The June 10 appeals court decision on HathiTrust advances the useability of fair use, protects innovation and helps makers of media that matters.
HathiTrust is a service of a consortium of more than 90 libraries. They pooled the digital versions of their collections—created with the help of Google, which independently uses the digital copies for its Google Books project—and make them available in an open, searchable database. If the books are in the public domain, you can read them. If not, you can search text and find out what pages that text appears on. Also, if you are blind, you can get a full-text version that you can use, even if it is in copyright.
The Authors Guild said that HathiTrust violated authors’ copyrights, by making full-text copies available to disabled people and by creating a search tool that searches copyrighted material.
The appeals court not only disagreed (although less flamboyantly than the lower court did) but made clear that fair use applied to the different functions of HathiTrust. As Andrew McDiarmid explained at the Center for Democracy and Technology’s blog,
First, on the question of ‘transformativeness’ – often among the most important questions in fair use cases – the court wrote, “Added value or utility is not the test: a transformative work is one that serves a new and different function from the original work and is not a substitute for it.”
So not only do you not have to alter the actual copyrighted material in order for a use to be “transformative,” but you don’t have to create a new work, either. Creating a new use like the search tool HathiTrust provides—and it’s just a search, no new copyrighted work is generated--is a perfectly fair use.
Second, in considering the effect of the libraries’ use of the scans on the market for the books, the court wrote, “it is important to recall that the [market harm] analysis is concerned with only one type of economic injury to a copyright holder: the harm that results because the secondary use serves as a substitute for the original work.” Thus the fact that publishers could have licensed the books’ text for indexing is not enough to defeat the fair use claim.
This demonstrates the narrow limits of the “fourth factor” of fair use (market harm), which media makers often exaggerate when they think about whether fair use is eligible.
The court also said that although letting print-disabled people get accessible copies isn’t transformative (they are reading the books, just in a different way), the use is still fair.
The court could not find anything in HathiTrust’s behavior that hurts authors’ copyright monopolies. Indeed, HathiTrust’s search tool helps them find readers, without giving them a substitute. As legal scholar Pam Samuelson explained on the Authors Alliance blog: “For members of the Authors Alliance and many other authors, Book Search is an important tool that enables them to find readers far beyond the user base of the HathiTrust digital library.”
So: Transformativeness is often key to deciding fair use, and a use can be transformative without even adding value by creating a new work. When a social value has been strongly affirmed already (e.g. access for the disabled), then a use can be fair without even being transformative. And courts are getting used to making these calls.
Why is that good for media makers? First, because it makes it even easier and clearer that fair use is available, and that courts favor appropriate fair use. Second, it encourages innovation like the HathiTurst search tool, and creators of all kinds benefit from innovation.
Want more? Check out James Grimmelman’s blog (http://laboratorium.net/). There are more wrinkles in the case, and Grimmelman always makes legal topics friendly to non-lawyers.