Fair Use & Mass Digitization: The Future of Copy-Dependent Technologies after Authors Guild v. Hathitrust by Angel Diaz :: SSRN

Second, this note discusses the trial court opinion in Authors Guild v. Hathitrust and the court’s fair use finding regarding the full-text search index and copies for the print disabled. The note argues that this decision rightly solidifies the growing body of jurisprudence protecting uses that have a transformative purpose and that pose no threat of artistic substitution while providing a public benefit. However, the note also argues that the same consideration cannot be applied to Hathitrust’s copies for the print-disabled and that the trial court’s fair use application and interpretation of Section 121 may be narrowed or corrected on appeal. 

Third, this note discusses the Hathitrust decision’s effect on the future of the Google Books case and argues that the fair use ruling paves the road for a similar finding while also giving Google leverage in its ongoing settlement negotiations. The note argues that Google’s fair use defense is equally as strong as Hathitrust’s despite Google’s commercial exploitation because no artistic substitution exists and Google Books helps rather than harms the market for the copyrighted works. 

Fourth, after exploring the judicial efforts to protect useful technologies as a matter of public policy, this note explores legislative solutions that would better advance copyright’s goals of promoting education, research, preservation, and access. The note advocates for 1) expansion of Section 108 library privileges to cover mass digitization and noncommercial exploitation; 2) expansion of protected entities that may make copies for the print-disabled under Section 121; 3) establishment of a regulatory board to govern the exploitation of orphan works; and 4) categorical protection for technological uses that make use of copyrighted works in a way that does not substitute for the original’s expressive content.