- The rights granted to libraries under s.108 of the US Copyright Act (the right to make a limited number of copies of certain works for specified purposes) do not preclude a library from relying on fair use as a defence;
- Converting hard copy texts into digital texts is transformative use as the copies serve "an entirely different purpose than the original works"; that purpose being superior search capabilities rather than actual access to the material. The search capabilities of digital texts have given rise to new methods of academic inquiry such as text mining;
access for print-disabled persons is
FactsThe HathiTrust entered into agreements with Google which allowed Google to create digital copies of works in the various universities' libraries in exchange for which Google provided digital copies to HathiTrust.
Google's use of the digital works is the subject of a separate lawsuit.
Fair UseBefore examining each of the fair use factors, which are set out at s.107 of the US Copyright Act, Judge Baer considered the Authors Guild's argument that fair use should not apply at all as it is excluded by s.108 which accords libraries the right to make a limited number of copies of certain works for specified purposes. However s.108 explicitly states that "[n]othing in this section . . . in any way affects the right of fair use as provided by section 107." Judge Baer said that: "In spite of the clear language that Section 108 provides rights to libraries in addition to fair-use rights that might be available, Plaintiffs argue that I should find that the Section 107 fair-use defense is precluded by Section 108 in this case", before going on to conclude, seemingly without much difficulty, that fair use was available as a defence.
The third fair use factor considers whether the amount of copying was reasonable in relation to the purpose. The question is whether "no more was taken than necessary" (Campbell). With that in mind sometimes it is necessary to copy entire works: in this instance entire copies were necessary to fulfill the HathiTrust's purpose of facilitating searches and giving access to print-disabled individuals.
DecisionIn weighing up the fair use factors, with the aim of copyright law of "promoting the Progress of Science" in mind, Judge Baer considered that the enhanced search capabilities, the protection of the HathiTrust's fragile books, and the unprecedented ability of print-disabled individuals to have an equal opportunity to compete with their sighted peers protect the copies made by the HathiTrust as fair use. Judge Baer summed up by saying:
***14 November 2012: by way of update the Authors Guild has notified the court that it will appeal Judge Baer's decision in this case.