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Ruling opens more books for blind

In a victory for the visually impaired, a federal judge has cleared the way for universities to digitize more than 10 million published works, saying the high-tech reproductions do not violate copyright law — and may, in fact, be required under the Americans with Disabilities Act.

Daniel F. Goldstein, attorney for the National Federation of the Blind, said more than 9 million digitized works are already in a repository at the University of Michigan library.

“This will unlock doors,” Baltimore lawyer Daniel F. Goldstein said of last week’s decision in U.S. District Court in New York. “In this information age, if you do not have access to this information, it will be a bigger handicap than not being able to see.”

Goldstein represents the Baltimore-based National Federation of the Blind, which intervened in a copyright infringement case The Authors Guild Inc. brought suit against university libraries planning to digitize published works in their collections.

Goldstein said Judge Harold Baer Jr.’s decision will enable the visually impaired to have access to digitized works, more than 9 million of which are already in a repository at the University of Michigan library.

“This is what the promise of technology should have been about,” said Goldstein, of Brown, Goldstein & Levy LLP. “How do you live in the digital age if you don’t have equal access to the content and the software?”

Via digitization, the visually impaired can read “through screen access software that allows text to be conveyed audibly or tactilely to print-disabled readers,” according to the court’s opinion.

Baer, in granting summary judgment to the defendant universities, said digitization fell under the fair use exception to the Copyright Act as a “transformative” application of the authors’ works. He added that a 1996 amendment to the law permits universities to make books accessible to visually impaired students.

Digitization of books has made an “invaluable contribution to the progress of science and cultivation of the arts that at the same time effectuates the ideals espoused by the ADA,” Baer wrote, referring to the Americans with Disabilities Act.

NFB President Marc Maurer praised Baer’s “landmark” decision.

“Access to the printed word has historically been one of the greatest challenges faced by the blind,” Maurer said in a statement. “For the first time ever, blind students and scholars will have the opportunity to participate equally in library research. The blind, just like the sighted, will have a world of education and information at their fingertips.”

The guild had argued, in part, that the wholesale digitization of the authors’ works infringed on the copyrights they held in them and resulted in lost sales.

But Baer, focusing on visually impaired readers, rejected the economic argument, saying the market for digitized works is prohibitively small for authors and publishers and that universities merely sought to fill in that gap.

“Print-disabled individuals are not considered to be a significant market or potential market to publishers and authors,” Baer wrote. “As a result, the provision of access for them is not the intended use of the original work (enjoyment and use by sighted persons) and this use is transformative.”

Goldstein, who has served as NFB counsel for a quarter century, agreed with the judge.

“The publishers and the authors have always seen the disabled as a charity case rather than as a market of people who want to buy books,” Goldstein said. “We had pretty overwhelming proof, right or wrong, that the authors and publishers did not care about people with disabilities as a market.”

The New York-based guild, in a statement, said it continues to believe that digitization of “millions of copyright protected library books into machine-readable files” constitutes “duplicating and distributing” in violation of federal law.

The guild said it will discuss the ruling with its lawyers and fellow plaintiffs, who include similar author organizations in Canada, Europe and Australia, regarding what additional steps to take.

Broad interpretation

If the guild does mount an appeal, Baer is “likely going to get reversed” with regard to fair use, said copyright attorney James B. Astrachan, who represented no party in the case but said he helped Goldstein prepare for his argument on behalf of the NFB.

Astrachan said the breadth of Baer’s ruling — covering digitization for all, not just the blind — goes beyond fair use and amounts to unauthorized copying that could be “crippling” to the authors’ market for their work.

Digitization may be “transformative” and thus fair use for the visually impaired insofar as the high-tech application might be the only way they can access the work, Astrachan said. In such a case, the digitized version is merely “designed to replace the original,” he added.

But with regard to sighted readers, digitization represents a copy of the original, which is generally not protected by fair use, said Astrachan, of Astrachan Gunst Thomas Rubin PC in Baltimore.

Baer, in his opinion, also ruled for the universities based on a 1996 amendment to the Copyright Act sponsored by Sen. John H. Chafee, R-R.I., that permits “authorized’” entities “to reproduce or distribute copies … of a previously published, non-dramatic literary work … in specialized formats exclusively for use by the blind or other persons with disabilities.”

An American Library Association attorney said he was “disappointed” that the Authors Guild brought suit, adding that the fair use exception to the copyright law clearly includes the use of digitization and other emerging technologies to preserve published works and make them accessible to the disabled.

The Authors Guild has “sort of a particular view of copyright law that has not kept up with the times,” Jonathan Band said. “Copyright law evolves, but the Authors Guild hasn’t.”

Band submitted a friend-of-the-court brief in the case on behalf of the ALA and the Association of College and Research Libraries. In the brief, Band said the Library of Congress would be a “serial infringer” because of its digitization of published works.

“The Authors Guild still has a 1976 view of the world,” Band said, referring to the year the Copyright Act was amended to expressly include the fair use exception that courts had adopted years earlier.

“There’s no question that fair use now is broader than it was in 1976,” added Band, a solo practitioner in Washington.

On Sept., 12, 2011, the Authors Guild sued Cornell and Indiana universities as well as the universities of Michigan, California and Wisconsin, alleging violations of the Copyright Act.

The universities have agreements with Google Inc., under which the online search engine company will create digital copies of works in the universities libraries.

The guild argues that digitization creates recreations of the original without compensation for the authors.

Google’s use of the digitized reproductions is the subject of a separate lawsuit brought by the guild (see related story, above).

In its lawsuit against the universities, the guild sought a judicial declaration that the digitization violated the Copyright Act, an injunction to prevent the high-tech reproduction, distribution or display of the published works and the impoundment of all unauthorized digitized copies in the universities’ possession.

NFB moved to intervene on the side of the defendants in December. Baer granted the motion in January.

The case is The Authors Guild Inc. v. Hathitrust et al., 11 CV 6351 (HB), U.S. District Court, S.D.N.Y.