Per Second Circuit: Full Text Searchable Database Is Fair Use

by McDermott Will & Emery
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Authors Guild, Inc., et al. v. HathiTrust, et al.

The U.S. Court of Appeals for the Second Circuit, affirming a district court summary judgment ruling in favor of a consortium of authors, ruled that the unauthorized digitization of copyrighted works, for the purpose of creating a full text searchable data base for print disabled users is fair use under the § 107 of the Copyright Act.  Authors Guild, Inc., et al. v. HathiTrust, et al., Case No. 12-4547 (2d Cir., June 10, 2014) (B. D. Parker, J.).

The case, which drew a slew of interveners (representing handicapped groups) and amici, involved the creation of a full text searchable database in formats accessible to those with disabilities, such as blindness.

The defendant, HathiTrust, operates the HathiTrust Digital Library (HDL) and is the repository for digital copies of the collections from 80 member institutions, primarily universities and non-profits.  Its collection includes over 10 million works, both copyrighted and not copyrighted.  For copyrighted works, a search returns only a list of pages on which a search term is found and the frequency of its appearance on each listed page.  The HDL also permits patrons having “certified print disabilities,” such as blindness, to access the full text of a copyrighted work, using “adaptive technologies” such voice conversion or print magnification.

The Authors Guild sued the HathiTrust and several member universities for copyright infringement, seeking declaratory judgment and injunctive relief.  HathiTrust defended based on the fair use doctrine, codified at 18 U.S.C. § 107.  The district court, finding the HDL uses to be “transformative,” found for the HathiTrust, extolling its “invaluable” contribution to the advancement of knowledge.  The district court also found that making the database available to persons having “certified print disabilities” was fair use.  The plaintiffs’ representing foreign copyright holders were dismissed from the case for lack of standing.  The Authors Guild appealed.

Fair Use

The 2d Circuit, after examining cases from the Supreme Court, the 2d Circuit and its sister circuits in which fair use was found, found the doctrine was an important aspect of the constitutional underpinnings of the copyright laws, i.e., to promote the progress of science and the useful acts.  However, the 2d Circuit also recognized the four factor codification of the fair use doctrine (§ 107) is intended to balance tensions between the authors interest and the putative fair use; i.e., by avoiding excessive damage to the market for the original work.

Full Text Search Is Fair Use

As for the first § 107 factor (the nature and character of the use) the 2d Circuit characterized the creation of the HDL data base as “a quintessentially transformative use” evidencing “little or no resemblance” to the original text.  The court also noted that it is not the “purpose” of the authors to enable text searching hence the search function does not supersede the purpose of the original creation.

As for the second factor (the nature of the copyrighted work) the court conceded the works in issue “are of the type that the copyright laws value and seek to protect,” but found this factor to not be dispositive.

Turning to the third factor (whether the copying was excessive) the 2d Circuit noted there are no absolute rules as to how much of a work can be copied under the doctrine since “permissible copying varies with the purpose and character of the use.”  Rather, the court looked to whether the copying was more than was necessary.  Given the purpose of the HDL database, the court concluded that even where it is necessary to copy an entire work, this factor “does not weigh against a finding of fair use.”

Finally, turning to the fourth factor (the effect of the use on the potential market for the original work) the court concluded that the full text search data base posed “no harm” to the authors and that the authors had identified none.

Access to Print Disabled Persons Is Fair Use

Employing the same four-factor analysis, the 2d Circuit found that providing “print-disabled patrons with versions of all of the works contained in [HDL’s] digital archive in formats accessible to them” was fair use.

As for factor one (transformative use), although the 2d Circuit disagreed with the district court that print disabled copies were transformative, it nevertheless found this factor favored fair use (citing Sony Corp. of Am., Supr. Ct. 1984 and the legislative history of the Copyright Act).

As before, factor two (nature of the work) mitigated against fair use.

Again as with the full-text data base analysis, factor three (extent of copying) became a neutral factor as the adaptive technologies (digital page turning, magnification, voice or text conversion, color contrast enhancements, etc.) were found to “reasonable” accommodations “necessary [for patrons] to perceive the books fully.”

In terms of the fourth factor (commercial effect of copying) the court noted that the market for books accessible to the handicapped is miniscule compared to the 10 million titles in the HDL data base, and therefore the factor weighed in favor of fair use.  The court noted the legislative history of the Copyright Act to the effect that publishers did not usually make books available in specialized formats for the blind and noted “[t]hat observation remains true today.”

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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