Court: Book Scanning Is Obviously Fair Use

from the not-even-close dept

Well, well. I had a post all written up that I was going to publish today about how the settling of the Publishers lawsuit against Google over book scanning had one downside -- that we didn't get a full court ruling on the question of whether or not the book scanning project constituted fair use. I have to now scrap that post, because before I had a chance to finish it off, the judge in a similar/related case -- filed by the Authors Guild against HathiTrust, a consortium of universities trying to digitize their libraries -- ruled that the book scanning effort was obviously fair use. Judge Harold Baer is pretty explicit that this is absolutely fair use when you look at the details:
Although I recognize that the facts here may on some levels be without precedent, I am convinced that they fall safely within the protection of fair use such that there is no genuine issue of material fact. I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendants’ MDP 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.
In other words, when you look at this project, it should be obvious that it's advancing the public good in many ways, and thus, promoting the progress. The judge relies heavily on one of my favorite fair use cases that I often use to debunk false ideas that some people have about fair use. Those who don't know the law, often insist that there can be no fair use if either (a) the entire work is used or (b) it's used in a commercial setting. Yet, as the Bill Graham Archives v. Dorling Kindersley case showed, neither point needs to be true (even if they may weigh on how the fair use factors are considered). In this case, even if there were commercial elements and the entire works were "used" in that they were scanned, the court said that this use was obviously transformational in a useful manner.
A transformative use may be one that actually changes the original work. However, a transformative use can also be one that serves an entirely different purpose.... 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 text mining
The judge also, thankfully, noted that just because HathiTrust didn't "add anything new" to the work itself "misses the point" because each scan "serves a different function than the original work."

The judge also rejected the whole claim that the scanning "impacts the market" for the works -- which is the other key factor. While some like to pretend that any activity "impacts the market" because any use limits the possibility of a license, the court (thankfully) recognizes that such an argument is ridiculously broad and makes no sense. Furthermore, he notes that the plaintiffs have to show real harm is likely, and they completely failed to do so here.

Of course, the details in the Google book scanning suit are somewhat different -- in that the use is more clearly commercial, and a greater amount of the book is made available. However, as James Grimmelmann notes, the "near complete victory" for HathiTrust with this ruling does not bode well for the Authors Guild case against Google, and increases the likelihood of an out of court settlement.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    icon
    Baldaur Regis (profile), Oct 11th, 2012 @ 9:57am

    Chalk one up for 'selfless advancement of human knowledge'.

     

    reply to this | link to this | view in thread ]

  2. This comment has been flagged by the community. Click here to show it
     
    identicon
    out_of_the_blue, Oct 11th, 2012 @ 9:57am

    Well, under the following conditions it IS fair use:

    ----------- snip
    The trust provides full-text searches only with a rights holder’s permission, and gives full-text access for readers with “certified print disabilities,” Baer said.
    ....
    Google made a deal in 2005 with these universities to scan millions of books in their libraries without the rights holders’ permission, and make “snippets” of those books available online via Google’s search engine.
    ---------- end snip

    But that's not the blanket doing away with copyright that you SEEM to propose, MIke. If my take on your views is wrong, it's only because you nowhere explicitly state them. You ARE pleased with Google's gobbling up here, do advocate "monetizing" any work that one can get hold of without direct legal responsibility, plus mixed in is others here definitely advocate outright seizure of works for whatever "sharing" they choose, which IS violation of copyright in practical terms. So I conclude you're a pirate.

    Even so, IF the obvious slippery slope ended at THIS pretty clear fair use, it'd be fine. But it won't. Having won so far, the Google monster will just assimilate more.

     

    reply to this | link to this | view in thread ]

  3.  
    icon
    jupiterkansas (profile), Oct 11th, 2012 @ 10:01am

    Re: Well, under the following conditions it IS fair use:

    Who the hell cares if Mike is pirate or not. Jeez this is getting old.

     

    reply to this | link to this | view in thread ]

  4.  
    icon
    Rikuo (profile), Oct 11th, 2012 @ 10:03am

    Re: Well, under the following conditions it IS fair use:

    If the Google monster has Seven of Nine in the alcove next to mine (somehow minus the cybernetic components), then they can assimilate me.

