HathiTrust Litigation Update
by Peter Hirtle
You may recall that in mid-October the litigation against the HathiTrust and five of its member libraries (including Cornell) was dismissed. In his decision, Judge Baer wrote “I cannot imagine a definition of fair use that…would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts that at the same time effectuates the ideals espoused by the ADA.” I wrote about the implications of the ruling for Cornell in a guest “Take One” column here.
As many had predicted, on 8 November, the Author’s Guild notified the court of its intention to appeal Judge Baer’s decision. There is always the possibility that the parties will reach some sort of agreement that could settle the case and avoid the costs associated with continued litigation. And if the case is heard on appeal, in the Library Copyright Alliance’s optimistic view, “the Second Circuit will … have the opportunity to affirm [Judge Baer’s] powerful insight.” But for now, in the immortal words of Yogi Berra, “It ain’t over ’til it’s over.” Unfortunately the continued litigation may affect the library’s ability to implement some of the most progressive features of the earlier decision such as increased access for the blind and print impaired.