A win, oddly

Because I am on vacation this week and have very intermittent Internet access, I am hardly the first to announce that the Second Circuit Court of Appeals affirmed the lower court decision (mostly) in the Authors Guild v. HathiTrust lawsuit. I am a bit paranoid about major decisions coming down on days when I am out of touch, but that is another matter. The important point is that the decision is another important win for libraries and fair use, brought to us by the foolishly litigious Authors Guild. It is the first of three major appeals in fair use cases that academic libraries should be watching carefully, and it may help cause a domino effect in those other two (the Georgia State and Google Books cases).

This potential for impact on decisions currently being written by other judges is increased by the fact that the Second Circuit, in discussing transformation as a major element in fair use deliberately cited precedents from its own previous cases, but also cases from the Ninth Circuit and two other Circuit Courts of Appeal. The judges seem to be deliberately rejecting the idea that the circuits are split about transformative fair use.

This decision is very good news for libraries, and the ARL Public Policy Notes description of the decision is well worth reading. But for all its positives, it has to be admitted that there are some oddities in this decision.

Basically, the Court did three different things in this decision:

1. It affirmed the lower court ruling that the Authors Guild did not have standing – the right to bring the lawsuit – of behalf of its members. Another reminder of the oft-repeated rule that only a rights holder may sue to defend those rights, and associations that claim to represent rights holders but do not own any rights are not proper plaintiffs. A simple lesson the Authors Guild declines to learn.
2. The court also affirmed that mass digitization for the purpose of creating a searchable index of full-text materials, as well as to provide access to those materials for persons with disabilities, is fair use. There is a lot of language in this opinion that reinforces the ARL Code of Best Practices for Fair Use in Academic Libraries.
3. Finally, the judges remanded the case back to the lower court in regard to its opinion about fair use for preservation. This is one of the oddities in the decision, so let’s address that one first.

The oddity about this remand is that it does not actually question the conclusion that digitization for preservation can be fair use. Instead, the Court sent this portion of the case back to the lower court to decide if there was any plaintiff remaining in the case, once it was determined that the AG lacked standing, who was at any real risk of having a preservation copy of their book released by HathiTrust while there were still copies commercially available. In short, The Court of Appeals suggested that any ruling about fair use might have been premature because there was no plaintiff in a legally-recognizable position to raise the challenge. It is still entirely possible that, if such a plaintiff is found in the remaining group of named authors, fair use could nevertheless be affirmed. And, because of the rest of the ruling, it would be hard to see what difference even a ruling against fair use for preservation would make to the actual practice of the HathiTrust. So this was really a technicality, and quite strange.

By the way, in regard to the key argument raised by the Authors Guild that the library-specific exception in section 108 precludes libraries from relying on fair use, the court paid almost no attention. It dismissed this silly argument in a footnote (footnote 4 on page 13). This was a losing argument from the start, and the reliance placed on it by the AG shows just how out of touch they are in their approach to copyright.

I think three points are important about the fair use decision favoring HathiTrust in this case (the factor-by-factor analysis is handled well in the ARL post).

First, the Second Circuit accepted the same broad approach to the issue of transformation as has become common in other decisions. It is not just actual changes to the original work that can support a finding of transformation, but a “different purpose… new expression, meaning or message.” And, as I said, the Court appealed to a broad consensus across the country in defining transformation this way.

Second, the Second Circuit held that the lower court was wrong to find that digitization for the purpose of facilitating access for persons with visual or print disabilities was transformative, but found that it was fair use nevertheless. This is important, because in the Georgia State appeal the plaintiffs are arguing that because Judge Evans found that copying for electronic reserves was not transformative, she was in error to still find fair use. But in the HathiTrust case the Second Circuit recognizes what is there for all who read Supreme Court opinions to see, that when a use is transformative it is very likely to be fair use, but when it is not transformative, it can still be fair use if a careful analysis of the factors indicates that conclusion. That is what the Second Circuit finds in regard to HathiTrust and its copies for the disabled, and it is what Judge Evans found in GSU. Both were correct decisions in keeping with the clear precedent from the Supreme Court.

Finally, there is the oddity of the Second Circuit panel’s treatment of the fourth fair use factor when it is analyzing the indexing function of HathiTrust. First, the appellate panel calls the fourth factor the most important consideration, and cites the case of Harper & Row v. The Nation for that proposition. But the Supreme Court really renounced that position 20 years ago in the “Oh Pretty Woman” case, so this is the first part of the oddity. The Second Circuit then goes on to define the idea of market harm very narrowly, saying that the only harm to a market that is recognized for the purpose of the fourth fair use factor is when “the secondary use serves as a substitute for the original work.” This seems to be how the court aligns itself with the ruling in “Pretty Woman,” but it is a strange way to get there. The effect of this proposition is to rule out consideration of almost all licensing markets when looking at the fourth factor. This is a conclusion that must be causing serious heartburn in the publishing community. While the Authors Guild continues to make fair use easier and more inclusive with their absurd litigation campaign, they cannot be winning themselves many friends amongst rights holders.

The bottom line is that this decision is very good for libraries and others who depend on fair use. It adds another precedent and some additional bits of analysis to our claims of fair use. But we should recognize that it grows out of what was a very dumb lawsuit to begin with. As is so often the case, we should be emboldened by this ruling, but not too much. The best protection the library community has against aggressive litigation is still, as it always has been, careful and responsible reflection. In that context, fair use is an increasingly safe option for us.