On October 10, 2012, Judge Harold Baer of the U.S. District Court in New York ruled in favor of the HathiTrust Digital Library (HDL) and its university partners in a copyright infringement suit brought by the Authors Guild (AG) and other groups. In his ruling the judge dismissed the AG’s arguments that the HathiTrust had violated copyright law by making scanned works available for certain uses.
The HathiTrust Digital Library is operated by a consortium of universities, including the University of Michigan, the University of California, the University of Wisconsin, Indiana University, and Cornell University. Google partnered with these universities in 2005 to scan millions of books in these universities’ libraries and to make “snippets” of those books available online via Google’s search engine. After Google scanned each book, it provided a digital image and a text version of the book to the library that owned the original. In turn, the libraries contributed the files to the HDL, which uses them for three purposes:
- full-text searches
- access for people with certified print disabilities
According to the Authors Guild, this process created two unlawful copies of the original and, therefore, violated copyright. The HathiTrust was sued by the Authors Guild in 2011.
While the judge did not rule that all scanning for all purposes by universities should be considered fair use, he instead focused on the transformative nature of the libraries' use. James Grimmelmann, Professor of law at New York Law School, wrote in his blog, “The opinion doesn’t even make it seem like a close case. On every substantive copyright issue, HathiTrust won.” (Along with Grimmelmann, others who have written extensively on the case include Kevin Smith, Duke University, and Kenny Crews, Columbia University.)
In analyzing the four factors of fair use, the judge found in favor of the defendants across the board. On the first factor - the "purpose and character" of the use - the judge held that the purpose of the use was research and scholarship, which are favored in the fair use copyright exception. However, he went to say that the creation of a search index is a transformative use under the first fair use factor: He wrote:
"The use to which the works in the HDL are put is transformative 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."
Additionally he wrote that the “search capabilities of the HDL have already given rise to new methods of academic inquiry such as text mining." Similarly, he noted, the scanning program allows blind readers to read the books, something they can't do with the original. In his ruling, Baer singled out the “eloquent oral argument by Mr. Goldstein” (i.e., Daniel Goldstein, attorney for the National Federation of the Blind) in highlighting where the visually-impaired stood before this digitization program. He wrote, “[A]cademic participation by print-disabled students has been revolutionized by the HDL.”
On the second factor – the nature of the work – the judge said, "Because the use is transformative, intended to facilitate key-word searches or access for print-disabled individuals, the second factor is not dispositive."
For the third factor - the amount of the work used - the Judge said that in this instance entire copies were necessary to fulfill the HathiTrust's purpose of facilitating searches and giving access to print-disabled individuals.
On the fourth factor – the effect of the use of the work on the potential market - the Court found that the issue of market harm did not undermine fair use since there was no direct market competition between the HathiTrust and any existing market for the works in question.
In commenting on the opinion, Grimmelman said, “It’s becoming well-established copyright law that the ordinary operations of a search engine don't infringe.” He added that Baer's opinion extends that in two ways:
“First, he takes it from digital media to analog. The fact that the books were being digitized for the first time didn’t faze him. And second, he draws on the Digital Humanities amici's argument that the non-consumptive research uses of a digital corpus, such as new kinds of analyses based on text mining, don't hurt the market for books. That's a big win for everyone looking to digitize books and do unexpected things with them.”
In the end, Judge Baer said that his decision was determined by the original goal of copyright law, which is to promote research and knowledge. He wrote,
“The ultimate focus is the goal of copyright itself [and] whether ‘promoting the Progress of Science and useful Arts would be better served by allowing the use than by preventing it.’”
For the EDUCAUSE community it is important to recognize that this decision was a decisive win for fair use and the transformational use of technology within the educational enterprise. Judge Baer’s key holding was:
“I cannot imagine a definition of fair use that would not encompass the transformative uses made by [HDL] 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].”
EDUCAUSE will continue to monitor and report on these copyright issues.