Another Fair Use Victory for Book Scanning in HathiTrust | Electronic Frontier Foundation

"Fair use enjoyed a major victory in court today. In Authors Guild v. HathiTrust, the Second Circuit Court of Appeals handed down a decision that strongly underscores a fair use justification for a major book scanning program. For those counting along at home, today's decision marks another in a serious streak of judicial findings of fair use for mass book digitization, including Authors Guild v. Google, Cambridge University Press v. Becker, and the district court opinion in the HathiTrust case itself. Given that consistent fair use record for book digitization, today's ruling might not be totally surprising. Still, the text of the opinion is encouraging, and reflects a court that respects the Constitutional purpose of copyright as a tool to promote the progress of science and the useful arts—not a blunt instrument for rightsholders to regulate all downstream uses. HathiTrust was set up by several research universities to operate a digital library containing electronic scans of the universities’ books (Google provided the scans as part of its Google Books project). The Authors Guild took issue with three practices that HathiTrust engages in: a full-text database that returns the book name and page number for matching search results; a service to make text available in formats accessible to print-disabled people; and a long-term archive to preserve books that might become unavailable during the term of their copyright restrictions. With respect to the full-text database, the court found that although a copy of the entire work is made, the purpose of a full-text searchable database is so different from that of the underlying works that the use must be considered transformative. In fact, the court wrote, 'the creation of a full‐text searchable database is a quintessentially transformative use'. The Authors Guild also argued that HathiTrust's use of an identical server and two tape back-ups constituted 'excessive' copying. Thankfully, the court rejected that premise, acknowledging that when it comes to digital technology, an approach that focuses only on individual copies made is insufficient. The court then looked at the Authors Guild's 'lost sale' argument—that its authors could have instead licensed their texts for paid inclusion in the database—and found it unconvincing. Fair use analysis requires a look at the harm in the marketplace that a use might create, but the court clarified that it only addresses economic harm that comes from a use serving as a substitute. After all, even if a scathing book review causes economic harm to a new book, the quotes it incorporates are no less fair use. That means that the market harm argument can't be used against a highly transformative use like a searchable database ..."