The Authors Guild
simply won't give up on its quixotic attack on modern technology. Even after losing both of its book scanning cases -- one against the Hathitrust
(a collection of university libraries) and the other against Google
-- it appealed
both rulings. This morning, the ruling in the first of those cases, the Hathitrust one, came out, and it pretty much demolished the Authors Guild's arguments
, finding, yet again, that book scanning like this is clearly fair use, though for slightly different reasons than the lower court. But there is plenty of useful stuff in the ruling. First, the court explored whether having a full-text searchable database of all text is fair use and found overwhelming
support for that idea:
Turning to the first factor, we conclude that the creation of a full-text searchable database is a quintessentially transformative use. ... [T]he result of a word search is different in purpose, character, expression, meaning, and message from the page (and the book) from which it is drawn. Indeed, we can discern little or no resemblance between the original text and the results of the HDL full-text search.
There is no evidence that the Authors write with the purpose of enabling text searches of their books. Consequently, the full-text search function does not “supersede the objects [or purposes] of the original creation,” ... The HDL does not “merely repackage or republish the original[s],” ... or merely recast “an original work into a new mode of presentation,”
.... Instead, by enabling full‐text search, the HDL adds to the original something new with a different purpose and a different character.
In other words, copying all the words in books to create that searchable database is transformative fair use. In fact, the court notes that it "adds a great deal more to the copyrighted works at issue than" other transformative uses that the same court has approved. As for the fact that it copies "all" of the work, and how that impacts the "amount of work" used as a fair use test, the court, thankfully, focuses on the word necessary
in exploring if "more of the copyrighted work than necessary
" was used -- finding that "for some purposes, it may be necessary to copy the entire copyrighted work" and thus that does not
weigh against the third factor in the fair use test.
Because it was reasonably necessary for the HDL to make use of the entirety of the works in order to enable the full-text search function, we do not believe the copying was excessive.
The Authors Guild, somewhat ridiculously, argued that because the full copies are kept on multiple
servers, it meant that Hathitrust had "more copies than necessary," but the court brushes that aside by pointing out the value of backups and load-balancing between multiple servers.
But the really big issue comes down to the impact on the market, the fourth factor in the fair use test, and the one that is generally considered to be the most important. The court here makes an important distinction that many people completely miss when analyzing the "impact on the market" question -- which is that the only
impact that matters is the impact because the copy serves as a substitute for the original. There are lots of other ways
the copy might impact that market that do not matter
in this analysis.
To illustrate why this is so, consider how copyright law treats book reviews. Book reviews often contain quotations of copyrighted
material to illustrate the reviewer's points and substantiate his
criticisms; this is a paradigmatic fair use. And a negative book
review can cause a degree of economic injury to the author by
dissuading readers from purchasing copies of her book, even when
the review does not serve as a substitute for the original. But,
obviously, in that case, the author has no cause for complaint under
Factor Four: The only market harms that count are the ones that are
caused because the secondary use serves as a substitute for the
original, not when the secondary use is transformative (as in
quotations in a book review).
The Authors Guild tried to get around this by using a popular tactic in copyright/fair use cases: claiming that the use might preclude a future licensing opportunity
for the work. Thankfully, the court flat out disagrees with this assertion:
This theory of market harm does not work under Factor Four, because the full‐text search function does not serve as a substitute
for the books that are being searched... Thus, it is irrelevant that the
Libraries might be willing to purchase licenses in orderto engage in this transformative use (if the use were deemed unfair). Lost
licensing revenue counts under Factor Four only when the use
serves as a substitute for the original and the full‐text‐search use
The Authors Guild also tested out a more laughable, and less popular theory, that because someone might hack into the database and free the works, it represents a harm on the market. The court is... not impressed, noting (1) that the libraries have taken precautions against this and (2) the risk is "hypothetical" and "conjectural" calling back to the MPAA's claims of "harm" from the VCR, where the Supreme Court rejected as being merely "speculative." In other words, you have to show a real likelihood of harm and not just some fantasy land conjectures.
The court also looks at two other users of the work. First, there's the question of providing digital access to "print-disabled audiences" (e.g., the blind, who may have trouble with ordinary books). It's somewhat ridiculous that the Authors Guild seems to actively fight against making works available in other ways to those it doesn't properly serve, but that's the Authors Guild these days. Once again the court notes that this is a clear fair use. Finally, on the question of "preservation" of the works, the court punts, saying it's unclear if that's really an issue with any of the works involved in this lawsuit. Thus, it's not clear if the Authors Guild even has standing to argue that the preservation of works is copyright infringement. So it sends the argument back down to the district court on that issue.
All in all, yet another good win for fair use -- though, given the Authors Guild's previous actions, it is likely they will appeal this ruling as well. Because that's what the Authors Guild does.