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.