     

    reply to this | link to this | view in thread ]

  5.  
    icon
    Chosen Reject (profile), Oct 11th, 2012 @ 10:04am

    Re: Well, under the following conditions it IS fair use:

    If my take on your views is wrong, it's only because you nowhere explicitly state them....plus mixed in is others here definitely advocate outright seizure of works for whatever "sharing" they choose, which IS violation of copyright in practical terms. So I conclude you're a pirate.
    Uhm, what? CNN has never stated publicly that they are against the overthrow of the US government, CNN does advocate speaking your opinions allowing anonymous commenters, plus there are comments on CNN that advocate the overthrowing of the US government. So what I conclude is that CNN is a treasonous operation.

     

    reply to this | link to this | view in thread ]

  6. This comment has been flagged by the community. Click here to show it
     
    identicon
    montira, Oct 11th, 2012 @ 10:12am

    Court: Book Scanning Is Obviously Fair Use

    Thank you for information

     

    reply to this | link to this | view in thread ]

  7.  
    identicon
    MrWilson, Oct 11th, 2012 @ 10:15am

    Re: Well, under the following conditions it IS fair use:

    So what you SEEM to be saying is, "Mike, you haven't satisfied my entitled expectation that you explain and justify your opinions to me, so I'm going to interpret your motives according to my personal bias in order to paint you (and Google) in the most negative possible light, because you won't give me what I want, even though I probably won't be satisfied regardless of how you respond because my participation in this forum is not to hold a dialogue but rather to daily berate you for disagreeing with my sacred beliefs."

    Correct me if I'm wrong, which I probably am, since you haven't satisfied my expectation that you answer my questions, because you don't have to, because no one has to answer anyone else's questions if they don't want to, and it ultimately doesn't matter what you think of what Mike thinks because your rants just end up making Mike look better because it appears he's pissing off people who make absurd arguments in support of a corrupt system just by sharing his opinions, so he seems to be doing something right.

     

    reply to this | link to this | view in thread ]

  8.  
    icon
    Rikuo (profile), Oct 11th, 2012 @ 10:19am

    Re: Court: Book Scanning Is Obviously Fair Use

    Um...you're welcome?

     

    reply to this | link to this | view in thread ]

  9.  
    identicon
    Anonymous Coward, Oct 11th, 2012 @ 10:21am

    Re: Well, under the following conditions it IS fair use:

    I think it's so nice that they let you out once every few months. Don't wander too far off!

     

    reply to this | link to this | view in thread ]

  10.  
    icon
    Ninja (profile), Oct 11th, 2012 @ 10:30am

    Re: Re: Well, under the following conditions it IS fair use:

    Damn, I spewed the water I was drinking...

     

    reply to this | link to this | view in thread ]

  11.  
    identicon
    VidExplorer, Oct 11th, 2012 @ 10:47am

    Balancing Test?

    >>require that I terminate this invaluable contribution to the progress of science and cultivation of the arts

     

    reply to this | link to this | view in thread ]

  12.  
    icon
    John Fenderson (profile), Oct 11th, 2012 @ 10:55am

    Re: Well, under the following conditions it IS fair use:

    If my take on your views is wrong, it's only because you nowhere explicitly state them.


    Now that's funny! Mike (and the other posters) frequently, clearly and explicitly state their views every day. That your take on his views are wrong (and they obviously are) is not because his views are some kind of secret.

     

    reply to this | link to this | view in thread ]

  13.  
    identicon
    Anonymous Coward, Oct 11th, 2012 @ 11:00am

    Re: Re: Well, under the following conditions it IS fair use:

    Seven of Nine would be considered a pirate. She shares her experiences with the rest of the hive. They would try to disable the open wifi on her brain.

     

    reply to this | link to this | view in thread ]

  14.  
    identicon
    Milton Freewater, Oct 11th, 2012 @ 11:02am

    Re: Re: Well, under the following conditions it IS fair use:

    "If my take on your views is wrong, it's only because you nowhere explicitly state them."

    lol

     

    reply to this | link to this | view in thread ]

  15.  
    identicon
    Anonymous Coward, Oct 11th, 2012 @ 11:03am

    *Fires up the scanner*

     

    reply to this | link to this | view in thread ]

  16.  
    identicon
    Robin, Oct 11th, 2012 @ 11:04am

    Judgement also emphasizes transformative use for unsighted readers

    I think that another major point is that the judgement places a considerable emphasis on the transformative nature of the operation with respect to enabling access for the visually disabled. I believe that this probably has implications beyond this specific case.

     

    reply to this | link to this | view in thread ]

  17.  
    identicon
    Milton Freewater, Oct 11th, 2012 @ 11:06am

    How does this ruling apply to video and audio works?

    Does this ruling perhaps give universities the fair use right to digitally archive old VHS tapes? Or rip DVDs?

