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

Susan Isiko Strba susan.isiko.strba at bluewin.ch
Thu Oct 11 21:30:48 PDT 2012

The ruling is timely. Thanks to Kenneth for this useful summary/first 


On 11/10/2012 14:14, Manon Ress wrote:
> Kenneth Crews' key points on this important ruling:
> http://copyright.columbia.edu/copyright/2012/10/11/court-rules-on-hathitrust-and-fair-use/
> 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
> yes.
> 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
> place.
>      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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