“I cannot imagine a definition of fair use that world not encompass the transformative uses made by Defendants’ MDP [Mass Digitization Project] and would require that I terminate this invaluable contribution to the progress of science and the cultivation of the arts that at the same time effectuates the ideals espoused by the ADA [Americans with Disabilities Act].” This statement appeared in the opinion of Judge Harold Baer Jr. of the U.S. District Court, Southern District of New York, in his decision in Authors Guild v. HathiTrust.
The plaintiffs in the case, The Authors Guild, asserted “claims for copyright infringement for the alleged unauthorized reproduction and distribution of books owned by the Universities.” The case referred to the library-owned, in-copyright books that had been digitized by Google, copies of which were deposited by the libraries in the HathiTrust repository. HathiTrust, located at the University of Michigan, is a shared digital preservation facility that serves more than 60 universities and higher education consortia.
Baer decided firmly on the side of HathiTrust and, in particular, on its fair use defense. (Documents related to the case are available at The Public Index.)
The decision states the following:
- The digitization of books for the purposes of providing a searchable index is transformative, and therefore, Fair Use under copyright law.
- The provision of these search capabilities “promotes the Progress of Science and useful Arts” and thus supports the goals of U.S. copyright policy and law.
- The provision of in-copyright texts for visually impaired students and researchers is in direct support of the Americans With Disabilities Act.
With these decisions, the judge has reaffirmed the role of libraries as promoting knowledge creation and equality of access. As stated by John Price Wilkin of HathiTrust, “From the beginning, this was about the mission of libraries, and especially our ability to preserve the cultural record, our right to support users with print disabilities, and our support of fair use in services like discovery. The ruling is a vindication not only of our right to do those things but of the way we were doing them—responsibly and lawfully.”
In his decision, the judge replied to many of the challenges of The Authors Guild’s complaint and firmly rejected its argument that because libraries have special privileges under Section 108 of the copyright law, they are not eligible to make use of Section 107 fair use defenses. The Authors Guild made the claim in spite of the fact that Section 108 clearly states, “(f) Nothing in this section— … (4) in any way affects the right of fair use as provided by section 107 …”
The Authors Guild’s suit also claimed that a breech of digital security at HathiTrust could result in widespread piracy. However, The Authors Guild was unable to provide any information about security at HathiTrust that would make this a convincing argument for the termination of the service, and HathiTrust was able to show that it is using state-of-the-art security measures. The judge rejected this argument as grounds for halting HathiTrust and requiring the destruction of existing digital copies, as The Authors Guild suit had demanded.
The judge also rejected The Authors Guild’s claim of potential future infringement on the part of the HathiTrust orphan works project. That project was halted in September 2011 when The Authors Guild identified the rightsholders of several books on a list of presumed orphan works provided by HathiTrust. Because no digitized orphan works had been released by HathiTrust for reading, the judge determined this particular suit to be premature.
The judge accepted amicus briefs in support of HathiTrust brought by libraries (the American Library Association, the Association of College and Research Libraries, and the Association of Research Libraries) and the Digital Humanities and Law Scholars. Both of these briefs speak eloquently about the role of libraries in knowledge creation and in the revolution in research that digitization of texts has brought about. In particular, the humanities scholars note that until this point, they have been unable to take advantage of the kind of computational research that the sciences regularly engage in because the materials of humanities research have been locked in print products, some centuries old.
The fair use determination is a clear win not only for HathiTrust but for digitization projects in general. Fair use is determined with a four-factor test enumerated in Section 107 of the copyright law:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
Not mentioned here in point (1) is the issue of “transformative use,” which has become a test of fair use in various court cases. Transformative use is a use that differs from the intended use of the original. In this case, the originals were documents to be read by human eyes, while the digital copies will be used to provide searchable indexes and the text of the document will not be provided for reading. In the determination of the judge, this means that the digital copies do not compete with the original but create an entirely new product and use.
Once the judge had determined that the use was transformative, the other four factors fell easily in line:
- They are definitely for educational purposes, plus transformative.
- Creative works are subject to greater scrutiny for copyright infringement than factual works, and only 9% of the HathiTrust works are of the creative nature (fiction, poetry, etc.).
- The creation of a searchable full-text index or of a copy that can serve the visually impaired requires that the entire book be copied, not just a portion.
- The digital index does not harm the market for books as the text of the books is not presented to researchers, and, in fact, it might increase the market by increasing discovery.
The National Federation of the Blind provided an opposition brief in the case, and it would be hard to overstate the positive affect that had on the judge. Here, Baer showed great enthusiasm for the HathiTrust service to the blind and visually impaired in stating that “academic participation by print-disable students has been revolutionized by the HDL [HathiTrust Digital Library].” Baer reserved his only superlatives for the attorney for the National Federation of the Blind, Daniel Goldstein, referring to his “eloquent oral argument.” It is clear that the provision of this service is a big win in the eyes of the judge and earned his admiration, both legally and morally. The decision clarifies and potentially expands the definition of an “authorized entity” under the Chaffee amendment to the copyright law, thus allowing additional entities to provide services to the blind. “Our position is that access to information by the blind is a civil right,” said spokesman Chris Danielsen of the National Federation of the Blind, adding that this ruling may help libraries and educational institutions provide more access to digitized materials in their collections.
There is no question that Baer’s decision reinforces the positive role of libraries and educational institutions in the digital and digitized information age. It now remains to be seen if similar decisions will be applied to Google in its defense against similar copyright infringement charges also brought by The Authors Guild.