Is it copyright infringement to scan and make a book searchable on the internet? AUTHORS GUILD v. HATHITRUST

The owner of a copyright is granted the exclusive right to reproduce, distribute, display, perform, transmit and make derivative works based on the original work. The rights granted by copyright law do have some limits. The purpose of copyright law is to promote the progress of useful arts and science by protecting the exclusive right of authors and inventors to benefit from their works of authorship. Sometimes the interest that the public has in a copyrighted work out weighs the interests of a copyright owner. In these cases, a defendant in a copyright infringement lawsuit will be excused from liability.

A fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner. Fair use is a defense to copyright infringement. A copyright defendant that demonstrates to a court that their use of the copyrighted work is a fair use would not be liable for infringement.

When a court is presented with a fair use defense the court will apply a test with several factors to the facts of the case to determine whether the defendant’s use constitutes a fair use. The four factors judges considers in a fair use defense are: (1) the purpose and character of your use (2) the nature of the copyrighted work (3) the amount and substantiality of the portion taken, and (4) the effect of the use upon the potential market. This inquiry can often be fact specific, therefore it is useful to study prior court decisions to understand how a court will apply the fair use factors to future cases.

AUTHORS GUILD, INC. v. HATHITRUST, 12-4547-cv (2nd Cir. 2014) is an example of a case where reproducing a copyrighted work was found to be a fair use.

Defendants in this case are several universities that collaborated on the Google Books project. That project digitized library collections. Defendants created the HathiTrust Digital Library (HDL) which isa shared digital repository of scanned books. HDL contained digital copies of more than ten million works, published over many centuries, written in a multitude of languages, and covering almost every subject imaginable. The digital copies were used (1) to create a database for full-text searching by the general public, (2) to permit library patrons with certified print disabilities to have access to full texts of works, and (3) to allow libraries to replace their original copies that were lost, destroyed, or stolen where a replacement was unobtainable at a fair price elsewhere. Plaintiffs, sued Defendants for copyright infringement and Defendants claimed their use was a fair use.

The Court of Appeals for the Second Circuit heard the appeal from the district court. With respect to the full text searchable database the Second Circuit held that the use was transformative because the 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.

With respect to the access for print disabled patrons the Second Circuit held that the use was not transformative but the purpose was valid with respect to the first statutory fair use factor.

For both uses the Second Circuit found that the third factor, the portion of the work used, favored fair use even though the HDL used the entire book because reproducing an entire book was necessary to achieve the goal of the project. Finally, the fourth factor favored fair use because the HDL posed no harm to any existing or potential traditional market for the copyrighted works. Based on these findings the Second Circuit affirmed the district courts finding that the HDL was a fair use.

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