This evening, Judge Baer dismissed one of three actions alleging that Google’s mass digitization of written works owned by certain Universities – which are then contributed to the HathiTrust Digital Library and made available – in snippets – via Google Books, is violative of the Copyright Act. Judge Baer concluded that the Mass Digitization Project and the HathiTrust Digital Library are protected under fair use, and granted defendants’ motions for summary judgment. Judge Baer observed that the project’s full-text search capability “allows scholars to identify relevant works far more efficiently. In addition, the program helps Defendants preserve their collections in the face of normal deterioration during circulation, natural disasters, or other catastrophes that decimate library collections, as well as loss due to theft or misplacement.” He concluded “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 . . . .”

The case dismissed by Judge Baer was brought by certain individuals and associations, including the Author’s Guild, and named the Universities and the Hathitrust Partnership itself as defendants.  The companion suit brought by the Author’s Guild against Google, which is pending before Judge Chin, has been stayed while the Second Circuit considers an appeal of his decision to certify the case as a class action.  The Association of American Publishers’ suit against Google (also before Judge Chin) was finally settled just last week.  (After years of negotiations, a previous settlement was rejected by Judge Chin last year – a history of the various suits is here.)  The terms of that settlement are confidential,   and certain writers’ organizations are calling on Google to make the terms of public and asking the DOJ to review the settlement to see if it may violate antitrust laws.