HathiTrust Book Scanning Ruled Fair Use

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.

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True Fair Use Is About Authorship and Nothing Else

Prominent copyright scholar Jane C. Ginsburg recently spoke at a Copyright Society of The U.S.A. event in Seattle.  The topic of her presentation was how fair use has “gone off the rails,” beginning with the Sony “Betamax” decision.  In the Sony Betamax decision, the U.S. Supreme Court decided that Sony’s sale of its video tape recorder did not violate the owners’ copyrights in programs aired on commercial television.  The court recognized “time-shifting,” recording television shows for later viewing, as a fair use.  Fair use is not an infringement of copyright, even though the work is used without the permission of, and without compensation to, the copyright owner.  Fair use is codified in 17 U.S.C. §107 and is one of the limitations on the exclusive rights of the copyright owner.

Professor Ginsburg distinguished true fair use from other uses which courts have categorized as fair use, but are in fact either social subsidies or market failures.  True fair use is about authorship, creating new expression.  Through authorship, a creative process, true fair use “transforms” a pre-existing work by bringing in new expression.  A famous example is the parody by 2 Live Crew of the Roy Orbison/William Dees song, “Oh, Pretty Woman.”  In contrast, the time shifting “fair use” in the Sony Betamax decision does not involve authorship of any kind.  The Sony Betamax case involved market failure.  With the technology that existed at the time of the Sony Betamax decision in 1984, there simply was not a way to license all of the time-shifters, i.e., potentially infringing consumers.  The consumers were the potential direct infringers, as they were the ones making the copies.  Sony was a potential contributory infringer only.  In the line of non-authorship fair use cases beginning with Sony and continuing to last week’s decision in the Google Book case, courts have adopted the theme that if it seems like a really good idea, it’s fair use.  If it benefits the public, let’s call it fair use.  Professor Ginsburg advocates re-focusing fair use on authorship, and not using copyright law, particularly fair use, to address public policy concerns it was not designed to address.