The HathiTrust lawsuit decision will certainly trigger the law of unintended consequences causing the HathiTrust institutions and all others to regret the suit. That is my conclusion based on my reading of the decision in the lawsuit brought by The Authors Guild against HathiTrust Digital Library (HDL) and the president’s of the member universities.
If you are not familiar with the HathiTrust Digital Library lawsuit here’s the nickle version. The Authors Guild sued HathiTrust for allowing Google to create digital copies of the physical works in their university libraries which Google would then make available to the HathiTrust Digital Library members along with advance search capabilities of the digitized works. The universities argued in the HathiTrust lawsuit the work was done under the fair use provision of the copyright law.
Judge Baer ruled in favor of the HathiTrust finding the activity related to the HathiTrust Digital Library as being protected under the fair use exception. The judge also ruled the claims in the lawsuit related to the Orphaned Works Project (OWP) were not yet ripe.
The details on why the fair use claims were upheld were summarized best in a recent EDUCAUSE blogpost The HathiTrust Decision: A Win for Fair Use and the Use of Technology if you don’t want to wade through the judge’s ruling.
The Law of Unintended Consequence
The law of unintended consequence has its roots in social sciences and economics. In simple terms, the law of unintended consequences says that there are sometimes outcomes that result from an action which were not anticipated. These unintended consequences can be an unexpected positive or negative result as well as a completely unexpected perversion of the expected result which can include the complete opposite effect from was desired.
Perversion of the HathiTrust Lawsuit Decision
I think it seems clear the HathiTrust lawsuit decision will trigger the law of unintended consequence to produce a perversion of the ruling that was never expected by the institutions. If you don’t like the word perversion, just substitute “twisted interpretations” of the judge’s ruling that will emerge.
One perversion of the HathiTrust lawsuit decision may be where copyright protected works of institutions get’s published in the wild under the umbrella of education, research or scholarship. Especially where the publishing could be considered transformative or represent an entirely different purpose than the original works.
In my mind I can imagine how MOOC’s could open up this line of thinking where an enterprising organization or person could offer college and university courses or derivations for free to the entire world under fair use. It would be hard to argue that wasn’t transformative given the press on MOOC’s. It would also be hard to argue that it wasn’t an entirely different purpose or that our energetic MOOC provider was actually having an impact on the marketplace of education.
But it won’t just be MOOC’s. Universities will have to brace themselves for a steady erosion of the value of their intellectual property portfolios.
How will the University of Michigan argue with a straight face that Chinese universities should not be able to use their curriculum, textbooks authored by their faculty, or other works? How will the University of Wisconsin System defend taking action against transformative uses of UW works?
I honestly don’t know the answers but I do know these questions will confront the HathiTrust Digital Library members sooner than they think because it seems to me they overplayed their hand on fair use and failed to consider the unseen law of unintended consequences.
NOTE: The HathiTrust logo has been used without permission based on a belief it’s use here is a transformative use of an entirely different purpose of educating the higher education community and there was no time to obtain permission prior to publishing. If they ask, I will take it down.