Court Hands Huge Victory to Universities' Digitization Efforts

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Universities can proceed with their efforts to scan books, not just because of the ability to search, but because of the huge benefits to blind students.

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One of the biggest questions in copyright law today is what kinds of repurposing fall under the "fair use" exception. If a university scans a book and allows students to download it, is that a violation of copyright law? What if students can't download it, but can search through it? What if only certain students can download it?

These questions are at the center of a lawsuit brought by a group of authors, The Authors Guild, and several other associations against HathiTrust, a massive repository of digital books, founded and supported by many of the country's leading universities. For a few years, Google has been scanning the books held in these universities' libraries, retaining a digital copy for itself (the contents of which fuel Google Books' "snippet view" we all know and love/hate), and providing another for the universities, which all students can search but whose entire texts are only available to students with visual disabilities who do not have access to printed works. If you're a student who can see just fine, a search of copyrighted works (which make up about three-quarters of the 10 million scanned books) will only provide you with a page number, and from there it's off to the hard copy for you. The universities, Google, and HathiTrust all keep full, digitized copies.

Is this fair use? Yesterday, in a decisive, make-no-bones-about-it opinion, a federal court in New York said yes, this was quite fair indeed. Two lines of argument run through the court's reasoning: 1.) remaking a text for search constitutes a "transformative use" and therefore falls under fair use, and 2.) the Americans With Disabilities Act does not merely make this activity legal, it may even require it. (The full text of the opinion is available here.)

That first victory -- that search capability is "transformative" -- is what has scholars in the burgeoning field of digital humanities cheering today. Judge Harold Baer Jr. argued that "transformative use" does not only mean something that changes the work; it can also cover projects that serve "an entirely different purpose," he wrote. "The use to which works in the HDL [HathiTrust Digital Library] 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 text mining." Just because the digitization process does not add anything "new" does not mean the work has not been transformed. Purchasing more copies of the books -- even infinity copies -- would not make search possible.

As strong as that was, Judge Baer reserved his most forceful arguments for his defense of the HDL's benefits for blind students. This too is transformative, he argued, and therefore protected under the fair-use doctrine. But that's not all. "Absent a program like the MDP [Mass Digitization Project], print-disabled students accessed course materials through a university's disability student services office, but most unidersities are able to provide only reading that was actually required. ... Since the digital texts in the HDL became available, print-disabled students have had full access to the materials through a secure system intended solely for students with certified disabilities. ... In other words, academic participation has been revolutionized by the HDL."

Judge Baer noted that the plaintiff (The Authors Guild) repeatedly pointed out that "only 32" blind or otherwise "print-disabled" students had signed up for the program. That's exactly the point, Judge Baer argued. This isn't about stealing away your book sales, this is about protecting "minorities such as this that Congress sought to protect through enactments like the ADA [Americans With Disabilities Act]." Moreover, when Congress was deliberating the ADA in 1990, the House Committee recognized that "technological advances ... may require public accommodations to provide auxiliary aids and services in the future which today they would not be required because they would be held to impose undue burdens on such entities." Seems that access to full texts would fall pretty squarely under that concern.

Animating Judge Baer's opinion throughout is a question that, somehow, tends to get a bit overlooked in the constant legal back and forth about copyright, and that is: What is the point of all this copyright anyway? He quotes another legal decision from earlier this year, which itself quotes a 1998 circuit-court decision: "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.' "

Does the huge digitization project promote that progress? "I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendants' MDP and would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts that at the same time effectuates the ideals espoused by the ADA," Baer writes.

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Rebecca J. Rosen is a senior editor at The Atlantic, where she oversees the Business Channel. She was previously an associate editor at The Wilson Quarterly.

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