by Paul Hellyer
Earlier this month, the Second Circuit decided Authors
Guild v. HathiTrust. This is an important copyright case for libraries, and
it’s a definite win for us.
For those of you unfamiliar with it, HathiTrust is an online digital
library created by a partnership of university libraries. It contains millions
of full-text scans of public domain works, licensed copyrighted works, and
unlicensed copyrighted works. The lawsuit focused on HathiTrust’s use of the
unlicensed copyrighted works.
It’s worthwhile to take a close look at the facts, because
they can give you an idea of what your library can or can’t do. To begin with,
HathiTrust makes and stores digital full-text copies of copyrighted works without
the owners’ permission. This amounts to unlicensed copying, a potential
violation of Section
106 of the Copyright Act. At first glance, that sounds pretty daring, but
what HathiTrust is actually doing with these digital copies is very limited.
The court considered the merits of two of these activities.
HathiTrust’s key use for these digital copies is full-text
searching: HathiTrust allows any user to run full-text online searches through
its digital archive and see titles and page numbers in a results list, but it
does not allow users to view or download any of the page images or text. This
is a more restrictive approach than the one taken by Google Books, which by
default allows users to view “snippets”
of the full text of unlicensed copyrighted works.
HathiTrust also allows a member library to provide a disabled
patron with access to the digital full text of copyrighted works, in order to
accommodate the patron’s disabilities. For example, a member library may allow
a blind patron to convert digital text to audio, with or without permission
from the copyright owner, provided that the library already owns a print copy
of the work. This does not mean that any user claiming a disability can
directly access the digital full text of copyrighted works. Rather, the
disability must be certified by a qualified expert and access must be
facilitated by a member library.
Despite HathiTrust’s cautious approach, it became the target
of a lawsuit by copyright owners and their organizations, led by the Author’s Guild.
The plaintiffs claimed that HathiTrust’s activities were not a fair use of
copyrighted works, and even argued that the fair use doctrine has limited application
to libraries. Section
108 of the Copyright Act permits libraries to make certain uses of
copyrighted works without permission, and the plaintiffs argued that HathiTrust
must work within the confines of Section 108. This is a rather frivolous
argument because Section 108(f)(4) explicitly states that Section 108 does not
affect a library’s fair use rights.
The result of this lawsuit? HathiTrust won at the trial
court level and won again at the Second Circuit Court of Appeals.
The Second Circuit covered many legal points in its opinion,
some of which are more relevant to libraries than others. The most relevant
part for us is the court’s holding that HathiTrust’s full-text search
capability is a fair use. The court found that this use of copyrighted works is
transformative, meaning that the user is using the work in a way that creates
new value. Library patrons can’t run a full-text search of print copies in a
library’s collection, but thanks to HathiTrust’s digitial copies and search
engine, they now can. In fair use analysis, transformative use is favored.
What about harm to the copyright owners? The plaintiffs
argued that HathiTrust was ruining a potential market for licensing copyrighted
works to full-text search providers, but the court wasn’t interested in
hypothetical licensing markets. The court framed the question differently: does
the unauthorized use function as a substitute for the original work? Here, the
answer is plainly no. Users still need to obtain an authorized copy if they
want to read one of the works in HathiTrust’s digital library. According to the
court, if the unauthorized use isn’t a substitute for the original work, the
plaintiffs have not suffered any economic harm.
The plaintiffs devoted a lot of space in their brief to the
argument that the fair use doctrine is not fully applicable to libraries
because of Section 108. The court quickly dismissed this argument in a
footnote. Libraries have the same fair use rights as anyone else.
This opinion is good news for any library that’s considering
a digitization project, but it leaves unanswered questions about the boundaries
of these projects. HathiTrust took a conservative approach by not allowing
ordinary users to view any text of unlicensed copyrighted works. We don’t know
if the court would have approved Google Books’ “snippet” views or something
similar. We can say that the court didn’t treat HathiTrust as a close case,
which suggests we have some wiggle room.
Libraries should also keep in mind that HathiTrust has taken
extensive security measures to ensure that its digital copies won’t be stolen
by hackers or otherwise distributed without authorization. These precautions
are described in detail in the court’s opinion. Libraries that are considering
small-scale digitization efforts may not have the resources to ensure this
level of security.
We’ll learn more about the limits of book scanning as the
Google Books litigation winds its way through the courts.
