[A2k] Kenneth Crews re Court Rules on HathiTrust and Fair Use

Manon Ress manon.ress at keionline.org
Thu Oct 11 05:14:34 PDT 2012

Kenneth Crews' key points on this important ruling:


Court Rules on HathiTrust and Fair Use

by Kenneth Crews on October 11, 2012

In September 2011 a group of authors, with The Authors Guild and other
associations, filed a lawsuit against HathiTrust, five major
universities, and multiple university officials alleging that the many
of the activities of HathiTrust related to the storage and search of
full-text digital books was an infringement of copyright.  This week
the judge ruled on motions for summary judgment, finding that the
retention and use of millions of digital books for purposes of
preservation, text search, and accessibility for the visually impaired
were within the limits of fair use.  The ruling is enormously
important for the continued vitality of HathiTrust, but Judge Baer’s
written opinion offers an analysis of fair use that will be helpful in
the evaluation of many future projects, especially in the context of
libraries, education, and research.

This post is my first review of the 23-page decision.  Other blog
posts are hitting different highlights, and I am pitching in the
following thoughts for the conversation.

The Covered Activities.  HathiTrust is a digital repository of almost
10 million scanned books, most of them created as part of the Google
Books project in partnership with leading research libraries.
Approximately 76% of the books are still in copyright.  At issue in
the case are these specific uses: (1) Storing of the scanned book
images and text files for preservation; (2) Enabling researchers to
conduct word searches of the text files, but the search results only
indicate where words appear in the text of books and do not allow
viewing of the text; and (3) Facilitating formats of the books to meet
the needs of persons who are blind or visually impaired.

Orphan Works.  HathiTrust announced in 2011 that it was soon to embark
on an innovative approach to opening the full text of books that are
deemed to be orphan works.  The proposal was lauded and criticized,
and it may well have been the lightning rod that drew this lawsuit.
However, HathiTrust soon dropped that plan and took no steps to open
the full text of books in that manner.  With no current plans to
actually launch the orphan works initiative, the court declined to
rule on whether it would have been lawful.  We might want to know how
the court would rule on issues of orphan works, but getting that issue
out of the way allowed the court to focus on uses that are much more
likely to be within fair use: preservation copies; text searches and
data mining; and serving the needs of the blind.

Relationship to Section 108.  This section of the U.S. Copyright Act
allows libraries to make copies for preservation and research, within
limits.  The statute includes an explicit statement preserving the
application of fair use: “Nothing in this section . . . in any way
affects the right of fair use as provided by section 107.”  The
copyright owners argued nonetheless that because one specific statute
applies to libraries, the general statute on fair use cannot apply.
We have been hearing that argument for decades.  It never had any
validity, and at long last a court has ruled on it.  Libraries may
apply Section 108 and Section 107 on fair use.

Fair Use and Persons with Disabilities.  The opinion provides a strong
opinion about fair use as applied to serving persons with
disabilities, especially when an educational institution is mandated
to serve needs under the Americans With Disabilities Act.  The court
goes further and resolves a long-time quandary that arose under
Section 121 of the Copyright Act.  That statute permits an “authorized
entity” to make formats of certain works available to persons who are
visually impaired.  An “authorized entity” is one that has a “primary
mission” to serve those needs.  Libraries and universities have many
functions, so is that service a “primary mission”?  The court said

Principles of Fair Use.  In ruling that the activities in question
were within fair use, the court rightly based its decision on the
facts as presented and on a balancing of the four factors in Section
107.  Here a few highlights about the factors:

Purpose and Character of the Use:

    The ability to search for terms and to store a digital copy for
preservation serves scholarship and research, and those purposes lean
in favor of fair use.
    These purposes are also noncommercial when carried out by
HathiTrust and the universities.
    The defendants asserted that the preservation copy is
“transformative,” but the court found that the argument that
“preservation on its own is transformative is not strong.”
    However, maintaining text files for searching is a transformative
use, “because the copies serve an entirely different purpose than the
original works.”  The files were for search only, and no copyrighted
content was accessible.  Specialized formats to serve print-disabled
persons is also transformative.

Nature of the Work:

    Although the books included fiction, poetry, and drama, in
addition to nonfiction, the court found this factor to be “not
dispositive” in the context of the transformative uses for searches
and serving print-disabled persons.

Amount of the Work Used:

    Maintaining copies of entire works was justified for the purposes
of searching and serving print-disabled persons.

Effect on the Market for the Works:

    For noncommercial uses, the plaintiff must show “by a
preponderance of the evidence that some meaningful likelihood of
future harm exists.”
    The court rejected the argument of lost sales, finding that sales
of books would have not served text searches or access for persons who
are print disabled.
    The court found that the copies in HathiTrust were not a security
risk, noting the evidence presented about the security measures in
    The court also found assertions of future licensing revenue to be
“conjecture” without evidence of some actual harm.
    In broad terms, the court also ruled that copyright owners “cannot
preempt a transformative market” and uses that are in a
“transformative market” do not cause a loss of license revnue.
    The projected high cost of any possible license market would also
be cost prohibitive for an initiative such as HathiTrust, and it may
not be possible at all given the numerous works and the need to locate
copyright owners.
    Regarding the needs of the print-disabled, the evidence showed
that they are a “tiny minority” and a market to allow them access to
millions of books “is consequently almost impossible to fathom.”

This case offers much more about fair use and other legal issues.  The
ruling came down only hours ago, and this is my first look.
Nevertheless, summary of key points above offer a useful insight into
the meaning of fair use for HathiTrust and many other pursuits.  More
analysis to come, and so much more to consider about future appeals,
the relationship to the litigation over Google Books, the future of
copyright exceptions for libraries and the visually impaired, and the
possibilities of fair use for mass digitization.

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