The latest judicial ruling on fair use validates librarians’ judgment in their Code of Best Practices in Fair Use for Academic and Research Libraries, which the Center helped to produce.
In Authors Guild v. Hathitrust, associations of publishers sued libraries that had permitted Google to digitize their books. Once Google digitized the book, the libraries then made a digital archive of them (the Hathitrust Digital Library or HDL), used the text to allow searches for text, and made them available, where there was no commercial copy, to the disabled.
The judge ruled that the libraries had the right to repurpose the text because their uses were transformative (the concept that also anchors the librarians’ and other communities’ codes of best practices in fair use). Judge Baer wrote, “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.” He pointed to the fact that academics are already doing new kinds of searches through “text mining,” and that the sight-impaired’s use of digital copy (which can be read out loud with the right software) is a transformative use as well.
Copyright scholars are giving this a thumbs up for both libraries and fair use. Scholar James Grimmelman called it a “near-complete victory” and the Association of Research Libraries’ blog post noted:
Judge Baer’s opinion should sound delightfully familiar to anyone who’s read Principles 3, 5, and 7 of the Code, which describe the consensus of academic and research librarians around preservation, accessibility, and non-consumptive uses (like search and text mining). Like the librarians, Judge Baer recognizes that these activities are “transformative,” especially the search and accessibility aspects.
Judge Baer also made a rousing defense of copyright policy as a policy intended to promote the creation of culture in his closing comments (as copyright scholar Kevin Smith noted):
I cannot imagine a definition of fair used that would not encompass the transformative uses made by the defendants and would require that I terminate this invaluable contribution to the progress of science and the cultivation of the arts that at the same time effectuates the ideals of the ADA.
Whew. Librarians can get back to work.