Victory for HathiTrust and Fair Use

The Authors Guild, Inc. v. HathiTrust, decided earlier this month, marks the second victory this year for fair use of copyrighted works for scholarly purposes (the first being Cambridge University Press v. Becker).  In an opinion issued by Judge Baer, the United States District Court for the Southern District of New York granted HathiTrust’s motion for summary judgment, allowing HathiTrust to continue its current use of copyrighted works.

HathiTrust describes itself as “a partnership of major research institutions and libraries working to ensure that the cultural record is preserved and accessible long into the future.”  The research institutions that compose the HathiTrust partnership are for the most part American universities, public and private, along with a few international universities and public library systems, ranging from the New York Public Library to the Universidad Complutense de Madrid.  HathiTrust partners allow Google to make digital copies of works from their collections.  The partners receive their own digital copies produced by Google, which consist of both image files and a converted text file, then give these digital copies to HathiTrust for inclusion in the HathiTrust Digital Library.  Currently, HathiTrust has close to 10 million works, the majority of which are protected by copyright law.  HathiTrust uses copyrighted works for three purposes, all connected to its goals of preservation and accessibility: enabling users to do full-text searches of the works, storing copies of the works that will endure long into the future, and providing access to works to people with certified print disabilities.

In September 2011, the Authors Guild, several of its international counterparts, and many individual authors (hereinafter “Plaintiffs”) initiated a lawsuit against HathiTrust and some of its partners for violating copyright law.  Plaintiffs argued that the copies produced by HathiTrust’s partners violated Section 108 (which gives libraries the right to make a limited number of copies of copyrighted works) of the Copyright Act and that Defendants were precluded from arguing fair use under Section 107.  The court rejected this argument, choosing instead to view Section 108 as supplemental to Section 107 and allowing fair-use analysis of HathiTrust’s use of copyrighted works.

Fair-use analysis consists of four factors weighed together (failing on a single factor does not preclude a finding of fair use).  Courts consider: the purpose and character of the use, the nature of the copyrighted works, the amount of the work copied, and the impact of the copying on the market for or value of the works.  In applying the first factor, the court favored HathiTrust because the works were being used for non-commercial educational purposes and were transformative.  Specifically, the copies made by HathiTrust served entirely different purposes than the original works, namely better searchability, preservation, and access to print-disabled people.  None of these purposes were served by the original print copies of the works.  The second factor was not a significant part of the court’s analysis because use was found to be transformative under the first factor.  The court found in favor of HathiTrust on the third factor because HathiTrust could achieve its goals only by copying entire works.  The fourth and final factor was also resolved in favor of HathiTrust, despite Plaintiffs’ arguments that HathiTrust’s uses of copyrighted works exposed the works to “widespread internet piracy” and “undermin[ed] existing and emerging licensing opportunities.”  HathiTrust’s evidence that a market for searching, accessibility, and preservation would probably cost over $500 million and not result in sufficient revenue to cover costs contradicted Plaintiff’s assertions about market effects.  The court stated that “a copyright holder cannot preempt a transformative market,” reiterating a Second Circuit holding from Bill Graham v. Dorling Kindersley Ltd. in 2006.  On the balance, the court held that the uses made of copyrighted works by HathiTrust and its partners fell within the protection for fair use provided by Section 107 of the Copyright Act.

This decision reiterates that enabling a user to search the body of a work constitutes fair use.  More importantly, perhaps, it gives very clear support for transformative use through new technologies going forward.  Although the specter of an appeal and possible reversal remains, libraries and other organizations that seek to expand accessibility and make use of new technologies should be heartened by this decision.


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