RLI 285  7 RESEARCH LIBRARY ISSUES: A REPORT FROM ARL, CNI, AND SPARC 2015 What Does the HathiTrust Decision Mean for Libraries? Jonathan Band, policybandwidth T he library community welcomed the decision of the US Court of Appeals for the Second Circuit in Authors Guild v. HathiTrust, 755 F. 3d 87 (2d Cir. 2014). The decision has implications for libraries that go far beyond the specific facts of the case. This paper offers some preliminary thoughts on what these implications may be. The broadest implication of the decision arises out of a footnote. Ever since the adoption of the library exceptions in 17 U.S.C. § 108, rights holders have argued that section 108 limits the availability of fair use to libraries, notwithstanding the savings clause in section 108(f)(4) that states explicitly that “nothing in this section in any way affects the right of fair use as provided by section 107.” In this litigation, the Authors Guild repeatedly argued that section 108 restricted fair use. Judge Baer rejected this argument in the district court, and the Second Circuit rejected it again in footnote 4. Citing the savings clause, the Second Circuit stated that “we do not construe § 108 as foreclosing our analysis of the Libraries’ activities under fair use….”1 Thus, the decision holds unambiguously that libraries may take full advantage of the fair use right. The HathiTrust decision also demonstrates how the fair use right applies in the context of a specific library activity: mass digitization. The decision clearly indicates that the acts of a library digitizing the works in its collection, and the library’s storage of the resulting digital files, are fair uses under section 107 of the Copyright Act. The decision, however, provides less certainty concerning the permissible access to those digital files. The only form of full-text access the decision addresses directly is access by the disabled. To be sure, this is an incredibly important result for these individuals. But the court provides little specific guidance concerning the permissibility of other forms of access. Nonetheless, the court’s more general pronouncements concerning fair use should be helpful to libraries trying to determine the range of permitted access to their mass-digitization projects. 1. Mass Digitization and Storage The HathiTrust decision provides libraries with a clear roadmap for the digitization of the analog works in their collections. The court considered whether two uses of the digital copies deposited in the HathiTrust Digital Library (HDL) were fair use: full-text search and access for the print-disabled. The court found that “it was reasonably necessary for the HDL to make use of the entirety of the works in order to enable the full-text search function.”2 The court further found that HDL’s creating and maintaining four text- only copies of its entire database (one on the primary server at the University of Michigan, another at the mirror server at the University of Indiana, and two encrypted backup tapes at two secure locations on the University of Michigan campus) was justified for the purpose of balancing the load of user web traffic and as back-up in the case of a disaster.