Page:Authors Guild v. HathiTrust (2014).pdf/7

 The Intervenors moved for summary judgment on substantially the same grounds as the Libraries and, finally, the Authors cross-moved for summary judgment.

The district court granted the Libraries’ and Intervenors’ motions for summary Judgment on the infringement claims on the basis that the three uses permitted by the HDL were fair uses. In this assessment, the district court gave considerable weight to what it found to be the “transformative” nature of the three uses and to what it described as the HDL’s “invaluable” contribution to the advancement of knowledge, Authors Guild, Inc. v. HathiTrust, 902 F.Supp.2d 445, 460–64 (S.D.N.Y.2012). The district court explained: "Although I recognize that the facts here may on some levels be without precedent, I am convinced that they fall safely within the protection of fair use such that there is no genuine issue of material fact. I cannot imagine a definition of fair use that would not encompass the transformative uses made by [the HDL] and 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 [Americans With Disabilities Act of 1990, Pub.L. No. 101-336, 104 Stat. 327 (codified as amended at 42 U.S.C. §§ 12101, et seq.)]."

Id. at 464.

Next, the district court addressed the Libraries’ Chafee Amendment defense. Under the Amendment, “authorized entities” are permitted to reproduce or distribute copies of a previously published, nondramatic literary work in specialized formats exclusively for use by the blind or other persons with disabilities. See 17 U.S.C. § 121; HathiTrust, 902 F.Supp.2d at 465. Under § 121, an “ ‘authorized entity’ means a nonprofit organization or a governmental agency that has a primary mission to provide specialized services relating to training, education, or adaptive reading or information access needs of blind or other persons with disabilities.” 17 U.S.C. § 121(d)(1).

The district court stated that the ADA requires that libraries of educational institutions, such as the Libraries in this case, “have a primary mission to reproduce and distribute their collections to print-disabled individuals,” which, according to Judge Baer, made “each library a potential ‘authorized entity’ under the Chafee Amendment.” HathiTrust, 902 F.Supp.2d at 465. As a result, the district court concluded that “[t]he provision of access to previously published non-dramatic literary works within the HDL fits squarely within the Chafee Amendment, although Defendants may certainly rely on fair use … to justify copies made outside of these categories or in the event that they are not authorized entities.” Id.

The district court held that certain associational plaintiffs lacked standing under the Copyright Act and dismissed them from the suit. Id. at 450–55. The district court also held that the OWP claims were unripe for judicial review in the absence of crucial information about what the program would look like and whom it would affect should it be implemented, and because the Authors would suffer no hardship by deferring litigation until such time as the Libraries released the details of a new OWP and a revised list of orphan work candidates. Id. at 455–56. The court entered judgment against the Authors, and this appeal followed.

We review de novo under well-established standards the district court’s