Author’s Guild v. HathiTrust

Author’s Guild, et al. v. HathiTrust, et al., no. 12-4547-cv, (2d Circ., June 10, 2014)

The second in a set of lawsuits commenced by the Author’s Guild in an attempt to stem the tide of mass violations of the copyrights of book authors, this one seems to be a much more reasonable application of the “fair use” doctrine than the Second Circuit’s decision in Author’s Guild v. Google last year was.

In 2004, the University of California at Berkeley and a few other universities embarked upon a program to create scanned digital copies of the books in their collections. Four years later, the HathiTrust was set up to manage this digital library. By 2013, more than 80 institutions were participating in the program, and over 10 million works had been added to the collection. Since permission to reproduce these books had not been obtained, the program appeared to involve as many as 10 million copyright violations. The Court held, however, that the copying fell within the “fair use” exception to copyright protection.

HathiTrust makes its digital collection available free of charge to readers with “print disabilities,” i.e., people whose physical condition (such as blindness or inability to hold a book) makes them unable to read printed books. The Court reviewed the legislative history demonstrating Congress’s intention to allow, as “fair use,” free copies of copyrighted works to be made available to blind individuals. The Court extended the rationale for this rule to bring individuals with any kind of “print-disability” within the “fair use” doctrine.

The Author’s Guild also complained that HathiTrust furnishes digital copies to libraries to replace lost, stolen or destroyed physical copies. The Court dismissed this latter set of claims for lack of standing and ripeness.

Next, the Author’s Guild made the same kind of claim as it did in the Google case, that copying for the purpose of creating a searchable database of books infringes on the rights of individual copyright owners. Unlike Google Books, though, HathiTrust search results do not display pages-long “snippets” of text. In fact, no text at all is displayed. Instead, the user is only told if and how often the term appears. The Second Circuit Court of Appeals appropriately ruled this to be a transformative use that is permitted as “fair use” of copyrighted material. This limited kind of use does not involve unnecessarily excessive copying , and does not dilute the market for the works.

It is difficult to argue with the Court’s decision in this case. Accordingly, the Second Circuit is now one-for-one on its decisions relating to the permissibility of engaging in mass copyright violations for the purpose of creating searchable databases of copyrighted works.

 

 

Authors Guild v. Google: Is Fair Use Fair?

Google

On November 14, 2013, U.S. Circuit Court judge Denny Chin (sitting by designation in the U.S. district court for the southern district of New York) concluded 8 years of copyright infringement litigation with an order dramatically expanding the “fair use” defense. Seemingly somewhat out-of-sync with the Napster decision a few years ago, the order permits Google to continue to freely copy the entire contents of millions of copyright-protected books and distribute them, or at least significant portions of them, to the public free of charge, without either getting permission from the authors or paying them royalties for their works.

The Google Books project may well be the greatest boon to researchers there has ever been. In the old days, you would need to make a lot of telephone calls and perhaps drive a long distance to a library to track down, say, an exact quotation from a particular nineteenth century physics textbook. With Google, you simply type the name of the text and a few key words into a search bar, and within seconds a link to a copy of the page of the book on which the quotation you seek appears on your screen. Follow the link and the quotation, along with a considerable amount of additional text from the book, instantly appears on your screen. It is a researcher’s dream come true. But what about the rights of authors? Is it fair to them to allow people to read unauthorized copies of their books without having to pay for them? Certainly there can be no  complaint about works that are so old as to have entered the public domain. But what about books that are still protected by copyright?

The Copyright Act prohibits the reproduction of copyright protected books. 17 U.S.C. § 106(1) (2013). It also prohibits the distribution of books that are protected by copyright.  17 U.S.C. § 106(3) (2013). And it prohibits the unauthorized display of protected works. 17 U.S.C. § 106(5) (2013). As part of its “Library Project,” Google digitally scanned millions of books in the Library of Congress, the New York Public Library and several university libraries, and then made them available to the public to view and download for free. Not having obtained permission from the authors and publishers of these books, Google committed millions of violations of each of these laws. The upshot was a class action copyright infringement lawsuit by the Authors Guild on behalf of book authors everywhere.

After more than eight years of litigation, a U.S. district court judge determined that Google had indeed infringed the copyrights of scores of books authors, but refused to hold the company liable for it. Instead, the judge ruled that the massive copying and distribution program upon which Google had embarked came within the “fair use” defense to copyright infringement.

The “fair use” doctrine permits limited use of copyrighted works under some circumstances, in the interest of fostering the development of arts and science.  Because of it, no permission is needed to copy small amounts of  a book for the purpose of criticism, comment, news reporting, teaching, scholarship or research. What Google did went far beyond that, though. Google’s activities involved copying, distributing, and in some cases displaying the entire contents of copyright protected books without permission.

The company was able to secure a favorable ruling by invoking the four-prong “fair use” test set out in the Copyright Act. Under 17 U.S.C. § 107 (2013), an infringing use of copyright protected work is permitted “fair use” if the following factors, on balance, favor unauthorized use of the work:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The judge found that, on balance, the factors weighed in favor of Google’s massive copying and distribution project. He emphasized the great benefit to the public of having access to a large number of works all at the same time. He rejected the authors’ argument that Google’s scans serve as a market replacement for the books, depriving authors of payment for their work. “Google does not sell its scans,” he noted.

Of course, this ignores the fact that the purpose of copyright is not simply to prevent others from profiting, but to ensure authors a fair return for their labor. According to the judge, though, Google Books actually helps authors sell their books because “patrons use Google Books to identify books to purchase.”

Do people really use Google search to locate nonfiction books to buy? Or do they only read so much of the text as they want or need at that particular moment, thereby alleviating the need to buy the whole book? And does having all the text of a book available for free online remove, or at least decrease, the incentive for libraries to acquire copies for the use of their patrons?

Well, but the judge has this to say:

“[Google Books] has become an invaluable research tool that permits students, teachers, librarians, and others to more efficiently identify and locate books…. It has given scholars the ability, for the first time, to conduct full-text searches of tens of millions of books.”

Creating a searchable index of books clearly is a transformative use. As such, it should easily fall squarely within the “fair use” doctrine. Had Google simply created an index that displayed a list of books in which the search terms appear, without displaying the actual text of these books, there would be no question that the creation of the indexing system would have been a fair use. Enabling users to also read entire pages from the books — and in some cases, the entire book — after identifying and locating them, without anybody having to actually pay anything for a copy of the book is a different story.

Predictably, librarians, Internet surfers and Google officials are thrilled with the decision. Authors, not so much. An appeal is almost certain, although all indications are that the Second Circuit probably will affirm the decision.

You can read a copy of Judge Chin’s ruling here:

http://publishersweekly.com/binary-data/ARTICLE_ATTACHMENT/file/000/001/1887-2.pdf