The Second Circuit Court of Appeals upheld the district court’s decision that two of the three uses of copyrighted works by the HathiTrust Digital Library (HDL) are fair uses. The three uses are full text search, access to the print-disabled and preservation. Categorizing these uses as “fair uses” runs contrary to true fair use, according to Professor Jane C. Ginsburg. My post, True Fair Use Is About Authorship and Nothing Else, further describes Professor Ginsburg’s position. I agree with Professor Ginsburg that the uses upheld by the Second Circuit have nothing to do with authorship. However, these uses benefit society and would not be allowed to continue if they weren’t found to be fair uses. The greater question becomes how far should we extend copyright protection to benefit society when the legal analysis undertaken by the court doesn’t make sense from a legal theory point of view.
The HDL contains over ten million works contributed by colleges, universities and other nonprofit institutions. The HathiTrust began in 2008, when thirteen universities agreed to allow Google to electronically scan their book collections and create a repository for the digital copies of the scanned works. Authors and authors’ associations sued HathiTrust for copyright infringement. The Second Circuit ruled that because third parties cannot file suit on behalf of authors under the Copyright Act, author associations based in the U.S. do not have standing to bring this suit. Only the copyright owner can enforce the copyright. Foreign author associations do have standing, though, and the Second Circuit proceeded with its analysis on that basis. The Second Circuit did not discuss the standing of the individual author plaintiffs.