Congratulations HathiTrust

Big news, HathiTrust wins in the lawsuit against them by the Author’s Guild (yeah, the same association that are the plaintiff in the the in-limbo case against Google Books).

A summary by James Grimmelman; a more lengthy summary by Kevin Smith at Duke ; the opinion itself .

HathiTrust wins big, the judge very strongly and clearly states that their use is covered under Fair Use.

First it must be said, HathiTrust deserves a lot of respect for being willing to stand up for it’s rights here.  Too many of our institutions are timid when it comes to doing anything that might result in a lawsuit against them (no matter how weak or strong). Here, the University of Michigan and HathiTrust proceeded with a program that they thought crucial to serving their users, even if it was legally risky, and proceeded to defend that program in court, because they thought they were within their rights. And they won, not only preserving the program but hopefully setting an example for other libraries.

Among findings in the opinion is that the full range of fair use defenses  are available to libraries. Why would anyone have doubted this?  Well, there is a special section of the copyright code that gives special rights to libraries, above the general fair use rights. Now, this section specifically says “[n]othing in this section. . . in any way affects the right of fair use as provided by section 107.” Yet, the Author’s Guild bizarrely tried arguing that, nonetheless, libraries were limited in their fair uses to what was specified in section 108, and did not have general fair use rights available to them. Fortunately, Judge Baer made pretty quick work of rejecting that argument, it would be pretty awful for libraries if the Author’s Guild were right, and libraries did not have the fair use rights available to everyone else.

So if libraries are entitled to a fair use defense, the main question is whether HathiTrust’s use was fair use.  And the judge decided fairly strongly and assuredly that HathiTrust’s uses were fair use — both the indexing/searching function, and the program to make fulltext available to the blind (and the necessary copying to create both functions).

While he was particularly impressed with the program for the visually impaired (rightfully in my opinion),  the indexing/searching function seems to stand on it’s own as a ‘transformative’ fair use:

The use to which the works in the HDL are put is transformative because the copies serve an entirely different purpose than the original works: the purpose is superior search capabilities rather than actual access to copyrighted material. The search capabilities of the HDL have already given rise to new methods of academic inquiry such as textmining.

Note this is actually almost exactly what the the Author’s Guild is suing Google for in the lawsuit that seems like it will never be resolved — making copies for the purpose of allowing full text search (Google also displayed ‘snippets’ while HathiTrust does not; the above quote makes one think that wouldn’t make too much difference to this judge).

While the for-profit of non-profit nature of the use (and of the entity making the use, to the extent that helps determine the nature of use) is very relevant in a fair-use determination, for-profit uses can still be fair uses, the fair use determination is a balancing act among many factors.  And neither is non-profit use automatically ‘fair use’. In this opinion, the judge doesn’t spend too much time on for-profit/non-profit discussion, I suspect that if he were ruling in the Google case, he would determine it fair use as well:  “Defendants satisfy the first factor not merely because they are non-profit institutions, but because the use to which the copies have been put is transformative.”

Judge Baer’s focus is on the ‘transformative’ nature of the use rather than that the use is academic/scholarly, which makes it quite likely to be a fair use, in his opinion — and also makes the fourth fair use factor “impact on the market for or value of the works” likely to swing in the fair use direction, in the judge’s opinion.

Because I conclude that at least two of the uses are transformative—that is, the provision of search capabilities and access for print-disabled individuals—any harm arises, if at all, to a “transformative market.” …A use that “falls within a transformative market” does not cause the copyright holder to “suffer market harm due to the loss of license fees.”

Now, that academic/scholarly uses can also weight towards fair use (and we should be glad that this case involving HathiTrust was decided before resolution to the Google case where the plaintiff’s case would be stronger; mis-step on the part of the plaintiff’s here).  BUT the judge did not focus on that — ‘transformative’ uses also weigh toward fair use, apart from for-profit/non-profit or academic/scholarly considerations.  In the law in general, for-profit concerns can make transformative fair uses too (although it’s still a multi-factor balancing decision, the ‘transformative’ weight does not require non-profit use).

Overall, this is a huge victory for HathiTrust, for libraries, and for the public rights of fair use in general.   Again, HathiTrust deserves congratulations, and thanks, for being willing to stand up for fair use rights in court.  Hopefully they will serve as an example to other libraries.

Note also that if the Google settlement with the Author’s Guild had gone through, this lawsuit likely never would have occured (the settlement terms would have specifically allowed HathiTrust to exist).

Many of us thought that scanning for searching purposes should be considered ‘fair use’ under present law, and were concerned that the Google/Author’s Guild settlement would avoid the opportunity to establish this in court, and indeed establish a presumption in the mind’s of most people that it was not fair use.  Another reason for libraries — and everyone — to be glad the settlement — which would have effectively given Google an extra-legislative court-ordered monopoly on this kind of scanning instead of establishing it as fair use for anyone to do — was rejected.   Because it led to this lawsuit, which gave Judge Baer an opportunity to make his ruling, further helping to establish that scanning for searching purposes is fair use.  I suppose the Author’s Guild deserves some thanks too — if they hadn’t brought this lawsuit which they proceeded to lose thoroughly, we would still have significantly less clarity and more confusion over whether such use was fair.

I don’t understand the rules of legal precedent and how this case may or may not serve as one (in what jurisdictions) — but nonetheless, legal theory or not, every ruling like this helps shape public consciousness as to expectations, which ends up shaping future behavior and future legal rulings.  The public right to fair use has been reaffirmed and strengthened, a welcome victory.

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