October 10, 2012 | By Michael Barclay and corynne mcsherry

Digitizing Books Is Fair Use: Author's Guild v. HathiTrust

Good news! In a decision that is likely to help shape the future of online fair use, a federal court in New York has concluded that digitizing books in order to enhance research and to provide access to print-disabled individuals is lawful.

The case is The Authors Guild, Inc. v. Hathitrust, the lesser-known but faster-moving stepsister to the Authors Guild’s long-running lawsuit against Google for its Google Book Search service. For the past seven years, major university libraries have been collaborating with Google to digitize their collections, with one result being the creation of the HathiTrust Digital Library (HDL).  Via the HDL, more than 60 university and research libraries can store, secure, and search their digital collections.  Most library patrons aren’t allowed to access the digitized books in their entirety – HDL merely does a keyword search and delivers titles and page numbers as results.  This enables users either to find the book at a library or to purchase a copy, but HDL itself doesn’t take the place of book sales for the general public.  HDL does allow access of the entire books to blind or other print-disabled individuals.

So, is that process a fair use?  HathiTrust, with support from EFF, numerous library associations, and prominent law professors, said yes.  And the court agreed. Nicely summing up his ruling, Judge Harold Baer declared:

I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendants’ MDP and would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts that at the same time effectuates the ideals espoused by the [Americans with Disabilities Act].

The judge noted that making copies to facilitate searching (and finding) information was a highly transformative use because "the copies serve an entirely different purpose than the original works . . . the purpose is superior search capabilities rather than actual access to copyrighted material.”

But what is perhaps most refreshing is that the court paid close attention to the public interest in the project, recognizing that it actually served the purposes of copyright: to promote the progress of science and the useful arts. Citing a brief filed by EFF and several library associations, the court recognized that the HathiTrust projects efforts helped, rather than hindered, access to creative works.  That public benefit, the court said, meant that the HDL supported “the underlying rationale of copyright law". 

Quite so. Judge Baer got it, and he got it right. Hopefully, his reasoning will be adopted and expanded in the related Google Books case.

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