Last week, fair use won another victory against publishing giants. In the case brought against HathiTrust by the Authors Guild, the judge found that HathiTrust’s digitization of copyright protected work fell under fair use.
In September 2011, the Author’s Guild sued HathiTrust, a collaborative organization of several major research libraries, claiming that the access HathiTrust provides to scanned materials is in violation of their members’ copyrights. HathiTrust argued that enhanced search features provided by digital copies and the accessibility provided to users with disabilities fell under the transformative factor of fair use.
As you may remember from a previous post on the GSU copyright case, fair use focuses on four factors:
1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
4. The effect of the use upon the potential market for or value of the copyrighted work
While much of the argument centered on the transformative nature of HathisTrust’s use of the materials, Judge Baer’s decision touched upon each of the four factors of fair use. In his 23 page decision, Judge Baer wrote:
“I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendants’ [mass digitization project] and would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts that at the same time effectuates the ideals espoused by the ADA.” (p. 22)
As you can see, encouraging innovation that led to the searchability of the documents and protecting the right of disabled students played a large role in the decision.
Factor 1: Purpose and Character
Much of this case was decided on the transformative nature of the digital copies distributed and used by HathiTrust. First off, texts were provided for research purposes, allowing people to search entire documents for keywords or phrases. However, once results were returned, users were directed to print copies of the works. No portion of the original work was shown in the digital search. In this instance, the judge found the purpose of the digital copy to be substantially transformative as to qualify under fair use.
The other major point of the case is the distribution of digital copies to students with disabilities that may otherwise prevent them from accessing the print version. The judge’s ruling here focuses on the fact that these readers are not a significant part of the market for the publishers, and as such, sales to them were not part of the original purpose of the print copies – creating a transformative use for HathiTrust.
Factor 2: Nature
As for the second factor, the judge decided that this didn’t affect the case due to the transformative nature of the digital works.
Factor 3: Amount Used
The relevant question here is whether the amount used was necessary to the use. HathiTrust successfully argued that the entire text was necessary in order to provide access to users with disabilities as well as preserve the texts for future use.
Factor 4: Market Harm
Because the use by HathiTrust was for noncommercial, scholarly and research purposes, the Author’s Guild was tasked with proving that there was actual market harm or that “meaningful likelihood of future harm exists.”
To prove their point, the Author’s Guild claimed that each copy made by HathiTrust equaled a lost sale. This was dismissed, once again, due to the transformative use by HathiTrust. As the judge put it, the “purchase of an additional copy would not have allowed either full-text searches or access for the print-disabled individuals, two transformative uses that are central to the MDP.” (p. 19)
Once this argument was dismissed, the argument here boils down to the possibility of future harm to the market. Due to the small market of users with print disabilities, the use of digital copies for those with disabilities was not considered a factor. In addition, ADA (Americans with Disabilities Act) and other lawsuits intend for accessible copies to be made. As for the search tool created by HathiTrust, the court found that a market for this tool would never develop for the Author’s Guild due to the high costs associated with doing so.
In his decision, Judge Baer stated:
“The enhanced search capabilities that reveal no in-copyright material, the protection of Defendants’ fragile books, and, perhaps most importantly, the unprecedented ability of print-disabled individuals to have an equal opportunity to compete with their sighted peers in the ways imagined by the ADA protect the copies made by Defendants as fair use” (p. 21)
This case, and others like it, stresses the importance of ensuring your digital content falls under fair use guidelines. In order to help you make this decision, MediaCAST includes a Fair Use Compliance Checklist. As part of the upload process, this easy to use checklist guides users through a series of questions and then generates a score based on their answers. Schools are empowered to decide the minimum threshold a resource must meet in order to be uploaded to their MediaCAST system.
**My attempt to make sense of this ruling may have left out some valuable facts in this case. For an in-depth, yet easy to understand take on the case, check out Nancy Sims article Author’s Guild v Hathi Trust: A Win for Copyright’s Public Interest Purpose