Recent Fair Use Decisions In Favor of Libraries and Higher Ed.

The Google Books scanning project continues in litigation after the Second Circuit ruled "that the class certification of authors in the Google Book scanning case was improper." It appears that the Second Circuit believes that the Google Books project should be decided on fair use grounds. "[W]e believe that the resolution of Google’s fair use defense in the first instance will necessarily inform and perhaps moot our analysis of many class certification issues, including those regarding the commonality of plaintiffs’ injuries, the typicality of their claims, and the predominance of common questions of law or fact."

The Second Circuit was likely swayed by the recent decisions in the HathiTrust, Georgia State, and UCLA cases. Each of these cases found for fair use in the library and higher education settings. The HathiTrust opinion "along with the Georgia State electronic reserves opinion and the UCLA streaming video opinion seem to show a favorable legal pattern that colleges and universities making technological uses of copyrighted works for educational purposes are not violating the law."

To understand the transformative/fair use issue, it is important to understand what HathiTrust does. HathiTrust is "[a] consortium of universities [that] operate the HathiTrust Digital Library (HDL), including the University of Michigan, the University of California, the University of Wisconsin, Indiana University, and Cornell University. Google partnered with these universities in 2005 to scan millions of books in these universities’ libraries and to make “snippets” of those books available online via Google’s search engine.  After Google scanned each book, it provided a digital image and a text version of the book to the library that owned the original.  In turn, the libraries contributed the files to the HDL, which uses them for three purposes:
  • full-text searches
  • preservation
  • access for people with certified print disabilities
According to the Authors Guild, this process created two unlawful copies of the original and, therefore, violated copyright.  The Authors Guild sued the HathiTrust in 2011.

While the judge did not rule that all scanning for every purpose by universities should be considered fair use, he instead focused on the transformative nature of the libraries' use [-- basically that the electronic search capability was transformative enough (especially for those with disabilities) to be considered fair use]. Overall the opinion offers an analysis of and an insight into fair use that should be helpful to higher education when evaluating potential digitization projects in fulfillment of its teaching and research mission."

These three cases, collectively, serve to ease the minds of educators that the information that we provide to our students will likely be considered fair use under United States Copyright Law.

However, even though Google Books significantly transforms written works to be fully searchable (and arguably more useful) in a database, Google Books differs from the three cases above because Google Books is a commercial database and is not used exclusively for education. When the lower court reconsiders Google Books, this will likely be a heavy factor in the fair use defense claimed by Google.

Educause -- The HathiTrust Case and Appeal: Fair Use and Technology


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