June 10, 2014 | By Parker Higgins

Another Fair Use Victory for Book Scanning in HathiTrust

Fair use enjoyed a major victory in court today. In Authors Guild v. HathiTrust, the Second Circuit Court of Appeals handed down a decision that strongly underscores a fair use justification for a major book scanning program. For those counting along at home, today's decision marks another in a serious streak of judicial findings of fair use for mass book digitization, including Authors Guild v. Google, Cambridge University Press v. Becker, and the district court opinion in the HathiTrust case itself.

Given that consistent fair use record for book digitization, today's ruling might not be totally surprising. Still, the text of the opinion is encouraging, and reflects a court that respects the Constitutional purpose of copyright as a tool to promote the progress of science and the useful arts—not a blunt instrument for rightsholders to regulate all downstream uses.

HathiTrust was set up by several research universities to operate a digital library containing electronic scans of the universities’ books (Google provided the scans as part of its Google Books project). The Authors Guild took issue with three practices that HathiTrust engages in: a full-text database that returns the book name and page number for matching search results; a service to make text available in formats accessible to print-disabled people; and a long-term archive to preserve books that might become unavailable during the term of their copyright restrictions.

With respect to the full-text database, the court found that although a copy of the entire work is made, the purpose of a full-text searchable database is so different from that of the underlying works that the use must be considered transformative. In fact, the court wrote, "the creation of a full‐text searchable database is a quintessentially transformative use".

The Authors Guild also argued that HathiTrust's use of an identical server and two tape back-ups constituted "excessive" copying. Thankfully, the court rejected that premise, acknowledging that when it comes to digital technology, an approach that focuses only on individual copies made is insufficient.

The court then looked at the Authors Guild's "lost sale" argument—that its authors could have instead licensed their texts for paid inclusion in the database—and found it unconvincing. Fair use analysis requires a look at the harm in the marketplace that a use might create, but the court clarified that it only addresses economic harm that comes from a use serving as a substitute. After all, even if a scathing book review causes economic harm to a new book, the quotes it incorporates are no less fair use.

That means that the market harm argument can't be used against a highly transformative use like a searchable database. As the court put it, "any economic 'harm' caused by transformative uses does not count because such uses, by definition, do not serve as substitutes for the original work."

Turning to the accessibility features that HathiTrust offers, the court adopted a slightly different analysis, but continued to find for fair use. The use is not as fundamentally transformative, because the purpose of making a text available for reading or listening is unchanged.

Still, the court decided that the use is a fair one, citing the legislative history of the Copyright Act and the Americans with Disabilities Act. That robust view of copyright exceptions like fair use is great to see from the federal judiciary, and consistent with the international norms we've seen advanced in agreements like last year's Marrakesh Treaty for the Blind.

Finally, the court remanded the issues on the last program, the long-term preservation of books. Importantly, it remanded on standing—meaning it's not clear that the Authors Guild even has grounds to raise this complaint. The district court is left to determine whether Authors Guild can demonstrate that its copyrighted works are even affected.

That standing question raises a larger issue that has percolated through this series of high-profile legal losses for the Authors Guild. The Guild claims to represent the interests of all or most authors, but it has increasingly taken on expensive losing battles against technologies that would make texts more accessible. That's a good argument for new groups like the Authors Alliance, which represent authors who are primarily concerned with being read.

With today's fair use ruling, mass book scanning projects are on firmer ground than ever to continue under the protection of fair use. With that legal hurdle cleared, these services can hope to deliver what one earlier judge referred to as an "invaluable contribution to the progress of science and cultivation of the arts."

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