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.