Open Access Week: The HathiTrust Ruling and Fair Use
This week (October 22–28, 2012) is the sixth annual Open Access Week, a global event which presents opportunities for the academic and research community to celebrate and learn more about the potential benefits of Open Access. Because Southern Spaces is an open access journal, we thought that it would be appropriate for us to share the details of a recent legal challenge to the access and preservation of library books on the blog as a part of our contribution to spreading awareness (and celebrating!) this week.
On October 10, Harold Baer, Federal District Judge of the Second District of New York, handed down his decision in The Authors Guild, Inc. v. HathiTrust. HathiTrust is a digital repository in partnership with over sixty major research institutions and libraries "working to ensure that the cultural record is preserved and accessible long into the future." The Authors Guild is group which advocates "for writers' interests in effective copyright protection, fair contracts and free expression." The Authors Guild's suit alleged that the massive digitization and preservation effort undertaken by the HathiTrust and its affiliates represented a copyright violation. The HathiTrust countered that their digitization project is fair use because it is intended to preserve print materials in perpetuity, give access to print-disabled readers as required by the Americans with Disabilities Act, and enable non-expressive uses like comprehensive word searches, text mining, and data analysis.
Baer's ruling represented a major victory for the HathiTrust, its affiliates, and fair use advocates. Below is a "score card" of the results of the ruling written by Matthew Sag, an Associate Professor of Law at Loyola University of Chicago who is an expert in copyright law. In his blog post on the case, "HathiTrust Wins on Fair Use, and just about everything else," he included the following list of the judge's findings:
- Digitization to provide access for the print-disabled held to be transformative use and, on balance, fair use.
- Digitization to provide for print-disabled students held to be (i) an obligation of universities under the ADA, (ii) fair use under section 107 of the Copyright Act and (iii) enabled by section 121 of the Copyright Act.
- Section 108 the Copyright Act was held to expand the rights of libraries, not limit the scope of their fair use rights in any way, shape or form. Given the text says "Nothing in this section . . . in any way affects the right of fair use as provided by section 107" any ruling to the contrary would have been pretty shocking.
- Digitization to create a search index held to be a transformative use, and, on balance, fair use.
- Alleged security risks created by library digitization—dismissed as speculative and unproven. The judge noted the strong evidence to the contrary. It is still an open question whether the risk of subsequent illegal act by a third party could ever render an initial lawful copy not fair use. The whole notion strikes me as rather odd.
- The market effect of library digitization—the court found there was none to speak of in this case. The court rejected the CCC's magic toll-booth arguments—i.e., there were some wild assertions about future licensing revenue that the court rejected as "conjecture."
- The court also notes that a copyright holder cannot preempt a transformative market merely by offering to license it.
- The market effect of enabling print-disabled access to library books—the court found there was no market for this under-served group, nor was one likely to develop.
As Sag's list makes clear, the HathiTrust case represents a major victory for libraries, universities, and the Digital Humanities community. The American Library Association and the Library Copyright Association welcomed the ruling this week, suggesting that it helps set a significant precedent regarding the relationship between library intiatives and copyright laws.
"This ruling is significant for all libraries and universities because it goes to the heart of the mission of libraries, which is to preserve and make accessible our cultural heritage" says Lisa Macklin, director of scholarly communications at Emory Libraries. "The power of full-text searching and non-expressive research like text mining is growing more important to our faculty, students, and researchers, and is only possible with a digital library like HathiTrust. It is heartening that the court so clearly found that HathiTrust's creation and use of the digital library was a fair use under copyright law, particularly in serving print-disabled students."