Authors Guild Loses Book Scanning Case Once Again | Techdirt

"The Authors Guild simply won't give up on its quixotic attack on modern technology. Even after losing both of its book scanning cases -- one against the Hathitrust (a collection of university libraries) and the other against Google -- it appealed both rulings. This morning, the ruling in the first of those cases, the Hathitrust one, came out, and it pretty much demolished the Authors Guild's arguments, finding, yet again, that book scanning like this is clearly fair use, though for slightly different reasons than the lower court. But there is plenty of useful stuff in the ruling. First, the court explored whether having a full-text searchable database of all text is fair use and found overwhelming support for that idea ... In other words, copying all the words in books to create that searchable database is transformative fair use. In fact, the court notes that it 'adds a great deal more to the copyrighted works at issue than' other transformative uses that the same court has approved. As for the fact that it copies 'all' of the work, and how that impacts the 'amount of work' used as a fair use test, the court, thankfully, focuses on the word necessary in exploring if 'more of the copyrighted work than necessary' was used -- finding that 'for some purposes, it may be necessary to copy the entire copyrighted work' and thus that does not weigh against the third factor in the fair use test ... The Authors Guild, somewhat ridiculously, argued that because the full copies are kept onmultiple servers, it meant that Hathitrust had 'more copies than necessary,' but the court brushes that aside by pointing out the value of backups and load-balancing between multiple servers.   But the really big issue comes down to the impact on the market, the fourth factor in the fair use test, and the one that is generally considered to be the most important. The court here makes an important distinction that many people completely miss when analyzing the 'impact on the market' question -- which is that the only impact that matters is the impact because the copy serves as a substitute for the original. There are lots of other ways the copy might impact that market that do not matter in this analysis ..."