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HathiTrust Digital Library is Fair Use: Second Circuit
Practical Law Legal Update 5-570-9805 (Approx. 3 pages)
HathiTrust Digital Library is Fair Use: Second Circuit
by Practical Law Intellectual Property & Technology
| Published on 16 Jun 2014 • USA (National/Federal) |
In Authors Guild, Inc. v. HathiTrust, the US Court of Appeals for the Second Circuit affirmed the US District Court for the Southern District of New York's decision finding that certain universities' mass digitization of the plaintiff-appellant authors' copyrighted works for the HathiTrust Digital Library was fair use.
On June 10, 2014, in Authors Guild, Inc. v. HathiTrust, the US Court of Appeals for the Second Circuit affirmed the US District Court for the Southern District of New York's decision finding that fair use protected a group of university research libraries' mass digitization of the plaintiff-appellant authors' copyrighted works as part of the HathiTrust Digital Library (HDL) for the purpose of:
- Permitting full-text searches.
- Providing accessible versions of the works to print-disabled patrons.
However, the Second Circuit vacated the district court's decision that fair use protected the libraries' preservation of certain copyrighted works by creating replacement copies and remanded to the district court to determine if the plaintiffs had standing on this issue. The Second Circuit also agreed with the district court's determination that certain claims relating to the now discontinued Orphan Works Project were not ripe for adjudication. For more on the background of this case, including the HDL's function and the district court's decision, see Legal Update, Universities' Mass Book Digitization Project is Copyright Fair Use: SDNY.
Notably, in its decision affirming fair use for the HDL's full-text-search feature, the Second Circuit made the following conclusions for each of the four fair use factors:
- Purpose and Character of the Use. The creation of the full-text database is a "quintessentially transformative use" because the search result is different in purpose, character, expression, meaning and message from the original work, providing little or no resemblance to the original text. Because there is no evidence that the authors write with the purpose of enabling text searches of their books, the full-text search function does not supersede the objects or purpose of the original creation.
- Nature of the Copyrighted Works. The nature of the copyrighted works was not dispositive. While the HDL allows the full-text search of every type of work, this factor may be of limited use where use of the creative work is for a transformative purpose.
- Amount of Work Copied. Even though the entire works were copied, the court found it reasonably necessary for the HDL to make this use to allow the full-text function.
- Impact on the Market for or Value of the Works. The court concluded that full-text-search poses no harm to any existing or potential traditional market, noting that this analysis is concerned only with the economic harm that results because the secondary use serves as a substitute for the original work. The court rejected the authors' argument that:
- A market for licensing books for digital search could possibly develop in the future, emphasizing that economic harm caused by a transformative use does not count.
- The HDL creates a risk of a security breach that could cause irreparable damage to the authors, finding that the libraries' showing of extensive security was unrebutted.
In affirming fair use for the purpose of making versions of the copyrighted works available to the print-disabled in accessible formats, the Second Circuit reached the following conclusion on the four fair use factors:
- Purpose and Character of the Use. The Second Circuit disagreed with the district court's conclusion that the use is transformative, emphasizing that a transformative use must add something new to the copyrighted work and not merely supersede the purposes of the original creation. However, the Second Circuit concluded that providing access to the print-disabled is still a valid purpose for fair use because both the US Supreme Court and Congress have expressly stated that making a copy of a copyrighted work for the convenience of a blind person is an example of fair use.
- Nature of the Copyrighted Works. The nature of the copyrighted works weighed against fair use because the HDL gives the disabled access to copyrighted works of all kinds. However, the court noted that this factor was not dispositive.
- Amount of Work Copied. The HDL's retention of digital image files and text only files is not excessive because the text files are necessary for text searching and to create text-to-speech capabilities for the blind and disabled. The image files provide an additional method for disabled patrons to get access to the works.
- Impact on the Market for or Value of the Works. This factor favored fair use because there is no market for the print-disabled.