The Hathi Trust has won another important victory in its court battles against the Authors Guild over the right of academic libraries to scan books under the banner of fair use. Hathi creates full-text indexes of books from academic institutional libraries that were scanned by Google, so that academic libraries can access full-text indexes of the books, as well as offering the books in assistive formats used by people with visual disabilities, and providing long-term archives of rare texts that are still under copyright.
The Authors Guild members are overwhelming trade-book authors; the books scanned by the Hathi Trust are overwhelmingly scholarly books written as part of an academic tradition that takes free access and sharing as its foundation. The court remanded a question of standing in the case, asking the Guild to demonstrate that it represented authors of the affected works.
With respect to the full-text database, the court found that although a copy of the entire work is made, the purpose of a full-text searchable database is so different from that of the underlying works that the use must be considered transformative. In fact, the court wrote, "the creation of a full‐text searchable database is a quintessentially transformative use".
The Authors Guild also argued that HathiTrust's use of an identical server and two tape back-ups constituted "excessive" copying. Thankfully, the court rejected that premise, acknowledging that when it comes to digital technology, an approach that focuses only on individual copies made is insufficient.
The court then looked at the Authors Guild's "lost sale" argument—that its authors could have instead licensed their texts for paid inclusion in the database—and found it unconvincing. Fair use analysis requires a look at the harm in the marketplace that a use might create, but the court clarified that it only addresses economic harm that comes from a use serving as a substitute. After all, even if a scathing book review causes economic harm to a new book, the quotes it incorporates are no less fair use.
That means that the market harm argument can't be used against a highly transformative use like a searchable database. As the court put it, "any economic 'harm' caused by transformative uses does not count because such uses, by definition, do not serve as substitutes for the original work."
Turning to the accessibility features that HathiTrust offers, the court adopted a slightly different analysis, but continued to find for fair use. The use is not as fundamentally transformative, because the purpose of making a text available for reading or listening is unchanged.
Another Fair Use Victory for Book Scanning in HathiTrust [Parker Higgins/EFF]
(Image: File:Book scanner.svg, Oona Räisänen/Wikimedia Commons, GNU FDL)