What a stretch of four months it has been!
First, in July, we had the ruling in the Georgia State lawsuit affirming that most of the excerpts for teaching that were challenged as copyright infringement were actually fair use. The decision is being appealed, but libraries go in to that appeal on the winning side, which is always the better place to be.
Then, last week we learned that the lawsuit filed against UCLA over digital streamed video had been dismissed for the second time. The dismissal, so far, is only noted in the minutes taken by the Clerk of the Court during a hearing, which are filed in the docket. So we do not know why the case was dismissed, although it seems to be the same reasons the first one was — because the groups bringing the suit either do not own the rights they are trying to enforce or already granted a license broad enough to cover the use they now object to. More importantly, we do not yet know if the dismissal was with prejudice or without, meaning whether or not the plaintiffs will be allowed to refile the case again.
But tonight is the big news, in the lawsuit brought against the HathiTrust and five of its university partners by the Authors Guild, several foreign associations similar to the AG, and a handful of named authors, including Fay Weldon and J.R. Salamanca. In that case, Judge Harold Baer of the Southern District of New York has ruled on various motions for judgment on the pleadings and summary judgment, and he has completely vindicated Hathi and the libraries.
A lot is happening in this opinion, which I will try to sort out briefly.
First, the plaintiff’s motion asking the Court to rule that fair use was not available to the libraries as a defense, alleging that because libraries had the benefit of the specific section 08 exceptions they should not also be able to assert fair use, was denied. The Judge spent comparatively little time on this ridiculous claim, which flies in the face of the clear language of section 108 itself. He entirely rejected the argument and dismissed the claim.
Second, the Judge ruled on a motion for judgment on the pleadings (also called judgment as a matter of law) raised by the defendants (the libraries and HathiTrust) that asserted two things. First, it argued that the copyright law does not allow associations like the Authors Guild to sue on behalf of its members. On this argument, the Judge agreed as to the US association (the Authors Guild), but held that he would not foreclose a foreign association from bringing a suit because of our treaty obligations. The second argument was that the whole issue about the Orphan Works project proposed by HathiTrust was not “ripe” for a decision because nothing had been done as of yet. The Judge declined to decide that there was a risk of infringement until and unless the project got underway. So on this motion, the defendants won two-thirds of their arguments and the one they lost, about associational standing for foreign organizations, turns out not to matter.
Because the real news is that the Judge granted the defendants motion for summary judgment on the issue of fair use. Judge Baer found that the arguments made that the mass digitization project and the Hathi Digital Library was fair use were so strong that he made the decision without a trial, on summary judgment.
The Judge did a four factor analysis to arrive at his conclusion, and it is worth looking at that analysis.
On the first factor, Judge Baer first held that the purpose of the use was research and scholarship, which are favored in the fair use statute. But he went on to hold that the use of these copyrighted materials in HathiTrust was also a transformational use. Unlike Judge Evans in the GSU case, Judge Baer cited case law that has determined that a use can be transformational because it has a different purpose, not only when an actual change in content has been made. And providing a searchable database of books, within copyrighted works only available to the visually-impaired, was, in the Court’s opinion, transformative.
Because the purpose was transformative, the Judge held that the second factor about the types of works involved, was not dispositive, since transformative works of even very creative productions (like “Oh, Pretty Woman”) have been held to be fair.
On the third factor, the Judge said that the amount used, even where entire works ware scanned, was reasonable to accomplish the purpose.
Finally, the Court found that the issue of market harm did not undermine fair use. There is no direct market competition between the HathiTrust and any existing market for the works in question. And as for the argument that HathiTrust foreclosed a potential licensing market, the Judge said that rights holders were not allowed to preempt transformative uses because of a potential market.
At the end, Judge Baer concludes with this sentence:
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.
As the last part of this comment indicates, the Judge also upheld the provision of digital files to persons with visual disabilities to facilitate adaptive access, using a combination of fair use and section 121of the copyright law. Hard to believe that the AG thought it was a good idea to challenge that practice, but they did. So overall this is a comprehensive win for the libraries and for the important public interest that they serve.
This opinion follows a clear line of reasoning in fair use cases over the past three decades, and it applies that reasoning squarely to library services. I have bemoaned these lawsuits in the past, but I have to admit that I am beginning to feel grateful for them. The string of opinions that is now taking shape ought to give librarians a great deal more confidence when they are making reasonable applications of fair use. Where once I feared a chilling effect, I am now sensing a warming glow.
Policy on Electronic Course Content
For help deciding whether course content in Blackboard or some other digital form is fair use or requires copyright permission, consult this policy document adopted by the Academic Council in February 2008.
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- Dave Fernig on Going all in on GSU
- Gretchen McCord on Going all in on GSU
- In Georgia State University E-Reserves Case, Eleventh Circuit Endorses Flexible Approach to Fair Use | ARL Policy Notes on GSU appeal ruling — the more I read, the better it seems
- Paul Callister on Swimming in muddy waters
- Jim Neal on Free speech, fair use, and affirmative defenses