Judge Baer issued his decision in the HathiTrust case, and it’s a near-complete victory for HathiTrust and its print-disabled codefendants. The opinion doesn’t even make it seem like a close case. On every substantive copyright issue, HathiTrust won:
- Section 108 on library privileges doesn’t limit the scope of fair use.
- A search index and access for the print-disabled are both fair uses.
- Search indexing is a transformative use.
- The libraries aren’t making commercial uses, even though they partnered with Google to get the scans.
- The plaintiffs haven’t proven that HahiTrust is creating any security risks.
- There is no market for scanning and print-disabled access, nor is one likely to develop.
- UM is required under the ADA to provide equal access to the print-disabled, and is allowed to under Section 121 of the Copyright Act.