Digital Library Boosters Take Aim at Critics

     (CN) – Google’s plan for a vast digital library is “the kind of project that the fair use doctrine was designed to protect,” three nonprofits told the 2nd Circuit.
     Beginning in 2008, major universities and libraries partnered with Google to digitize their volumes, creating the HathiTrust Digital Library.
     HathiTrust enabled more than 60 university and research libraries to store, secure and search their digital collections. Though the library plans to provide full-text access to so-called “orphan works” whose copyright owners could not be located, it normally does not allow users to access the digitized books in their entirety. Its system delivers titles and page numbers via keyword search, helping students and others find the copyrighted books at libraries. Blind or print-disabled users can get special access to the original works.
     The Authors Guild led a group of writers and advocacy groups in a lawsuit against HathiTrust and the partnering universities in 2011, alleging their distribution of digital copies of millions of copyrighted works infringed its members’ copyrights.
     A federal judge in Manhattan concluded last year, however, that digitizing the books to enhance research and access is a legal fair use of copyrighted material.
     The Authors Guild asked the 2nd Circuit to revive its case, and the Associated Press intervened on its behalf with an amicus brief.
     Last week, the Electronic Frontier Foundation and two other nonprofits that advocate balanced copyright policies submitted their own friend-of-the-court brief, urging the appeals court to let HathiTrust stand under the fair use doctrine.
     “The fair use doctrine plays the essential role of ensuring that copyright serves, rather than thwarts, innovation,” the brief states. “That role has never been more important. In this age of digital media and online communication, copying is an integral and inescapable part of many valuable new technologies. Email, web browsers, search engines, DVRs, and so on, all carry out their functions by copying data to the memory of a device, such as a computer or smart phone. Indeed, every time someone visits a webpage on the Internet, a copy of that webpage may be stored in memory automatically so that it can be accessed more quickly and efficiently in the future. At the same time, add-on innovators depend on intermediate copying in order to create services and technologies that build on existing works – including helping people find and organize those works. These forms of copying and socially useful innovation are the product of a fair use doctrine that hews to its fundamental purpose: ensuring that copyright spurs, rather than impedes, the progress of science and the useful arts.”
     HathiTrust’s library offers scholars and students access to millions of volumes in the nation’s leading research libraries, helping them “build on the vast repository of knowledge of those who came before them,” according to the brief.
     It also serves the public interest by encouraging the creation and dissemination of new ideas, without infringing authors’ rights. Among other advantages, HathiTrust gives print-disabled individuals unprecedented equal access to written works, speeds up research and promotes authors’ works to a larger audience, the groups argued.
     While the Congress could not have anticipated every new technology in adopting the Copyright Act of 1976, it designed a flexible fair use doctrine, capable of adapting to technological change, the brief states.
     The public interest groups argued that technological uses like HathiTrust’s searching and indexing are transformative uses under the fair use doctrine because they serve new purposes, such as offering print-disabled individuals access to written works and establishing new methods of academic research.
     Using copyrighted works does not have to alter original works or add to them to be transformative, the groups argued, citing 4th Circuit precedent.
     The public interest groups also asked the appeals judges to reject the AP’s brief, which argued that fair use should be limited to “expressive,” noncommercial uses.
     “In particular, the AP suggests that ‘expressive’ ‘non-commercial’ uses, rather than technologically transformative uses, should be the ‘core’ of fair use,” the brief states. “If adopted, this view would sharply curtail the essential role fair use plays in facilitating online innovation and expression, from services that allow users to find, organize and share public information, to services that depend on making intermediate copies, to personal consumer uses such as time-shifting. Copyright law could become a roadblock to the very benefits it was designed to promote.”
     HathiTrust’s primary uses – teaching, scholarship and research – are nonexpressive, but qualify as fair use as much as expressive ones, the brief states.
     What’s more, the AP’s contention that commerciality should be the touchstone of fair use is not supported by Supreme Court and appeals courts precedent. Such a narrow focus would exclude fair but profit-seeking activities such as news reporting, criticism and research, the nonprofits argued.
     “Every day, technology companies and inventors working out of their garages make intermediate copies as they test and develop their innovative technologies – technologies that may have commercial value, but will also promote the spread of knowledge and learning,” their brief states. “Courts have repeatedly found such uses to be fair.”
     Limiting fair use to noncommercial activities would discourage innovators and investors who support new technologies, the groups argued.
     They also noted that the benefits HathiTrust provides to the public can be seen only as fair use. Noncommercial institutions such as research libraries would not have the resources to undertake such a project on their own and provide access to millions of scanned and digitized books, the brief states.
     “With respect to the half a million volumes in the University of Texas Latin American collection, the university library director stated, ‘We figured we could do it in a hundred years. Google did it in two,'” according to the brief.
     Rochelle Woods and Deepak Gupta with Farella Braun and Martel, of San Francisco, submitted the brief on behalf of the public interest groups, which also included Public Knowledge and The Center For Democracy & Technology.

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