    What about playlists? Those are transformative works with stand-alone artistic merit. Playlists were the primary value of Demonoid (at least for me).

     

    reply to this | link to this | view in thread ]

  18.  
    icon
    Berenerd (profile), Oct 11th, 2012 @ 11:54am

    Re: Re: Well, under the following conditions it IS fair use:

    Heck, I would take her even with the components.

     

    reply to this | link to this | view in thread ]

  19.  
    identicon
    Orderly, Oct 11th, 2012 @ 12:16pm

    Re: Well, under the following conditions it IS fair use:

    There is an orderly somewhere with a nice little jacket to put you back in to. Don't mind the short sleeves.

     

    reply to this | link to this | view in thread ]

  20.  
    icon
    Fickelbra (profile), Oct 11th, 2012 @ 12:18pm

    Re: Well, under the following conditions it IS fair use:

    LOL at snip. Where the hell did you learn to internet?

     

    reply to this | link to this | view in thread ]

  21.  
    identicon
    Anonymous Coward, Oct 11th, 2012 @ 8:16pm

    "the "near complete victory" for HathiTrust with this ruling does not bode well for the Authors Guild case against Google, and increases the likelihood of an out of court settlement."

    Actually, I think that this ruling gives the authors even more ammo against Google, because a line needs to be draw between commercial and non-commercial uses. Google's use is entirely commercial, they want to increase their ad views.

    I am thinking this ruling will likely get appealed, and there is plenty of potential legal action on the issues of multiple uses and use outside of the library confines, distribution, and the like.

    I don't think this is a true grand slam, rather it confirms a pretty narrow use, not anything wide scale.

     

    reply to this | link to this | view in thread ]

  22.  
    identicon
    Anonymous Coward, Oct 12th, 2012 @ 12:40am

    Re: Re: Well, under the following conditions it IS fair use:

    The problem is Mike and others state their views using multi-syllable words.

     

    reply to this | link to this | view in thread ]

  23.  
    identicon
    Anonymous Coward, Oct 12th, 2012 @ 3:33am

    Re: Re: Well, under the following conditions it IS fair use:

    only one person,, that would be Mike.. no one else but..

     

    reply to this | link to this | view in thread ]

  24.  
    identicon
    Anonymous Coward, Oct 12th, 2012 @ 3:43am

    its a shame that Masnick cannot see that different court cases have different aspects, and are different in how they are ruled. Thats because one ruling for one person/group will depend on the established facts of that particular case.

    So fair use was found to apply in this case, does not for a second that it will mean it will apply to other cases or other ruling or to google.

    if you masnick cannot work out why one ruling will go one way and another ruling another way because the facts of each case is different, you need not be making comment on it.

    but you just keep on banging away hoping you'll find someone other people out of the millions of people on the new with similar warped concepts of reality..

    This has nothing to do with google or it's case, you cannot see the difference between commercial use and for education ??

    that speaks far more about your education than that of the courts..

     

    reply to this | link to this | view in thread ]

  25.  
    icon
    aethercowboy (profile), Oct 12th, 2012 @ 6:41am

    no subject

    At least they didn't claim that a closed book counted as a form of DRM...

     

    reply to this | link to this | view in thread ]

  26.  
    icon
    orbitalinsertion (profile), Oct 12th, 2012 @ 12:22pm

    Oh, come on. If they aren't going to pay for the damned book, at least make them walk to the library. (And then we can have a 'tax' levied on sidewalks and roads, just like blank CDs!)

     

    reply to this | link to this | view in thread ]

  27.  
    identicon
    Anonymous Coward, Oct 12th, 2012 @ 4:27pm

    Up next: Disney sues HathiTrust, claims name was ripped from "Jungle Book" character.

     

    reply to this | link to this | view in thread ]

  28.  
    icon
    nasch (profile), Oct 15th, 2012 @ 6:30pm

    Re: How does this ruling apply to video and audio works?

    VHS maybe. Ripping most DVDs involves cracking encryption, which violates the DMCA. No fair use exception there.

     

    reply to this | link to this | view in thread ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Save me a cookie
  • Note: A CRLF will be replaced by a break tag (<br>), all other allowable HTML will remain intact
  • Allowed HTML Tags: <b> <i> <a> <em> <br> <strong> <blockquote> <hr> <tt>
Follow Techdirt
A word from our sponsors...
Essential Reading
Techdirt Reading List
Techdirt Insider Chat
A word from our sponsors...
Recent Stories
A word from our sponsors...

Close

Email This