HathiTrust Win “Transformative”

Virtual delight echoed in tweets, posts, and emails in my corner of the web late Wednesday, upon the release of Judge Baer’s opinion in Authors Guild, Inc. v. HathiTrust 11 CV 6351 (S.D.N.Y.). Very shortly after its release, Prof. James Grimmelmann posted the opinion on Scribd.

Briefly, for those unfamiliar, the plaintiffs and defendants had each sought summary judgment in respect of the plaintiffs’ copyright infringement claim. HathiTrust and related university defendants saw near-entire success in their summary judgment motions, failing only on a standing question not consequential to the result. The outcome: Fair use protects the defendants’ participation in the HathiTrust mass digitization project and HathiTrust Digital Library from the plaintiffs’ copyright infringement claim.

I’ll leave in-depth commentary for copyright and US law analysts. Excellent pieces from Prof. Grimmelmann and Copyright Librarian (Nancy Sims), for example, were posted in very short order. The latter piece conveniently includes a “TL;DR” version.

The opinion is not too long, though, and is an interesting read. A few elements of the opinion stood out on my reading:

The essence of Judge Baer’s fair use analysis lies in his determination that the digitization use was transformative in purpose, irrespective of whether the copy made was exact: “A transformative use may be one that actually changes the original work. However, a transformative use can also be one that serves an entirely different purpose.” He explains:

The use to which the works in the HDL are put is transformative because the copies serve an entirely different purpose than the original works: the purpose is superior search capabilities rather than actual access to copyrighted material. The search capabilities of the HDL have already given rise to new methods of academic inquiry such as textmining.

The use of digital copies to facilitate access for print-disabled persons is also transformative.

Librarians and digital humanists might be interested to read of the influence of amici briefs filed by representatives of those constituencies:

In addition to the briefs submitted by the parties, the two memoranda filed by amici further confirm that the underlying rationale of copyright law is enhanced by the [HathiTrust Digital Library]. See Library Amici Br. (“The publicderives tremendous benefit from HDL, and authors stand to gain very little if the public is deprived of this resource.”); Digital Humanities Amicus Br. (describing the use of metadata and text mining,which “could actually enhance the market for the underlying work, by causing researchers to revisit the original work and reexamine it in more detail”). Although I recognize that the facts here may on some levels be without precedent, I am convinced that they fall safely within the protection of fair use such that there is no genuine issue of material fact. I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendants’ [Mass Digitization Project] and would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts…

Interesting also are Judge Baer’s references to the purpose of US copyright law, as in the last sentence above. In his fair use analysis he quoted a precedent: “The ultimate focus is the goal of copyright itself, whether ‘promoting the Progress of Science and useful Arts would be better served by allowing the use than by preventing it.’ ” Similarly, in his standing analysis, he noted, “the basic purpose of copyright—to provide a limited monopoly for authors primarily to encourage creativity—further suggests that Congress did not intend for third-party enforcement of those rights.”

I look forward to others’ thoughts about the opinion, its implications for related litigation, and whether, as Prof Grimmelmann suggests, it’s part of a real trend, in the US, at least.

[A hat tip to Caron Rollins and to Myron Groover for the early alert to the opinion.]

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