Hathitrust Library’s Fair-|Use Win Survives Appeal

MANHATTAN (CN) - The "fair use" doctrine allows a digital library to create a full-text searchable database of copyrighted works and to make those works accessible, the 2nd Circuit ruled today.

Beginning in 2008, major universities and libraries partnered with Google to digitize their volumes. The HathiTrust Digital Library enabled more than 80 university and research libraries to store, secure and search their digital collections.

The library normally does not let users access digitized books in their entirety. Rather, it helps scholars and others find the copyrighted books at libraries through a database that delivers titles and page numbers via keyword search. 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.

The Electronic Frontier Foundation supported Hathitrust in an amicus brief. Its attorney, Michael Barclay, slammed the guild's stance in a phone interview.

Opposing accessibility for the blind is like "siding with the barbarians that burned down the library of Alexandria," he said.

A New York federal judge who rejected the Authors Guild's challenge in October 2012 sang the praises of the Hathitrust library in a opinion that held book digitization to enhance research and access qualifies as "transformative" use.

"I cannot imagine a definition of fair use that would not encompass the transformative uses made by defendants' MDP [mass digitalization project] 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]," U.S. District Judge Harold Baer wrote.

A three-judge panel with the 2nd Circuit upheld most of Baer's findings on Tuesday but disagreed with the lower court's reasoning.

"Contrary to what the District Court implied, a use does not become transformative by making an 'invaluable contribution to the progress of science and cultivation of the arts,'" Judge Barrington Parker wrote for the court. "Added value or utility is not the test: a transformative work is one that serves a new and different function from the original work and is not a substitute for it."

Making texts available to the blind is akin to language translation, the court found.

While it held full-text search database as "quintessentially transformative use," the court found that making texts available to the blind was more akin to language translation.

"It is true that, oftentimes, the print-disabled audience has no means of obtaining access to the copyrighted works included in the [Hathitrust digital library]," Parker wrote. "But, similarly, the non-English-speaking audience cannot gain access to untranslated books written in English and an unauthorized translation is not transformative simply because it enables a new audience to read a work."

There is Supreme Court precedent and congressional intent, however, for the fair-use designation when books are made accessible to the print-disabled, Parker said.

Quoting former Supreme Court Justice John Paul Stevens, Parker wrote: "Making a copy of a copyrighted work for the convenience of a blind person is expressly identified by the House Committee Report as an example of fair use, with no suggestion that anything more than a purpose to entertain or to inform need motivate the copying."

That comment appeared in a footnote of the majority opinion of the 1984 case Sony Corp. of America v. Universal City Studios, Inc., a watershed decision declaring time-shifting technologies for TV programming to be fair use.

The EFF's Barclay said that he was "a little astonished" that the Authors Guild contested this issue.

"Why do you want to flavor your side of the case with, 'Hey, I want to deprive blind people with access to knowledge?'" he asked.

By preserving copies of books to make sure that copies exist after their copyrights expire, Hathitrust allows member libraries to create a replacement copy of the work when the library owned an original copy which was lost, destroyed or stolen and cannot get a replacement copy at a fair price.

While Baer ruled that this function too was fair use, the 2nd Circuit disagreed that the Authors Guild and other plaintiffs had standing to make the claims in the first place.

"The record before the District Court does not reflect whether the plaintiffs own copyrights in any works that would be effectively irreplaceable at a fair price by the libraries and, thus, would be potentially subject to being copied by the libraries in case of the loss or destruction of an original," the opinion states.

Whether the plaintiffs have standing is an issue the District Court must decide on remand. Baer died last month at the age of 81, so his cases have been reassigned.

The appellate ruling also bars the Authors Guild from opposing the University of Michigan's Orphan Works Project, a now-abandoned initiative to make a repository for works whose copyright holders could not be located or identified.

The university's decision to shelve the project during the onset of litigation means the issue is not ripe, the opinion states.

Meanwhile, attorney Barclay noted that the absence of such a project restricts public access to mid-20th century works.

Paul Heald, a law professor at the University of Illinois at Urbana-Champaign, dramatically illustrated the phenomenon in a March 2014 research paper.

His chart of new-book editions available on Amazon, listed by the dates of their original publication, shows a sharp spike in reprints before the 1920s, when the books began to be part of the public domain.

Lawyers for the Authors Guild did not have any immediate comment on the decision.

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