Wednesday, June 5, 2013

Associate Dean Waterstone files amicus brief in Authors Guild v. HathiTrust

By Associate Dean Michael Waterstone

This week, along with some colleagues, I filed an amicus brief in the case of Authors Guild v. HathiTrust et. al. The case involves the cooperative efforts of Google and several universities to digitize their collections. Digital books are accessible to people with print disabilities, which is how I became involved in the case. The Authors Guild and other plaintiffs sued the Universities challenging this digitization under the Copyright Act. The National Federation of the Blind intervened in the case.

The HathiTrust is the name that those universities who received back from Google digital copies of their print libraries gave themselves. The University of Michigan maintains the HathiTrust Digital Library for those 50+ schools, including its own digital collection of about 10 million titles. In the District Court, Judge Baer ruled that (1) the Americans with Disabilities Act imposes on a University to provide equal access to its library program when an accessible digital copy of its print library exists; (2) under the Chafee Amendment to the Copyright Act, the University of Michigan is an authorized entity that can distribute library copies of its print collection to persons with print disabilities in the United States because the ADA imposes on the University, a governmental or nonprofit entity, "a primary mission to provide specialized services relating to . . . education . . . or information access needs of blind and other persons with disabilities" and digital copies are a "specialized format" and (3) the creation and distribution of digital books without the permission of the copyright holder for use by those with print disabilities is a fair use under the Copyright Act.

Our amicus brief, filed on behalf of professors who teach and research in disability law, argues that Congress's goals in passing laws like the Americans with Disabilities Act was to transform the role of people with disabilities in society. Consistent with this, we explain that often times neutral laws of general applicability (like the Copyright Act) could be viewed as in apparent conflict with disability rights laws. We argue that in these instances, it is proper for courts to attempt to harmonize these laws to allow them both to accomplish their purposes, which is what the district court did here. The court was correct in considering the needs of people with disabilities in the analysis of the right to fair use, and by interpreting the Chafee Amendment to provide that the University of Michigan is an authorized entity that can distribute digital copies of books in its print collection to persons with print disabilities in the United States. Until we achieve a world where concepts like universal design are the norm, to meet Congress's goals of inclusion for people with disabilities, accessibility is achieved through modification and accommodation of existing structures, programs, services, and activities.

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