As first reported by Timothy B. Lee of Ars Technica, on October 10, 2012, a district court judge handed down a decision in Authors Guild v. HathiTrust. Hathitrust is a long-running copyright infringement case concerning a shared digital repository based at the Univerity of Michigan.
The case is related to the actions brought against Google over the company’s Books Library project, on which we have reported here and here. The Michigan university library together with a number of other universities formed a repository called the HathiTrust Digital Library (HDL), which contains digital copies of books scanned by Google as part of the Books Library project. The HDL uses the files for three purposes: a full-text search, preservation, and access for disabled people who cannot read printed copies of the books. The full-text search is a technology which allows users to search for particular terms across all the works stored in the HDL without revealing any in-copyright material.
The Authors Guild brought an action against the HathiTrust and its partners claiming that the use of the digital books in the HDL infringes the authors’ copyrights. District Judge Baer disagreed and concluded that digitizing books in order to enhance research and to provide access to print-disabled individuals falls within the fair use exception. When coming to this conclusion, the judge emphasized that:
- The use of the works in the HDL is transformative. The first fair use factor relates to the purpose and character of the use, e.g., whether the use is of commercial or nonprofit nature. U.S. courts have held that “transformative” uses, i.e., uses that either add something new or that serve an entirely different purpose, are likely to satisfy the first factor. Judge Baer held that use of the works in the HDL is transformative because the new purpose of the books is improved search capabilities rather than access to the copyright material. Similarly, the use of the works to facilitate access for print-disabled persons is transformative because this was not the purpose of the original works. Interestingly, the judge noted that in this case the first factor was not satisfied merely because the libraries are non-profit organizations but because of the transformative use of the works.
- The use of the works has no significant impact on the market. The fourth fair use factor examines the effect that the defendant’s use has on the market for or value of the work. The Authors Guild had claimed that the libraries’ activities undermined the authors’ licensing opportunities by restricting their ability to sell the right to scan their books. Judge Baer rejected this argument: if a court was to automatically conclude in every case that potential licensing revenues were impermissibly affected simply because the defendant did not pay a fee for the use of the work, the fourth factor would always favour the copyright owner.
- The underlying rationale of copyright law is enhanced by the HDL. Judge Baer concluded that he could not “imagine a definition of fair use that would not encompass the transformative uses made by [the libraries]” and that would require him to terminate the libraries’ uses of the works, which contribute to the object of copyright law – the progress of science and cultivation of arts. He placed particular emphasis on the fact that the mass digitization project provided an “unprecedented” ability for print-disabled individuals to compete equally with non-disabled persons in the ways envisaged by the U.S. Americans with Disabilities Act.