student at Wake Forest University School of Law. She has a Bachelor of Arts in English from the University of Illinois. Upon graduation in May 2013, Miss Riedl intends to practice business litigation and intellectual property law.