33 Research Library Issues 292 2017 On June 10, 2014, the Second Circuit ruled in favor of HathiTrust on most issues. The Court’s opinion was a major victory for fair use. The Court upheld HathiTrust’s right to maintain a full-text database to search for books, stating that “the creation of a full-text searchable database is a quintessentially transformative use.” The Court also approved, as fair use, HathiTrust’s service to make text available in formats accessible to print-disabled people. Finally, the Court remanded the case to the district court regarding the long- term preservation of books.11 While the missteps of the OWP provoked the initial suit, the subsequent litigation revealed the soundness of the underlying assumptions. We believed that what we were doing was fair, reasonable, and responsible in theory. While practice slipped, the foundation was always strong. Conclusion and Lessons Learned The OWP was one of the most important projects I undertook in the early stages of my career. It was bold, ambitious, and it failed spectacularly and publicly. This is far from my only professional failure, but it is, to the best of my knowledge, the only one which may have near-permanently ended any possibility for work in the area. In his post, “HathiTrust Single-Handedly Sinks Orphan Works Reform,” noted legal scholar James Grimmelmann laid out very persuasively that our process had failed, stating that “once is a mistake, twice is bad luck, and three times is a broken process.”12 He was right, but the fact that this one project went bad wasn’t the end of the world, or much less crucially, my career. I, and every other member of the OWP team, have gone on to do new and interesting work, some of which we have failed at, some Association of Research Libraries Failure, even truly spectacular failure, is just that. It’s a failure, you lick your wounds, you dust yourself off, you look back at what you could have done differently, and you get back to work.
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