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Three Strikes: Are Publishers Finally Out in Frivolous Litigation Against Libraries?

Publishers and distributors of copyrighted content have struck out in their attack on libraries and fair use.  First, in May, the copyright infringement lawsuit filed by several publishers against Georgia State University for its e-reserves practices was decided in favor of fair use (and the University). Then, in late September, the re-filed action against UCLA by AIME was dismissed, again, for lack of subject matter jurisdiction and failure to state a claim (a written order is forthcoming, which should state whether this time dismissal was with prejudice). Now, last week, the trial court in the suit filed against HathiTrust and several universities by the Authors Guild found in favor of the former in a copyright infringement action challenging their mass digitization project.

At issue in the Authors Guild’s lawsuit against HathiTrust and the universities was the creation, with the assistance of Google, of a shared digital repository of nearly 10 million works, the majority of which are still protected by copyright. The digital scans were used for three specific uses: (1) keyword searching of full text scans without display of the full text  for purposes of identifying relevant works, (2) preservation of works in the event of deterioration or natural disaster, and (3) provision of access to works for persons with print-disabilities. The trial court refused to weigh the merits of the orphan works project, which was also challenged by the Author’s Guild, because that project was not yet fully functional and usable and thus not ripe for adjudication. Assessing and weighing the four factors of § 107 of the Copyright Act, the trial court found that the three uses qualified as fair uses of the copyrighted works:

Purpose and Character of the Use
The trial court found that the stated goals of the three uses of the digital scans — scholarship and research, preservation, and access by persons with disabilities — tilted significantly in favor of those uses. Further, the uses were transformative because the digital scans served an entirely different purpose than the original copyrighted works.

Nature of the Copyrighted Works
The trial court acknowledged that the majority of the works scanned were fiction or otherwise creative in nature (a distinction from the facts of the Georgia State University lawsuit) and that use of creative works was less likely to be fair use than use of factual works. However, the transformative uses of the digital scans weighed this factor in favor of HathiTrust.

Amount of the Works Copied
Although fair use typically favors using small and limited portions of copyrighted works, the use of the entire work is fair where necessary to carry out the stated purposes in this case — facilitation of keyword searching and access for individuals with a print-disability.

Impact on the Market for or the Value of the Works
Author’s Guild’s argument that economic harm would result from the defendants’ uses was based largely on speculation. No present collective licensing scheme existed for the large body of works that had been scanned nor was it likely that an economically viable scheme would exist in the near-future. Further, there was no evidence that the digital scans could easily be accessed by anyone, and thus result in avoiding purchase of a copy of the work, through circumvention of the security in place. Rather, the full-text works were only accessible by those print-disabled individuals with authorization and only snippets of the scans were available to those doing full-text searches.

While the fair use ruling is a critical one, another important holding in the trial court’s judgment is the determination that a university is an “authorized entity” under the Chafee Amendment (§ 121 of the Copyright Act). The Association of American Publishers has argued that universities and academic libraries are not “authorized entities” and thus cannot under § 121 provide full text copies of copyrighted works to persons with disabilities for their use. This ruling not only resolves this issue but also lends further credence to the Code of Best Practices in Fair Use for Academic and Research Libraries, which states that academic libraries may provide materials to persons with print-disabilities under fair use.

With these three important rulings in favor of libraries and fair use, one hopes that publishers will take a step back and reevaluate their complaints and reassess the importance of partnering with libraries instead of working against them.

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