October 22, 2012
Judge Harold Baer’s recent decision in the Authors Guild v. HathiTrust Digital Library case has an important impact on copyright in the digital environment. By applying the fair use doctrine to a potentially wide range of electronic applications for copyright protected material, this case paves the way for Google’s ambitious Digital Library plans, and for other future open access initiatives.
The HathiTrust Digital Library is a collaboration involving Google and several major university libraries. In this project, Google creates digital versions of all of the holdings of the participating libraries. Google provides those libraries with a digital copy of all of their materials, at no charge to the libraries. In return, Google receives the right to include those collections in its searchable database.
The Authors Guild went to court alleging that the HathiTrust program violated copyright law. The Guild claimed that the process of creating and accessing Google’s Digital Library involved unauthorized creation of multiple copies of the books in the library collections.
HathiTrust argued that the copying was permissible under the fair use doctrine. Judge Baer accepted the fair use defense in this case, and he dismissed the claims filed by the Authors Guild.
One of the key aspects of the fair use argument, for Judge Baer, was the HathiTrust contention that its use of the material was “transformative.” Under copyright law, transformative use of protected material involves either the addition of new material sufficient to change the nature of the work in question or modification of the purpose for which the work is intended.
Transformative use of protected material is permissible under copyright law. In this case, Judge Baer concluded that the HathiTrust was using the material for notably different purposes.
More specifically, Judge Baer accepted the HathiTrust claim that it was necessary to copy the material in order to make the content of the libraries searchable through the Google electronic system. The purpose of the copying, according to HathiTrust, was to enable readers to search content, and that purpose was significantly different than the original intent behind the work.
Judge Baer’s interpretation of fair use based on transformation of purpose is significant. It seems to open the door to successful fair use defense in other circumstances in which protected materials are copied as part of the technical process necessary in order to enable collecting, cataloging, searching, or distributing.
This analysis does not permit parties to copy works without permission for the sake of distributing the works. It does, however, seem to provide the means through which the fair use doctrine can be applied more effectively to protect unauthorized copying necessary to create, manage, and maintain the digital content collections and the technical infrastructures and systems required to sustain them.
The decision in this case reflects a willingness to recognize differences between copying of content for the purpose of distributing that content, and copying required to facilitate organization and management of that content. Recognition of that distinction is vital to effective development and implementation of efficient digital content systems and applications.